Oh the Shame!

Grad students at the City University of New York (CUNY) are voting on boycotting Israeli universities. The vote is scheduled for the start of Shabbat, because of course it is (update: it has now been rescheduled). And what did Israeli universities do to deserve such unique sanction? To quote from the resolution:

"Israeli professors and students at Israeli universities who speak out against discriminatory or criminal policies against Palestinians are ostracized and ridiculed if not publicly shamed, or worse."

Ostracized? Ridiculed? Shamed? Say it ain't so! Put aside the complete lack of citation, or notation of the quite robust debate over Israeli policies that occurs regularly in Israeli universities -- with the possible exception of being "ostracized", depending on what that means, how is this different from run of the mill academic disagreement? As Liel Leibovitz observes, the resolution seems intent on constructing a monolithic Palestinian and Israeli civil society -- the former uniformly favoring boycotts, the latter parroting the Israeli governmental line in mindless lockstep. Perhaps they should reread their Said.

"Asajews" and Superstanding

As usual always, David Hirsh knocks it out of the park:

Jews who worry about antisemitism are written off as tribal and self-interested; they are constructed as ‘Zionists’ and hence not as antiracists, intellectuals or legitimate members of the left. This hostile, external construction of Jews is in sharp contrast to the eager self-definition of the ‘as-a-Jew’ critics, who parade their Jewishness in order to discredit, in the eyes of the onlooking world, the fears of their fellow Jews.

The ‘as a Jew’ preface is directed at non-Jews. It tempts non-Jews to suspend their own political judgment as to what is, and what is not, antisemitic. The force of the ‘as a Jew’ preface is to bear witness against the other Jews. It is based on the assumption that being Jewish gives you some kind of privileged insight into what is antisemitic and what is not; the claim to authority through identity substitutes for civil, rational debate. Anti-Zionist Jews do not simply make their arguments and adduce evidence; they mobilize their Jewishness to give themselves influence. They pose as courageous dissidents who stand up against the fearsome threat of mainstream Zionist power.
Ironically, this positioning by the tiny minority tends to set the boundaries of civil discourse in such a way as to exclude and silence the legitimate concerns of the majority. It characterizes antisemitism as a right-wing issue and it teaches antiracists to recognise talk of antisemitism as an indicator of racist apologetics.

We need to agree that antisemitism is serious and that it is real; it is not only a threat to Jews but it is also a threat to the labour movement, to intellectual culture and to wider society. Of course we need then to be able to present and discuss arguments and evidence as to what is antisemitic and what isn’t; how we define it and how we recognise it are rightfully up for democratic discussion. The phenomenon which most definitely closes off the possibility of civilized discourse is the claim that Jews raise the issue of antisemitism, knowing that they’re lying, in order to stifle free speech and criticism.

Emphasis added. And note that the "asajew" formulation is hardly unique to Jews either. Derrick Bell's theory of superstanding identifies the same problem: Blacks who talk about racism and Black issues will be viewed "with a grain of salt" if they're taken seriously at all, but Blacks who criticize other Black people or rally to the defense of White people aggrieved by Black claims will be given enhanced standing and greater credibility.

Their Strongest Light

On occasion of the 7th Circuit opinion in Baskin v. Bogan striking down gay marriage bans, and this afternoon's 9th Circuit arguments on the same question, I got to thinking about the types of arguments were seeing in court by defenders of such bans. Other than generic arguments favoring deference to democratic decision-making -- which could be made about any law -- most sophisticated opponents of gay marriage that I know tend to feel that their strongest argument is a sort of souped-up complimentarianism argument advanced by Robert George and his cohorts Sherif Girgis and Ryan Anderson. I've never found much to that argument -- as far as I can tell, it asks the question "how many moral philosophers does it take to spot a naturalistic fallacy" and answers it with "more than three" -- but if you talk to people who oppose gay marriage but want very much to disassociate themselves from crackpots, that's the argument they make.

The reason I bring this up is because that argument really hasn't made much of an appearance, as far as I can see, in the legal briefs filed by the states defending the bans. While friendly amici have raised their claims, I have found only two merits brief that raises this argument: the defendants' motion for summary judgment in Kitchen v. Herbert (D. Utah), and the appellants' brief in DeLeon v. Perry (5th Circuit, challenging Texas' ban). Courts don't feel compelled to respond -- a quick Lexis search did not find a single gay marriage case where George's work was cited in the actual opinion, and indeed the brief in DeLeon spends some time complaining that the district court did not "read some of the many reasoned defenses of traditional marriage--none of which the court so much as acknowledged (let alone refuted)."

Of course this was a quick read, and it's quite possible more states are making this argument (but just not attributing it to George or his colleagues). Nonetheless, and DeLeon notwithstanding, it seems to be the case that the argument that gay marriage bans are justified because marriage inherently and naturally must only encompass a particular type of complimentary bodily union between a man and a woman is not a major part of the defense proffered by the states. Instead, we're seeing contentions that seem to actively degrade the institution, such as Indiana's assertion that marriage is a necessary prison for heterosexual men who would otherwise recklessly impregnate women and flee to their next one-night stand.

Why is this? One answer is that the states have bad lawyers. But that seems unlikely; and in any event this argument is being spoon-fed to them by very well-connected and vocal amici -- it seems odd that they wouldn't jump on it. Another is that they have such confidence in their other arguments that they don't want to resort to more abstract philosophizing -- a possibility that would be more realistic if the arguments they are raising, such as the "prison for heterosexuals" claim, were not being laughed out of court. A third reason is that, whatever its theoretical merits, the argument does not track well to current legal doctrine. It is seemingly dependent on essentialist notions of sex roles, and courts will immediately recognize the tension between adopting such an argument and adhering to the requirements of the equal protection clause as applied to gender. A fourth argument is that the lawyers for the states find the argument of George and his colleagues no more credible than I do -- relying on a bevy of logical leaps and belied by public experience with gay marriage.

The fact that the courts have not felt at all compelled to respond to George's contention lends some credence to hypotheses three and four. Either they don't find it to have any legal purchase, or they don't find it to make any particularly significant normative points, or both. A third option, obviously, is that they are consciously ducking the strongest case that could be made in favor of gay marriage bans so as to artificially buttress their own position. Maybe, but it seems unlikely -- Judge Posner is hardly one to shy from a fight, and it seems to me that if he thought there was any credibility to the complimentarian argument, he'd have addressed it.

Interpretations are what they are, but the fact is that what conservatives take to be their best argument against gay marriage simply isn't getting any traction. It's not capturing the imagination of lawyers, it's not capturing the imagination of judges, and it's not capturing the imagination of the public. As I noted in my own appraisal of George's work, the main goal of his argument is probably not to persuade, but to keep the issue in the realm of "reasonable disagreement", so that 50 years from now, we won't utterly condemn anyone who adhered to a position that it is becoming more and more evident every day is utterly indefensible. The failure of it to gain purchase indicates that it will not succeed even in this more modest effort.

UPDATE: I watched the 9th Circuit oral arguments today in the Idaho gay marraige case. It in some ways verified the above -- the attorney for the state of Idaho started to gesture in the direction of the complimentarian argument, but quickly backed away when pressed; instead, he relied on a theory of "child bonding rights" which allegedly required them to have both their mother and father in their life (coupled with a claim that gay marriage "sends a message" that fathers and/or mothers don't matter and thus will degrade heterosexual marriage). It was obvious he was drawing dead (the panel was Reinhardt, Berzon, and Gould -- one couldn't ask for a better one if you favor gay rights), and it's always interesting to watch someone gamely make their argument when they know they're doomed.