Tag Archives: culture wars

The Republic of Babel

March 5, 2012 – 1:36 pm

I owe a debt to this year’s crop of presidential candidates. Time and again, one of them says something so outrageous that it brings my thoughts into focus.

First it was Herman Cain saying, “If you’re not rich, blame yourself!” Until that moment, I had vaguely wondered about the role of shame in keeping the 99% down, but it took Herman to crystalize it for me.

More recently, Rick Santorum has been my teacher:

When you marginalize faith in America, when you remove the pillar of God-given rights, then what’s left? The French Revolution. What’s left is a government that gives you rights. What’s left are no unalienable rights. What’s left is a government that will tell you who you are, what you’ll do and when you’ll do it. What’s left in France became the guillotine.

Yep. Secular government inevitably leads to the Reign of Terror. (If you don’t believe it, go visit some secular hellhole like … just about anyplace in Europe, where mobs roam the streets beheading people at will.) Blue Texan has already exposed Santorum’s ignorance of the actual French Revolution, but I want to go somewhere else with the quote: What the heck is Santorum talking about? What could be burning so brightly in his mind that he needs this mangled French Revolution analogy to express it?

I think Santorum has mushed two ideas together: One is an important insight that I wish everyone would think about, and the other is totally wrong. Here’s how I pull it apart:

  • Important insight: American democracy is losing its language of discourse.
  • Wrong: Until recently, conservative Christianity provided that language.

Put them together and you get Santorum’s point: Unless we get back to God, our democracy is going to fall apart.

But let’s not put them together. Let’s discuss the insightful part first, and then step around the Evangelical rabbit hole Santorum has fallen down.

Language in the broad sense. By “losing our language” I don’t mean English. I’m thinking about all the social and intellectual infrastructure that allows us to talk through our differences: taken-for-granted assumptions, shared frames, common concepts, a portfolio of shared heroes to emulate, and so on.

Sharing a language of discourse with somebody doesn’t mean that you necessarily agree. But it does mean that you can explain your problems to each other and empathize with each other’s difficulties. It means that you have some basis on which you can construct a compromise.

Dictatorships can get along without that kind of language. A master-slave relationship functions just fine with grunts and gestures and maybe a few words of pidgin-speak. Common understanding? Just show the slave what to do and beat him until he does it.

But democracies need to be able to talk. I have to know more than just what you want to do or want me to do. I need to understand why you want what you want, and I need to be able to explain why I want something different. We have to be able to discuss the nuances of our hopes and fears and plans — what’s absolutely essential and what isn’t — so that we can cobble together a solution that we can all live with.

A democracy that can’t do that devolves into mob rule or military coup or Potemkin elections that rubber-stamp decisions already made by a governing elite. That’s when the French Revolution analogy starts to make sense: Without a language of discourse, you can have Robespierre or you can have Napoleon, but you can’t really achieve Liberty, Equality, and Fraternity.

Consensus and compromise. The Bible doesn’t tell us what kind of government developed in post-Tower Babel. But we can be pretty sure it wasn’t a democracy.

As I’ve described in more detail elsewhere, democracy only works when the issues worth killing and dying for — genocide, slavery, the legitimacy of the property system, and a few others — have already been decided by consensus. Otherwise you’ll have civil war, because the 49% will not march meekly to their fate.

In that essay, though, I treated consensus as a static thing — as it is in the short term. But any lasting democracy has to be able to evolve consensus on new issues as they come up. That can happen if you have a language of discourse. You can make temporary compromises and tinker with them over time until they acquire the prestige of tradition.

Think about pacifism, which is as stark a moral issue as any: To one side, war is humankind’s greatest evil. To the other, it’s essential to defending our way of life. What room is there for compromise?

And yet, we have compromised: The nation continues to defend itself, but pacifists who don’t interfere with the military aren’t jailed or considered traitors. They’re allowed to claim conscientious objector status in a draft, but their taxes support the military just like everyone else’s.

No simple principle would lay down that boundary, but each part of it has become time-honored.

Now think about abortion, where the argument has not really changed since Roe vs. Wade. Either you want to kill babies or you want to subjugate women. It’s been that way for 40 years.

What the Culture War is about. When you grasp the Babel problem, you see the Culture War in a whole new light. What we’re fighting about isn’t abortion or homosexuality or traditional values or even religion. We’re fighting about what the language of American democracy is going to be. What worldview is going to frame the issues that we will then debate and vote on?

One candidate is a secular worldview of reason and science. Another is the worldview of conservative Christianity.

Either one could work, up to a point, if we could reach consensus on it. And neither would require that everyone convert to that worldview completely, only that everyone learn to speak that language in the public square.

Other religious worldviews could work as well as Christianity. There’s no inherent reason we couldn’t have an Islamic Republic or a Jewish Republic or a Hindu Republic, if that’s what we decided we wanted.

But what we can’t have is a Republic of Babel. Not for long.

The Language of the Founders. You know whose language of discourse really worked? The Founders.

The Constitution is a masterwork of compromise. Effective government vs. individual rights; state power vs. federal power; the mob vs. the propertied elite — they worked out a series of good-enough solutions that let the country move forward. Only slavery was too much for them, and even then their band-aids held things together for most of a century, giving their children and grandchildren a chance to avert disaster.

You think abortion or same-sex marriage would have stumped the Founders? No way.

That’s why there’s so much Founder-nostalgia today. At the Constitutional Convention, problems didn’t just sit there, and factions didn’t move further and further apart forever. Whatever came up, they figured out how to keep the process moving.

One frustrating part of Founder-nostalgia is the unending clash of examples “proving” that they were either for or against religion: Franklin calling for prayer at the Constitutional Convention (and invoking the threat of Babel), or Adams signing the Treaty of Tripoli declaring that “the Government of the United States of America is not, in any sense, founded on the Christian religion”.

It goes round and round. If you’re selective, you can quote Jefferson, Madison, and Franklin on either side. Washington was a lifelong Anglican, but he didn’t take communion. No one knows why.

The reason we keep arguing about this is that we’re asking the wrong question. It doesn’t really matter what theology the Founders believed in their private hearts. What matters is how religion influenced their public language of discourse.

God in the Declaration. The most quoted phrase of the Declaration of Independence is

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights

This mention of “the Creator” is supposed to back up the claim that the Founders’ worldview was fundamentally religious, and to counter the observation that God was completely left out of the Constitution.

God is mentioned exactly two other times in the Declaration: “Laws of Nature and Nature’s God” in the first paragraph and “a firm reliance on the protection of Divine Providence” in the last.

Interestingly, these phrases were altered from Jefferson’s original draft. The edits cut both ways. “Self-evident” (an Enlightenment philosophical term) was originally “sacred and undeniable” (a religious term). Rights originally came “from that equal creation” with no personification of the Creator. And “Divine Providence” did not appear at all.

Notice what you don’t find in any version of the Declaration: Jesus Christ, the God of Abraham, or any other sectarian name of God. God is given purely functional names that any monotheistic religion would recognize. (Even a polytheistic Hindu would understand: “Creator” means Brahma, and “Divine Providence” refers to Vishnu the Preserver.) The Declaration finds God in the Laws of Nature, but it makes no no reference to any sect’s scripture.

Now think about the era: 18th-century science provided no well-founded theories of origin — no big bang, no primordial soup in which proteins could randomly develop, no evolution by natural selection. If you talked about origins and foundations at all, you ended up talking in religious terms, because there was nothing else. (David Hume was as close to an atheist as the 18th century allowed. The participants in his “Dialogues Concerning Natural Religion” eventually converge on a theory of intelligent design.)

So here’s what you (and Rick Santorum) should notice about the Founders’ most important products: The Declaration and the Constitution were written in the most secular language that existed in that era.

But weren’t the Founders religious? Individually, yes. But they didn’t all have the same religion, and they knew it. Patrick Henry would fit right in at a fundamentalist megachurch in Virginia today. If he brought Franklin along, old Ben would probably keep his objections to himself and leave everyone charmed. But Jefferson and Madison would get themselves ejected in short order, and an outspoken New England Universalist like Ethan Allen would be completely beyond the pale.

What’s more, the Founders could see the bad example of England, where Anglicans, Catholics, and Puritans had been hanging each other since Henry VIII. That, they knew, is where sectarian government leads.

But unlike the worst excesses of the later French Revolution, the Founders didn’t attempt to eliminate religion or create a new one. Instead, their public gatherings worked in secular language, because that was a language that everyone could understand. If you needed sectarian language to justify what you wanted to do, they figured, the government probably shouldn’t be doing it.

The Secular Tribe. Something important has changed between the 18th century and today: Secularism has developed into a more complete worldview. It has a theory of origins, a psychology, and humanistic ethics. 18th-century secularism did not threaten sectarian worldviews any more than medieval Latin threatened vernacular French or Spanish. One was a rich, earthly language of everyday life and the other a more philosophically subtle language for widespread professional communities.

In the 18th century, essentially no one spoke Secular at home, so it was not involved in the tribal rivalries of the individual sects. But today, many people do speak Secular at home. And so, while I think it’s a mistake to talk about Secularism as if it were a rival religion, it is a rival tribe. Today, secularism is part of many people’s individual identity. And so, demanding that other people express themselves in secular terms in public can mean that I want them to adopt my tribal identity and abandon their own.

More and more, then, the sects are digging in their heels against this threat to their identity. They are building their own parallel institutions and becoming separatist. As they do this, they are developing their own set of acceptable “facts” and establishing defenses against any non-sectarian evidence or logic. (The idea that the Founders established a Christian Republic is one those false “facts” they are rallying around.)

If that trend continues, it will kill democracy. Elections will give one side or the other a temporary advantage, but will solve nothing for the long term. When the options on the ballot are Kill Babies and Subjugate Women, the losing side just reloads and tries again.

How do we save democracy? First, we have to realize what we’re doing. Whether you speak Secular or Evangelical or something else entirely at home, you need to stop trying to use the public square to validate your identity. That’s not what the public square is for.

Second, all sides need to examine themselves for tribalism — secularists most of all, perhaps, because many of us are unaware of the possibility of secular tribalism. We may need to construct a meta-secular language that purges the tribalism out of secularism. Religious people need to keep asking what is really essential to their religion and what is simply a tradition that has become a comfortable habit and a source of tribal identity.

Third, we all need to understand that a compromise that allows us to live together is an achievement and not a corruption.

Finally, we all need to stretch our understanding and strain to hear each other’s deepest meanings rather than react reflexively against whatever we can perceive as an insult. The Republic of Babel cannot last, but it can move in either direction: towards the war of all against all, or towards the struggle of all to understand all.

By weeklysift | Posted in Articles | Also tagged , , | Comments (5)

Rush’s Apology and other short notes

March 5, 2012 – 1:03 pm

You already know the basic story: Republicans didn’t let Georgetown student Sandra Fluke testify at their committee hearing on religious liberty vs. reproductive rights, resulting in that famous all-men-at-the-table photo.

So Democrats held their own hearing where Fluke did testify. Rush Limbaugh responded by attacking her for several days as a “slut” and a “prostitute” and suggesting that she post sex videos on the Internet.

She’s having sex so frequently that she can’t afford all the birth-control pills that she needs. That’s what she’s saying.

Other members of the conservative media defended Rush against the backlash. Mona Charen, for example wrote:

When the producer asked: “What do you make of Rush Limbaugh’s comments?” I said that his choice of words was crude but that I certainly understood and sympathized with the point he was making.

Mitt Romney missed his chance to have a Sister Souljah moment. “It’s not the language I would have used,” he said. To which Maureen Dowd replied: “Is there a right way to call a woman a slut?”

Eventually, Rush started losing advertisers. Money talks, so Rush issued an apology of sorts:

I chose the wrong words in my analogy of the situation. I did not mean a personal attack on Ms. Fluke.

So Rush and everybody else on the Right agrees that “slut” is an over-reaction to Fluke’s testimony, but they stand by “the point he was making”.

You’ve probably heard all that. But this point isn’t getting nearly enough attention: Rush’s attack on Fluke was fundamentally false from end to end. She was not talking about her sex life. She was not asking for a government subsidy. (Georgetown’s health plan is paid for by the students.) She was exposing the negative impact of Georgetown’s policy on the health of its female students.

This controversy isn’t about using bad words, it’s about telling vicious lies to silence an opponent’s legitimate point. Rush has not apologized for that or even admitted doing it. That’s what the conservative media is defending and Republican politicians won’t denounce.

Watch Fluke’s opening statement and see if you can find any connection between what she said and what Limbaugh said about her.

Rick Santorum’s recent attack on JFK was not only inaccurate and politically odd (how does dissing the first Catholic president rally the Catholic votes Santorum needs?), it was yet another example of the fuzzy thinking that surrounds the corporate personhood issue. Santorum seems unable to distinguish religious institutions from religious people.

Here’s what Kennedy said in his famous 1960 campaign speech to a conference of Baptist ministers:

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote

In other words, the Church and the State are separate institutions. Having authority in one does not give you authority in the other.

But this is how Santorum explained why reading Kennedy’s speech makes him “want to throw up”:

To say that people of faith have no role in the public square?  You bet that makes you throw up.  What kind of country do we live in that says only people of non-faith can come into the public square and make their case?

In other words, he interprets Kennedy’s words to mean that the Church and the State must consist of different people; if you’re active in the Church you must be passive in the State, and vice versa.

But the conflict that nauseates Santorum goes away once you understand that institutions are not people. Individuals can be active in both religion and in politics, and we can still maintain Jefferson’s “wall of separation” between the institution of the Church and the institution of the State.

The Santorums reinforce all the worst stereotypes about homeschooling parents. But they aren’t all like that, as this first-person account by Stumblegoat makes clear.

Things everybody should understand about the price of gas:

  • America may have plenty of untapped natural gas and coal, but that’s not going to do you any good if your car runs on gasoline.
  • The price of gasoline depends on the price of oil.
  • Oil is a world market.
  • Gas prices were low when Obama became president because a worldwide recession had depressed demand.
  • New oil production in America will change the world price of oil exactly as much (or as little) as new production in Nigeria or Kuwait or anyplace else.
  • American oil production has gone up since Obama took office, reversing a long-term downward trend.
  • No conceivable increase in American oil production will make a sizable dent in the world market.
  • Anything that took Iran’s oil off the market (like a war) would make oil prices skyrocket.

Therefore: “Drill, baby, drill” is not an answer to the high price of gas, but reaching some kind of peaceful settlement with Iran would help.

The global-warming deniers who published a letter in the WSJ made their argument look serious by quoting the research of Yale economist William Nordhaus. Now Nordhaus explains why they’re wrong.

Last week the NYT talked about why young mothers aren’t married. This week the Atlantic examines why young adults aren’t buying houses.

Derek Thompson reviews a lot of reasons, but finally comes around to the one that makes sense to me: We don’t live in a long-term-planning world any more. The whole idea of a 30-year mortgage sounds absurd in an era where nobody has the faintest idea what their life will be like in ten years.

Kevin Drum has an interesting graph. If you break the federal budget up into Medicare, Social Security, and Everything Else, then graph it as a percentage of GDP, Everything Else is lower than it was 50 years ago and is still decreasing. Remember that the next time somebody starts talking about “out-of-control government spending”.

We don’t have a generalized spending problem. We’ve got an aging population and healthcare costs that are increasing too fast. Solve that and everything else falls into place.

The traditional theory said that the poor were less ethical than the rich. In “My Fair Lady“, Pickering asks Eliza’s father “Have you no morals, man?” and Mr. Doolittle replies: “No, no, I can’t afford ’em, gov’ner. Neither could you if you was as poor as me.”

But a new study indicates the exact opposite:

“Occupying privileged positions in society has this natural psychological effect of insulating you from others,” said psychologist Paul Piff of the University of California, Berkeley. “You’re less likely to perceive the impact your behavior has on others. As a result, at least in this paper, you’re more likely to break the rules.”

By weeklysift | Posted in Short Notes | Also tagged | Comments (10)

When the Priests’ Scandal Becomes Relevant

February 20, 2012 – 10:06 am

In previous posts about the Catholic hierarchy’s War on Obama, I have restrained myself from bringing up the Church’s sexual-abuse scandal. A lot of people do, and most of the time I wince, because it’s a cheap shot.

But there is one situation in which it’s not a cheap shot, and that’s when the clergy is striking poses of great moral courage in face of this “War on Religion” that they’ve made up. (Is the War on Christmas over yet? Who won?) As a Catholic priest said during Sean Hannity’s “Faith in America” segment:

If I’m asked to do something that goes against my conscience, I’d better be willing to die for that.

Brave words. I’m hearing a lot of brave words from priests these days. But it’s easy to be brave during a completely fabricated metaphorical “war”.

Think it through: When in course of the current healthcare proposals will a Catholic priest have to take some specific action that will go against his conscience? Or look at it from the other side: What can he refuse to do that will get him arrested — or punished in any way — for his a Gandhi-style resistance?

Nothing.

Churches were always exempt from the rule that they must provide contraception in their healthcare plans. And under the administration’s new compromise proposal, Catholic institutions like hospitals and universities don’t have to cover contraception either; their insurance carriers have to provide a separate policy for free — which they can do without any subsidy from the premiums paid by the institutions, because contraception saves them money. Matt Yglesias explains:

The point here is simple. While birth control costs more than nothing, it costs less than an abortion and much less than having a baby. From a social point of view, unless we’re not going to subsidize consumption of health care services at all (which would be a really drastic change from the status quo) then it makes a ton of sense to heavily subsidize contraceptives.

The absence of any place to take a stand becomes obvious if you read the lawsuit Belmont Abbey College has filed against the contraception mandate. It is full of vague assertions that the College is being coerced to “violate its deeply-held religious beliefs”, but does not specify any particular belief-violating act that it or its employees will be forced to perform. As the suit progresses towards trial, the College will have a hard time proving that it has standing to sue.

In short, unlike Gandhi or Martin Luther King, priests and bishops can strike heroic poses anywhere they want, and police will never feel obligated to haul them away. The system is already set up to walk around them.

That raises this question: How believable are those poses of great moral courage? And then this one: Didn’t the Catholic clergy just face a moral crisis? How much courage did they display then?

OK, most priests didn’t sexually abuse children or anybody else. But how many knew about some particular sexual abuse and did nothing? How many knew their diocese was just shuffling abusive priests around and letting them rape children somewhere else — and did nothing? How many suspected something and decided they didn’t want to know?

A priest with moral courage would have investigated his suspicions, then gone to his superiors and said, “I’m not going to let you do this. Do the right thing or I’m blowing the whistle.”

That would have been courageous.

How many priests did anything remotely similar? Anybody? That situation wasn’t metaphoric. It was a real moral crisis that required real moral courage.

If you didn’t have it then, don’t posture to me now about how brave you are.

Like the congressional hearing on this issue, Sean Hannity’s panel was all men. Jon Stewart had something to say about about “the world’s holiest sausage-fest”.

Vodpod videos no longer available.

(If you’re not hearing any sound, click on the video box and check that it’s not muted.)

By weeklysift | Posted in Articles | Comments (2)

What Abortion Means to Me

February 13, 2012 – 12:52 pm

I’m a guy. So I’ve never been pregnant, never worried about being pregnant, and never had to decide whether I should have an abortion.

But I’ve also been married for … it’ll be 28 years next month. So it annoys me when reproductive rights gets consigned (along with breast cancer, day care, and equal pay) to the special ghetto of “women’s issues”. If you take marriage seriously, you live in the same ghetto your wife does — especially when it comes to reproduction. Because if your wife has a child, you have a child. That’s how it works.

Here’s how it worked for us: In the early years of our marriage, we figured we would become parents eventually, but not yet. In the short run, we wanted to focus on establishing ourselves in the world, so that later, as more mature parents, we could give our children a better life.

Later, as we began to wonder whether eventually would ever be now, we went through a more focused decision process: Were we going to have children or not?

We decided not. (Being a writer, I described that process here and revisited it here when our friends’ kids started graduating from high school.) Children are wonderful and we were glad that so many of our friends were having them, but we liked the lives we were living. We still do.

Even if we had chosen to have a child, we’d have faced another decision about having a second one, or a third, because each child is a new roll of the dice. You can’t predict who this little person is going to turn out to be or how s/he will change your household. (If you think your brilliant parenting will determine the matter, you’re kidding yourself.)

Children arrive with no warranty and no return policy. Downs syndrome is on my wife’s family tree, and autism is something you always have to think about. One of the bridesmaids at our wedding had a perfectly healthy child, who was then killed by a drunk driver. My parents lived next to a family whose teen-age son suffered a brain-damaging accident. They will have to care for him for the rest of their lives, and what happens if he outlives them is unclear.

In short, having a child means risking whatever you thought you were going to do with your life. And each additional child risks not just your own life, but the life you can provide for your other children. That’s why any responsible couple — no matter how satisfying they find parenthood to be — is eventually going to say, “No. It’s time to quit while we’re ahead.”

[I suppose I need to address the people who “trust in the Lord” to decide how many children they will raise. To me, that makes as much sense as snake-handling or strolling through a lion’s den because Daniel got away with it. Look around: People who trust in the Lord get slammed by disaster at the same rate as anybody else who takes similar risks. So I’ll repeat: Any responsible couple …]

Those two reasons — wanting to delay having children until you can provide a better life for them, and wanting to protect the life you have already made — are why almost every couple practices birth control at some point in their marriage. (The only people who can’t see the logic here are priests who can’t get married. I don’t think that’s a coincidence.)

Once you’ve made that decision, you quickly realize that no form of birth control is foolproof. Surgery isn’t an option if you just want to delay parenthood, and is a gamble in general, because your circumstances may change. Even celibacy fails, because you can’t rule out rape.

So we came to this strategy: We practiced birth control faithfully, and planned to get an abortion if it failed. As it happened, we lucked out and never had to get that abortion.

Would we have followed through? I don’t know. I think that’s a situation you can’t fully imagine until you get there. But in any case, the decision would have been ours to make, and not the government’s to make for us. If we had changed our minds and decided to have the baby, our decision would have transformed an “accident” into a wanted child. Having chosen to raise him or her, I believe we would have been better, more loving parents than if we had felt trapped.

Are there moral consequences to choosing abortion? Yes, I believe there are. But I imagine them differently than anti-abortion extremists do. I hold a newly fertilized ovum in very light regard (as Nature — which spontaneously aborts so many of them — seems to). I believe that a fetus’ moral value grows with time, which gives a couple a responsibility to decide about abortion promptly, and steadily raises the decision bar as the pregnancy continues. Eventually, as birth approaches, only the life of the mother is a good enough reason to abort.

These are my own moral intuitions (which my wife largely shares) and yours may be different. But if we had taken action based on them, I would have expected everyone else to mind their own business. I see no justification for any outsider’s morality to have trumped ours.

So that’s what abortion has meant to me as a married man. My wife and I took responsibility for our childbearing. Without the possibility of abortion, we could not have done so.

We are now past the childbearing age. But I hope that those couples who are fertile today will also take responsibility for their childbearing. I believe that collectively they will raise saner, healthier children if they do, and that our society will be better for it. I also want today’s couples to have at least as much control over their lives as we had. And so, for both social and personal reasons, I want abortion to remain legal.

By weeklysift | Posted in Articles | Also tagged | Comments (14)

Religious Corporate Personhood

February 13, 2012 – 12:44 pm

Cable-news shows the last two weeks (especially on Fox) have been dominated by the Catholic bishops’ objection to including contraception in the minimum healthcare plan employers must provide under the Affordable Care Act, and the compromise the Obama administration offered.

In brief: Churches could already claim an exemption to the rule, so the issue centered on other church-run institutions like hospitals or universities. By making a Catholic institution provide contraception to its employees, despite the fact that Catholic doctrine objects to contraception, “the Obama administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty” — according to one version of the letter which the bishops had read in every Catholic church.

The administration compromised: Church-run institutions also would not have to offer contraception in their healthcare plans, but if they didn’t, the insurance companies providing the plans must offer individual employees a separate, no-fee, no-co-payment contraception policy. (This works financially, because contraception doesn’t cost the insurance company money, it saves money by preventing pregnancies. So the employer is not subsidizing contraception, even indirectly.) But the bishops announced that they would not be satisfied until contraception was withdrawn from the minimum healthcare plan for everyone.

Most of the problems with the bishops’ claims have been dealt with in detail elsewhere:

But one point is not getting nearly the attention it deserves: The bishops are not defending the religious liberty of individual Catholics (who remain free not to use contraceptives). They are claiming “religious liberty” as an institutional right of the Catholic Church.

It’s corporate personhood all over again.

The Founders must be spinning in their graves. The whole point of separating church from state is that we should not have to run our laws past a council of unelected bishops.

The United States has a long history of making room for individual conscience, most notably in allowing conscientious exemption to a military draft. But recognizing the institutional conscience of a church would be something new and strange.

In the American legal tradition, a church’s rights are derived from the right of its members to believe as they will, to worship as they will, and to freely assemble. Any “institutional right” that can’t be so derived is alien to us.

I found this spelled out quite clearly in the 1949 book Cornerstones of Religious Freedom in America by Joseph Blau (which also provided this week’s Sift quote):

Much as business corporations in the United States have battened on their fictitious legal status as corporate persons entitled to individual rights under the “due process” clause, churches — religious corporations — are able to grow overweening and oppressive if their claim to legal status as corporate persons under the First Amendment is granted. “Due process” for corporate persons has produced the legal anomaly of violation of the rights of the very individuals whom the due process clause was intended to protect. Religious freedom for religious corporations, if it is allowed, will end in the trampling of the religious freedom of the individual under the marching feet of a remorseless and self-aggrandizing hierarchy.

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Appeals Court: Prop 8 is Still Irrational

February 13, 2012 – 12:36 pm

If you’ve read any of my posts on previous same-sex marriage decisions — going all the way back to the 2003 ruling of the Massachusetts Supreme Court — you know the basic legal landscape. All same-sex marriage decisions revolve around two questions: How fundamental a right is a same-sex couple’s right to marry? And how much reason does the state have to deny that right?

Most pro-SSM decisions emphasize the second question, claiming that bans on SSM are not rationally related to any legitimate government purpose. And so, implicitly, the court is saying that SSM bans come from the majority acting out its spite against an unpopular minority.

A federal appeals court took that course Tuesday in upholding a lower court’s decision to strike down California’s Proposition 8. By 2-1, the judges said that Prop 8 fails the rational-basis test, the lowest legal standard.

The ruling rips one-by-one through the rationales given for taking away same-sex couples’ right to marry and finds them without any support in fact or logic: Prop 8 can’t be about the state’s interest in providing the best setting for child-raising, because it doesn’t change any of California’s rules about child-raising. Plus

It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.

It can’t arise out of a general prudence in deciding the definition of marriage, because it locks in a definition without further study.

Such a permanent ban cannot be rationally related to an interest in proceeding with caution.

It can’t be about protecting religious institutions from anti-discrimination laws, because Prop 8 doesn’t change those laws.

To the extent that California’s anti-discrimination laws apply to various activities of religious organizations, their protections apply in the same way as before.

It can’t be justified by what children will be taught about homosexuality in public schools, because that also didn’t change, other than the usual way that instruction changes as the world changes.

To protest the teaching of these facts is little different from protesting their very existence. … The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of rights they presently enjoy.

With all proposed rationales dismissed, the remaining conclusion is:

Proposition 8 is a classification of gays and lesbians undertaken for its own sake. … Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships by taking away from them the official designation of “marriage” with its societally recognized status.

The opinion of the dissenting judge, N. R. Smith, is in some ways more damaging to Prop 8 than the court’s majority opinion, because it shows just how far you have to go to find some rational basis for the law. Atlantic’s Andrew Cohen summarizes:

Thus, as his language grew more specious and abstract, the “rational basis” test became the “rational relation to some legitimate end” test, which became the “reasonably conceivable state of facts that could provide a rational basis” test, which became the “have arguable assumptions underlying its plausible rationales” test.

This damning-with-faint-praise opinion leaves the impression that Prop 8’s rationales were not crappy enough to throw out, but just barely. Dahlia Lithwick calls Judge Smith’s dissent: “the death rattle of a movement that has no legal argument or empirical evidence.”

From here the case probably goes to the Supreme Court, where eight votes seem locked in. Justice Kennedy will make the decision.

In general, given the perspective of more than eight years, the comment that ended my analysis of the 2003 Massachusetts case is holding up pretty well:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

By weeklysift | Posted in Articles | Also tagged | Comments (1)

Culture Wars Rise with the Economy and other short notes

February 13, 2012 – 12:17 pm

A simple reason why Rick Santorum and the culture wars are on the upswing in Republican primaries: As the economy improves, the rationale of the Romney campaign falls apart. Social issues were supposed to stay on the sidelines so that Mitt the Financial Wizard could pound Obama the Economic Failure.

Salon’s Alex Parene asks: “Would it be conspiratorial to note that these divisive cultural issues began attracting a great deal of right-wing attention very soon after the release of a positive jobs report?”

Not at all, Alex.

Purple cow? No. Purple squirrel? Here.

The difference between liberal nonsense and conservative nonsense is that liberals let the audience in on the joke.

It looks like another surge of global-warming denial is building. A couple weeks ago the Wall Street Journal printed a letter from 16 scientists and engineers saying “There is no compelling scientific argument for drastic action to ‘decarbonize’ the world’s economy.” They compared global warming to Lysenkoism and presented a picture of scientific community heavy-handedly enforcing a rigid dogma.

If you look at the list of signers, most of them have no connection to climate science, so their opinion is no more significant than mine or any other educated person’s. Skeptical Science finds them “worth noting for their lack of noteworthiness”. Only two have “published climate research in the past three decades” while 7 have received funding from the fossil fuel industry. Skeptical Science also debunks the letter’s claims, and includes a wonderful graph explaining how an energy-industry flack can make a warming trend look like a cooling trend.

At the same time, the WSJ refused to print a letter from 255 members of the National Academy of Sciences defending the scientific process and claiming:

Many recent assaults on climate science and, more disturbingly, on climate scientists by climate change deniers are typically driven by special interests or dogma, not by an honest effort to provide an alternative theory that credibly satisfies the evidence.

Forbes called the WSJ’s actions “remarkable editorial bias“, which shouldn’t surprise anyone, now that it’s owned by Rupert Murdoch.

Some of the same misinformation appeared simultaneously in a British tabloid, from which it migrated to the Washington Times and other right-wing publications. Kevin Drum debunks.

New re-election plan: Surround Obama with kids and gadgets, and he’s irresistible.

James Fallows writes an insightful analysis of what we’ve learned about Obama during his first term.

When I wrote last week’s article on Komen and Planned Parenthood, it wasn’t clear yet whether Komen had really reversed itself or the right-wingers inside Komen had just stepped back until public outrage faded a little. “[Karen] Handel is still on the job, after all.”

Not any more. Tuesday morning Handel resigned. So maybe Komen is serious about de-politicizing itself and getting back to its mission.

The anti-public-employee jihad that is getting Wisconsin’s Scott Walker recalled has spread to Utah and Arizona.

Just for the cuteness of it: Video of a wolf pup playing with a bear cub.

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Evolving Traditions

August 9, 2010 – 11:08 am

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. … The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children.

–– Sir William Blackstone
Commentaries on the Laws of England (1769)

In this week’s Sift:

  • Proposition 8 is Unconstitutional. The trial record may be as important as the ruling. If same-sex-marriage opponents think there’s so much “evidence” supporting their position, why didn’t they present any?
  • The Sift Bookshelf: The Living Constitution. An easy-to-read new book explains how interpretations of the Constitution legitimately change with time.
  • Ground Zero Mosque, Part II. “Opposing” the mosque can mean two very different things, but not many mosque opponents are making the distinction clear.
  • Short Notes. What Fox thinks of the 14th Amendment. China takes on bold new infrastructure projects, while we let things fall apart. Superman saves a home in the real world. A suggestion for protesting the Tea Party. Civil disobedience in Arizona. And where you can hear me next Sunday.
Proposition 8 is Unconstitutional

Every few months, it seems, the saga of same-sex marriage in California takes another twist or turn. Since the voters passed Proposition 22 ten years ago, there have been votes by the legislature, vetoes by the governor, civil disobedience by the City of San Francisco, a second referendum passing a constitutional amendment, and countless trips up and down the state court system.

By May, 2009, things had gone as far as they could at the state level: The voters had passed Proposition 8, which wrote one-man-one-woman into the state constitution, and the California Supreme Court had recognized its validity (while still upholding the 18,000 same-sex marriages performed prior to Prop 8).

At that point a liberal/conservative all-star team of lawyers decided to take the argument federal. Ted Olson and David Boies, who had been the opposing lawyers in Bush v. Gore, filed suit in federal court to have Prop 8 declared unconstitutional under the 14th Amendment, which guarantees “equal protection of the laws” and “due process of law” to everyone.

Wednesday they succeeded in their first step: Judge Vaughn Walker declared Prop 8 unconstitutional. (Judge Walker’s ruling is long, but easy to read.)

As I explained last month after the Defense of Marriage Act was declared unconstitutional, just about all same-sex-marriage decisions hang on the same question: Laws that treat one group of people differently from another have to pass the rational basis test, which asks whether the law is “rationally related to furthering a legitimate government interest”. Can a law banning same-sex marriage pass that test? What legitimate government interest is furthered by treating same-sex couples differently from opposite-sex couples?

This is why court decisions often come out differently than referenda: Voters don’t have to answer that question. As Judge Walker put it:

The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.

The secular logic of Prop 8 hangs on some real-world questions about the institution of marriage, its effects on children, the nature of homosexuality, and so on. So Judge Walker held a trial to gather testimony on those issues.

Evidence-based knowledge vs. faith-based knowledge. Boies and Olson called a series of expert witnesses: historians to describe the long-term evolution in American marriage laws (allowing wives to own property, allowing interracial marriage, etc.) and the history of discrimination against homosexuals; demographers to compare same-sex couples to opposite-sex couples (they’re not that different); economists to assess the impact of Prop 8 on the City of San Francisco (negative) and on same-sex couples and their children (also negative); social scientists to assess the affects of social stigma on gays and lesbians (bad), the impact of seven years of same-sex marriage on family issues in Massachusetts (negligible), and how children raised by same-sex couples compare to those raised by opposite-sex couples (not much difference); psychologists to discuss whether therapy can change a person’s sexual orientation (it can’t) and whether same-sex couples receive the same psychological benefits from marriage as opposite-sex couples (they do), and so on.

In other words, every question a reasonable person would ask about the impact of Prop 8 was answered by a professor of some relevant subject with peer-reviewed publications in the field, who cited actual research on the topic.

The defenders of Prop 8 did nothing of the kind. (The name of the case is Perry v. Schwarzenegger, but although California officials like Gov. Schwarzenegger and Attorney General Brown were named in the suit, they wanted no part of defending Prop 8. So the job passed to the people who got Prop 8 on the ballot in the first place.) They announced a number of expert witnesses, but only called two of them to the stand — neither of whom was actually in expert in what he was testifying about, and one of whom, David Blankenhorn, doesn’t seem to be an expert in much of anything. (This section of Judge Walker’s opinion is a good primer on the legal definition of expert witness.) Rachel Maddow spent an entire segment of her show Wednesday making fun of Blankenhorn’s “expertise”.

WaPo’s Jonathan Capehart commented:

if I were the conservatives I would troop back into court — and sue the pro-Prop 8 attorneys for malpractice.

Here’s an example from Judge Walker’s decison:

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”

The impression the trial leaves — and this may have political implications even if the ruling is overturned by the Supreme Court — is that the logic of banning same-sex marriage is all 30-second sound bites and won’t stand up to scrutiny. The Religious Right may claim that there is massive evidence ( James Dobson has claimed “more than ten thousand studies“) relating same-sex marriage to dire outcomes for society, but when they had a chance to present their evidence in court, they folded.

As David Boies said on Face the Nation (in response to Tony Perkins of the Family Research Council):

It’s easy to sit around and … cite studies that either don’t exist or don’t say what you say they do. … But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that’s what happened here. There simply wasn’t any evidence, there weren’t any of those studies. There weren’t any empirical studies. That’s just made up. That’s junk science. It’s easy to say that on television. But a witness stand is a lonely place to lie. And when you come into court you can’t do that.

This case may affect the overall national discussion in the same way that the Dover intelligent design case did. After a court show-down in which one side has no real evidence to present, it’s hard for the media to go back to he-said-she-said coverage.

Marriage evolution. Testimony from the historians dismantled another standard talking point: That marriage has been one thing for thousands of years and now gay activists want to change it to something else.

To the extent that the phrase traditional marriage means anything at all, it refers to the kind of relationship this week’s Sift quote describes: domination of the wife by the husband. Through all of American history marriage has been slowly evolving away from that: allowing wives to own property; letting them sign contracts and accept employment without their husbands’ approval; protecting against domestic violence; recognizing marital rape; and so on.

As a result of that evolution, marriage laws no longer enforce separate gender roles. So the gender-specific titles of husband and wife no longer correspond to any legal rights or responsibilities not included in spouse.

Without that evolution — in the 18th-century world of Blackstone’s Commentaries — Prop 8 proponents would be right: Same-sex marriage makes no sense if the law requires a dominant male husband and a submissive female wife; two men or two women can’t do it.

But in marriage as it stands today (and how many people would really want to go back?) two men or two women can fulfill the legal roles of spouses as well as opposite-sex couples do. Laws that prevent them from doing so are relics of a system whose underlying logic was abandoned decades ago.

Impact. Ultimately this is headed for the Supreme Court, where (as Dahlia Lithwick explains) the case will be decided by Justice Kennedy, the Court’s swing vote.

If the Supreme Court reverses Judge Walker, the impact of would not be as great as some people seem to think. It would be harder for a future Supreme Court to find protection for same-sex marriage in the 14th amendment, but state legislatures could still recognize same-sex marriage and state courts could still find a same-sex couple’s right to marry in their state constitutions.

Rather than take on the evidence, most “family values” spokesmen attacked the judge: He’s gay. And all those professors of whatever who testified? They’re gay too. What more do you need to know?

While Boies does CBS, Olson is handling Fox.

Stephen Colbert sees Judge Walker’s decision as “Arma-gay-ddon“.

Humorist Andy Borowitz explains why most marriages are already gay:

“Soon after marrying, most men stop hitting on women and start shopping for furniture,” Dr. Logsdon said. “Scientifically speaking, how gay is that?”

I’m coming to like NYT’s conservative columnist Ross Douthat even though I seldom agree with him. He consistently offers something genuine to disagree about, and doesn’t just spout nonsense and make stuff up.

The Sift Bookshelf: The Living Constitution

The Living Constitution by David Strauss is the best popularization of constitutional law I have read. It is short (139 pages of 300-350 words each), readable, and well organized. Best of all, it does something important: debunks the theory of constitutional interpretation that you most commonly run across in the media (originalism) and provides an alternative that makes sense out of what the courts have been doing for the last 200-or-so years.

Let’s start with originalism. This theory says that the Founders had a definite idea in mind when they wrote each line of the Constitution, and that the role of a judge is to ascertain that idea and apply it to the case at hand. There are two problems with originalism: (1) it’s impossible to carry out; and (2) it violates Thomas Jefferson’s principle that the dead should not rule the living. (De-sound-biting that a little: The democratic principle of “the consent of the governed” doesn’t mean much if the consent was given once and for all in 1787.)

Strauss brings home the impossibility of knowing the Founders’ original intent by recalling what Americans went through in the 1970s around the Equal Rights Amendment. (The ERA was passed by Congress in 1972, but fell just short of ratification by 3/4 of the states, so it is not part of the Constitution now.)

If the ERA had passed, originalism would have future judges try to ascertain and apply what the people alive in the 1970s had “intended” by it. That’s laughable to anybody who lived through the 1970s, because to a very large extent we didn’t know. (I remember hearing long arguments about whether the ERA would force all bathrooms to be unisex.) Different people intended different things, and we couldn’t agree on what the ERA would mean even for the situations we could envision, much less situations that might arise in 200 years.

I know the founding generation was supposed to be full of giants, but were they really that much more self-aware than the Americans of 1972?

So, if we admit we can’t always find a well-defined meaning by recreating the mindset of 1787, how are we supposed follow the Constitution? Well, some things are obvious, like a president’s term lasting four years or senators needing to be 30 years old. But how “freedom of the press” applies to the Internet, or exactly what constitutes “abridging the freedom of speech” — now or in 1787 — requires some interpreting. How do we do it?

The defenders of originalism say that the only alternative is anarchy; the law will be whatever the current judge wants it to be, until he’s overruled by some other judge.

Strauss describes the alternative method of common law, a pre-constitutional process we inherit from England. Under common law, a judge considers how similar cases have been decided in the past. And if there’s still wiggle room, s/he resolves it by applying more abstract principles of justice, fairness, and common sense to the facts of the case at hand. For centuries, common law provided a workable legal system even in situations where there was no written law.

Strauss claims that this is in fact what our courts have been doing for the last two centuries: applying the text of the Constitution when it is clear (four-year presidential terms), consulting precedents to interpret provisions that are not clear (abridging freedom of speech), and attempting to resolve the remaining uncertainties with justice, fairness, and common sense.

A written constitution combined with a common-law method of interpretation produces a “living constitution” — one whose meaning evolves from generation to generation.

Strauss’ examples are the best part of the book. He devotes a chapter to Brown v. Board of Education, the 1954 Supreme Court decision that desegregated public schools. Half a century later, everybody likes the Brown decision. But it clearly violated originalism: Hardly anybody who voted for the 14th Amendment in 1868 thought they were voting for desegregation.

On the surface, Brown also violates common law, because it reverses a precedent rather than following it. The key precedent in this case isPlessy v. Ferguson, an 1896 decision saying that the 14th Amendment‘s promise of “the equal protection protection of the laws” can be satisfied by facilities that are “separate but equal”.

Looking deeper, though, Strauss shows that the 1954 Court was not just saying “Our moral values are better than the 1896 Court’s moral values.” He goes through a series of cases between 1896 and 1954 in which the Court tried to make separate-but-equal work. In case after case, it decided that the specific separate arrangements at hand (mostly concerning segregated law schools) were not equal. If you collected all those precedents, it became hard to imagine how to design racially separate facilities that the Court would consider equal.

So when the 1954 Court says that racially separate schools can’t be equal, it isn’t pulling that conclusion out of its own sensitive conscience. Instead, it’s amalgamating the conclusions of many specific cases decided since 1896, and coming up with an interpretive scheme that retroactively explains those decisions better than separate-but-equal did.

That’s how the common-law method works: You stick with an interpretation until the exceptions start to overwhelm the rule, and then you come up with a new interpretation that handles the exceptions better. It’s flexible enough to evolve through accumulated experience, but it’s not open to individual whim.

Ground Zero Mosque, Part II

Since I first wrote about the Ground Zero Mosque two weeks ago, more people and organizations have come out against it — bigots and right-wing extremists, of course, but also people who should know better like the Anti-Defamation League, John McCain, and the Wiesenthal Center.

Their statements all fudge an important issue: When you say you’re “against” the mosque, do you mean “I wish the people building it would reconsider” or do you mean “I want the government to stop them”? The first expresses sympathy for the people who feel insulted by the mosque; the second attacks religious freedom in America and sides with anti-Muslim bigots.

It’s important to be clear about this. Whenever a minority tries to exercise its rights, it’s going to be unpopular. In such a climate, announcing that you oppose their efforts is going to encourage bigotry, even if you claim that’s not your intention and even if you word your statement carefully. The headlines you generate are more important than your precise phrasing. The ADL should know that from its own experience battling anti-Semitism. (Some other Jewish groups have supported the mosque project.)

In response to the ADL’s statement, CNN’s Fareed Zakaria returned an award and honorarium the ADL gave him five years ago.

The poll showing that New Yorkers oppose the mosque fudges the same issue. The question asked was:

Do you support or oppose the proposal to build the Cordoba House, a 15 story Muslim Cultural Center in lower Manhattan 2 blocks from the site of the World Trade Center?

I wonder if you could get the opposite result (“New Yorkers Support Mosque”) by asking Mayor Bloomberg’s question:

Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion?

Short Notes

It’s striking how much of this Sift revolves around the 14th Amendment, or, as Fox & Friends calls it, “the anchor baby amendment.“

Here’s one way in which China has already replaced the United States as the leader of the world. A few decades ago, if you saw plans for some crazily futuristic public-works project, you knew it had to be in America. Now it has to be in China.

Check this out: Train-car-sized buses that use the same right-of-way as ordinary highways, but they sit up so high that cars drive under them. They’re like rolling overpasses. More artist-conception pictures here. Construction in Beijing is supposed to start later this year.

Meanwhile, our cities are turning off streetlights and breaking up roads because we’re not willing to pay taxes to maintain them.

In the real world, a family home facing foreclosure is not usually considered a job for Superman. Except this one time. A previously unexamined stack of old magazines in the basement turned out to include a copy of Superman’s debut comic, Action #1. It’s expected to bring $250,000 at auction.

Jesus’ General is normally a satirist, but he seems serious about this suggestion: Go to a September 12 Tea Party rally and burn a Confederate flag in protest.

The parts of Arizona’s immigration law that were not thrown out by the courts went into effect July 29. Resistance to the law has also begun.

If you happen to be near Bedford, Massachusetts around 10 a.m. next Sunday morning, come listen to me preach on “Spirituality and the Humanist” at First Parish Church.

 

The Weekly Sift appears every Monday afternoon. If you would like to receive it by email, write to WeeklySift at gmail.com.

By weeklysift | Posted in The Sifted Bookshelf, Weekly summaries | Comments (4)