Tradition...TRADITION!

God, I love "Fiddler on the Roof." Anyway, related, but distinct from the use of "naturality" as a moral argument is the use of "tradition." I object to both on much the same grounds: The is/ought fallacy. So long as we are willing to admit the presence of evil in our world, we should be cautious of a reckless defense of what exists in the here-and-now, especially when the justification is nothing more than that we've done it that way before.

That being said, Professor Bainbridge has written a truly stellar post defending tradition. I have my quibbles with it, obviously. First, I don't believe that the "individual is foolish, but the species is wise," in fact I believe the reverse (as Agent K memorably put it in Men in Black, "A Person is smart, People are stupid, panicky and dangerous."). This is a personal view, but I think the history of lynch raids, mob violence, pogroms, and hate rallies by persons who would individually consider themselves decent, God-fearing men and women is indicative that group-think can lead to terrible consequences. Indeed, one of my favorite quotes is this one by Milan Kundera:

"She would have liked to tell them that behind Communism, Fascism, behind all occupations and invasions lurks a more basic, pervasive evil and that the image of that evil was a parade of people marching by with raised fists and shouting identical syllables in unison."

Or, if you prefer, this one by Rita Steinhardt Botwinick:

Pogroms, that is government or tolerated riots against Jews, were suffered by generations of Russian Jews. They illustrate how mob action can result in arson, plunder, and murder. Criminal acts seem acceptable when committed by a crowd. Even after the excitement of terrorizing defenseless victims has worn off, there is no sense of guilt, only justification. The outrages committed by the Ku Klux Klan after the Civil War are a familiar example of criminality by consent. Far from viewing themselves as arsonists and murderers, Klan members wrapped themselves in the flag of Southern patriotism. [A History of the Holocaust: From Ideology to Annihilation. Third Edition, (Upper Saddle River: Pearson Prentice Hall, 2004), Pgs. 3-4]

I also think that Professor Bainbridge and I differ on what giving tradition the "benefit of the doubt" means. For me, it means that in absence of any compelling reason to do otherwise, we default to tradition, but where other morally significant factors come into play (and individual choice counts here), then tradition is given a moderate, but not extensive, weight (on the basis of predictability and the "law of unintended consequences"). Bainbridge would require, I suspect, a fairly substantial proof presented that the tradition leads to "wrong" outcomes before it is changed. How we can conceptualize "wrongs" outside of what the tradition teaches, when tradition is accepted as the metatheory by which we view ethics, is to me unclear. I suppose one could find inconsistencies and contradictions within the tradition, in which case the purpose of ethical inquiry is to "purge" the "impurities" which mar the tradition, but that doesn't address what we do when the superstructure itself is flawed. If a particular tradition is warlike, aggressive, and xenophobic, then a "purification" of it is not likely to result in human dignity nor actions which we'd generally label moral. At the risk of sounding overly radical, a traditionalist pursuit of morality can never critique the system itself, it can never escape to the "outside" and thus can never remedy wrongs that are ingrained in (rather than aberrations from) the metatheory.

Bainbridge's best defenses are pragmatic--tradition has the benefit of predictability, we know what the likely results are of its continuance. This is the reason I'm willing to give any weight tradition at all, but it has its own perils. I don't find predictable injustices to be particularly soothing. The problem with the "tradition" paradigm is that it justifies inaction and acts to sustain and support man's pre-existing tendency toward inertia. Tradition is almost by definition passive, all it demands of us is to do what what we've always done. What could be more natural than that? But when "what we've always done" is engage in mass oppression, giving tradition moral weight amplifies its already substantial psychological weight and makes resistance all but impossible. Think of the tradition of Christian anti-Semitism in Europe, which enabled the Holocaust even as enlightenment values of universalism and human rights were supposedly reaching their pinnacle. Even if one excuses the Germans on the basis that these values were utterly snuffed out by the omnipresence of Nazi totalitarianism (a statement I don't buy), it still does not answer the silence, passivity, and complicity of the French, Poles, Russians, Slavs, and others who willingly assisted the mass extermination of Jews even as the resisted their occupation (and do not get me started about the blind eye the non-occupied world--Britain, America, etc--turned to the Jews at the same time). This turns Bainbridge's argument on its head: staying with tradition has in itself unintended consequences (I doubt that Bainbridge intends to enable massive extermination). It is no answer to assert that this injustice is of the type that justifies a break from tradition, for it is the very rhetoric of tradition, its pragmatism and inertia, that is the cause of people looking away when they otherwise would act. The Holocaust is the ultimate refutation to the argument that society will transcend tradition when faced with the greatest of injustices. The fact that evil can be woven into our history makes me wary of linking tradition and morality together. At root, I think mankind has a pretty strong proclivity toward staying within tradition on its own. We don't need to elevate it to a moral principle.

Clearly, I disagree with Bainbridge (I doubt anybody really was expecting otherwise). But that should not detract from a must-read post on his end. Give it a whirl, and make up your own mind.

10,000 Daggers

Everything you ever wanted to know about my 10,000th hit.

Quite a milestone for this blog, if I do say so myself. Thank y'all for coming, and may we get 10,000 more in the very near future!

Unnatural Argument

Don Herzog dissects the notion of "natural" being equal to "moral":

If "natural" is the opposite of "rare" and means "common," it has no critical bite. Unless you think it's wrong to excel. If it's the opposite of "artifice" and means "what we haven't altered," it has no critical bite. Unless you think people shouldn't wear eyeglasses. If natural is the opposite of "supernatural" or "miraculous" and means "can be explained in the ordinary ways," it has no critical bite. Unless you think only divine intervention is wrong.

You could easily reverse the argument as well: if natural is "common" (throughout human history), then racial oppression and slavery are moral (indeed, that justification was present all over the place by equality opponents throughout the civil rights revolution). If natural means "the status quo," then it either means life is perfect by definition (because any alteration of the present is unnatural) or arbitrary (because we pick some random "past" status quo as what we should not have altered--presumably in that golden era before Roe and Engel but after Brown).

The problem, of course, is that the presence of something in reality has absolutely no bearing on its morality. Murder happens (is natural?), but that doesn't make it moral. In a democracy, for example, you will hear all the time that "X is right because 69% of the population believes it." But the presence of a democratic consensus has nothing to do with the morality of a given act--presumably people could agree to do immoral things. The end result of the reverse argument is a total abandonment of minority rights--if the majority says you should be dead, so be it. I don't think anybody conceptualizes morality like that.

Pseudo-Polymath points out that conservatives (it is mostly conservatives) who make this argument don't actually believe it, but are using it as a substitution for scriptural arguments which the presume will not persuade liberals (its interesting that they argue about the "naturality" of what they believe are supernaturally derived concepts--as Herzog points out, if natural means opposite of supernatural, then the only immoral being is God).

This is partially true, but misleading. The appeal to "naturality" is fundamentally past-based. That is, it draws on the experiences and guidance of prior events to direct how we should live our lives today. We've been doing X action forever, it is thus "natural" and should be continued. Nobody would argue that something recently developed is "natural," even when we agree it is a good thing (I have heard many justifications for racial equality, but never have I heard it called "natural"). Conservatism, as has been noted by many others, is about, well, conserving things. It does not like radical change, and takes comfort in the perceived predictability and knowability of the past. Hence, I do think that conservatives buy "naturality" as a valid defense of moral behavior beyond a mere transubstantiation of "the bible says so." PPM is still partially right, because many conservatives view the bible as the epitome of what is right and natural, so the arguments parallel. But presumably, one could be a Burkean conservative and argue on the basis of naturality without pegging it to biblical principles (though I'd agree that for most folks today, the Christian tail is wagging the Burkean dog).

Go Activists Go!

I said it before, and I'll say it again, MCPS' new curriculum on homosexuality is idiotic and probably unconstitutional. But that won't stop me from appreciating the irony of the Family Research Council's effusive praise for the unelected judiciary overturning the will of democratically elected school boards and "imposing their view of morality" on us all. The FRC says the curriculum holds "a bias against religious perspectives." They're right this time (at least insofar as "religious perspectives" equals "Christian perspectives," but let's go one step at a time), but where might we see this sort of behavior elsewhere? And can we expect the FRC to be on the case?

This must be that sensitivity Tony Perkins has been trying on for size! Bravo, Tony, bravo. Such is life when you have no principles to speak of.

Poor MCPS

I am a proud booster of my old High School and school system. I believe I was blessed to attend a stellar public school, with professional teachers, a supportive community, and, all things considered, an attentive and responsive administration. So I was sad to see Eugene Volokh performing a unfortunate, but well-deserved smackdown of Montgomery County Public Schools' teachings on homosexuality--an embarrassment made worse by the fact their hearts are in the right place.

In their "Myths and Facts" section, MCPS states the following:

Myth: Homosexuality is a sin.

Facts: The Bible contains six passages which condemn homosexual behavior. The Bible also contains numerous passages condemning heterosexual behavior. Theologians and Biblical scholars continue to differ on many Biblical interpretations. They agree on one thing, however. Jesus said absolutely nothing at all about homosexuality. Among the many things deemed an abomination are adultery, incest, wearing clothing made from more than one kind of fiber, and earing [sic] shellfish, like shrimp and lobster.

Religion has often been misused to justify hatred and oppression. Less than a half a century ago, Baptist churches (among others) in this country defended racial segregation on the basis that it was condoned by the Bible. Early Christians were not hostile to homosexuals. Intolerance became the dominant attitude only after the Twelfth Century. Today, many people no longer tolerate generalizations about homosexuality as pathology or sin. Few would condemn heterosexuality as immoral — despite the high incidence of rape, incest, child abuse, adultery, family violence, promiscuity, and venereal disease among heterosexuals. Fortunately, many within organized religions are beginning to address the homophobia of the church. The Nation Council of Churches of Christ, the Union of American Hebrew Congregations, the Unitarian Universalist Association, the Society of Friends (Quakers), and the Universal Fellowship of Metropolitan Community Churches support full civil rights for gay men and lesbians, as they do for everyone else.

Volokh rightly blasts this as a blatant violation of the Establishment clause. It asserts a theological viewpoint of what is and is not "sin" (clearly a religious term). Not only that, but it defines "sin" in explicitly Judeo-Christian terms (Jesus didn't care, the Torah also speaks out against other things we don't consider immoral). This implicitly accepts the Christian worldview as valid and authoritative(I wouldn't say so much Judeo-Christian, since "sin" is pretty much Christian terminology), precisely what the Establishment Clause is supposed to foreclose.

There are factual accuracies present in the passage (churches defended racial segregation, religion has been a source of violence and bigotry in the past), but Volokh is correct that the overall tone of the piece makes it seem like that information is given not for the purpose of historical illumination but rather to elevate some churches and discredit others.

One thing I am curious about is what do you do when the question comes up. Montgomery County is a pretty progressive place, but there are still plenty of conservative enclaves, especially upcounty (and certainly there a conservative Christians even in liberal locations). So it is at least somewhat predictable that, in response to a general curriculum advocating tolerant attitudes toward homosexuals, someone will pop the question: "is homosexuality immoral," or worse yet, "doesn't the bible teach us that homosexuality is immoral."

This would put a teacher in a very awkward situation. She has several potential responses, none of them good. She could follow an outline much like the above curriculum recommends. This would probably be an Establishment clause violation. She could give a wishy-washy half-answer, like "religions view this matter differently. You should talk to your pastor, priest, rabbi, or other spiritual leader about it." That's problematic because it undermines the rest of the course material--it now shifts the terms of debate into a morally relativistic "choice" (ironically enough, exactly what the Christian right loves to condemn!). Or the teacher could refuse to answer, a response I think all agree is unsatisfying to anyone.

Volokh's other objections to the curriculum are less troubling to me, however. He writes:

The curriculum contains at least one factual error, and quite possibly others (though as to the others the matter is more complex). The curriculum says that "a significant percentage of the population is gay, lesbian or bisexual (Approximately 1 in 10)." Earlier, the curriculum makes clear that it treats whether "a person is a homosexual" as a matter of what constitutes his "long-term sexual orientation," not whether someone has had at least one same-sex attraction or experience. Under that definition, the best evidence is that the about 2-3% of all U.S. residents are homosexual; the number might be somewhat different in Canada, but I suspect not vastly. The 10% estimate has long been discredited.

I am no expert on the matter, but I am wary of the 2-3% figure. First of all, if its based off self-reported identification, then it most likely underestimates the proportion of homosexuals wildly. Second, if sexuality is a continuum, then where we draw the line "homosexuality starts here" is very important. If I hear that 3% of Americans are homosexual, I immediately think that 97% are heterosexual (maybe slightly less accounting for bisexuals). If homosexuality is an 80 and up on a 100 point scale, that implies that 0-79 are heterosexual. However, if we hold both sides to the same standard, 0-20 is "heterosexual" and "21-79" is...something else. Furthermore, I suspect if the statistic was rephrased to "how many Americans are not heterosexual," the percentage would rise dramatically. Perfect example of how to lie with statistics.

Least persuasive of all is Volokh's war against using "experts" as "fact"

Moreover, consider this item: "Myth: If you are 'straight,' you can become a homosexual." "Fact: Most experts in the field have concluded that sexual orientation is not a choice." That "most experts" conclude something doesn't make it a fact; one would think that the fact that some experts conclude the opposite should be occasion for students to express some doubt and healthy skepticism, but the curriculum tells them that, no, most experts say it, so it's a fact.

At some point, the school system has to make a reasoned judgment about what the facts are. In theory, the question about whether sexual orientation is a choice is a biological and psychological one, it should be measurable. We can say the same thing about whether gays make good parents, or whether they are predisposed to immoral sexual conduct (outside the circular argument that homosexuality is immoral in of itself). When the overwhelming majority of professionals conclude a truth in science, we should give it considerable weight--especially given that a) the "opposing" scientists almost exclusively come at the topic with an agenda and b) nobody has ever shown any scientific evidence to refute the claims (even Professor Wardle's broad critique of the pro-equality studies is mostly an objection to methodology, it does not provide much in the way of counter-examples that show homosexuals are unfit or otherwise inferior). A good parallel might be creationism, sure, we can find scientists who support it, but the vast body of scientific literature runs against them (and find me a non-Christian creationist, anyway!). In an ideal world, sure, we might like to present every viewpoint exhaustively. But schools have a limited time to work with, it is reasonable for them to conclude that scientific conclusions agreed upon by everybody but an adamant sect of religiously motivated stalwarts should be taught as "factual." As Joseph R. Alsop put it, "A man who has bought a theory will fight a furious rear guard action against the facts."

I agree that in general, the entire curriculum is poorly worded, (frankly, the amount of "sics" the court opinion which sparked Volokh's post had to place in its block quotes is embarrassing) and should be totally overhauled. One could even make a persuasive case that an expert opinion, even when based on scientific evidence, shouldn't as a semantical matter be labeled a "fact" (much like the theory of evolution). I don't really object to that as long as the evidence is still presented as authoritative. MCPS should probably steer clear of "morality" talk altogether: a "model" curriculum would restrict itself to medical facts (homosexuality is natural, not a choice, and not in any way disabling or a "sickness"), sociological facts (homosexuals can make fine parents, are not more likely to abuse children etc etc), and generally accepted bromides about tolerance and equality (regardless of your private moral views, it is inappropriate and wrong to single out certain groups for moral condemnation based on false stereotypes). But what I will defend is MCPS' right to defend the dignity and legitimacy of homosexuality and homosexual persons--much as they do with racial minorities, women, and minority religions. This may present a value judgment--white supremacists may be upset that black people are presented as equals to their child (and they could even furnish "studies" to back up the objection!)--but it is clearly within the realm of a legitimate educational activity. If this represents a "value-judgment," so be it (it certainly isn't any more of a "value-judgment" than the "pillars of ethics" in my Middle School which told me to be respectful and empathetic, among other things).

As to the proper judicial resolution of this case, I would strike down the portions that deal directly with theology and religious condemnation, uphold the medical and sociological facts on homosexuality, and turn a careful eye on the parts dealing with "morality" (which borderline skirts on religion anyway).

UPDATE: I'm a bit surprised by the onesided coverage here. Yes, the religious messages in the MCPS curriculum are idiotic, and deserve to be labeled as such. But I would have hoped that The Moderate Voice, at least, would have taken the time to note that the vast majority of the curriculum is perfectly fine--and a lot of the "parent objections" are completely ridiculous. Instead, we hear skepticism about whether or not Montgomery County is "actually" liberal, a question which could be answered simply by looking at the voting stats (hint: when Democratic candidates start breaking 70%, we can safely call the place liberal).

The Iraq Paradox

Legal Fiction nails it:

So this is the dilemma. I desperately want to succeed in Iraq. Our soldiers’ sacrifices should not be ignored and they have raised the stakes for all of us to take Iraq more seriously. At the same time, if the memo [showing that the Bush administration determined we were going to war in Iraq regardless of what the intelligence said and that the timing was deliberately set to cause maximum damage to Democrats in the 2002 midterms] is true, the administration did a great wrong to all of us and they should bloody well pay for it. This memo (again, if true) is literally one million times more significant than Watergate. The administration should be denounced and punished for it.

For center-left Democrats like me, who truly believe in democracy promotion and who take our obligations to the world and to Iraqis seriously, this is the problem. We want Iraq to succeed. We need Iraq to succeed. But throwing our entire weight behind the endeavor means giving the Bush administration's arrogance, incompetence, and severe damage to our cause what amounts to a free pass. This sets a dangerous precedent, that the ends justify the means, that politicians will not be held accountable for their errors. When Bush said that the 2004 elections were his "accountability moment" (as if accountability was a singular event that has now passed), he really revealed something critical about himself. He does not believe he ever makes mistakes. He does not believe he ever should have to apologize. So long as he garners that 50.1% (whether it's in an election or in a House vote), he considers himself vindicated. When a problem inevitably presents itself, he finds a scapegoat, preferably a Democrat. When a Democrat is nowhere to be found, he finds a scapegoat and just calls him a Democrat, truth be damned (see, e.g., Richard Clarke).

This utter contempt for self-reflection and self-criticism is intolerable. Truth matters, and it damn well matters more when we're talking about life-and-death, about foreign wars, about domestic policies that determine whether millions of working families can afford to get healthcare, than it does when the subject is who put what sex organ where. The Bush administration has demonstrated, time and again, that it cares more about being on top than being right. It should not be rewarded. And it will not see my support.

The Po-Mo Right

Daniel Solove over at Prawfsblawg has a very interesting post on the rise of post-modernist rhetoric on the right. I am very much of the persuasion that post-modernism is a method and thus apolitical, and welcome its adaptation by the right wing. Indeed, if there is anywhere they can use it, its in academia where the overwhelming presence of liberal voices makes them the "silenced other" in a very real sense.

Though I must ask, can they please find a better test balloon for this new toy than creationism?

Assault of the Atheists (and other Conservative Fantasies)

Andrew Sullivan links to a timely George Will piece entitled "The Christian Complex." The point, as should have long been obvious, is that Christians aren't really being persecuted, much as they are enjoying whining about the big bad atheistic assault on America.

Some Christians should practice the magnanimity of the strong rather than cultivate the grievances of the weak. But many Christians are joining today's scramble for the status of victims. There is much lamentation about various "assaults" on "people of faith." Christians are indeed experiencing some petty insults and indignities concerning things such as restrictions on school Christmas observances. But their persecution complex is unbecoming because it is unrealistic.

This whole issue is very similar to Legal Fiction's "Outrage Industry" (also explored here) and my own fetishization of oppression theory. What appears for all the world to be, at most, minor slights to Christian Americans, are interpreted by them as a more dire threat to America than the Nazis. And, in yet another proof of the whole "the far left and far right are the same" hypothesis, it showcases the eerie similarities between the Christian far-right and multi-culturalist far-left. Here's a hint: they both really don't care for pluralism.

Conservative victimization is bordering on the edge of paranoia. It would be funny if it didn't have such drastic implications for the rest of the country.

Academic Terrorism

I have thus far refrained from commenting on the British Association of University Teacher's obscene "boycott" of Israel's Haifa and Bar-Ilan Universities, mostly because I feel there is nothing real to add to it. The boycott is anti-Semitic, pure and simple. It was proposed by radical anti-Israel extremists who wish to delegitimize it in the eyes of the global community. Regardless of what one feels about the merits of the Israel/Palestine conflict, it once was a core feature of academic life that issues were resolved via more speech, not an enforced silence.

I write today only to note some of the encouraging developments which have come out of this atrocious gesture--a generally outpouring of support for the two universities and a near universal condemnation of the AUT's actions.

Emmanuel Ottolenghi wrote an excellent article in the National Review condemning the AUT and asking to be put on the boycott list as well:

As a symbolic gesture to defend the spirit of academic freedom and express solidarity with my harassed colleagues, I have asked Sally Hunt, the secretary general of the AUT, to be added to the boycott list. I have expressed my wish to be included in the list of people and institutions to be blackmailed and I sincerely hope that other colleagues of all political persuasions will join me. We should all wear the badge of shame that the AUT wants to impose on our Israeli peers with great pride and in the full confidence that we are not only in the right, but that truly free academia stands on our side and against the AUT.

David Bernstein points to a more comprehensive effort to do the same thing, whereby professors sympathetic to the notions of Academic Freedom can sign up for affiliate status at the two targeted universities.

Even Ethan Leib, who characterized Israel's policies as "routinely colonial [This term is being badly misused here. For whatever reason, Israel is constantly characterized as colonial, when any dictionary definition of the term would render such a label absurd. A colonial endeavor is one which a) brings outsiders to take over a land b) for the purpose of controlling it for a foreign power. Israel, being neither "outsiders" to the lands in question nor a "foreign power" in the sense here, cannot reasonably be said to be colonizing anything. What we have here is a border war, and regardless of your views on the merits of the parties' positions, it seems facile to elevate a border war into colonialism, lest we degrade the term. --ED] and discriminatory" is appalled by the boycott.

If I could become an affiliate of the universities, I would. As it is, I must ask all conscientious academics and citizens to protest this grotesque assault on academic freedom and the state of Israel.

Sure You Would

The latest gem by FRC President Tony Perkins:

Sometimes religious intolerance is both inane and subtle, as in the latest politically correct push to changing the terms "Before Christ," or B.C., to "Before Common Era," or B.C.E., and "anno Domini" (Latin for "in the year of the Lord") to "Common Era." The terms B.C. and A.D., despite common usage for close to 2,005 years, are now seen as being offensive to non-Christians. While normally I would be sensitive to religious sensitivities...

No, you wouldn't.

Perkins is upset that we may no longer officially measure our very lives in a Christ-centric format. His proposed response is, as always, tactful and respectful:

FYI, in a protest to this political correct example of common sense gone AWOL I suggest everyone, Christians and non-Christians alike, write the term A.D. on every check and piece of paper you write the date.

In other words, raise a middle finger and wave it in the face of every Jewish, Muslim, Hindu, Buddhist, and Atheist American. Whose Lord NOW, bitches?

Addicted to the Drug War

Reihan Salam, guestblogging over at Etc, has authored a must-read post on the Drug War.

Salam hits on all the key points, including some I haven't thought of before. He refers to the 30% incarceration rate among young black men in America today, a number that borders on prima facia evidence of racist intent. He notes that we are rapidly approaching (if not past) the point where black mistrust of law enforcement is so extreme that the omniprescence of cops causes more crimes than it stops. He notes that even a drug-possession conviction can scar a potential job applicant for life, making it extraordinarily difficult for even the most sober and well-intentioned "ex-convicts" to gain employment. And he concludes with the following statement:

I'm sympathetic to those who argue that we need to ban marijuana as a public health strategy. Otherwise, every shiftless American youth will spark up while watching the Cartoon Network in the wee hours, sending U.S. productivity spiraling down to levels not seen since the Bronze Age. I get the picture. Unfortunately, banning marijuana, and squandering our human resources by incarcerating 30 percent of black men under 40, is a "luxury" we can't afford.

Read the whole thing.

Authorization of Military Force

Former Clinton staffer, avowed liberal, and Human Rights Watch (a group that has surprised me before) Advocacy Director Tom Malinowski gives the hard truth that liberals need to face up to regarding Darfur:

Military force is necessary.

The administration has been clear and correct about what should happen. The African Union should deploy additional forces. Sudan should cooperate with those forces, rein in its murderous militias and seek a diplomatic solution. But, as with Bosnia, no one wants to confront the obvious question: What if none of these things happen? What if the African Union, for reasons of regional pride or fear of confronting Sudan, never asks NATO for real help? What if Sudan concludes, as the Serbs did in Bosnia, that the way to ease international pressure is to complete its ethnic cleansing? Then Darfur will be free of violence (since the victims will be dead or concentrated in camps), and the international community might move on.

This fear is very similar to problem I've articulated before regarding the exclusive use of diplomatic pressure to stop human rights atrocities:

Realistically speaking, expressions of moral indignation toward human rights abuses can only last so long before they become "old news." Making our human rights policy solely dependent on diplomatic pressure lets dictators try and "wait out the storm" and hope that by stalling for time, they can avoid any substantial US or international intervention to stop the abuse. At best, a policy based on diplomacy will only encourage oppressive regimes to violate human rights more quietly, and as North Korea, Saudi Arabia, and China among others demonstrate, it is rather easy to violate human rights systematically, persistently, and egregiously without arousing a sustainable international outcry.

If Darfur is proving anything to us now, it is that the condemnation of the world, absent any other action, will leave the victims as dead as they would be if the world said nothing at all.

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Courtroom Giggles

The Volokh Conspiracy is putting together a list of the funniest passages in Supreme Court opinions (check the comments). My personal favorites:

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf-and if one assumes the correctness of all the other wrong turns the Court has made to get to this point-then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," U. S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.

Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question." [Antonin Scalia, Dissenting, PGA Tour v. Martin, 532 U.S. 661 (2001)]

"As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District...Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him." [Scalia, Concurring, Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993)]

And Scalia again, "There is really no way in which Justice Breyer can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land." [Scalia, Concurring, Ring v. Arizona,536 U.S. 584, 613 (2002)]

And while not from the Supreme Court, How Appealing does link to the recent 7th Circuit decision in USA v. Murphy, whose first footnote reads:

The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch "hoe." A "hoe," of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden's response. We have taken the liberty of changing "hoe" to "ho," a staple of rap music vernacular as, for example, when Ludacris raps "You doin' ho activities with ho tendencies."

Anybody wonder why I love doing this?

UPDATE: Prawfsblawg joins in the fun, and it isn't limiting itself to the Supreme Court.

The Equation

[(Muslims + Liberal Judiciary) > Terrorism] = GREATEST THREAT TO AMERICA EVER!!!

Jack Balkin explains the latest, um, counter-intuitive syllogism of the theocratic right. Or we can go straight to a source of this sort of insanity, Family Research Council chief Tony Perkins:

The court has become increasingly hostile to Christianity, and it poses a greater threat to representative government -- more than anything, more than budget deficits, more than terrorist groups.

and/or everybody's favorite lunatic, Pat Robertson:

"I think we have controlled Al Qaeda," the 700 Club host said, but warned of "erosion at home" and said judges were creating a "tyranny of oligarchy."

Confronted by Stephanopoulos on his claims that an out-of-control liberal judiciary is the worst threat America has faced in 400 years - worse than Nazi Germany, Japan and the Civil War - Robertson didn't back down.

"Yes, I really believe that," he said. "I think they are destroying the fabric that holds our nation together.

As Obsidian Wings shouldn't have to point out:

Just to state the obvious: we haven't controlled al Qaeda; judges are not more of a threat than al Qaeda is, and they are certainly not the greatest threat we have faced in our history.

Get. a. grip.

Solomon to the Supreme Court

The Supreme Court has granted cert to determine whether or not the Solomon amendment (which strips federal funding from colleges which don't allow military recruiters on-campus to protest "don't ask, don't tell") is unconstitutional. The 3rd Circuit said it was, but Orin Kerr predicts a 9-0 reversal (Eugene Volokh is just proud he made a correct prediction at all).

Paul Horwitz has an absolutely wonderful post on the matter which explains why the court should, cautiously and carefully, rule the amendment to be constitutional. Crescat Sententia doesn't agree with Horwtiz's position, and claims (and I think this is true), that every thing about this whole case is idiotic:

I think there is a lot of lousy policy here on all sides. The military shouldn't discriminate against gays in the military, but it does. The federal government shouldn't demand that schools let the military recruit on campus, but it does. The schools shouldn't try to keep the military off, either, but they do. A bunch of powerful institutions duke it out, with nary an individual right in sight.

Amen, brother.

What the Science Says

My post on marriage and language sparked a stellar debate with "Sally" in comments over a wide gamut of issues concerning gay rights. It concluded when I agreed to read some of the critical evaluations of the scientific evidence I had been heavily relying on. Specifically, I decided to read Brigham Young Law Professor Lynn Wardle's article "The Potential Impact of Homosexual Parenting on Children" (1997 U. Ill. L. Rev. 833). While I think he scored some points, ultimately I found his critique unpersuasive. Allow me to explain why.

First of all, I think Professor Wardle made a valuable addition to the literature in this article. We shouldn't accept scientific "findings" unquestioned, and Sally was absolutely right when she reminded me to be particularly cautious when said findings uphold our own deeply held beliefs. The other important thing to note is what Professor Wardle is not arguing: he does not believe that homosexuals should be excluded as a class from adopting or gaining custody over children. In addressing two arguments for allowing homosexual adoption of children, that "public policy should encourage formation of families, even nontraditional same-sex parenting families, because two parents (even of the same gender) are better than one," and "parenting by an adult who is engaged in a homosexual relationship may be the best option for a particular child," he admits that these

two policy arguments are variations of a common theme - that in the world we live in, persons who engage in extramarital sexual relations, including homosexual relations, may, in some cases, provide the best available parenting alternative for particular children. This argument recognizes that all parents are imperfect and acknowledges the tremendous failures of the alternatives to parenting (e.g., the abuse of institutional care, the limbo of foster care, and the tragedies of other governmental substitutes for in-home parenting, the disadvantages of single-parenting). It is hard to disagree that, despite the possible harms children may suffer from the extramarital sexual behavior, including homosexual behavior, of their parents, if the best interests of children is followed in all cases, there undeniably will be, and have been, some cases in which a parent engaged in extramarital sexual behavior will offer, and has provided, the least detrimental practical parenting alternative.

Thus, this article does not quarrel with the last two principles above or that there are and will be in this imperfect world exceptional cases in which less-than-ideal parents and less-than-perfect custody and adoption arrangements are the best options for a particular child or children. (842-43)

I do disagree with Wardle's rhetoric on the matter. Given the state of our adoption system, I doubt such "imperfect" cases are all that "extraordinary," nor do I feel that, even if there homosexuality is an "imperfection," it would constitute a negative factor more grievous than many other more typical negative factors that afflict heterosexual families. I also think it is facile to group a monogamous homosexual relationship in the same category as extramarital sexual behavior. Though technically this is accurate, it is a product of legal rules beyond the control of the parties (many whom would surely marry if given the chance). I hardly think the same harms apply to children in families with extramarital affairs as with those living in families with committed homosexual affairs (which yes, are technically "extramarital"). This conflation is a critical flaw throughout Wardle's article, but we'll get there later. Suffice to say, Wardle does not advocate categorical exclusion for homosexuals gaining custody of children (as is being advocated in Texas, was the subject of the Howard decision in Arkansas, and remains the law in Florida), but rather a rebuttable presumption against them, and a relatively weak one at that:

States should adopt a rebuttable presumption that ongoing homosexual relations by an adult seeking or exercising parental rights is not in the best interest of a child. The presumption should be rebuttable by a mere preponderance of the evidence. Unless rebutted, this presumption should be considered as one of the many nonexclusive "best interests of the child" factors that are weighed by courts deciding parenting issues. This presumption should apply in any case involving significant parental relationship with the child, including custody, adoption, and visitation.

It was also distressing to see Professor Wardle quote the profoundly discredited Dr. Paul Cameron. I do not know the credentials of most scientific experts opining on this issue; my default setting is to assume they are credible unless shown otherwise (for both sides). Dr. Cameron, however, is someone I do recognize as basically an ideological hack, kicked out of the APA and condemned by the ASA for consistently misrepresenting sociological research. Although Wardle only cited Cameron six times, it still reflected poorly on his judgment as a researcher and scholar.

Wardle does score some points when criticizing methodological flaws in the pro-equality research. Part of this, I feel, is due to the small availability of subjects--there just aren't that many homosexual parents available to study. More generally, however,

"the types of methodological flaws that Wardle discusses in his article (such as small sample sizes and lack of diversity in the samples) are by no means limited to the study of gay and lesbian families. [...]producing a representative probability sample can be expensive and difficult. Respondents chosen randomly will typically be diffused across the entire area inhabited by the population, rather than concentrated in areas easy for the researcher to access...
[...]
[furthermore,] there are ongoing efforts to address some of the methodological problems noted by Professor Wardle." [Carlos A. Ball, Janice Farrell Pea, "Warring With Wardle: Morality, Social Science, and Gay and Lesbian Parents," 1998 U. Ill. L. Rev. 253, 274-76]

As Wardle's article is from 1997, I'd assume there have been some advances in the literature which may shed light on these questions (any links to them would be greatly appreciated).

However, while some of his accusations are legitimate, some of the objections are rather silly. Wardle says that many of the homosexual families studied were "model" families, well-educated, upper middle class, with stable incomes, while "poor...uneducated, or troubled" homosexuals are left out. However, the point of these studies is to determine whether or not homosexuals, in absence of other disabilities which might affect their ability to be good parents, are possessed of inherent problems which might disable them from adopting or gaining custody over children. In this respect, it makes more sense to try and isolate the variable and eliminate other factors which are not unique to homosexual families at all (IE, "troubled" persons are likely to have issues with children regardless of their sexual orientation).

One consistent and problematic aspect of Wardle's critique is his constant conflation of homosexuality with another, unrelated relational issue. For example, he writes that:

Finally, it is reasonable to be concerned that ongoing parental homosexual sexual behavior is harmful to children because that seems to be the lesson of the most relevant and analogous human experience - the experience of extramarital sexual relations generally. (855)

But as I wrote above, this analogy isn't relevant at all--and it's Wardle who inadvertently indicates why:

Extramarital sexual behavior is associated with such harm to children as the breakup of their parents' marriage and the destabilizing, child-harming consequences of divorce. Parental extramarital relationships wound children, shaking, sometimes even destroying, their faith in marriage and in personal commitments of fidelity and intimacy. It hurts a child to learn that one parent has been unfaithful to the other. That pain is very real and very wrenching. Parental extramarital relationships also provide a dangerous model for children, serving to pass intergenerational self-destructive behavior on to children. The message of intergender and intergenerational carelessness, and family-sacrificing selfishness not only hurts, but also may have a programming effect on children. The lesson of sexual self-gratification at the expense of familial fidelity conveys a tragic message about both family commitments and responsible sexual behavior in our society. In these days of so many harmful, even deadly, sexually transmitted diseases, the risks may be physical as well as emotional. (855-56)

Not a single one of these problems apply to committed and monogamous homosexual relationships which a) do not break up a marriage, b) do not undermine the principles of loyalty and commitment c) do not provide a dangerous model for children (except, perhaps, insofar as they legitimize homosexuality, which would be a circular argument) d) are not any more "selfish" than any other committed relationship and e) do not have any raised risks of STDs. Of course it is true that for unfaithful homosexual couples, these issues do come into play--but then, they also come into play for unfaithful heterosexual couples. I would argue that the legal system already has the tools to evaluate and dispose of these cases.

He makes a similar slight of hand when talking about the need for dual-gender parenting. Virtually all of his research is a comparison to single-parent homes, not dual-parent homosexual homes. This is critical for several reasons. First of all, much of his argument focuses on issues are more acutely felt by single-parent homes than two-parent homosexual homes, but are theoretically overcomable, such as time availability and economic wherewithal. Second, there are inherent problems within single-parent homes that simply don't exist in homosexual houses--not that he doesn't try and connect them.

But the significance of the disadvantage of growing up without both father and mother in the home should not be trivialized, either, especially in this difficult time of our social history. Individually, the child must cope with the loss of example, counsel, and experience that living with the missing-gender parent would have provided, and must overcome the sense of loss, abandonment, and deprivation (often feelings of devaluation, inadequacy, and anger) caused by loss of the second-gender parent. Socially, the community may be burdened, not just to provide some quasi-parental experience with missing-gender adults for the growing child to compensate for what the missing-gender parent would have provided, but also to bear the adverse behavioral consequences often associated with single-gender parenting. (863-64)

Note how he shifts seamlessly from the experience of most single-parent homes (where the "loss" is literal, in the form of death or abandonment), to the experience of most homosexual homes, where the loss is more abstract and never ingrained in the experience of the child.

Never is this false equivalence made more clear than in this passage:

Children make the transition through developmental stages better, have stronger gender identity, are more confident of themselves, do better in school, have fewer emotional crises, and become functioning adults best when they are reared in two-parent, dual-gender families. As family sociologist David Popenoe puts it:

social science research is almost never conclusive... Yet in three decades of work as a social scientist, I know of few other bodies of data in which the weight of evidence is so decisively on one side of the issue: on the whole, for children, two-parent families are preferable to single-parent and stepfamilies.

As even a cursory reread of Popenoe's remarks indicates, he says nary a word about dual-gender homes, merely dual-parent homes compared to single-parent and step-parent families. For the reasons stated above, neither family formulation is comparable to a committed, monogamous homosexual relationship.

There are quite a few other, minor arguments in Wardle's article, and I also have my own minor objections to them. But I think I've hit upon the meat of the argument presented. As I said, Wardle does score a few points, regarding some methodological flaws in the scientific literature presented. Ultimately, however, I find his own position to be marred by its own flaws which severely undermine his advocacy.

Try, Try, Try Again

Superb article on the filibuster in the Salt Lake Tribune. Best quote of the lot:

But during the Utah Republican's tenure as chairman of the Senate Judiciary Committee, dozens of President Clinton's nominees never received an up-or-down vote, because their nominations were suffocated by procedural traps, a Tribune analysis of congressional records shows. Others were mired in the committee for years before being confirmed by the Senate.
[...]
Hatch defends his record, saying he gave Clinton's nominees a fair shake. He claims it distorts the record to compare the Democrats' use of filibusters to what happened in the committee under his watch.

"That's all B.S. and they know it," Hatch insists. "I don't think anybody can say I didn't do my best."

To quote Inigo Montoya: "I do not think that word means what you think it means."

If that was Senator Hatch's "best," then he is, well, he's utterly incompetent. Unfortunately, Hatch isn't actually incompetent, merely a shameless liar (and it was bit rich to accuse the Democrats of "B.S." there, I think).

Et Tu, Laura?

The First Lady joins the liberal media's Bush-bashing.

But she said they obviously were destined to be together as a couple because "I was the librarian who spent 12 hours a day in library and yet somehow I met George."

Not a bad one-liner, actually.

Althouse has more.

And apparently, The Hitchhiker's Guide to the Galaxy is also taking a not-so-veiled swipe at Bush the Younger.

Interesting...