Friday, February 25, 2005

Values-Based Debate

I've gotten some great emails and some intriguing comments on my earlier post regarding Bush's stance on the FMA. I want to write one, long, uber-post explaining my position on this issue and why I think it is a moral imperative that America grant marriage equality to gays.

I. The Morals Problem
The most common attack on gay marriage is that it is "immoral." The problem with that statement is that it is an entirely empty term. I have no idea what "moral" means. I happen to think that equality is "moral." Clearly, others do not. Just parroting the word "moral" over and over again doesn't get us anywhere, because it is too vague. Gay marriage must succeed or fail based on something more concrete.

Generally, something can be considered moral or immoral based on whether it violates some socially accepted value. "Morality" isn't a value, it is a term that encompasses values. Preserving the family might be considered a value. Equal protection might be considered another. Liberty could be a third. Analysis of gay marriage must begin with an examination of how it impacts into specific social values. At that point, we can begin a comparison and start weighing the benefits versus the harms.

II. Protecting the Family
The refrain one continuously hears from the religious right (usually juxtaposed next to "morals") is that they are protecting the family. Stable, secure families are undoubtedly a social value, so that strikes me as a good place to start. So the first question we can ask is: Do gay marriages help or harm families?

At no time has anyone ever pointed me to any evidence, statistical or analytical, that homosexual marriages have caused any harm whatsoever to heterosexual families. It does not threaten the benefits accorded to married couples. It does not signify a degrading of the term--unless one feels that homosexual participate in any institution automatically degrades it. Simply put, heterosexual families are not impacted in any material way by the presence of homosexual married couples. The net negative here is zero.

On the positive side of the ledger, homosexual marriage provides the same benefits to said couples, and their families, that heterosexual marriage does. It affords social legitimacy, provides standardized and streamlined mechanisms for allocating benefits, and grants stability to any children that the family may be raising. I would add another issue as well: the existence of legal restrictions against homosexuals as homosexuals legitimizes their subordinate status. Especially in schoolyard environments which are so sensitive to the prevailing social winds, this has the potential for severe harm to the children of homosexual children (see "anti-subordination" below).

III. Equal Protection
Another value we hold dear in society is equal protection of the law. Indeed, some might argue that this is the paramount value upon which all others are based. The reason that democracies cannot willy-nilly oppress minorities is that any law passed by the legislature must apply equally to the most and least powerful among us. Hence, laws that either single out one group for negative (or positive) treatment must have at least some rational basis in law. The bar is raised to strict scrutiny when the group in question is a "discrete and insular minority," or has been the past target of animus and discrimination. Homosexuals, needless to say, fall in both categories.

So now we turn to whether the prohibition on gay marriage violates the equal protection of the laws. The answer is clearly in the affirmative.

The most obvious parallel is to the prohibitions on inter-racial marriage, held unconstitutional in Loving v. Virginia. The equal-protection violation in that case was clear: If White Man A married White Women B, we had a legal marriage; but if White Man A married Black Women C, then we had a crime. Since the only change was in the race of the party, it clearly was a case of racial discrimination.

Defenders of marriage discrimination rejoin that there is no similar violation here because all men--hetero- and homosexual--are equally barred from marrying other men (and of course, the same applies to women). First of all, I think that is a pretty skewed perception of what marriage means. The right to marry means little if it does not include the right to marry one someone of your choice. Heterosexuals get that choice, homosexuals do not. Once again, marriage is not just about giving two people the socially sanctioned right to have procreative sex. If that was the case, we'd simply pair folks off randomly and assign them to have children. The beauty in marriage lies in two persons consciously choosing to spend the rest of their life together, as a family, often with children. However, even if you don't buy that, the above analogy is illustrative on why marriage discrimination violates equal protection. Let us recast it in terms of the debate at hand. Male A marries Female B, valid marriage. Male A marries Male C, invalid marriage. In this case, the only difference is in the sex of the party, which is also not a valid reason to discriminate under the constitution. The equal protection violation remains.

There are other equal protection shortcomings inherent to the anti-gay marriage case as well. The most prominent is that defenders of marriage discrimination make no effort to apply their logic to similarly situated persons. As I wrote in my analysis of the 11th Circuit Court of Appeals case Lofton v. Department of Children and Family Services:
The vast majority of the state's claims of rationale falter because it makes no effort to apply the same standards to similarly situated people (for example, its claim that it wants children in houses with a mother and a father is undercut by the fact that it allows single people to adopt). The only analysis it gives that arguably only applies to Homosexual couples is that the state might want its children to be "normalized" and that it would be weird and possibly harmful for predominately heterosexual children to be raised by homosexual parents who are implied to be outside the mainstream. Even beyond the substantial psychological evidence which shows that any harm to children raised by homosexual parents is fictive...the flaws in this argument are transparent. First, as the dissent aptly notes, it gives no guidance on how to deal with homosexual children who presumably need a "similar" parent figure as much as heterosexual parent does. Second, it doesn't apply the same standard to other groups that could be termed "outside the mainstream" (like inter-racial couples).

Virtually all arguments against homosexual marriage come apart under this standard. If the state is seeking to encourage procreation, it shouldn't be giving benefits to non-procreative couples. If the state is worried about social stigmatization of children, then it should be precluded from allowing inter-racial couples to marry. If the state wants parents who will be good role models, then it should prevent anybody but Doctors and Lawyers from marrying. There simply isn't a shred of evidence that can be used to prevent homosexual marriage that could not also be used to strip away rights from people whom society overwhelmingly agrees should be protected. Call this the inverted slippery slope: If we affirm that homosexuals can be discriminated against under law, then there are any number of discriminatory actions we'd have to take against other groups in order to satisfy the dictates of equal protection. Which conveniently moves me to...

IV. The Slippery Slope
The slippery slope argument is another popular one to make. It basically says "even if homosexual marriage isn't that bad, it will invariably lead to X which IS horrible, so we can't set down that path." Now, as I demonstrated above, the slippery slope goes both ways so it really isn't a valid argument. However, if we deconstruct the logic behind "slippery slope," we can see how it falters.

The reason that the "X" above is presumed to be a persuasive reason not to allow gay marriage is because X is some very bad thing. Gay marriage isn't a very bad thing--if it was, we wouldn't even need to raise the comparison to X in the first place. We could simply explain all the bad things associated with gay marriage. However, is X really is that bad, it should not be that difficult to figure what makes it bad when homosexual marriage is not. Take bestiality, a common marker (thank you Senator Santorum!) that the gay marriage slippery slope is supposed to take us past. What makes bestiality bad when gay marriage is not? Animals, of course, cannot consent, while gay couples can. Since we don't allow entities to enter into relationships without giving consent (which implies the capacity to give it), bestiality can be prohibited when homosexual marriage is not. Another example is incest. Here the problem is in harm to any child formed from the relation. Children of incestuous relations are at a statistically far higher risk to any number of genetic diseases and defects. It is protecting these potential children from harm that justifies anti-Incest legislation; clearly this also does not bear any relevancy to homosexual marriage either (incidentally, we can prohibit homosexual incest as well based on equal protection arguments--it would be wrong to grant homosexual couples a right (incest) not granted to heterosexual couples). The slippery slope can be stopped rather easily.

V. Anti-Subordination
It is generally agreed that the state should not subordinate certain groups, labeling them as subhuman and unworthy of basic respect. The problem with codified discrimination is that it is stigmatizing. Law is seen by society as a reflection of reality--those that society chooses to stigmatize via the allocation of legal sanction are presumed to deserve their reduced status. This process of stigmatization can rapidly spiral out of control; even if we want to limit the stigma only to a specific aspect (in this case, that Gays shouldn't be allowed to marry), the stigma has a tendency to reproduce itself as a general proof of inferiority. Ernest Goffman elaborates:
The attitudes we normals have toward a person with a stigma, and the actions we take in regard to him, are well known...[W]e believe the person with a stigma is not quite human...We construct a stigma-theory, an ideology to explain his inferiority and account for the danger he represents...imput[ing] a wide range of imperfections on the basis of the original one...

Persons who notice that some persons are not accorded the same respect as others will condition themselves to see the disrespected person in that light. A man who grows up around slaves is being told explicitly that blacks are incapable of self-rule. Implicitly, he is likely to construct broader theories of black inferiority: Blacks are stupid, they are lazy, they are churlish, they are simpleminded, they are sexual predators. Worse yet, the sheer ubiquitousness of these social norms will likely inoculate these same values in the oppressed party--Blacks will see themselves as inferior because that is what society tells them they are. Thus, even narrow deprivations of rights reify discriminatory attitudes across the board. For homosexuals, the signal of the FMA is that they are not equal citizens, that they are something society must be afforded "protected against" under law. It is a very small leap from saying we need to protected against gay marriage, to the society claiming protection against gay sexual molestation, gay cultural abuse, or gay mental instability.

Indeed, the inoculation of discriminatory attitudes perhaps is the worst of all the harms accorded by the FMA because it precludes societal correction or change. This is because in addition to being discriminated against de jure, the stigmatized will be de facto barred from the political process. Any advocacy on behalf of the stigmatized opens the advocate to the same stigmatization, thus, the oppressed party is more likely to withdraw from political controversies so as to not provoke any further backlash. Elisabeth Noelle-Neumann terms this the "spiral of silence": as a social norm becomes more entrenched, dissenters are more likely to self-censor themselves rather than risk the repercussions that stem from challenging the dominant view. This has the effect of further entrenching that view, and a feedback loop ensues. The Supreme Court has recognized as much in its refusal to continence the endorsement of certain religious views:
Endorsement sends the message to non-adherents that they are outsiders, not favored members of the political community; and an accompanying message to adherents that they are insiders, favored members of the political community. [Lynch v. Donnelly, J. O'Connor concurring]
The harm is just as severe, indeed probably more so, when the state is specifically "endorsing" the premise that one group is to be considered legally superior to another.

VI. Liberty
America was founded on the premise of liberty. With some exceptions, it is assumed that persons can do what they like so long as it does not harm others (John Stuart Mill's famous "Harms Principle"). The law cannot, without some demonstration of harm, prevent me from putting cream in my coffee. That action does not harm society in any way, it has no impact on my neighbors, and it is totally beyond the scope of a legitimate government. If something as mundane as coffee is immune from governmental reproach, how much more protected must such a fundamental decision as marriage be! Those who would deny homosexuals the right to marry love to wax eloquent about the importance, the sheer essentiality, of the marital rites. Yet if we are prepared to declare those rites to be fundamental, to be a possession of all of mankind, then we simply have no warrant or justification to restrict marriage to those we deem worthy. The whole justification behind liberty is that every man and woman has the equal right to pursue their life as they see fit. Every time the government stands in the path of a person's life choice, it is stripping that person of their most basic right of all--the right to be. To be gay, to be straight, to be black, to be white, to be a teacher, doctor, lawyer, policeman, whomever. The right to be whatever you want to be, that is what America is founded upon.

VII. Conclusion
Allowing gay marriage fulfills many core American values. It is pro-family, prevents subordination, affirms liberty, and is in accordance with the principle of equal protection of the laws. To me, these seem like a fair cross-section of what can be reasonably be called "moral values." Weighing against those arguments we have the slippery slope and the fact that a majority of Americans are still opposed to gay marriage (IE, Democracy). The slippery slope argument falls on its own terms, as I proved above. The democratic argument is a serious one. However, our nation has never held democracy higher than the basic constitutional rights we all posses. After all,
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [West Virginia v. Barnette]
Equal protection (14th amendment) Personal Liberty (9th amendment), and non-discrimination (14th amendment) are principles deeply ingrained in our constitutional and social traditions. Our nation cannot ignore those values without ignoring the very foundations upon which our nation stands. For those reasons, the United States must extend marriage equality to homosexual citizens.

Purely Academic

Todd Zywicki of The VC links to research done by Dan Klein showing that Republicans are vastly underrepresented in the halls of academia. The combined rate of Democrats to Republicans at Stanford and Berkeley is 9:1, and judging by the rate of tenure-track hires it is getting worse. What does this mean?

Zywicki correctly notes that if this was the gender or race based disparity, people would be throwing a fit. And certainly, these statistics are distressing. However, there are some important differences between under-represented ideologies vs. under-represented races or genders. The reason is that while there shouldn't, in theory, be any reason why a particular race would avoid academia, it is quite conceivable that a group based on ideological persuasion might prefer to do other things. That's one of the reasons that race is considered a suspect class and political parties aren't: political party members necessarily share certain values and characteristics, while race and gender based characteristics are overwhelmingly based on stereotype. So it does make a certain degree of sense that softy, idealistic liberals may want to go into teaching and sacrifice the allure of money and power, while hardheaded, realistic conservatives would either enter the private sector or think tanks where they can make more cash and influence authority. I'm not saying this is true, but it is far more reasonable a proposition than any non-discrimination based argument for why Blacks are underrepresented (I include in "discrimination" the continued economic disadvantages faced by minorities as a legacy of past discrimination).

The real question is: Are there significant numbers of Republicans who wish to enter Academia but either a) face institutional obstacles to doing so (such as biased administrators) or b) feel academia is a "hostile environment" to persons with their views? If either of those are true, then we may have a case. But more research needs to be done first.

The Irony Gods Hate Me

Typical. I receive another link from Powerline. An ensuing Power-lanche results. My hit counts go way up. And what is second from the top on the blog? Why, it's my set of proto-marxist debate evidence! That's the way to endear me to my new guests!

Powerline worries (well, maybe "worries" isn't the right word) that now that I've joined The Centrist Coalition, they don't have a favorite liberal blogger. I still like to think of myself as a Liberal, not in the reactionary Kossack/Michael Moore sense, but in the older Truman/Wilsonian sense. My positions on most social issues is still fairly leftwing (as the comments to this post--probably responding to a Powerline reader--make clear). I have a on-going love affair with critical theorists (IE, Catherine MacKinnon, Richard Delgado, et al) that you certainly won't find anywhere near the "center" of American politics. And considering that it is my old pals the Democrats who have taken up the mantle of fiscal responsibility, I guess I'm economically liberal too. So I'm socially a libertarian-style liberal, economically a fiscal responsbility/pro-poor policy liberal, and internationally a Truman/Wilsonian interventionist liberal. Which in today's political climate makes me...a Centrist.

Which is why I will never enter politics.

Thursday, February 24, 2005

No More Excuses

Read Nicholas Kristof, then tell me not to intervene in Darfur. 11,000,000 people didn't die in the Holocaust so we could ethically ignore genocide. There simply is no longer any excuse. Any administration: the US, the UN, the EU, the Arab League, whomever, who is refuses to support whatever action necessary to end the atrocities in Sudan permanently forfeits any claims to moral leadership in the world.

Link by The Moderate Voice, who falls on the right side of this issue.

Wednesday, February 23, 2005

The Anti-Capitalist

Those of you who watched LD finals at Harvard will recognize one of the cards present here from the round. Otherwise, these cards are a gift to the trendy Marxist debater near you.

[A caveat: When I post debate evidence, it should not in any way be taken as an endorsement of the material unless I explicitly say so. Debaters need evidence from all sides of the debate, include evidence that critiques capitalism. They request, I respond]

Brian Massumi, Associate Professor of Comparative Literature at McGill University. The Politics of Everyday Fear. (Minneapolis: University of Minnesota Press, 1993)
"The commodity endows us with identifiable qualities. It registers our gender, social status, and character traits: buckled up and prudent but still stylish; multi-time zoned jet setter; home-bodyish, with an adventurous streak. The commodity stands (in) for our existence. The ground(lessness) it stands on is the accident in its most general expression--the accident-form, exemplified as downfall, the unqualified or generic founding event. Our generic identity (our subject-form, or humanity) is the generic event (the accident-form); our specific identity (the content of which is our "individuality" or "self") is the sum total of our purchases (axiom 2). In other words, contingency is the form of identity, and identity is determined (given content) through the serial commission of the act of groundless consumption. We buy and buy, until we die. We are in free-fall, held aloft by the thinnest of credit cards. "Shop till you drop" is our motto. We know we are alive--or at least in a state of credit-suspended animation--as long as we are shopping. "I buy therefore I am" (axiom 3). The commodity encounter not only specifies but actualizes the subject of the purchase. The subject of capitalism cannot be said to exist outside the commodity relation." (7, emphasis added)

Rodney D. Peterson, Professor of Economics at Colorado State University. Political Economy and American Capitalism. (Boston: Kluwer Academic, 1991)
"As political pressure groups from different segments of the citizenry assemble to negotiate, the result is often a compromise skewed in favor of those who were most successful at using their bargaining strengths. Success is often based on the amount of persons a bargainer represents and the property and wealth backing the bargainer. Those with most political influence are often those with most economic advantage. Once both have been acquired, they reciprocate and reinforce each other, especially if the property holders are active in the political arena, pressuring to get laws passed for their benefit, or to gain privileges, subsidies, and favors for themselves from the system. All of this is a logical extension of freedom, self interest, and profit seeking…" (37)

Another line of attack is the famous "tragedy of the commons," which shows how autonomous beings acting totally rationally and without constraint will destroy the environment (for more on the intersection between capitalism and the environment, see my posts here and here)
Garett Hardin, "The Tragedy of the Commons," Science, 162(1968):1243-1248
Capitalism locks rational persons into environmentally destructive decisions
The tragedy of the commons develops in this way. Picture a pasture open to all. It is to be expected that each herdsman will try to keep as many cattle as possible on the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching, and disease keep the numbers of both man and beast well below the carrying capacity of the land. Finally, however, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality. At this point, the inherent logic of the commons remorselessly generates tragedy.

As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, "What is the utility to me of adding one more animal to my herd?" This utility has one negative and one positive component.

1. The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly + 1.

2. The negative component is a function of the additional overgrazing created by one more animal. Since, however, the effects of overgrazing are shared by all the herdsmen, the negative utility for any particular decision­making herdsman is only a fraction of - 1.

Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another.... But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit -- in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.

Finally, one undeniable aspect of Capitalism is that it privileges the current generation over the future. The rational capitalist actor has perhaps some incentive to provide for his/her own children, but none whatsover to the other members of generation next. They will not consume the capitalist's products, they will not revolt against his mansion, their cries will not offend his pacified ears. This is immoral.
Philip Phenix, Professor Emeritus of Philosophy and Education at Teachers College, Columbia University. Education and the Common Good: A Moral Philosophy of the Curriculum. Harper and Bros., 1961.
"Up to now the people of the industrial nations of the world have lived as though the material bounty of the earth were inexhaustible. In this respect we have been guilty of a "plutocracy of the present," through grasping material privileges without taking account of the needs of future generations. Such a way of life is just as undemocratic as the forcible subjugation of the poor by the wealthy at any given epoch. Democratic justice as between generations requires the employment of the earth’s resources in such a way that they shall be conserved, restored, and replenished for continued use by our children and our children's children."

Reap What You Sow

It's finally happened. The Democrats are striking back. Roll Call reports that Democrats are seeking to pull a DeLay and do midterm redistricting in Louisiana, Illinois, and New Mexico--hoping to oust GOP incumbents and blunt DeLay's power grab in Texas.

There are only two ways that this country can go. Either we can universally agree to pull the redistricting process from the hands of partisan politicians, or we can collapse into an orgy of partisan in-fighting and political scuffles. Today's politicians better choose wisely.

Tuesday, February 22, 2005

The New Man on Court

Orin Kerr links to this NYT article about Bush's plans for Chief Justice Rehnquist's inevitable retirement. The article specifically notes four judges, Michael W. McConnell, John G. Roberts, J. Harvie Wilkinson III, and J. Michael Luttig, as on the "short list" for the spot, and mentions Samuel A. Alito as also in the running.

I must say, if accurate, this is very heartening news. When The New Republic's Jeffrey Rosen wrote on possible Bush picks for the Supreme Court. The four names on the short list are the four names Rosen picked as "principled" conservatives: certainly not short on conservative bona fides, but not engaged in so-called "Constitutional-in-exile" extremism either (Alito, alas, did fall in that radical category in the article).

From my very limited independent knowledge of these persons, I also will say I'm pleased. I've been reading McConnell's law review articles on the 1st amendment (specifically Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) and "God is Dead and We Have Killed Him!": Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163) and have been tremendously impressed. It is clear to me that McConnell is an intellectual giant who could do great things on the Court, and his unabashed opposition to the decision in Employment Division of Oregon v. Smith, which essentially demolished the Free Exercise Clause of the 1st Amendment, is badly needed on the Court today.

I don't know anything about Roberts firsthand, although Kerr certainly speaks highly of his opinions. However, Georgetown Law Professor Richard Lazarus, who I have the pleasure of knowing through the Walt Whitman HS Debate Team, also has made known that he thinks Roberts is a brilliant jurist and fairminded individual. Their vouchers mean a lot to me. I have no problem with a Conservative taking Reinquist's spot, so long as he is a principled Conservative, and it appears that Roberts meets that standard handily.

Wilkinson and Luttig are both quite Conservative (though the latter is more so), but both are clearly excellent judges who know the law and apply it with principle. Neither would make the Court any worse off than it was with Rehnquist, and some of their opinions (especially Wilkinson's) have struck me as quite erudite and well-written.

My personal order of preference would be McConnell, Roberts, Wilkinson, then Luttig (Alito--known as "Little Scalia" or "Scalito"--is a separate issue entirely). However, this entire story is good news. My personal guess, prior to this, was that Bush was going to nominate Clarence Thomas to the Chief Justice position to draw away Democratic fire, then quietly push through a hyper-Conservative to the bench while nobody is looking (similar to what Reagan did with Reinquist and Scalia). Though I'm not counting that out quite yet, these nominees do a little to mitigate that fear.

Broken Promises

Sorry for the lack of blogging this weekend. I was away coaching my old debate team at the Harvard Debate Tournament (at the same tournament--and with the same team actually--as Powerline's Deacon). If you're interested in the results, go here.

While I was away, one of the breaking stories was on the so-called Bush Tapes. Now, when my GOP friends saw the headlines I knew they were having panicky Watergate flashbacks, but these turn out to be pretty tame. Except for one thing.

In response to requests by Christian Conservatives that he exclude homosexuals from office, Bush responded quite clearly that he would not join in "kicking gays." Noble sentiments. But that simply makes Bush's support for the FMA all the more abominable. Not only is it purely political, not only is it pandering to the basest of human instincts, but it broke a solemn promise Bush made to himself prior to running for office. If legally codifying discrimination into our constitution, if deliberately inciting a new run of anti-gay hysteria for political gain, if seeking to destroy real families while purporting to the protect "the family" is not "kicking gays," then I don't know what is. I understand that politicians sometimes posture and lie for the camera. But presumably what Bush said in that room, in private, was his real and true principle at the time. That he was so ready to abandon it for a quick political bounce speaks volumes of his character and tenure in office.