Tag Archives: culture wars

A Few Points About Confederate Monuments

August 21, 2017 – 10:30 am

Confederate monuments and what they represent has been an issue I keep coming back to. In 2014’s “Not a Tea Party, a Confederate Party” I made the case that these are “victory monuments” for the eventual triumph of white supremacy in the South after the overthrow of Reconstruction. After the Charleston massacre in 2015, I urged people to “Please Take Down Your Confederate Flag“, arguing that pro-Confederate symbols of all types are hopelessly entangled in racism, no matter what you may intend when you display them.

Those points have only been magnified by the recent Unite the Right rally in Charlottesville. Undeniably, Nazi, KKK, and other alt-Right groups take inspiration from Confederate monuments, and regard Jefferson Davis, Robert E. Lee, and Stonewall Jackson as heroes because they fought for white supremacy. All over the country, monuments are being toppled or moved or transformed-in-place by the addition of explanatory plaques or statues of civil rights heroes.

A number of white supremacists and people who claim they aren’t white supremacists, including President Trump, are defending the monuments. But the points they’re making are almost entirely bogus. Here are my responses.

The Confederacy can’t be separated from slavery. Claims to the contrary usually hinge on a few half-truths. Abraham Lincoln, for example, didn’t run for president on a platform of ending slavery, but only of preventing its expansion. Once the war started he was slow to embrace it as an abolitionist crusade, and sometimes explicitly denied that purpose. (The Emancipation Proclamation didn’t take effect until January 1, 1863, more than two years after the first southern state seceded. Congress didn’t pass the 13th Amendment until the war was nearly over.) Although Lincoln hoped for slavery’s eventual end, war-for-emancipation was not his method of choice.

But the Confederate states, on the other hand, had no similar ambivalence. South Carolina’s “Declaration of Immediate Causes” for its secession pointed to Lincoln’s opposition to slavery as the most immediate cause:

A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery.

A few weeks before war broke out, Confederate Vice President Alexander Stephens gave his “Cornerstone Speech“, in which he found fault with Jefferson’s statement that “all men are created equal”.

Our new government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.

A long list of similar quotes could be produced. Slavery was the Confederacy’s reason to exist. The war to defend the Confederacy was seen at the time as a war to defend slavery; the two causes were identical. Only after the South’s defeat did the Lost Cause mythology postulate alternative causes for the war.

We should never forget our history, but not all of it deserves to be celebrated. In his speech just before the removal of a Lee statue, New Orleans Mayor Mitch Landrieu said: “There is a difference between remembrance of history and reverence of it.”

To see that difference, contrast the Charlottesville statue of Robert E. Lee (particularly as it sat in Lee Park, before the city renamed it) to The Topography of Terror museum in Berlin, where the Gestapo’s headquarters used to stand. The Germans could have “remembered” that site by turning it into Himmler Park, and centering it on a triumphant statue of the Gestapo’s commander, but they chose not to.

Lee, of course, was not Himmler. A better German parallel would be Field Marshall Erwin Rommel, a brilliant military tactician whose genius was applied in the defense of an evil regime. Rommel actually deserves a somewhat better place in history than Lee, because of his suspected role in a plot against Hitler. Nonetheless, Germans don’t name their high schools after him. (According to the Southern Poverty Law Center, 109 American public schools are named for Lee, roughly twice as many as are named for Benjamin Franklin, a far greater American. What’s that about?)

Vox underlines this contrast:

But unlike in Germany, where memorials to the victims of the Holocaust are erected on the ruins of Nazi buildings as a way to teach future generations about the sins and horrors of the past, most Confederate statues were designed to glorify the sins and horrors of the past.

Present-day defenders of the Confederacy create a false choice between celebrating Confederate history and erasing it. No one wants America to forget slavery and the rebellion that sought to preserve it. Critics of Confederate monuments simply want to stop glorifying the Slave Empire, particularly in cities like New Orleans, where so many citizens are descended from slaves.

Many Confederate monuments were built to promote false history. Mayor Landrieu noted that the South’s monuments are at best a selective remembrance.

So when people say to me that the monuments in question are history, well what I just described is real history as well, and it is the searing truth. And it immediately begs the questions: why there are no slave ship monuments, no prominent markers on public land to remember the lynchings or the slave blocks; nothing to remember this long chapter of our lives; the pain, the sacrifice, the shame … all of it happening on the soil of New Orleans.

So for those self-appointed defenders of history and the monuments, they are eerily silent on what amounts to this historical malfeasance, a lie by omission.

Sometimes the lies aren’t by omission, but are direct Lost Cause propaganda. For example, the inscription on the Confederate monument in Decatur, Georgia tells a glorious story of the Confederacy that has nothing to do with slavery. It was erected in 1908, when Lost Cause mythology had become Southern dogma.

Reconstruction history has been similarly misrepresented. One of the most shameful episodes of the Reconstruction Era was the Colfax Massacre, where a disputed election led white Democrats to attack blacks defending a county courthouse and murder those who surrendered. Such violence was a key element in whites regaining control of southern state governments and ultimately disenfranchising blacks completely. The official marker describes it like this:

Many Confederate monuments were intentionally built to celebrate white supremacy and intimidate uppity blacks.  “Historical” monuments are rarely entirely about the era depicted; usually their builders are also trying to make a symbolic statement about their own era.

You can see that in the following graph of the creation of Confederate monuments. There are two peak periods: During (and just after) the establishment of Jim Crow early in the 20th century, and when Jim Crow is being disestablished during the Civil Rights era of the 1950s and 60s; this is also when the Confederate flag regained popularity.

Wikipedia:

Between 1890 and 1910, ten of the eleven former Confederate states, starting with Mississippi, passed new constitutions or amendments that effectively disenfranchised most blacks and tens of thousands of poor whites through a combination of poll taxes, literacy and comprehension tests, and residency and record-keeping requirements.

National Geographic:

Once the Dixiecrats got a hold of it as a matter of defiance against their Democratic colleagues in the north and the African Americans in their midst, then the Confederate battle flag took on a new life, or a second life. In the 1950s, as the Civil Rights Movement built up steam, you began to see more and more public displays of the Confederate battle flag, to the point where the state of Georgia in 1956 redesigned their state flag to include the Confederate battle flag.

The timing suggests that Confederate symbolism has less to do with remembering the Civil War than with reminding blacks that whites are in power.

There is no slippery slope from Robert E. Lee to George Washington. In his Tuesday new conference, Trump asked:

So this week, it is Robert E. Lee. I noticed that Stonewall Jackson is coming down. I wonder, is it George Washington next week? And is it Thomas Jefferson the week after? You know, you really do have to ask yourself, where does it stop?

George Washington did indeed own slaves. Thomas Jefferson not only owned slaves, he fathered children with one of them and raised those children as his slaves. None of these facts should make Americans proud, and the monuments we build to Washington and Jefferson should acknowledge such failings. (Mount Vernon and Monticello do acknowledge them.)

In each case, our challenge is to see our Founders as people of their time and place, rather than as faultless gods. Slave-owning complicates our pictures of Washington and Jefferson, but doesn’t undo the positive roles they played in creating the United States, defining ideals we still struggle to live up to, and leading the nation through its difficult early decades.

The difference between the Founders and Confederate heroes like Lee, Jackson, and Davis is that the Confederacy is their only claim to historical significance. When we honor them, then, what we are honoring is their defense of slavery, because they have no positive accomplishments of comparable importance. You cannot, for example, separate the Charlottesville statue of a uniformed Lee on his horse from what he is doing on that horse: leading the defense of a government created to protect the right of whites to enslave blacks.

By contrast, I know of no monuments to Washington and Jefferson as slave owners — no statues showing Washington with a whip in his hand and blacks cowering before him, and none honoring Jefferson’s sexual abuse of Sally Hemmings. If there are any, they should come down; those are not the things we want to celebrate about Washington and Jefferson. But monuments to the Declaration of Independence, the Yorktown victory, and the early presidencies should stand.

What should be done with Confederate monuments? Each one should be judged separately according to

  1. what the purpose of the monument is, and
  2. how the local community feels about it.

Let me start by describing two monuments I think should stay. After the war, Robert E. Lee became president of Washington College, which is now Washington and Lee University. He is buried on campus beneath Lee Chapel, where there is a statue of him sleeping. The statue is clearly a remembrance of the man rather than a celebration of white supremacy. Similarly, Stonewall Jackson was a professor at the Virginia Military Institute before the war; it is entirely appropriate for VMI, a military school, to honor their most famous general.

Other remembrances should stay as well: Plaques and monuments enhance cemeteries and battlefields, as long as the inscriptions are accurate. And of course there should be museums that give a broader context to historical events.

No one really wants history forgotten, least of all the victims.

But a monument is suspect if it glorifies people or events that those who have to live with it find shameful or insulting. (To bring that point home to white Southerners, someone started a Facebook page proposing to erect a statue of General Sherman in Atlanta.) Some historical names are so offensive they could pass for inventions of The Onion, like the majority-black high school in Florida that until recently was named for KKK founder Nathan Bedford Forrest. (Forrest had no personal connection to the area. The name appears to have been chosen in the 1950s to protest court-mandated school desegregation.) If Arlington, Virginia wants to rename its segment of the Jefferson Davis Highway, it should be allowed to do so.

One hopes that local people can meet each other with empathy and work out compromises. Sometimes moving a statue to a more obscure park or to a museum would suffice. A critical plaque could be added, or the impact of a monument balanced by new competing monuments. What will not do is an attitude of “We like it, so deal with it.” That’s what supremacy is all about.

By weeklysift | Posted in Articles | Comments (11)

What’s Our Story?

April 24, 2017 – 9:40 am

How do we defend Western values if we no longer believe the story that used to justify them?

I’m not usually a David Brooks fan. Too often his columns remind me of the “big thinks” of Dr. Moreau‘s upgraded ape-man; he seems far too impressed with his own ability to take on such deep subjects, and has far too little of substance to say about them. His column this Friday “The Crisis of Western Civ” raises a typically Brooksian big-think topic, and as usual provides few useful hints of where to go with it. But this time, he has at least spotlighted a question the rest of us would do well to think about: If Western society no longer feels comfortable telling the Greece-to-Rome-to-Europe story (in which progress’ forward march leads to democracy, science, and human rights), what story should we be telling?

Societies, like individuals, motivate themselves with stories. Individuals often have life crises when the stories they’ve been telling stop working: When the save-the-world or rule-the-world ambitions that got you through school become untenable in middle age, you have a mid-life crisis. The death of a child can leave a parent facing not just grief, but also a who-am-I-now question. Hitting retirement can be a crisis for someone whose story has been all about career and organizational success.

Countries and civilizations do the same thing. Soviet Communism, for example, fell for a lot of reasons, but one important one was that its idealistic story (about leading the world’s oppressed masses in a revolution that would achieve the perfect society) stopped being credible. If you couldn’t believe that any more, then the Party was just another ladder to climb to get more privileges. So who would sacrifice for it or stick by it when times got tough?

Brooks points out that western societies, and America in particular, used to have an equally compelling story: Progress. A representative democracy that respects individual rights, a wide-ranging public debate that allows people of many views to speak their minds without violence, the march of science towards an ever-broader objective truth, and a corresponding march of technology that creates an ever-expanding abundance — this was presented as more than just a trend. It was the “end of history“, the goal that humanity had been consciously or unconsciously advancing towards since it split off from the apes.

And we were the vanguard of that capital-P Progress. It was our job, in Europe and the United States, to perfect Progress and teach it to the rest of the world, much of which was still in some primitive state of ignorance.

Like all stories, Progress was true only up to a point, and got pushed well past that point. Our role as the vanguard of Progress turned into the white man’s burden, and justified the abuses of colonialism and slavery. In practice, the story often turned out to mean little more than freedom and abundance for us at the expense of everyone else. The view of the material world as something to master in our quest for abundance, and a corresponding disrespect for the complexity of the natural systems that regulated life on Earth prior to our ascendancy, has led to mass extinctions of non-human species and the looming crisis of climate change.

So the story of Progress’ triumph has, particularly in academia, gotten replaced — or at least supplemented — by the story of Progress’ tragedy. And that has resulted in a generation of well-educated potential leaders who don’t really believe in the root story of the West. Or maybe they just believe in it half-heartedly.

That’s what worries Brooks: Representative democracy, the rule of law, human rights, science, objective truth, and so on — those are still good things, they are under attack, and they need more than a half-hearted defense. As Putin-style nationalist autocracy starts spreading across the world, as fundamentalist Islam abroad and fundamentalist Christianity at home threaten to turn back the clock to less enlightened eras, defenses of Western values are disturbingly tepid. [2]

Now let me push beyond what Brooks says, into my own big-think territory. Simplifying greatly, so far societies have come up with only three basic types of motivating stories:

  • tribalism. Those of us united by blood and soil are in a zero-sum competition with everybody else. Either we dominate them or they’ll dominate us. [1]
  • transcendent religion. We worship the universal God who has told us exactly how he wants human beings to live. By adopting our ways and worshiping our God, anyone can join us.
  • humanism. We stand for universal values that apply to everyone whether they believe in them or not. Truth is objective and can be found by rational methods available to all. But our understanding of Truth is always open to improvement through exploration and the development of new ideas.

The Progress story always had elements of tribalism and religion, but at its core was a humanistic vision. As that vision loses strength, rival stories based in tribalism and religion gain.

Trump’s message, at its core, is tribalist — America first; zero-sum relationships with other nations in which we either win or lose; non-white or non-Christian immigrants may try to join us, but they’ll never be “real Americans”; and so on. Trump’s ongoing flirtation with white supremacists is not a coincidence or a marriage of political convenience; they make sense to each other because they’re both telling a tribalist story.

In The Atlantic, Peter Beinart recently made a related claim about religion: As it loses its transcendent quality, it also reverts to tribalism. The evangelical embrace of Trump — he carried white evangelical Christians by a wider margin than either Romney or McCain — may seem mysterious, given the pasted-on quality of his own Christianity and the total divergence between his agenda and the Sermon on the Mount. But Beinart digs deeper into the numbers: Trump’s earliest and most fervent supporters are evangelicals who don’t go to church.

As Americans have left organized religion, they haven’t stopped viewing politics as a struggle between “us” and “them.” Many have come to define us and them in even more primal and irreconcilable ways.

… Whatever the reason, when cultural conservatives disengage from organized religion, they tend to redraw the boundaries of identity, de-emphasizing morality and religion and emphasizing race and nation. Trump is both a beneficiary and a driver of that shift.

So is the alt-right. … Its leaders like Christendom, an old-fashioned word for the West. But they’re suspicious of Christianity itself, because it crosses boundaries of blood and soil. [3]

What both Brooks and Beinart are pointing to are the limits of deconstruction. When you critique someone’s worldview — show him that the God of his childhood is too simple to be real, or that his “rational” and “universal” values are hypocritical and self-serving — you hope that he’ll progress towards a more advanced vision, towards a more complex and nuanced religion or a more truly universal humanism. But it’s also possible, perhaps even probable, that the opposite will happen: The failure of his story may lead him to fall back to a more primitive one. And the most primitive story of all — me and mine need to protect ourselves against a rapacious “them” — is incredibly resilient. If all other stories fail you, that one never will.

What Brooks seems to want, by the end of his column, is for critics to let up on the West, its dead-white-men literary tradition, and its unfortunate history of oppression. Beinart doesn’t make such a plea, but it’s easy to come out of his article with a feeling that maybe critics should leave churches alone: If we break them by demoralizing their members, what comes after will probably be worse.

But returning to either the Mother Church or the dead-white-male curriculum seems unlikely to solve the problem. No doubt many voices in the Soviet Union similarly called for a return to true Marxist-Leninist idealism, with less attention to the culture of corruption that was growing as revolutionary fervor faded. It didn’t work for them and a similar relaxation of criticism won’t work for us.

The recent devolutionary trends, though, should at the very least put pressure on those of us who believe in Western values to pay more attention to the positive sources of our faith. One of the many things the 2016 election proved is that our most basic assumptions can’t be taken for granted any more. The virtue of universal human rights and the evil of bigotry is no longer an of course. A belief in objective truth and the scientific method does not go without saying. Neither does democracy and the rule of law.

In the Age of Trump, returning criticism for criticism is not enough. We need to understand why we believe what we believe, why our values are worth defending, and why anybody else should agree with us. OK, the West isn’t the vanguard of History, and there is a lot to regret about our past actions. We have never fully lived by the values we profess. But they continue to be great values, and they deserve a story that explains why.

[1] Note the difference between tribal and tribalist. A tribal story is whatever story a tribe tells, and might be based on a worldview as morally sophisticated as any. A tribalist story is one saying that my tribe is the best and deserves to dominate all the others.

[2] A related problem, which Brooks doesn’t touch, is corruption from within. We tolerate unlimited money in our politics, gerrymandering of our legislatures, presidents taking office after losing the popular vote, a justice system that applies the law differently to whites and non-whites, and many other practices that would outrage us if we truly believed in Western democratic values and saw ourselves as the vanguard of Progress.

[3] American Catholic leaders, for example, understand that they represent not just the white ethnic groups Trump is appealing to, but also a large number of Hispanic immigrants, both documented and undocumented.

By weeklysift | Posted in Articles | Also tagged | Comments (16)

Sexism and the Clinton Candidacy

August 8, 2016 – 9:25 am

Open misogyny, like open racism, has become a fringe position in America. But even people who believe they don’t have a sexist bone in their bodies are still influenced by it.

I’m a guy, and I’m voting for Hillary Clinton. Lots of us are.

Naturally, I also know men who aren’t voting for her. But you know what I haven’t heard? Not one of the anti-Clinton men I know personally — not even in a wink-and-nod, just-between-us guys sort of way — says that it’s because she’s a woman, or that women in general have no business being president.

Of course, it’s also true that if you go looking for that opinion, you can find it. (Samantha Bee even found a woman who thinks women shouldn’t be in charge.) And if you want to rile yourself, it’s not hard at all to dredge up comments on Facebook and other social media calling the former Senator, First Lady, and Secretary of State a bitch, a cunt, or some other misogynistic name. If you visit the vendors outside a Trump rally, you can even get a misogynistic epithet on a t-shirt or bumper sticker.

But still, open misogyny has become a fringe position. In a 2015 Gallup survey, 92% of Americans said they could vote for a woman for president. Maybe that’s only because admitting otherwise has become uncool, but there are also more specific signs of progress. Just two election-cycles ago, during Clinton’s first presidential run, whether a woman could be commander-in-chief still came up from time to time. In this cycle, though, she has managed to turn that issue around, contrasting her own experience and gravity against Donald Trump’s impulsiveness. In a recent Fox News poll, voters trusted Clinton more than Trump on “making decisions about using nuclear weapons” by a 56%-34% margin.

So hurray! Sexism is over in American politics and we can stop talking about it.

Well, not exactly.

The racism parallel. Eight years ago, after we elected our first black president, a lot of people convinced themselves that racism was over. And if we’re talking about open KKK-style racism, they were almost right. Few people in 2008 or 2012 said they wouldn’t vote for Obama because he’s black. Using the N-word against him in public, openly calling for white supremacy — you can still find that if you look, but it’s a fringe position.

And yet, the last eight years have been a lesson in just how pervasive the more subtle forms of racism are. If few white Americans would admit — even to other whites — that they didn’t want a black president, many many white people have seemed to hunger for some non-racial reason to dislike or mistrust Barack Obama.

And so, based no credible evidence whatsoever, a large segment of the American public have decided that he isn’t really an American, and so isn’t eligible to be president at all. Another large segment (with considerable overlap, I imagine) has convinced themselves that Obama’s whole religious history is a fraud, that he is secretly a Muslim, and is probably rooting for the jihadi terrorists (the same ones that he’s been killing with raids and drone strikes).

Others look at his family through jaundiced eyes. To them, Michelle — a beautiful, elegant woman by any standard — resembles a gorilla. When Sasha and Malia wear typical teen-age-girl clothes they get admonished to “dress like you deserve respect, not a spot at a bar“. The luxurious White House lifestyle, never an issue when white families lived there, suddenly looks uppity; and the cost of keeping the First Family safe on vacations — again, never an issue for the Bushes, Clintons, or Reagans — has been a point of resentment.

Whenever Obama acts like the President of the United States and accepts the deference that is due his office — like when a Marine holds an umbrella for him, or he puts his feet up on a White House desk — it just looks wrong. Sure, white presidents have been doing the same things for decades without irritating anybody, but this is different because … because … well it just is.

And the aura of respect that has sheltered even our most unpopular presidents from direct abuse in formal settings? That vanished as soon as a black man took control of the White House. Undoubtedly, Joe Wilson was not the first congressman to think a president had said something dubious in a State of the Union address. But none of the previous doubters had judged it appropriate to yell “You lie!”.

Summing up, a lot of Americans might say to President Obama: “I don’t hate you because you’re black. I hate you because so many of the things you do look wrong to me.” But if you take a step back and look at comparable situations from previous administrations, it’s hard to escape the realization that what is really wrong in Obama’s actions is that he’s black when he does them.

It’s not that blackness is bad per se — that would be the Jim-Crow-style racism we’ve almost all outgrown. It’s that for many Americans, blackness-in-power invokes a harsher standard of judgment that makes “This black president is bad” an almost inevitable conclusion.

Back to Hillary. So I think we should bring some skepticism to the idea that Hillary Clinton’s high unfavorable ratings are simply a fair public reaction to things she has said or done.

As with Obama and racism, not everybody who opposes Clinton is a sexist or dislikes her for gender-related reasons. But even if you can list apparently good reasons for not liking her, you need to consider the possibility that the things she says or does seem as bad as they do because Clinton is a woman when she does them.

Like racism, sexism may no longer dictate the views of most Americans, but it still has a strong influence.

Appearance. The most obvious way that Clinton is treated differently from male candidates is with regard to her appearance. Prior to Clinton’s acceptance speech at the Democratic Convention, one of the most googled questions was what she would wear. A white pantsuit was the answer, a decision deemed worthy of historical analysis in The Atlantic.

For a man, of course, the question has a standard answer: a dark suit with a light-colored shirt and a red or blue tie. If a man wears that, he can count on everybody to forget what he’s wearing and concentrate on what he’s saying. But there is no standard choice for women, because no woman has ever been in this situation before. Whatever she wears, it just doesn’t look presidential. I mean, would Abe Lincoln wear a white pantsuit?

For contrast, look at the two men Clinton has run against — Donald Trump and Bernie Sanders. Both men have unusual hair. Both take some ribbing for it, but it’s really not a big deal. (Clinton could never have turned a bad-hair day into a t-shirt, as Bernie did.) I doubt that either of their campaigns wasted a single minute of meeting time discussing “What are we going to do about his hair?”

Ditto for wardrobe. Trump wears expensively tailored suits, while Bernie sometimes looks like he slept in his. Both choices are OK and raise no issues. But every fashion choice a female candidate makes is fraught. Does she look too “frumpy“? Or is she too vain? Does she worry too much about her appearance, or spend too much on her clothes? (Both Clinton and Sarah Palin got skewered on that one.) It’s fine for Mitch McConnell to get increasingly jowly as he ages, but could Nancy Pelosi get away with that? And if she takes action to avoid facial sagging, that’s an issue too.

Clinton’s voice is another perpetual problem: It’s too shrill and she shouts too much. But Trump and Sanders also shout a lot without anybody making an issue of it. Bernie’s gravelly voice is far from what they’re looking for in broadcasting school, but somehow it makes him more authentic, like Bob Dylan.

Sex and marriage. There’s also a moral double standard. As we all remember from high school, someone who has a lot of sex is a stud if male, and a slut if female. That double standard hasn’t gone away.

Imagine, for example, if Clinton had a marital history like Trump’s. Picture her standing on the convention stage with a much-younger male model for a husband, waving to the crowd while surrounded by the children she conceived with three different fathers, all still alive. It’s an absurd vision, because no such woman could be elected to any office whatsoever.

Oratory. The big fear leading up to Hillary’s acceptance speech was whether she could match the great speeches of the previous nights’ speakers: Michelle Obama, Bernie Sanders, Bill Clinton, Joe Biden, and the ultimate master of the convention speech, Barack Obama.

By all accounts, she didn’t. It was a good speech that made her case and did her credit, but she didn’t even attempt to lift our spirits like Obama did in 2004, 2008, and 2012.

But consider this: Is an Obama-level speech even possible for a woman candidate in 2016? Would we know how to listen to it and recognize its greatness?

I don’t think we would. I’m not even sure that I would. We’re well trained to hear certain kinds of ideas from men, and respond in a certain way to them. Hearing the same speech from a woman would be a different experience entirely. For example, Joe Biden basically gave a Knute Rockne halftime pep talk. Could a woman have pulled that off?

“But what about Michelle?” you might ask. “She’s a woman and her convention speech was magnificent.” Indeed it was, but it was rooted in her experience as a wife and mother. She was not a candidate, and was not asking us to give her power. If she had been, say, running for the open Senate seat in Illinois, we might have heard her speech very differently.

The rogue’s gallery. The example of Bernie’s “authentic” voice points to an even more subtle pattern that is frequently overlooked: Just as there are negative stereotypes (like slut or ball-buster) for women, there are endearing stereotypes that make excuses for the flaws of men. As a result, if a man needs us to cut him some slack, it doesn’t seem like that big a stretch.

As Franklin Roosevelt is supposed said about a Central American dictator: “He’s a son of a bitch, but he’s our son of a bitch.” That line has been repeated about a number of American politicians since, including Richard Nixon. It’s a compliment of sorts: This guy may be immoral, but he’s going to do immoral things for us.

Trump’s long history as a con-man generates a similar excuse: Yes, he cheats people, but that’s why we need him: so that he can cheat the Chinese and the Mexicans on our behalf. Trump claimed that dubious virtue in his acceptance speech:

Nobody knows the system better than me, which is why I alone can fix it. I have seen firsthand how the system is rigged against our citizens.

Lyndon Johnson was known as a wheeler-dealer, a stereotype that makes a virtue out of a man’s ability to bribe and threaten. If he can wheel and deal his way to Medicare and the Voting Rights Act, so much the better.

A standard character in our movies and TV shows is the charming rogue: Indiana Jones, Rhett Butler, Serenity‘s Captain Mal. He’s a rebel, a rule-breaker. He may be annoying at times and completely unreliable, but you keep forgiving him because it’s just so entertaining to watch him wriggle in and out of trouble. Trump and Bill Clinton both benefit from this stereotype, and in some circles so does Ted Cruz. (“Shut down the government? That scamp! What will he pull off next?”)

Female leaders don’t have any of those forgiving loopholes available to them. When the FBI announced that Hillary’s email mistakes were not indictable crimes, her supporters sighed with relief and her critics seethed with anger. (“Lock her up!”) Literally no one was charmed by her skill as a escape artist. (“She’s so smart! They’ll never nail her.”) If she were a man, though, many would be.

Clinton has been known to lie or mislead when she’s accused of something, behavior which (as the NYT’s Nicholas Kristof pointed out Sunday) is pretty standard for an American politician. And yet, a fairly small set of examples is enough to support an image of exceptional untrustworthiness.

Meanwhile, it is virtually impossible to hold a conversation with Donald Trump — on any subject — without hearing him lie. (Kristof: “In March, Politico chronicled a week of Trump remarks and found on average one misstatement every five minutes.”) The result: Slightly more voters describe Trump as “honest and trustworthy” than say the same of Clinton.

This is a pattern we should recognize from racial discrimination: We insist on high standards from our leaders, except when we don’t. Members of privileged groups — whites, men — can wrangle exceptions. Only the non-privileged — blacks, women — are actually held to those standards.

“But I just don’t like her.” Any woman running for office has to thread a very narrow needle: She has to look good without appearing vain, to sound strong but not bossy, project as friendly but not soft, and have years of experience without seeming old and stale. (Donald Trump can have no track record in government and be an outsider. A comparable woman would just be unqualified.) For a lot of Americans — even the 92% who told Gallup they could imagine voting for a woman — there might not be an eye in that needle at all.

Marianne Cooper, a sociologist at Stanford’s Clayman Institute, writes:

High-achieving women experience social backlash because their very success – and specifically the behaviors that created that success – violates our expectations about how women are supposed to behave. Women are expected to be nice, warm, friendly, and nurturing. Thus, if a woman acts assertively or competitively, if she pushes her team to perform, if she exhibits decisive and forceful leadership, she is deviating from the social script that dictates how she “should” behave. By violating beliefs about what women are like, successful women elicit pushback from others for being insufficiently feminine and too masculine.

Michael Arnovitz looked at the long-term graph of Clinton’s favorability and noted:

What I see is that the public view of Hillary Clinton does not seem to be correlated to “scandals” or issues of character or whether she murdered Vince Foster. No, the one thing that seems to most negatively and consistently affect public perception of Hillary is any attempt by her to seek power. Once she actually has that power her polls go up again. But whenever she asks for it her numbers drop like a manhole cover. … Most of the people who hate Hillary when she’s running for office end up liking her just fine once she’s won.

I’ve heard a number of people, even a few women, tell me that they wish the first woman nominee had been someone different. To which I respond: How different could she be and still have gotten here?

“But I’m not sexist! I’m voting for Jill Stein.” As every Green voter knows in his or her heart, Jill Stein is not going to be our next president. So the disorientation and the fear-of-the-unknown that Clinton evokes simply does not rise for anyone considering Stein.

Likewise, Stein hasn’t run the decades-long gauntlet (with its corresponding decades of unfair criticism and invented scandals) that puts a woman in position to be a major party nominee. If she had, I suspect she would seem like damaged goods too.

We’ve seen something similar to the Stein option with the Republicans and race. Herman Cain in 2011 and Ben Carson in 2015 both had moments in the sun, as Republicans waved their signs and said, “See! I’m against Obama, but I’m not racist.” Strangely, though, both candidacies had faded long before the first primaries. So no one ever had to cast a vote that had a serious chance of putting Cain or Carson into power. Similarly this November, no one will cast a vote that has a serious chance of putting Stein into power either.

A woman as a message-carrier? A woman as the symbol of an impossible dream? We’re all fine with that. But the prospect of giving a woman real power is something else.

Can we compensate? Obviously, it would make no more sense to vote for Clinton because she’s a woman than to vote against her for that reason. So what am I asking you to do?

Here’s my point: It is a very human reaction to instinctively recoil from something you’ve never seen before, to imagine that there’s something wrong with it, and then to go looking for reasons you can use to justify that pre-rational feeling of wrongness. I strongly suspect that lots of people who hate Hillary Clinton (and even a few who are going to hold their noses and vote for her out of disgust with Trump) have done that, or have been influenced by opinion-makers who do that.

Which is not to say that everyone who isn’t whole-hearted supporting Hillary is reacting out of sexism. She’s an American politician who has views, plans, and a record, none of which are perfect. No candidate — even great presidents who were white men — gets 100% of the vote.

But think about what you would like to have told those 2012 voters who were convinced that Barack Obama was a Kenyan-born terrorist-sympathizing fake Christian who hates America and wants to undermine our culture and society. Not that those wouldn’t be good reasons to vote against him, but why do you believe them? Could the thinking process that led you to those beliefs have been influenced by the subtle racism that infects almost everything in our society?

Our society is similarly infected with subtle sexism. Those things you believe about Hillary that make her uniquely objectionable, or so repellant that the difference between her and Trump seems too insignificant to take seriously, why do you believe them?

Could sexism have played a role in forming those beliefs? Think it through again.

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Themes of 2015: Religion, Morality, and the Law

December 28, 2015 – 8:29 am

All year, gay rights has had to compete with claims of “religious freedom”. I should have predicted that: If you look back in American history, bigotry has always hidden behind religion.

As 2015 began, same-sex marriage was clearly headed to the Supreme Court. The ruling in Obergefell v Hodges wouldn’t come until June, but both sides were making their final push to bend public opinion in their favor. So in February, I wrote “When Hate Stays in the Closet” to answer what seemed to me to be the two most reasonable-sounding arguments against same-sex marriage. (A consistent gripe I have about the national debate is that all sides tend to focus on the most hateful and unreasonable arguments made against them, and leave the more reasonable ones untouched.)

On April 6, “Religious Freedom: Colorado’s sensible middle way” explained the principles involved in the various cases involving bakers, photographers, and other folks who felt their religious convictions should allow them to not serve gay couples who were planning their weddings. The key principle, which was already embedded in First Amendment cases and didn’t need any new religious-freedom laws to enforce it, was:

a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

So if a baker refuses to put “Gay Marriage Rocks” on a cake, that’s his First Amendment right. But if the shop sells wedding cakes to the public, it isn’t free to refuse a wedding cake to a same-sex couple.

I continued on the religious-freedom theme in May with “Turning the Theocracy Against Itself“, making the point that the new religious-freedom laws were clearly intended only for conservative Christians, and predicting that

If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

For example: Inscribing “In God We Trust” on the money forces atheists either to do without the convenience of a national currency, or to hand out pieces of paper that denounce their own religious views. How can any non-sectarian religious-freedom law not ban that?

In May, I gave my best explanation of why I think bans on same-sex marriage are unconstitutional, even though the people who ratified the 14th Amendment probably never envisioned protecting same-sex couples.

In current law, the [legal] roles of husband and wife are virtually interchangeable. … So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

Also in May/June, the Josh Duggar molestation scandal broke. For reasons I can’t recall, I resisted devoting an article to it, but a segment of a weekly summary was of article length and scope, concluding:

Morality, as I conceive it, is about how we’re all going to live together on the Earth without making each other miserable. If you picture it instead as a private interaction between yourself and the Divine Lawmaker, I think you’ve still got some growing up to do.

In early June, the Bruce/Caitlin Jenner story suddenly put transgender issues in the headlines. I had never thought about the topic seriously before (and it showed; ever since, commenters have been educating me about how not to inadvertently give offense). But rather than mask my own squeamishness, I decided to explore it to see what insight it could give me into the people who saw the celebration of Jenner as a “snapshot of just how corrupt, how morally corrupt, how morally bent, how morally twisted, how morally confused, how morally bankrupt we have become”. In “What’s So Scary About Caitlyn Jenner?” I announced an abstract principle that I should probably break out into its own article sometime: Everything you thought was a category is actually a continuum.

I think the unifying principle of social conservatism is the desire to believe that the categories in our heads — male/female, black/white, good/evil, friend/enemy, and so on — correspond to real and solid divisions in the external world. Social conservatives increasingly retreat into an information bubble as it becomes more and more obvious that what they want to believe simply is not true. Binary categories are just kludges evolution has provided to help us simplify a world too complex for our brains to fully grasp.

When the Obergefell decision arrived in June and same-sex marriage became legal nationwide, I was pleased by the result but (once again) disappointed in Justice Kennedy’s reasoning.

Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.  Not in other marriage cases – that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

By founding his decision on a vague “right to marry” that he scries out of the word liberty in the 14th Amendment, Kennedy fed conservative rhetoric about “redefining marriage” and “judicial activism”. In the long run, I believe the reasoning that will stand is the equal-protection argument above, which I learned by reading the lower-court decisions.

After Obergefell, opponents of same-sex marriage largely went into denial, claiming that the other branches of government (or some popular uprising) could still stop this abomination (which has been happening in Massachusetts for more than a decade with no visible ill effects).

The opponents hate to be called bigots, and argue that their opposition is based on religion, not hatred. So it’s completely different than say, the opposition to interracial marriage in the 1960s. In order to make that argument, you have to be completely ignorant of history, so I tried to fix that with a history lesson in “You Don’t Have to Hate Anybody to be a Bigot” (the year’s most popular new post). After reviewing the religious arguments that have justified segregation and slavery, I concluded:

There’s nothing new about nice, salt-of-the-Earth people who sincerely believe that certain other people are undeserving of empathy or respect or fair treatment. There’s nothing new about those beliefs being expressed and justified in religious terms, or put forward by ministers and theologians.

Quite the opposite, that’s the normal situation.

In other words, it is totally typical for Americans to hide their disregard for their neighbor behind their love of God. Today’s Mike Huckabees and Kim Davises are heirs to a long tradition of religiously justified bigotry, even if they would rather not claim that legacy.

In his Obergefell dissent, Chief Justice Roberts raised the specter of polygamy as the next step down the slippery slope. In July, I examined that possibility, finding that (A) it’s not nearly so simple a step as Roberts implied, and (B) it’s also not the horror that he imagined.

By September, we had the Kim Davis saga, which I covered in “Is Kim Davis a Martyr?” I describe the standard of purity Davis  and others want to apply here — that Christians shouldn’t involve themselves in other people’s sins in any way — as “a ‘sincerely held belief’ that was invented solely for this purpose.” I see no reason to take it seriously.

As the year ends, the push to define religious freedom broadly — for conservative Christians, if no one else — continues, accompanied by the self-justifying fantasy that American Christians are persecuted. We’ll undoubtedly see more states pass laws that legalize discrimination against gays, and since the male-Catholic-conservative majority on the Supreme Court (Roberts, Scalia, Thomas, Alito, Kennedy) shows no signs of grasping the problem yet, it wouldn’t surprise me if they extend the religious-freedom principles in the Hobby Lobby decision even further in 2016.

I don’t see this trend stopping until unpopular religious groups start claiming their equal rights under these laws and interpretations, and forcing conservative judges to explain why they don’t deserve the same consideration Christians get. When those laws start protecting the broadly defined religious freedom of Muslims and pagans and atheists, conservative Christians will lead the repeal effort themselves.

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So What About Polygamy Anyway?

July 20, 2015 – 9:08 am

After same-sex marriage, is polygamy a further slide down the slippery slope, the next step of progress, or a separate issue entirely?

For the last 10-15 years, people who brought polygamy into a discussion were usually talking about something else. Polygamy was supposedly the next stop on the slippery slope we would step onto if we legalized same-sex marriage: Once you start fiddling with the definition of marriage, the doomsayers prophesied, there is no clear place to stop. In the Supreme Court’s recent marriage decision, Chief Justice Roberts brought that argument into his dissent:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.

Slippery-slope arguments are often a way to create flashy distractions from the issues that are actually present: If you have no coherent case to make about why a loving, committed same-sex couple shouldn’t be married, you talk instead about legalized polygamy, incest, pedophilia, and bestiality. Maybe no one is actually making those proposals yet, but they could at some point down the road.

On the other hand, some slippery-slope arguments actually are prophetic. In his Lawrence dissent in 2003, Justice Scalia warned:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.

Twelve years later, here we are.

And sometimes, when we look back on prophets of doom, our modern eyes see them as unintentional prophets of progress. The downward slide they feared, we recall proudly. For example, shortly after the Civil War, Rev. R. L. Dabny published a retrospective justification of slavery and secession: A Defence of Virginia. In it he warned the North of the horrors its abolitionist notions would ultimate bring to pass:

But other consequences follow from the abolitionist dogma. “All involuntary restraint is a sin against natural rights,” therefore laws which give to husbands more power over the persons and property of wives, than to wives over husbands, are iniquitous, and should be abolished. The same decision must be made upon the exclusion of women, whether married or single, from suffrage, office, and the full franchises of men. … But when God’s ordinance of the family is thus uprooted, and all the appointed influences of education thus inverted; when America has had a generation of women who were politicians, instead of mothers, how fundamental must be the destruction of society, and how distant and difficult must be the remedy!

Wives owning property! Women voting and running for office! Surely society must collapse from the unnatural strain of such abominations. Why didn’t we listen when Dabny warned us? If only we’d kept blacks in slavery, we could have avoided all this.

[You knew that was sarcasm, right?]

So OK: But for a few dead-enders, same-sex marriage is a done deal now. So polygamy’s usefulness as a slippery-slope horror is over. But are the predictions correct? Is that where we’re heading next? And if we get there, will it be a downward slide or an upward climb?

In Politico Magazine, Fredrik deBoer got right to work with “It’s Time to Legalize Polygamy“. Jonathan Rauch then answered with “No, Polygamy Isn’t the Next Gay Marriage“. And deBoer responded on his blog with “every bad argument against polygamy, debunked“. Another worthwhile piece promoting polygamy (with a better collection of links) is William E. Smith’s “Who’s Scared of Polygamy?” on Religion Dispatches.

I’m not going to take a pro or con position, but I would like to shape the discussion a little.

If you’re worrying (or hoping) that some judge will legalize polygamy next week, stop. Think about how hard it would have been to implement same-sex marriage during the Washington administration: At the dawn of the American Republic, men and women had different legal rights, and husband and wife were unequal legal roles. Same-sex marriage would have been absurd then, because women were legally incapable of playing the husband role, and before they could become wives, men would have to give up inalienable constitutional rights. To make same-sex marriage legal then, the whole legal relationship of men and women — which was embedded in countless laws — would have had to change.

But everything was different by 2003, when the Massachusetts Supreme Court considered the question. Massachusetts had passed an Equal Rights Amendment into its Constitution in 1976, so men and women were equal under the law. The U.S. Supreme Court had thrown out Louisiana’s Head and Master law in 1981, so husband and wife were legal equals. All that really had to happen to make same-sex marriage a reality was to change the forms from Husband and Wife to Spouse and Spouse.

(You can accurately describe American marriage after 1981 in a lot of ways, but “traditional marriage” is not one of them. I don’t know of any traditional society where husbands and wives have been equal under the law.)

Polygamy today resembles same-sex marriage in the Washington administration. Changing the forms to allow an indefinite number of spouses wouldn’t come close to defining it. Are we talking about Biblical (or Mormon) polygamy, where one man marries several women? Jacob and Leah and Rachel, say, or Solomon with his “seven hundred wives of royal birth and three hundred concubines“? Or a group marriage where everybody listed is married to everybody else? Or maybe a chain marriage, where Bob marries Carol marries Ted marries Alice, but Bob and Alice are just friends? Or is some central couple the prime relationship, with other spouses secondary? The possibilities are endless, and the law would have to account for them.*

However you picture it, giving polygamy legal recognition would mean establishing legal infrastructure to answer questions that don’t come up in binary marriages. In a group marriage, can one spouse divorce the others, or does the whole relationship dissolve and need to be reformed? What’s the property settlement look like? Do all spouses have equal rights and responsibilities regarding the children, or do biological parents have a stronger legal bond? In a Biblical polygamous marriage, are all the wives equal, or does the first wife have a special role?

In any of the polygamy models, it doesn’t take much imagination to spin out questions that may not be unanswerable, but aren’t answered in any obvious way by current law. Such questions go all the way down to the most trivial level: What fee should a clerk charge for a plural marriage license? Are current fees based on per-person or per-marriage logic? That question never comes up as long as all marriages are between two people, but someone would need to decide God-knows-how-many minor issues like that.

Consequently, a court can’t simply order to a county clerk to issue a three-person marriage license. The judge would have to rewrite big chunks of the legal code, which a judge is not equipped to do, even if one thought he or she could get away with asserting that kind of power.

Is polygamy a legal right? A somewhat more realistic fantasy/nightmare goes like this: A judge might find that three or more people have a right to the legal advantages marriage offers, even if the judge can’t say exactly how that right should be implemented. That would have to go through a legislature, which is equipped and empowered to rewrite large chunks of the legal code.

So a judge could order the legislature to rectify the situation within a specified time. The legislature would probably refuse, and then the judge could assess damages against the state, which the governor could refuse to pay, and from there who knows where it all goes.

A key part of that scenario, though, is that the legal argument for a right to polygamy is sitting there inside the same-sex-marriage jurisprudence, waiting for some bold judge to notice it. In spite of John Roberts’ dissent, I don’t think that’s true.

In order to have this discussion, though, we need to set aside the particular opinion Justice Kennedy wrote, which really is as bad as the dissents claim. (I covered that when it came out.) It’s not at all typical of marriage-equality opinions, and it contains little in the way of a legal framework that could be extended to polygamy or anything else. I suspect it will have the same kind of influence that Kennedy’s similarly mushy DOMA opinion had: In subsequent lower-court decisions, judges made their rulings consistent with the outcome of the DOMA case, but didn’t attempt to apply Kennedy’s reasoning, such as it was.

The way pro-marriage-equality judges other than Kennedy have approached the issue is through the equal protection of the laws, a position I summarized in May: The opposite-sex marriage laws create an advantageous institution (marriage) and extend its benefits only to opposite-sex couples, when same-sex couples could be included by simply editing the license form, and no credible evidence suggested that negative consequences relevant to the mission of the government would ensue. (The possible offense to God claimed by anti-gay activists is not something the Constitution instructs the government to take notice of. Read the Preamble.) Under those circumstances, there’s really no way to claim that gays and lesbians are being granted the equal protection of the laws promised by the 14th Amendment.

What lies in the background of that argument is that the separation between gays/lesbians and the benefits of marriage is not something the affected individuals can easily fix on their own. Sexual orientation may or may not be innate, but it is not generally changeable in adulthood. And while legally, a gay or lesbian person could enter into a marriage with someone of the opposite sex, it’s hard to see that as a satisfactory solution. Consequently, because of who you are, you might be unable to take advantage of the marriage laws.

That argument is much harder to make for polygamy, which feels more like a lifestyle choice than an innate orientation. The government set up an advantageous path hoping to induce you to live one way, but you decided to live another way. I would defend your right to make that choice, but I don’t see how it gives you a right to the advantages of the other lifestyle.

Maybe some other legal argument for a right-to-polygamy is possible, but I don’t know what it is. I think you’d need to show that favoring binary relationships is an irrational thing for the government to do, and can’t conceivably lead to any social benefit the government might reasonably want to achieve. Constructing such an argument would be much harder than just cutting and pasting from the same-sex marriage arguments.

If polygamy isn’t a right. If polygamy isn’t a right inherent in the laws currently on the books, then if people want it, they need to convince legislatures to pass new laws. And that means convincing a large chunk of the electorate (who may or may not have polygamous fantasies) that a society that openly includes polygamous households is better — or at least no worse — than the society we have now.

If we’re debating in a legislature rather than before a judge, then I think the burden of proof shifts a little on both sides. To win in court, a polygamy supporter would need to show that banning it is completely irrational. To win in a legislature, they’d just need to argue that allowing it makes more sense than banning it. deBoer sums up:

my argument for polygamy is that there are people in the world who want it, and I recognize the inherent and total equality of the dignity and value of their relationships in comparison to two-person relationships.

As in same-sex marriage, we’re talking about real people doing real things. What’s our basis for telling them not to? I’m not saying there is no basis, I just can’t explain what it is off the top of my head.

On the other side, a legislature would have to debate a real proposal, not just an idea. Exactly what relationships are we giving legal form? How do all the details work? In particular, a law shouldn’t create holes in the system, which would be easy to do. (If my health insurance plan covers my spouse, maybe I could establish universal health care by marrying everybody. Or maybe I could solve the immigration problem by marrying all of the undocumented immigrants. Yes, those examples are ridiculous. But it’s not hard to imagine more realistic unintended scenarios, where groups might redefine themselves as marriages to take advantage of a poorly phrased law.) deBoer argues that the difficult logistics of polygamy isn’t a reason not to do it. But a real proposal would have to deal with those logistics.

In short, I would tell both deBoer and Rauch the same thing: I’m convincible, but I’m not convinced. The anti-polygamy argument isn’t sharp enough, and the pro-polygamy argument isn’t detailed enough. But however the issue eventually comes out, it will do so on its own merits, and will not follow automatically just because gay couples or lesbian couples are getting married.

* I’ve questioned whether I should even use the word polygamy to cover all these possibilities, since it often refers specifically to Biblical polygamy, with polyandry referring to a woman with many husbands. But the articles I’ve referenced are comfortable with that usage, so I have reluctantly followed it.

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Two Cheers for Justice Kennedy

June 29, 2015 – 8:43 am

By all means, celebrate. But, looking to future gay-rights cases, Justice Kennedy gave us more rhetoric than precedent.

Friday, the Supreme Court ended the decades-long legal debate on marriage equality, making same-sex marriage legal for the entire nation in Obergefell v Hodges. Across the country, supporters of gay rights were jubilant as they read to each other delicious paragraphs out of Justice Kennedy’s majority opinion. But I have a complaint: Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.

Not in other marriage cases — that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

The DOMA hangover. As regular Sift readers know, I have mixed feelings about Justice Kennedy, particularly on the subject of gay rights. He tends to rule the way I want, and he’s often the swing vote that puts my position over the top. But being the swing vote, he usually ends up writing the majority opinion, and he writes it badly. That’s what happened when the Court threw out the Defense of Marriage Act (DOMA) two years ago, which I covered (along with Chief Justice Roberts’ hamstringing of the Voting Rights Act) in an article I demurely called “This Court Sucks“. And it happened again Friday.

The reason Obergefell came to the Court in the first place was that lower courts could not follow Kennedy’s mushy reasoning in the DOMA case. The Supreme Court is supposed to do more than just decide the current case, it’s supposed provide interpretive frameworks for lower courts to apply, so that future cases can be decided without involving the Supremes again. But when Judge Kean was throwing out Oklahoma’s ban on same-sex marriage, for example, he wrote that he had “gleaned” — not quoted, gleaned — two principles from Kennedy’s DOMA opinion. Other courts gleaned other principles and disagreed, so the highest court had to sort it out.

This time, Kennedy has made marriage equality the law of the land, but he’s done it with another piece of mushy reasoning that is a poor climax to the distinguished series of lower-court decisions supporting same-sex marriage, going all the way back to the 2003 Goodridge decision in Massachusetts. Instead of following the compelling logic laid out by one lower court after another, Kennedy’s opinion looks like exactly what critics of marriage equality say it is: a judge redefining marriage according to his own values. His ruling is full of beautiful tributes to the dignity of same-sex couples, but short on the kind of step-by-step legal thinking you can find in the lower-court rulings, which I summarized last month.

Due process isn’t enough. Every pro-marriage-equality judge I know of, other than Kennedy, has centered the argument on the 14th Amendment‘s guarantee of “the equal protection of the laws”. As I summarized:

In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination.

… So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

Instead, Kennedy focuses on the 14th Amendment’s due-process clause, and finds a fundamental right to marry in the word liberty. His rhetoric is inspiring if you already agree with him, but if you don’t, his reasoning isn’t compelling. The dissents by Roberts, Thomas, Scalia, and Alito eviscerate his argument, and rightly so.

Kennedy’s biggest problem is that the Constitution doesn’t require governments, either federal or state, to recognize marriage at all. (If Oregon wanted to become “the free love state” and stop performing marriages entirely, that would be up to Oregonians.) Liberty traditionally means being left alone by the government, not that the government must help you in some way. So Roberts makes an argument that appears in some form in all the dissents:

Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.

The question Kennedy should have raised is: Once the State has defined the “positive entitlement” of marriage for some people, what’s its justification for denying those benefits to others? But that’s an equal-protection issue, not a liberty issue.

In short: the ruling came out the right way, but the people who still want to hold out against marriage equality feel vindicated in their view that the Court has usurped the power of the legislative branch by “redefining marriage”. It didn’t have to be like this. Why, oh why, couldn’t Justice Ginsburg have written this ruling?

Why it’s important. The lower courts nearly all used the equal-protection framework: Define a level of scrutiny appropriate to laws that discriminate against gays, and then examine the government’s reasons for discriminating under that level of scrutiny. One of the issues to decide, if you go that way, is whether gays and lesbians are a class that has traditionally faced discrimination, and so how much benefit of the doubt a legislature or electorate should get as to its motives.

Racial discrimination, for example, faces the highest level of scrutiny. As a matter of judicial precedent, laws that discriminate against traditionally disadvantaged racial groups are inherently suspect. Similarly, laws that discriminate against women are inherently suspect. It’s possible that some particular race- or gender-discriminating law can be justified, but a court will not give the government any benefit of the doubt.

The traditional discrimination against gays and lesbians certainly would justify giving laws against them some heightened level of scrutiny, but the Supreme Court has never done so. Kennedy doesn’t do so either.

Pro-marriage-equality judges who don’t invoke heightened scrutiny are forced to give the legislative branch the benefit of the doubt. And so they end up having to argue that same-sex marriage bans are completely irrational. That argument has been made, and was sitting there for Kennedy to endorse. He didn’t.

Going either way would have established a precedent for fighting other anti-gay discrimination: Either anti-gay discrimination would face heightened scrutiny in the future, or there would be a precedent for saying that certain kinds of anti-gay discrimination are irrational.

Instead, Justice Kennedy gave us just this result, justified by a lot of effusive rhetoric that has no further legal consequences.

The “threat to American democracy”. All four dissents lamented a judicial usurpation of powers properly belonging to the democratic branches — which is in fact a fair criticism of the argument Kennedy made. The place for flowery rhetoric is in the legislature or on the campaign trail. But it wouldn’t have been a fair criticism of the equal-protection argument Kennedy avoided.

Dahlia Lithwick raised the right question:

And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”

The most-quoted Roberts line was:

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

If you’re a straight person very distant from the gay community, this might sound convincing. But if you imagine yourself in the place of a same-sex couple, it isn’t convincing at all. Would you rather have widespread social approval ten years from now, or the equal protection of the laws today? The answer is pretty obvious.

The comparison to interracial marriage is apt. XKCD draws the chart:

Our fellow citizens are being persuaded of the justice of marriage equality — not, for the most part, by referendum campaigns, but by living in society with same-sex couples. That process will continue apace.

In these the-sky-will-fall-if-we-allow-this situations, most people have to see something in action before they realize the panic-mongers are conning them. As I predicted back in 2003:

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.

Today, no one cares how interracial couples got the right to marry. Most young people have trouble believing it was ever an issue. (Have you ever tried to explain to a teen-ager why his friend’s parents’ marriage would have been illegal 50 years ago? I have.) So it will be for same-sex marriage.

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What’s So Scary About Caitlyn Jenner?

June 8, 2015 – 9:53 am

Transsexualism is the latest example of a difficult truth: Everything you thought was a category is actually a continuum.

The interview. When I started watching Diane Sawyer’s interview with Bruce Jenner (as he was still calling himself in late April), I can’t say I was fully comfortable either with transsexualism in general or with the idea that the hero of the 1976 Olympics [see endnote 1] thought of himself as a woman.

I sort of understood transsexuals in the abstract, or at least I could repeat the right words: For some reason nobody can adequately explain, the gender that society assigns you (based on your genitalia) just feels wrong; you think of yourself as a woman with a penis or a man with breasts and a vagina. Jenner described the feeling in Christian terms: feeling like he had “the soul of a female”.

But as someone who has a hard time pointing to his own soul or tracing its outlines, I can’t really claim I know what that means. At times I have felt like a dissenter from various aspects of male culture — the violence, say, or the joy so many men take in humiliating others — but I have always experienced myself as reaching for a different kind of masculinity (just as so many women in my generation reached for a different kind of femininity) rather than rejecting the whole concept. I’m not sure what it would mean to not feel like a man “inside”. I’m like the fish who hears another fish say that swimming in water just feels wrong, that he was meant to fly through the air. And I respond, “Water? What is water?”

In my personal life, no one has forced me to come to terms with transsexualism. More than one of my casual friends has a child who has adopted a new name and a new pronoun. But learning that name has been about all the adjustment required of me. Occasionally I have found myself in a social setting with someone whose gender was ambiguous — combining breasts with a beard, say. And I have been uncomfortable, but what I mainly felt was fear of making a social error. My discomfort manifested as a desire to be somewhere else, not to harm that other person or make him/her be different.

So I was perhaps the perfect target audience for the Sawyer/Jenner interview. The distance — identifying through a screen with Sawyer sitting across from Jenner — was about right for me to put aside my discomfort and listen with empathy as he (at that time, Jenner was still using the masculine pronoun and talking about “her” as a person he had not yet revealed to the public) discussed his decision to create a new public identity as a woman.

First reactions. After watching that interview, a few things seemed obvious to me:

  • At 65, Jenner is old enough to know what s/he wants.
  • Jenner gave masculinity a fair shot. If it hasn’t worked, it hasn’t worked. In some ways, his external success — being an Olympic hero, trying marriage with three gorgeous women, fathering six and step-fathering four “wonderful, wonderful children” — makes the case clearer. A less successful person with Jenner’s inner life might have blamed himself and said: “Masculinity would be fulfilling if only I were better at it.”
  • Sixty-five is a do-or-die point for a lot of things in life. If there’s something you’re going to regret not trying, you better get on with it.
  • If Jenner’s kids and step-kids are OK with the transition [2], why should the rest of us object?

So this week, Jenner’s new female identity — Caitlyn — made her public debute with an Annie Leibovitz portrait on the cover of Vanity Fair. (Looking at that photo, I assume Kim Kardashian is happy with the way Caitlyn “rocks it”. [2])

Not pink and blue, red and blue. The public reaction has generally split on political lines. Liberals like me have mostly praised the courage it took to go public with something this controversial, while the conservative reaction has been described by the Washington Post as “apocalyptic“. The American Family Association’s Bryan Fischer said on his radio show:

If you want one snapshot of just how corrupt, how morally corrupt, how morally bent, how morally twisted, how morally confused, how morally bankrupt we have become, all you’ve got to do is take a look at the cover of Vanity Fair magazine.

Matt Walsh wrote for The Blaze:

It’s all so evil and so bizarre and so unthinkably ridiculous that no dystopian sci-fi writer could have predicted that the collapse of western society would look like this.

President Obama has praised Jenner, while Republican candidates to replace him have either said nothing or lined up against her. (Lindsey Graham is the exception. And while the WaPo article lists Hillary Clinton as “generally supportive”, I can’t find a quote.) Mike Huckabee has been particularly interesting to watch, as he defended the Duggar family’s handling of their son’s abuse of his sisters (but then removed their endorsement from his web page), while trying to make a joke out of transsexualism.

The social-conservative base that the Republicans need to appeal to has been anything but silent. All you have to do is pick any of the links above and read the comments. They’re not just opposed, they’re actively hostile about it.

Why? Now, part of me (and probably part of you) is saying, “What else is new? Conservatives are rejecting somebody for being different from them, sometimes in very aggressive, insulting ways. Par for the course.” But it’s worth considering all the reasons that it didn’t have to be this way.

  • Jenner is one of their own. In the Sawyer interview, Jenner self-describes as a conservative Republican who “believes in the Constitution”. Jenner talks about God creating his male body and female soul, and thinks seriously about what mission God had in mind for that combination. And Jenner is not just a nominal Christian, but has a real relationship with a congregation. In the WaPo, a minister describes how the Jenner/Kardashian family was “an integral part of this nondenominational evangelical church” and put considerable effort into founding a new church in their neighborhood.
  • There’s really no scripture about this. You’ll search in vain for a verse that says, “A man shall not become a woman.” (If God foresees all, why wouldn’t He have included that verse in His scripture?) The Bible assigns different roles to men and women (not always consistently), and Deuteronomy 22:5 bans cross-dressing (though this rabbi interprets that ban in a limited way). But as for spelling out how you tell whether God meant for you to be male or female, the Bible is silent. Biblical verses supposedly condemning transsexualism all require a lot of interpretation. What motivates people to do the work necessary to arrive at that conclusion?
  • It’s not our business. We all have the option to say, “I wouldn’t do that, but I guess it takes all kinds.” In Thomas Jefferson’s words, Jenner is neither picking my pocket nor breaking my leg.
  • It’s a freedom thing. Who knows, maybe Caitlyn has made a mistake she will eventually regret. But she’s risking her own future life and happiness, not yours or mine. People following their own vision and risking it all for a goal that seems important — that’s something conservatives usually admire.
  • Jenner is a great family-values story. When unexpected challenges arise in the life of one of its members, does a family pull that person closer or push him or her away? The Sawyer interview shows Jenner embedded in a matrix of close family relationships, and the family supports Caitlyn. I’ve got to admire that, and you’d think people who define their politics around “family values” would too.

So there’s plenty of room for conservatives to support Jenner, or just to shrug and move on. But clearly they don’t want to do that. Why not?

What I think is going on. When I look at my own initial discomfort, I think it traces back to a source so basic that it’s pre-verbal. Before I can talk about it, I need to tease it out. So bear with me while I seem to go off on a tangent.

The human mind is kind of a kludge. It has to be. After all, how is a three-pound piece of meat supposed to make sense of such a vast and complicated universe? One of the kludgy short-cuts our minds take is to break the world into categories, i.e., to clump different things together and treat them the same. Many of those categories are binary: male/female, child/adult, right/wrong, friend/enemy, and so on. Others have more options. (In grade school I was taught that there are three races of humans: caucasian, negroid, and mongoloid.) Some of the categories seem in-born, while others are taught to us so early they might as well be. For example, a certain amount of species recognition is practically hard-wired. Kids at an early age will tell you that two dogs are similar while a dog and a cat are different.

We really, really want to believe that the categories in our heads are objective descriptions of the world out there, but science keeps telling us that they aren’t. For example, there are no races, but rather a continuum of genetic difference. If you pluck two people from distant parts of the continuum, they may look like members of distinct races, but in the world as a whole, you won’t be able to trace any boundary line between those races.

Similarly, species are not platonic ideals, but clusters in the genetic continuum. So (contrary to Plato) there is no ideal horse or dog, just lots of individual horses and dogs, any two of whom resemble each other. There are no gay people and straight people, but rather a continuum of bisexuality. There are no nationalities — a point made very strikingly in a fascinating book called The Discovery of France. And like nationalities, modern languages are largely political constructions. In medieval Europe, for example, each village would have a dialect slightly different from the next. If you plucked people out of distant places on that continuum — say one from Paris, another from Madrid, and a third from Lisbon — they would sound like they were speaking different languages you could call French, Spanish, and Portuguese. But, like races, there were no boundaries where one butted up against the other — until politics created those boundaries and imposed them.

And now we are discovering that gender is a binary categorization imposed on an underlying continuum with multiple dimensions. It’s more complicated than just John Waynes with penises and Marilyn Monroes with vaginas.

If you think seriously about how flawed the fundamental building blocks of our thinking are, it’s scary. At any moment, some part of the Universe you’ve been assuming away could come back to bite you. That’s the human condition.

That’s why we get such an oogy feeling whenever we see an example of something we were raised to think didn’t exist: an effeminate man, two women kissing, a child with dark brown skin and frizzy red hair. It’s a reminder that we don’t really grasp the Universe; we just apply kludgy notions that more-or-less work most of the time.

What social conservatism is. At its root, social conservatism is a way to deny that fear and transmute it into anger. Conservatism reassures us that the categories in our heads are real. We didn’t make them up; God created them. They’re natural.

You can see that principle operating across the board. For example, that’s why social conservatives have such a hard time accepting evolution: If species are real things and if humans evolved from some other kind of primate, then each being in that mother-to-child chain belonged to a species. Somewhere along that line, the impermeable boundary between species had to be crossed: an ape mother gave birth to the first human child. Impossible!

Likewise abortion. The moral worth of a member of the human species is a unitary thing. It can’t develop gradually along a continuum, but has to exist either in its entirety or not at all. And a fetus is either a member of the human species or not. We aren’t allowed to recognize that in its early stages, a human fetus is virtually indistinguishable from the fetus of a pig or cow, or that it begins to differentiate from a chimp fetus even later.

This reification of the categories is why conservative rhetoric is obsessed with the word real: real men, real Americans, real conservatives. Liberals are more likely to describe themselves as authentic. Authentic is a relative word; it points to a harmony between what I am and the image I project. Real is absolute; I am a real X because I match an ideal definition of X that exists eternally in the mind of God.

Now, not even social conservatism can deny the existence of things that don’t fit neatly into the proper categories. But it can reject them as abominations. The list of abominations depends on the categories you were raised with: Men attracted to other men are abominations. Women who operate heavy machinery are abominations. Families who cross from black to white are abominations. Americans who can’t speak English are abominations. Mixed-race people are abominations. Genetic engineering produces abominations.

Functionally, an abomination is anything that causes confusion by making us doubt our categories. And by labeling it as an abomination, we transform our doubt and confusion into anger at whatever confused us.

So: Caitlyn Jenner is an abomination. Just by existing, she creates confusion about the kludgy notion of binary gender. She points out that there is more in Heaven and Earth than is dreamed of in our philosophies … or our religions. That’s a scary idea, and by raising it, she becomes an object of anger.

[1] I remember eating Wheaties out of a box with Bruce Jenner’s picture on it. In the 1970s, (moreso than today, for some reason) the Decathlon was a legend-making Olympic event. Americans who won it — Jim Thorpe and Bob Mathias, for example — were famous for more than just a four-year cycle. They became the defining image of the perfect all-around athlete. Physically, they were what every American boy was supposed to want to become.

Bruce Jenner was a record-setting Olympic Decathlon champion, and he arrived at a moment in history when white males were starting to feel insecure about their athleticism. Black sports heroes (Jesse Ownes, Joe Louis, Jackie Robinson) had once been tokens, freakish exceptions who were “credits to their race”. The next generation of black athletes (Wilt Chamberlain, Jim Brown, Willie Mays) claimed their place in the mainstream. But by the mid-70s, it was white players (Rick Barry, Dave Cowens) who looked like tokens in the NBA, and the NFL and MLB seemed headed in the same direction. Blacks would never be great quarterbacks, we told each other. But secretly we wondered if there would ever be a white running back on the level of O. J. Simpson, Tony Dorsett, or Walter Payton. (According to this CheatSheet.com top-ten list, the answer was no.) Even the last American Decathlon champion (Rafer Johnson) had been black.

And then came Bruce Jenner, the hero we needed at the time we needed him. A white man’s white man. Or so we thought.

[2] The most amusing reaction Jenner reports came from step-daughter Kim Kardashian. Following a “breakthrough” conversation with Kanye West (of all people), Kim became “by far, the most accepting” of the children. Jenner quotes her volunteering to help shape Caitlyn’s style:

Girl, you gotta rock it, baby. You gotta look good. If you’re doing this thing, I’m helping you. You’re representing the family. You gotta look really good.

By weeklysift | Posted in Articles | Comments (35)

Religious Freedom: Colorado’s sensible middle way

April 6, 2015 – 10:35 am

There have been a lot of painful back-and-forths about what the proposed state “religious freedom” laws allow. Like this one, where ABC’s Jake Trapper tries to get the sponsor of Arkansas’ original RFRA bill (which has since been watered down a little) to admit that it allows “discrimination” against a same-sex couple getting married, while the legislator will admit only that it allows bakers, florists, et al to refuse to “participate in the message”.

There actually is a sensible in-between position, and I doubt a new law was necessary to allow it, because it was already embedded in the judge’s decision in the 2013 Colorado bakery case, as I noted last week.

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. … [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. [my emphasis]

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

Colorado followed that principle again this week when it upheld the right of a baker not to make an anti-gay cake:

The complaint against Marjorie Silva, owner of Azucar Bakery, was filed by Castle Rock, Colo., resident Bill Jack, who claimed Silva discriminated against his religious beliefs when she refused to decorate a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin.

Silva said she would make the cake, but declined to write his suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that.

If conservative Christian bakers would offer gay and lesbian couples a similar compromise — “I’ll make the cake and sell you two groom figures, but you’ll have to put them on the cake yourself.” — I suspect they’d have no problems with the courts. Certainly not in Colorado, and probably not anywhere.

The loophole the Arkansas legislator is trying to wiggle through is that the Supreme Court has extended First Amendment protection to “symbolic speech” — wordless actions that make a statement, like burning an American flag. He wants to claim that providing any of the services involved in a same-sex wedding can be construed as a symbolic statement that the provider approves of same-sex marriage. So a florist’s or photographer’s right to free speech is violated if s/he is forced to make such a statement.

That’s ridiculous. It’s the kind of passive aggression I’ve pointed out before: exaggerating your sensitivity in order to control others by claiming offense. Society could not function if we allowed everyone to claim this degree of moral sensitivity. (“If you force me to hire beef-eaters in my widget factory, then you’re making me say I approve of eating beef, which violates my Hindu faith.”) So it’s an implicit claim that conservative Christians have special rights that other people don’t have.

What this situation cries out for is a “reasonable person” interpretation: Would reasonable people look at the flowers at a same-sex wedding and see the florist making a political/religious statement? (“Those must come from Belle’s Flowers. I didn’t know Belle endorsed same-sex marriage. I thought she was a Christian.”) Or would they just think “nice flowers”?

This interpretation separates actual religious-freedom issues from the bogus ones that fundamentalists are putting forward. A reasonable person would assume that the officiating minister approves of the ceremony, so the minister’s presence makes a statement that the law can’t force. But florists? photographers? bakers? caterers? No.

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When Hate Stays in the Closet

February 16, 2015 – 8:25 am

answering the most sympathetic and reasonable arguments against same-sex marriage

I found the Marriage Conservation Facebook page when one of my FB friends linked to something “hateful” posted there. And it’s true, you don’t have to read very far to find nasty comments cloaked in self-righteousness.

But that’s not what I found interesting.

In general, I try to discourage my friends from winding themselves up by seeking out other people’s bile. Once in a while I run into some blessedly innocent person who doesn’t understand the depth of irrational hatred in the world, and who (sadly) needs to be disillusioned a little. But I believe that for most of us, the idea that there are crazy, nasty, ugly people on the other side comes to mind far too easily.

What’s harder to hold in mind is all the good, decent, well-meaning people who are trying their best to do the right thing, but happen to believe something different than I do or you do.

There always are such people, and they often form the majority of the opposition. This is true even if you are 100% right. Human beings are fallible, we’re loath to discard familiar attitudes, and the opportunities for rationalization to derail clear thinking are innumerable. (That’s true for me and the people who agree with me, too.) So recognizing the fundamental humanity of your opponents doesn’t mean you have to compromise with them or pretend that their points have more validity than you think they really do.

Failing to see the well-intentioned people on the other side is also counter-productive. Because the more an argument becomes dominated by hate and angry condemnations of hate, the more convinced the well-meaning people will be that they must be right. After all, if the points they find convincing were answerable, surely people would be answering them, rather than tarring them by association with the bigots or the self-righteous types whose best argument is something like “I just talked to God and He agrees with me.”

So let’s consider some of the points that the more reasonable folks who post to Marriage Conservation find compelling. There are basically two types: testimonies and statistics.

Testimony. One kind of article that has been showing up more and more often lately is the testimony of a young adult raised by same-sex parents. Marriage-equality advocates been using such testimonies effectively for some time, and Justice Kennedy (who is likely to be the deciding vote when the Supreme Court rules on this issue later this year) has said:

There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

So naturally, the other side has found its own testimonies: Not every child raised by a same-sex couple believes in marriage equality. A good example is Katy Faust’s “Dear Justice Kennedy: An Open Letter from the Child of a Loving Gay Parent“.

I write because I am one of many children with gay parents who believe we should protect marriage. … I’d like to explain why I think redefining marriage would actually serve to strip these children of their most fundamental rights.

Faust goes on to say that she loves her mother and her mother’s partner, but the debate about marriage shouldn’t hinge on “lessening emotional suffering within the homosexual community”

This debate, at its core, is about one thing. It’s about children.

“There is no difference between the value and worth of heterosexual and homosexual persons,” Faust writes.

However, when it comes to procreation and child-rearing, same-sex couples and opposite-sex couples are wholly unequal and should be treated differently for the sake of the children.

When two adults who cannot procreate want to raise children together, where do those babies come from? Each child is conceived by a mother and a father to whom that child has a natural right.

She then talks about “the missing parent”. In her case she was raised by two mothers, but her parents’ divorce distanced her from her father. The authenticity of that yearning is what gives her testimony its emotional punch. I’m sure that when same-sex-marriage opponents read her article, they come away with a strong desire to protect children like Katy.

But … what does her testimony have to do with same-sex marriage? The problem here is divorce, not gay or lesbian relationships. Children of divorce often miss their non-custodial parent. It’s a sad situation, whether the custodial parent stays single or re-marries someone of either gender.

If you follow Faust’s argument where it logically goes, rather than just to the place that’s politically expedient, you’ll pay no attention to same-sex marriage and instead work to make it much harder for parents to divorce, and to force men to marry women they get pregnant. That would really enforce a child’s “natural right” to both biological parents.

But no one is pushing either of those proposals, probably because you couldn’t even get support for them in religious-right churches (where divorce rates are higher than among, say, atheists) or in Bible-belt states like Louisiana and Mississippi (which have the highest birth-out-of-wedlock rates in the country).

Lying behind Faust’s argument (and many others like it) is an idealistic view of sex and child-bearing that is beautiful in its way: In the ideal world, there would be no unwanted pregnancies. Every conception would result from an act of love between two people committed to each other and to the life they might bring into the world. The parents would be mature enough and self-aware enough to make that commitment and see it through, and Life or God or Fate would cooperate by letting them live long enough to do it.

Unfortunately, though, that vision is disconnected from the world where we actually live — disconnected, in fact, from any world where anyone has ever lived. Selectively imposing pieces of that vision on gay and lesbian couples because they are an unpopular minority is unfair.

It also would be ineffective; there is no reason to believe that banning same-sex marriage would move the children of America closer to that vision in any way. In a world where no one had ever heard of same-sex marriage, Katy Faust’s parents would still get divorced and she would still grow up without her “natural right” to live with her father. And nothing Justice Kennedy does or avoids doing will fix that for future Katy Fausts.

Who redefined marriage? I keep going back to what Dan Savage told Chris Hayes a few years ago: It isn’t that gay people want to redefine marriage, it’s that straight people have already redefined marriage in such a way that there’s no longer any coherent argument for keeping gay couples on the outside.

I am one of those straight people. My wife and I have been married for 30 years, but (though we dearly love some of our friends’ children), we decided not to have a child of our own. For us, as for many childless-by-choice couples, marriage has been about forming a life-long partnership. A strong marriage partnership is indeed a good setting to raise children; but these days, whether a married couple will raise children or not is a separate decision.

Among straights, child-raising has not been the defining characteristic of marriage for at least a generation. To make it the defining characteristic again only when we consider same-sex couples is unfair.

Maybe you want to roll marriage back to the 1960s, before Governor Reagan signed California’s no-fault divorce law (or even to the 1800s, when wives couldn’t own property). If so, be honest about it and go after the people who are really responsible for the changing expectations about marriage: divorced or never-married straights with children, and married straights without children. Try using the law to impose your will on them. See for yourself how popular that would be.

Statistics. Just in time for the Supreme Court’s consideration comes a statistical study comparing children raised by same-sex and opposite-sex parents: “Emotional Problems among Children with Same-Sex Parents: Difference by Definition” by Donald Paul Sullins, a Catholic priest and a sociology professor at the Catholic University of America (the same institution from which he received his masters and doctorate).

Sullins looks at data collected by the National Health Interview Study between 1997 and 2013. His sample includes 207,007 children, of whom 512 came from households where the adults in the household were same-sex couples. (The study has no data on whether the couples were married. Given the legal situation during most of the period in question, the vast majority of them probably weren’t.) He finds that

Emotional problems were over twice as prevalent … for children with same-sex parents than for children with opposite-sex parents.

Mark Regnerus — author of a similar study a few years ago — interprets Sullins’ results to say “Kids do best with Mom and Dad.” In other words, “biology matters”; the more biological parents a child lives with, the better (on average). And since a same-sex couple at best contains only one of a child’s biological parents, it starts out at a disadvantage.

There are, of course, a number of studies that say the opposite: that all other things being equal, children raised by same-sex couples on average do as well or better than those raised by opposite-sex couples.

What the debate ultimately comes down to is what it means for all other things to be equal, because they seldom are in any literal sense. We live in a society where biological parents get the first shot at raising a child. If they are a committed couple who are willing and able to do the job, no one can stop them or even wants to stop them. So when you study children being raised by someone other than both biological parents, you are often looking at a child for whom something has gone wrong. There may have been a divorce, a death, a desertion, a parent in prison, abuse, a series of foster homes, or an involved custody battle — maybe several of those things.

If you are looking at the emotional well-being of those children as a measure of the the quality of the parenting they are receiving in their current homes, you need to compare them to similar children in other homes. If, say, my wife and I were to adopt a six-year-old from an orphanage in Indonesia, a few years later it might be fair to compare our child to other children adopted at a similar age from similar orphanages — but not to children raised from birth by American parents.

Most studies of same-sex parenting do some similar kind of data-normalization, so that, say, children of divorce are compared to other children of divorce, and so on. But Regnerus argues explicitly for not adjusting the raw data to make apples-to-apples comparisons.

You can make the children of same-sex households appear to fare fine (if not better), on average, if you control for a series of documented factors more apt to plague same-sex relationships and households: relationship instability, residential instability, health and emotional challenges, greater economic struggle (among female couples), and—perhaps most significantly—the lack of two biological connections to the child. If you control for these, you will indeed find “no differences” left over. Doing this gives the impression that “the kids are fine” at a time when it is politically expedient to do so.

This analytic tendency reflects a common pattern in social science research to search for ‘‘independent’’ effects of variables, thereby overlooking—or perhaps ignoring—the pathways that explain how social phenomena actually operate in the real world.

What he is arguing, in other words, is that same-sex couples who are raising children ought to be held responsible for how their children got into this situation, whether they had anything to do with it or not.

For example, suppose a husband deserts his wife and children for another woman, and the wife later finds a committed partner who is female. Regnerus and Sullins would assign the emotional baggage of the desertion to the wife who stayed and the woman who took on the challenge of helping her, not to the opposite-sex household of the man who actually deserted. The impact of bigotry on the same-sex household (which might have something to do with why lesbian couples on average make less money than couples that include a man) is also their responsibility, not the responsibility of those who discriminate against them.

I suspect it wouldn’t be hard to do a Sullins-type study about the emotional problems and developmental difficulties faced by children raised by black parents. Blacks parents, on average, are poorer than white parents. They have lower academic achievement, are more likely to live in neighborhoods with bad schools, and so on. Maybe those factors shouldn’t be normalized out of the statistics by which we judge black parents, because they are “the pathways that explain how social phenomena actually operate in the real world.” Maybe they should instead be arguments for not letting blacks raise children at all, or not letting them get married. Maybe solidly middle-class black couples with good educations should be considered suspect because of the statistics associated with their race.

Or not. Maybe if two men find a willing surrogate mother to bear a child for them, and then raise that child from birth to adulthood in a loving household, they shouldn’t have to answer for statistics shaped by divorce and desertion — as Regnerus and Sullins would have them do.

Magic. Lying behind the Sullins and Regnerus studies is the same kind of magical thinking that Katy Faust demonstrates: If only we made same-sex relationships more arduous, then opposite-sex relationships would miraculously improve. Through some benevolent act of God, there wouldn’t be any more unwed mothers or divorces or households so toxic that the state had to intervene. Those things are all the fault of homosexuals, so of course we shouldn’t factor them out of the statistics when we judge the children they are raising.

I’ve never met Sullins or Regnerus or talked to anybody who has, so I have no idea what motivates a person to devote his career to constructing such studies. But the people who are impressed with those studies and quote them to others, I suspect, are mostly well-intentioned folks. And if Faust is some kind of hater, she hides it really well. I can easily sympathize with her wish that her mother and father had done a better job with their marriage, so that Faust need never have gone through the disruption of their divorce.

But the problems of opposite-sex relationships belong to opposite-sex couples. Making life harder for gay people won’t solve them.

And whether it would happen in your ideal world or not, same-sex couples are raising children. Some are adopting children whose biological parents can’t or won’t raise them. Some are working with doctors and friends to conceive children that they will raise from birth. And some are keeping faith with the children they had in a previous opposite-sex relationship that failed.

In the vast majority of those cases, if they gave those children up something worse would happen to them. And if you make life harder for those couples, you can’t avoid making life harder for their children. Who would that benefit?

If you think someone would benefit, I don’t automatically see you as a hate-filled bigot. But I can’t figure out who you’re picturing. It can’t be Katy Faust, or any of the other victims of failed opposite-sex relationships. And if not them, then who?

By weeklysift | Posted in Articles | Also tagged | Comments (16)

The Liberal-on-Liberal Debate Over Political Correctness

February 2, 2015 – 9:24 am

A fascinating argument was touched off when Jonathan Chait, a writer I usually like, posted “Not a Very P.C. Thing to Say: how the language police are perverting liberalism” on the New York magazine site.

Chait began by recounting an incident that really is objectionable: A Muslim man at the University of Michigan wrote a column for the campus conservative newspaper of the sort that campus conservatives think is clever, a spoof of someone from a marginalized group looking for things to be offended by. Not my cup of tea (or probably Chait’s either, for that matter) but what upset Chait was the reaction: Four people littered the steps of the student’s apartment building with copies of his column written over with insulting and hostile messages.

Up to that point, Chait was on firm ground; that kind of intimidation isn’t an appropriate response. But from there he segued into a stream of conservative tropes:

Political correctness is a style of politics in which the more radical members of the left attempt to regulate political discourse by defining opposing views as bigoted and illegitimate. Two decades ago, the only communities where the left could exert such hegemonic control lay within academia, which gave it an influence on intellectual life far out of proportion to its numeric size. Today’s political correctness flourishes most consequentially on social media, where it enjoys a frisson of cool and vast new cultural reach. And since social media is also now the milieu that hosts most political debate, the new p.c. has attained an influence over mainstream journalism and commentary beyond that of the old.

Naturally, conservative writers loved watching liberals argue about this. The Federalist‘s Robert Tracinski wrote:

I have observed several times before that the actual essence of the Obama era’s “post-racial” politics is: white people calling other white people racist. The true icons of racial politics in our era are not a fiery Jeremiah Wright or Jesse Jackson or even Al Sharpton, taking the white man to task for keep black folk down. No, it is the average Obama voter—a left-leaning, college-educated white person like, well, like Jonathan Chait, who uses his support for Obama and the Democrats’ agenda as evidence of his enlightenment, which in his mind makes him superior to Obama’s critics, who must be motivated by insidious, secret racism. … So you can see Chait’s dismay at seeing good white “liberals” have their Not Racist credentials challenged by those who are farther out on the left. Don’t they know how the system is supposed to work?

Because that whole “racism” thing is such a scam in the post-Jim-Crow era, when we all have equal opportunities and are treated the same wherever we go.

I thought about writing my own Chait-response article, but other liberals — mostly people Jonathan Korman linked to on Facebook (thanks!) — have been doing a better job than the first ideas that occurred to me, so I’ll mostly just link to them and decide at the end whether I have anything worth adding.

My problem with Chait is simple: As long as we’re not talking vandalism or violence or physical intimidation — and we’re not, in almost all of the cases he mentions other than that first one — saying that somebody’s view is “bigoted and illegitimate” is just as much an exercise of free speech as whatever that person said in the first place.

But wait, Belle Waring said it better:

People like Chait also don’t merely want to be allowed to say whatever they wish about whomever they wish for the sake of debate itself. Because he can already say whatever he damn well pleases! Look at him go! What he wants is the right to both say things which are offensive to some people and remain a liberal in good standing once he has said them. This is a stupid right which no one should have. … Chait wants to say offensive things and not be criticized.

And for Chait to write off such objections as “political correctness” … doesn’t that label represent the same kind of de-legitimization he is objecting to? But Vox‘s Amanda Taub has that covered:

First things first: there’s no such thing as “political correctness.” The term’s in wide use, certainly, but has no actual fixed or specific meaning. What defines it is not what it describes but how it’s used: as a way to dismiss a concern or demand as a frivolous grievance rather than a real issue.

Chait identifies a long list of disputes that he describes as examples of “p.c.” demands that are hurting mainstream liberalism. But calling these concerns “political correctness” is another way of saying that they aren’t important enough to be addressed on their merits. And all that really means is that they’re not important to Jonathan Chait.

Because it’s up to white men (like me and Chait) to decide whether your concerns deserve attention, or if you’re just being too sensitive. We’ll let you know what we decide, but until then try to keep the noise down so that you don’t disturb the neighbors.

Anti-war activist Fredrik deBoer offered a more nuanced opinion: Chait may be full of it, but that doesn’t mean there’s no problem in left-wing discourse. He described a series of situations where he’s seen left-wing groups chase away potential young recruits by coming down way too hard on them the first time they say something that offends a marginalized group — which is bound to happen, because marginalized groups have been marginalized; if you don’t belong to the group, you probably have never been taught how to consider their point of view, and you won’t figure it out until you go through a certain amount of well-intentioned trial and error. In the long run, might it be more productive to point out and correct those errors in a nicer way?

I don’t want these kids to be more like Jon Chait. I sure as hell don’t want them to be less left-wing. I want them to be more left-wing. I want a left that can win, and there’s no way I can have that when the actually-existing left sheds potential allies at an impossible rate. But the prohibition against ever telling anyone to be friendlier and more forgiving is so powerful and calcified it’s a permanent feature of today’s progressivism. And I’m left as this sad old 33 year old teacher who no longer has the slightest fucking idea what to say to the many brilliant, passionate young people whose only crime is not already being perfect.

An interesting detail: In deBoer’s examples, the people coming down hard on the newcomers are themselves from privileged backgrounds, which suggests that a cycle-of-abuse thing might be going on: I got hazed when I joined the movement, so I’ll be damned if I let you get away with anything.

Like deBoer, Julian What’s-He-Doing-At-the-Cato-Institute Sanchez starts with an accurate critique of Chait:

For people accustomed to seeing their opinions greeted with everything from dismissive condescension to harassment and death threats, a successful writer complaining from a perch at New York magazine about his friends being “bludgeoned… into despondent silence”—because people are mean on social media—simply sounded whiny.  Chait also moves a bit too seamlessly from real, honest-to-God censorship by public institutions to more informal social pressure in a way that makes it sound like he’s conflating them—claiming that criticism is somehow tantamount to censorship or repression.

But then he goes deeper. Every movement, Sanchez says, needs to watch out for a certain discussion-constraining dynamic: When the group’s extreme fringe takes its good ideas too far, it’s a thankless job for anyone within the movement to say, “Hey, wait a minute.” So instead, that criticism winds up being made by opponents, who just want to shut the group down. And once that starts happening, any insider who raises a similar point is siding with the enemy, and implicitly endorsing the whole ream of bogus criticisms enemies raise.

When teetotalers are the only ones willing to say “maybe you’ve had one too many,” because your friends are worried about sounding like abstemious scolds, the advice is a lot easier to dismiss. Which is fine until it’s time to drive home.

You see this dynamic, in fact, with the response to Chait’s essay: Progressives who think maybe he’s kinda-sorta got a point quickly move on, ceding the field to those who want to revoke his ally card and conservatives eager to welcome him, at least for the next ten seconds, to “their” side. … And this makes it still easier to conclude that nothing interesting or valuable is lost by any self-censorship that may be occurring. We know what the counterargument looks like, after all: It’s the garbage those assholes are spouting. Discourse gets increasingly polarized and, in the process, stupider. Which, again, seems like a bad outcome even if you don’t particularly care whether Jon Chait gets his feelings hurt.

So, do I have anything to add to that? Maybe I’ll just kibbitz a little to resolve the apparent contradiction between two people I think are both right: Taub saying PC doesn’t exist and Waring talking about it as a real thing that has positive value.

Let’s start with the definition I gave in “A Conservative-to-English Lexicon“:

Political correctness. The bizarre liberal belief that whites, men, straights, Christians, the rich, and other Americans in positions of privilege should treat less privileged people with respect, even though such people have no power to force them to.

Removing the snark: political correctness is the attempt to extend to powerless people the same kind of courtesy that powerful people can take for granted.

Just as an example, suppose you work for a large corporation and somehow find yourself talking to the Big Boss. Maybe you’re on an elevator together or standing in line next to him at the cafeteria, hard as that is to imagine. Naturally, the wheels in your head are spinning as you try to imagine his point of view, so that nothing you say or do will accidentally offend him. But if you were in a similar situation with a janitor or some other person of low rank, you probably wouldn’t work your empathy nearly so hard.

Maybe you should. Or maybe you should at least work your empathy harder than most of us usually do.

Extend that to groups. When you belong to a powerful group — say, men or whites or straights or something similarly normative in our culture — you can take for granted that nearly everyone you run into has a general appreciation of your point of view and knows better than to piss you off in obvious ways. Members of marginalized groups can’t assume that. They’re constantly being jostled or hassled or put on the spot; occasionally by haters, but more often by ordinary folks who can’t be bothered to think too hard about them. PC is the attempt to raise the overall level of consideration to the level that powerful groups take for granted.

That, I think, is the PC that Waring sees value in.

Taub, on the other hand, is talking not about PC as it would be defined by its practitioners, but about the undefined negative label that gets thrown around by critics. And she’s right: The most common usage of “political correctness” in the media is to label some issue as beneath my concern, because the people being offended or victimized or insulted aren’t people I care about, and aren’t powerful enough to make me care.

I think maybe I should add that usage to the Lexicon.

By weeklysift | Posted in Articles | Also tagged , | Comments (11)