Racist Idiots Continue To Be Mad That Caitlin Clark Is Not Racist, Part II

A few years ago, I flagged a fun phenomenon afflicting WNBA superstar Caitlin Clark. You see, as a White superstar in a league with many Black players, racist idiots really wanted Caitlin Clark to be racist. And when she declined, they got very mad at her.

This week, as teammate Sophie Cunningham more explicitly positioned herself as the darling of the right-wing grievance crowd, the knives are back out for Caitlin Clark.

It's hilarious how Walsh doesn't even consider the possibility that Clark doesn't think she's been subjected to "anti-white racism." The only explanation for her reticence to name it is that she's a coward. Likewise, it does not strike me as out of character that a fierce competitor like Clark is uninterested in bawling about how hypothetical trans competitors will be just too good for her to handle. But of course Walsh can't comprehend that a woman might actually have a bit of pride in her basketball abilities such that she doesn't fear open competition. Surely Clark must know she's an inferior, right? Right?

What this reminds me of, incidentally, is a story I've told a few times about how certain "allies" react to my account being Jewish at Berkeley. They start with the assumption that Berkeley is an antisemitic hellhole and come ready to lend aid and comfort to a Jew like me who must have suffered terribly during my time there. But to their surprise, I tell them that this wasn't my experience, and while it certainly wasn't an idyllic paradise and I won't speak for anyone else at a huge campus like UC-Berkeley, I generally was quite comfortable as a Jew there. And this response is infuriating, and my would-be "ally" turns on me with a vengeance, convinced that only a spineless, self-hating Jew would refuse to confirm their narrative about pervasive Berkeley antisemitism.

And then they wonder why folks like me don't recognize them as the true allies of the Jews.

Clark is going through the same thing. A bunch of right-wing white knights ride out on her behalf to defend against the terrible mistreatment and oppression she labors under. Clark demurs, indicating that this is not her experience and not a description she identifies with. And then her would-be saviors savage her for her impertinence -- she's a coward, she's spineless, she's a race traitor. No doubt, they will continue to wonder why Clark doesn't view them as her buddies.

On Hostility to Religious Views (for Non-Religious Reasons)

The other day, the Second Circuit in Mid Vermont Christian School v. Saunders ruled in favor of a Christian private school in Vermont which had been suspended from state extracurricular competitions after it refuses to allow its girls basketball team to play against a team with a transgender athlete. The school averred that playing such a game would force it to affirm that transgender girls are girls; the relevant Vermont agency decided this was discriminatory and expelled the school. The court, in turn, concluded that Vermont's actions evinced hostility to the school's religious views and thereby violated the First Amendment.

There are some complex factual issues in this case. But there are aspects of the court's opinion that I think have to be wrong, in terms of how it treats the question of "hostility toward the school’s religious beliefs." To put the matter bluntly: people (and the government) are allowed to have hostility towards a school's (or anybody's) "religious beliefs", and such hostility cannot itself be a First Amendment violation. What they cannot do is have hostility to these beliefs because they're religious, or hostility specifically tied to them being held by a particular religious group. But it cannot be the case that hostility to a given belief, where that hostility has nothing to do with religion and extends to any holder of the belief (religious or not), becomes unconstitutional religious hostility just because this particular holder of the belief believes it for religious reasons.

The court recognized that a "neutral" law or policy of "general applicability" does not become unconstitutional because it happens to impinge upon (even a sincere) religious belief. But it said, following Masterpiece Cakeshop, that a neutral law can still fail if it is not applied "in a manner neutral toward and tolerant of . . . religious beliefs." Fine, as far as it goes. But the way the court identifies what it means to be "intolerant" towards religious beliefs at times verges on suggesting that anytime one defends (as a general, neutral principle) a position that is (in the particular case at hand) antagonistic to a proffered religious belief, one is displaying unconstitutional "hostility" -- and if that's true, then it is functionally impossible for there to be a "neutral" law in the first place.

Let's take some examples. Suppose someone asks for a Kosher meal at a school event to substitute for the planned ham and cheese sandwich. The chef is derisive: "I can understand ethical objections to eating meat or other foods, but I'm not going to cook up a new meal just because your fantasy Sky God says so." That's hostility to religious belief -- the same (basic) belief is viewed disdainfully because it emanates from religion.

Compare a situation where someone explains "at our college, we prohibit interracial dating." You respond and say that is racist and discriminatory. They then say, "it's our religious belief." You respond "I don't care -- it's still racist and discriminatory." At one level, you are of course expressing "hostility toward the school's religious belief." At another level, your hostility has nothing to do with it being a religious belief; it's a hostility you are entirely entitled to hold. The First Amendment simply cannot mean that this sort of "hostility" is constitutionally problematic. If it were, then it would be impossible to defend a neutral and generally applicable rule against racial discrimination in any circumstance where someone wanted to racially discriminate for religious reasons, since the very act of explaining why the rule against racial discrimination is important would be reclassified as anti-religious antagonism.

So in the present case, the critical question ultimately should be whether the state's antagonism towards the anti-trans beliefs of Mid Vermont are due to those beliefs being religious, or whether the state is equally "intolerant" of those beliefs no matter who holds them, with the fact that Mid Vermont happened to be a religious believer being wholly incidental and irrelevant. As alluded to, there is some evidence in this case that points in the former direction (I think it's weak, but Masterpiece Cakeshop made a mountain out of a molehill of weak evidence of religious hostility that other minorities wish they could access). But my main problem with this opinion is that it strongly suggests that the First Amendment problem would be the same even if we were unambiguously in the latter camp.

Consider one of the critical excerpts, from how the Vermont agency explained why it did not find compelling Mid Vermont's complaint that playing with transgender athletes would "endorse" beliefs about gender it wished to reject:

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

The court analyzed that passage thusly:

That statement did not just question Mid Vermont’s religious sincerity. It also attacked the validity of Mid Vermont’s objection. But “[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.” That is because “courts should not inquire into the centrality of a litigant’s religious beliefs.” .... Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong."

This is, I'm sorry to say, deeply confused analysis. The sincerity/validity divide goes to whether or not Mid Vermont's claim is actually a religious one, and it's absolutely correct that the state has no business telling Mid Vermont that its claim is a "wrong" understanding of Christianity. But that's not what the state was doing. The state isn't saying that Mid Vermont's logic is wrong as a religious proposition, it's saying it's wrong as a general proposition. In that circumstance, of course the state is entitled to "impose discipline" because it thinks the objection was wrong. Vermont has a policy, Mid Vermont thinks that policy is wrong, Vermont thinks Mid Vermont's objection doesn't hold water and so continues to apply the policy. That's completely anodyne, and it doesn't change because Mid Vermont's objection stems from its sincere religious beliefs. Under the Court's logic, any time any actor raises any sincere religious objection to any policy, they must win automatically because the act of rejecting the objection would suggest the religious objection was "wrong". Again -- I can't stress this enough -- religious objections can be wrong, so long as the reasons the adjudicating body thinks they're wrong are not themselves based on religion or religious hostility.

One last note: there may be circumstances where a policy is genuinely neutral and generally applicable, and not motivated or applied with religious hostility, but should still contain exceptions for religious objectors. I won't comment on whether this case is one of them. I'll only say that such cases are not, for the most part, religious hostility cases, and the problem in those cases is not one of a lack of neutrality. The outcome of Mid Vermont can, I think, be debated, but the logic of it I think is severely misguided (and, it must be said, I think is primarily traceable to courts giving super-protected status to anti-LGBTQ ideologies in a manner they've very consciously rejected in the racial discrimination context).

Will My Child Grow Up To Be a Human?

The other day, Jill and I were playing a common game with our baby -- telling him all the different things he could be when he grows up.

"Are you going to be ... a writer?" "Are you going to be a hockey player?" "Are you going to be an artist?" "Are you going to be a crypto bro?" (we grimaced for the last one).

Our baby is ten weeks old. He isn't much of anything yet. We don't know what he's going to be. And in the present moment, that unknown doesn't just inspire hope and anticipation. It also inspires deep anxiety and worry. We don't know if our child is going to grow up to be the type of person who is under attack by his own government.

For example, we don't know if our baby is going to have a learning disability. And that matters, given the crusade conservative politicians have launched against education programs for disabled children; one conservative commentator on Fox & Friends bluntly described the conservative position on "making sure disabled kids have access to a public education" as "we're against it."

We don't know if our baby is going to have a serious or chronic medical condition. That matters, given the  deep desire by the Trump administration to gut the American healthcare system, coupled with the bloody swath they're already cutting through critical medical research programs.

We don't know if our baby is going to be gay, or trans, or otherwise queer. That matters, given the inhumane attacks on queer personhood that have been promoted over the past few weeks, threatening to undo decades of progress towards actualizing the American promise of equal justice under law.

Of course, he might not turn out to be any of these things. We don't know, just like we don't know if he'll be a writer or a hockey player or an artist or (shudder) a crypto bro.

So we just have to wait and see, and hope that whatever our child grows into, it'll be one of the categories our country still recognizes as fully human.

Saturation Ad Air War

One aspect of political culture I very strongly believe in is that most voters' knowledge of political affairs is primarily one of ambiance. They don't know much in the way of facts (what is the inflation rate, has crime gone up or down). They know a "mood". They feel that things are getting better, or worse. They hear a lot that America basically has open borders, or they hear a lot that abortion rights are going away. The connection to reality is pretty well unimportant (we definitely don't have open borders; abortion rights really are under threat). It's the sensation, the steady drumbeat of narrative, that moves them.

To that end, I've long thought that a good progressive billionaire project would be to continually air issue ads that are not tied to a given political race or even an election, but are just part of the backdrop every time one turns on the news or watches Monday Night Football. The goal of these ads should be to make certain hopes, fears, and moods simply part of our backdrop -- something "we heard somewhere." It should not cast itself as expressly political -- an effort to elect this or that politician. In fact, "issue ads" is probably the wrong moniker. It shouldn't present itself as political at all. It should be simply a story, told over and over again, until it seeps into the national subconscious.

What sorts of ads do I have in mind? I pitched one about abortion a few years ago. I had another idea for one about trans and gender non-binary issues:

A family is at home in classic suburbia: mom, dad, and a gender non-conforming adolescent kid. The scene is utterly mundane and ordinary, but with a touch of danger lurking in the background. Mom is cooking, but beside her one can see a newspaper headline announcing the latest right-wing attack on trans kids. Dad is telling a dad joke to the kid (who rolls their eyes), the TV news on mute in the background but the subtitles have a talking head calling families who provided gender-affirming care to their children sexual predators who should be thrown in jail.

Interspersed with each shot, we have a quick cut of heavily armed police massing outside the house. Right as everyone is getting ready for dinner, the door is battered open and the scene goes black. All we hear is the police demanding everyone on the ground, then demanding the child come with them as the family screams frantically. The last we hear is the kid pleading to their parents "don't let them take me!" 

What's the point of the ad? To put people (and particularly suburban parents -- political hell hath no fury like a suburban schoolparent scorned) in a mindset where families are in danger. Maybe their family. Maybe their neighbor's family. There's no lie here -- these are the stakes, and families are in danger. But the point is to prime them with that sensation in advance, so that it's what they immediately think of whenever the Trump administration announces policies that will be all about threatening families.

The ad is just an idea (and nobody wants my advertising ideas). And not all the ads need to be negative, necessarily (though as the opposition party, that's probably going to be the bulk of it). But the broader point is that liberals need to do everything they can to just saturate their narratives into the American bloodstream, not as part of a discrete political campaign, but simply as a background feature of what the world is right now. We can't wait for election season, and we certainly can't wait for an increasingly infirm legacy media to the job for us. These stories should be mainlined into every American home, by any and every medium available, and should start right now.

The Shrapnel Marked "Occupant"

There's an old saying passed around by soldiers, that goes something like: "Don't worry about the bullet with your name on it. Worry about the piece of shrapnel marked 'occupant'."

The point of the story is to impress the fundamental impersonality of war. Who lives, who dies -- there's nothing special about it. The bullet or bomb or rocket doesn't care about you; the person firing it doesn't care about you either. In 99.9% of cases, it has nothing to do with you in any meaningful sense. We have for ourselves a thick understanding of our own choices and values and importance, but none of that really plays any role in who gets hurt. The bullet that comes for us almost certainly will not have our "name on it".

At one level, this outlook is a corrective to main character syndrome, where we all imagine ourselves to be very special indeed, and so the reasons good or bad things happen to us relate to our specialness and our special choices. The bullet is inscribed with my name because I made distinctive choices which made someone take notice of me and decide to specifically take me out. 

But at another level, this saying is also about undermining a sense of security based around our own ordinariness. In many respects, most of us I think don't imagine ourselves as "special". We don't stand out, we don't see ourselves as making some sort of radical or impactful choice that would cause someone else to go to the trouble of crafting a bullet specially for us. I'm just a regular guy, doing ordinary things. There's nothing special about me, so why would anyone bother to target me, of all the people in the world? And the answer is that maybe they wouldn't -- but the shrapnel marked "occupant" is distinguished precisely because it doesn't bother to target at all. Your mundanity will not save you.

I've been thinking about all of this in relation to my own coping mechanisms as I envision what the future might hold over the next four years. One mode of "reassurance" is to tell oneself that Trump and Trumpists aren't really going to go after me; they are targeting other, more distinctive communities (such an immigrants, or trans individuals). Of course, this cope might not even be right on its own terms (it's entirely plausible he will target, e.g., Jewish college professors). And to the extent it is right, even thinking this way wracks me with guilt -- "I feel better knowing it's others who will be hurt".

But there's a more fundamental problem at work here. Finding reassurance in terms of who is likely to be "targeted" tries to find security in normalcy and ordinariness. It's that notion of "I'm just a regular guy, I'm doing nothing special or out of the ordinary -- why would anyone bother to come after me?" And again, I think that self-conception is incredibly common. Some of you might have seen interviews with undocumented immigrants who claimed that, if they could vote, they would have backed Trump. This feels inconceivable -- how could they do that, when Trump says he wants to enforce their deportation en masse? The answer they give is basically: "he's not talking about me." Why would he be? I'm just trying to work hard and build a better life for my family. He must be talking about the criminals and the rapists and the predators. I'm just a normal guy, doing normal things. There's no reason why someone would go through so much trouble just to hurt me.

This in-depth story from a few months ago, about a trans girl in Florida who was on her middle school's volleyball team, hits a similar theme. The reassurance her mother tried to draw on was entirely centered around her daughter's ordinary mundaneness -- she's just a regular tween, going through normal adolescent experiences, who wants to play a sport. She's not even an especially good volleyball player! Who could be bothered to care about something so fundamentally normal?

Of course, it doesn't work. Her normalcy doesn't save her. Now certainly, in the Florida case one could say that this kid absolutely was personally targeted (the article suggests there were only two trans female athletes in the entire state at the time). The school board, the police, and so on -- they very much went after her when they found out she was trans and participating in public school athletics. But in a truer sense, I don't think it's accurate to say that what happened had anything to do with "her" at all. She is better described as the victim of the GOP's saturation bombing directed at the trans community, broadly; a campaign that self-consciously does not care about any of its victims as individuals. It's not about her. She's simply the occupant.

If one wants to catastrophize further, I sometimes think about what would happen if our newly-elected overlords got us into a global hot war (Trump's pick for Secretary of Defense is a Fox News personality who openly promoted the idea of a first strike attack on North Korea). It feels, and some sense is, cosmically unfair that such a war would effect me. What do I have to do with anything? I didn't vote for this! I think this whole thing is stupid! But what's true for soldiers is even more true for civilians caught in war zones -- we're all just regular people, and our regularity simply does not matter (this insight applies to other civilians who are actually, and not just hypothetically, stuck in actual war zones right now). If the rockets start raining down on Portland, it will do me no good to call out to them and say "I had nothing to do with us -- go over there!" They in no way will have my name on them, and they will  nonetheless be implacably indifferent to me.

Perhaps the moral of the story, then, is to not be afraid to stand up. Your normalcy, your ordinariness won't save you. Maybe it should, but it won't. It may or may not surprise you to know that this conclusion is very hard for me to grasp onto. I actually don't have any desire to stand out, I'm not looking to present a visage one cannot look away from. I'm fine doing "ordinary" politics and writing and participation, but I have no desire to be special beyond that. My fondest wish is that the world leave me alone and I leave it alone in turn.

But that probably isn't going to be an option. Someone like me may or may not be directly targeted for abuse and oppression -- as a Jew, as an academic, or as a Democrat. But targeted or no, there's always the chance that some shrapnel will find me as an "occupant". I don't think of myself as particularly special or distinct, I have no illusions that I represent some critical node in the Resistance to Trumpist oppression. I'm just a regular, normal guy. But normalcy will not keep me safe.

In the Image of God

A recent study found that Jews are the demographic group most accepting of trans individuals in the United States.

When certain Christians assert a religious freedom right to discriminate against trans individuals -- particularly, a right to misgender them -- their argument typically proceeds something along these lines:

1. They believe every individual is created in the image of God.

2. Part of that image is the person's sex (and by extension, gender).

3. In particular, a person's sex/gender is inalterably assigned by God from conception.

4. They are forbidden from lying or falsifying God's choice.

Therefore, they say, they are religiously obligated to refer to people by their chromosomal sex, regardless of how they identify or publicly present. This religious duty, in turn, is used to press against rules and policies which require respectful treatment of trans individuals (including refraining from deliberately misgendering them, deadnaming them, and so on).

What's interesting about this framework is that a lot of it actually resonates with how I view the relationship of my Jewish faith and trans individuals -- with some crucial alterations. To wit:

1. I believe every individual is create in the image of God.

2.  Part of that image is the person's sex (and by extension, gender).

4. I am forbidden from lying or falsifying God's choice.

The major distinction, of course, comes in prong 3:

3. A person's sex/gender is not necessarily or inalterably assigned by God from conception, but rather can be part of a person's own process of discovering who they are. Where such self-discovery leads to a person to conclude they are trans, non-binary, or any other identity that departs from the sex they were assigned at birth, they are not deviating from God's plan. They are uncovering their authentic self as God has created them.

The result of this process is part of God's image. Those who refuse to accept it are not cleaving to God's image, they are rejecting it.

God's process of creation is not, in my understanding of Judaism, a set-and-forget sort of deal. It is not a matter of passively being puppeteered by a divine hand. It something we do together -- we are partners in creation. To deny the results of that partnership is, for me, a denial of God's plan and practice just as much as it is for adherents of other religious views who adhere to a more static and calcified notion of the role of the divine.

And so for me, and I suspect for many Jews, the religious freedom obligation pushes in the other direction. Many conservative states have, or are considering, laws which require (at least in certain contexts) non-recognition of trans identity. For Jews (and others) who share my religious precepts, these laws would force me to deny -- to bear false witness to -- a key attribute of how God created some of my peers. I do not believe -- and this is a deep, fundamental commitment -- that God's "image" of trans persons was for them to be locked in a body or sex or gender identity that clearly is not authentically theirs. When they find their full self, they are equally finding God's image of themselves.

Consistent with my lengthily expressed feelings on the subject, I suspect that what's good for the goose will not be good for the gander. Despite the clear parallel, liberal Jews who assert religious liberty rights to be exempted from laws seeking to enforce by state mandate a transphobic agenda will not meet with the same success enjoyed by their Christian peers.

Nonetheless, there is value in promoting this sort of framework, and in unashamedly asserting Jewish independence from hegemonic conservative Christian notions of true religiosity. It is not woven into "religion" that God's image requires rejection of trans individuals' full selves. That is a choice, an interpretation of some religions or of some who call themselves religious. Other religions, other religious persons, have a different interpretation of how to respect and dignify the facet of God that is in every one of us.

Making the Grade Roundup

It's grading season at Lewis & Clark. I have the entire 1L day class this semester across two sections of Con Law I, so it's a bit of a bear. But I'm almost halfway done!

You get a roundup.

* * *

As a professor, I cannot fathom the hubris it takes to see one of your papers rejected from a journal -- the most normal possible experience for an academic -- and decide to parlay it into an entire New York Times column decrying "wokeness".

Florida is set to legalize kidnapping trans children from their families. But don't worry -- they'll only do it if the families love their kids and provide them with healthcare. Family courts in other states better start boning up on asylum law, because the phrase "well-founded fear of persecution" is going to become increasingly germane in cases where there's a possibility of the child being sent to Florida.

Local elections in the UK are seeing the Tories getting absolutely stomped. Over a thousand seats lost by the party, most of which are going to Labour and a healthy chunk of which are going to the LibDems and Greens. It's amazing what Labour can do when it isn't being led by a wildly unpopular antisemitic extremist!

Princeton under fire for hiring prominent BDS activist to a fellowship position. The twist? The activist is a member of the Israeli far-right. But the BDS thing is real -- he supported a divestment campaign against Ben Gurion University in retaliation for its allegedly "anti-Zionist" tilt.

The UAW has new leadership (I had half an eyeball on this, since I technically was a UAW member in my capacity as a UC-Berkeley graduate student instructor), and they're playing hardball against the Biden administration demanding compensation for how new electric vehicles may reduce the number of autoworker jobs.

Things People Blame the Jews For, Volume LXIII: Transgender People

Many, many people have noticed the degree to which the ascendent anti-trans hysteria has been bathed in antisemitic subtext (or, just as often, text-text). A recent incident in metro Atlanta is barely even distinctive, it just happens be the one that happened within the past few days.

More antisemitic flyers have been distributed around metro Atlanta, about a month after the last time people found similar flyers in their neighborhood.

On Sunday, Atlanta police issued a statement about flyers found in East Atlanta titled “Who is behind the rise in transgenderism?” that feature a large rainbow-colored Star of David, and display QR codes with links to websites with anti-Jewish and anti-transgender statements.

Police said they were aware of the flyers and the Atlanta Police Department’s Homeland Security Unit was notified and is investigating.

The flyers' centerpiece is an attack on Magnus Hirschfeld, a German sexologist who was an early target of the Nazis. So it's nice we're circling all the way back to that. 

On the other hand, the flyers also make note of how the Talmud recognizes eight genders (which is accurate -- take that, "Judeo-Christian" tradition!) and Jewish families which have embraced trans youth with open arms. The flyer, of course, presents this as an indictment. But I prefer to think of it as giving credit where it's due.

Post-Conference Roundup

Last week, approximately 35 speakers (and dozens more guests) came to Lewis & Clark Law School for the 2nd Annual Law vs. Antisemitism conference. It was an event I'd been planning for over a year, and I'm pleased to report it was a rousing success. The panels were scintillating, the conversations crackling, and the two keynotes (by the ADL's Steve Freeman and civil rights activist Eric Ward) blew the doors off the joint. I could not be prouder.

Unfortunately, as the conference approached I could feel myself getting a cold, and so I did that deal-with-the-devil bit where I just willed myself to not be sick for the conference, and my body was like "okay, but you're going to pay for that come Tuesday." So the day after the conference I was sick as a dog. But now I'm mostly better -- just some residual congestation.

Anyway, here's a roundup:

***

Haven't seen the clip, but apparently a protester held up a "Jews control the USA" sign on the CNN segment reporting on Trump's indictment today. So that's fun.

Iowa school hit with bomb threats over LGBT book after "LibsOfTikTok" sics her goons on them.

In other "is killing students in school controversial?" news, Nashville students walk out of class to protest for gun reform following the Covenant School shooting.

Also in Tennessee: a federal judge has enjoined the state's new draconian "anti-drag" law as likely violating the First Amendment.

As a now-certified Caitlin Clark fan, it's beyond evident that folks calling Angel Reese "classless" for doing the same mugging that Clark had done all season are, well, they're not hiding the ball. And for what it's worth, there's zero evidence that Clark in any way needs or supports y'all white knighting on her behalf -- I guarantee she can take what she dishes out. (Surely, we can all agree that the only thug on the court yesterday was Kim Mulkey).

Israel looks set to give its resident fascist his own personal state-backed paramilitary squad. What could go wrong? Nothing, because "wrong" implies that the the utterly predictable consequences aren't intended.

A beautiful story of a transwoman recounting "coming out" to her 100 year old grandpa. His memory clearly already is a blessing.

Oh, and I published a new article! "Microaggressions as Negligence" is now out in the Journal of Social Philosophy.

On The Ease of Having Friends With Political Differences

One of the feature creatures of the alt-center scare machine these days has been the alleged unwillingness of "certain" people (read: progressive Gen Z-ers and millennials) to make or keep friendships with persons they disagree with politically. 

That truly awful JILV poll generated stories breathlessly claiming that "two-thirds of progressives and 54 percent of 'very liberal' respondents said they have effectively 'cancelled' a friend or family member because of their political views" (the poll actually asked whether one had "lost a friend, stopped talking to a relative, or grown distant from a colleague because of political opinions or differences?", which is a rather far cry from "effective cancellation", but no matter) is one good example. This column from Samuel Abrams and Pamela Paresky, bemoaning the oversensitivity of college students who don't want to date peers who voted for the opposing 2020 election candidate, is another.

I have to say, I find this line of concern a bit perplexing. As a general matter, it seems incredibly easy for people to make and keep friendships across political difference. For example: this past election those of us who lived in Portland had quite a few ballot issues to vote on, including things like local bond issues, switching from run-off elections to ranked-choice voting, and altering the structure of our city government from a "commissioner" model to multi-member geographically zoned districts. As in all elections, I did my best to research these issues and come to a conclusion on them. But -- while I haven't asked any of my Portland friends or colleagues how they voted on any of these questions -- I can't imagine the possibility of losing relationships if they voted differently than I did. These political differences, it seems, are rather easily overcome by the bonds of friendship.

Now, the trumpeters of the "cancellation" epidemic narrative will surely cry foul here. The political differences they have in mind are not local Portland ballot initiatives; it's pedantic to use them as a falsifying example of the larger "problem". And I agree that these examples are obviously not the cases that someone like Abrams or Paresky or David Bernstein has in mind.

Which means it'd probably be useful to be specific about the actual cases one has in mind.

Consider, for instance, a trans college student. A live political controversy, right now, is whether or not they should have been legally prohibited from getting necessary health care in their teenage years and whether they should have been forcibly ripped away from their parents (who, in turn, should be imprisoned as child abusers) if they tried to provide such treatment. If such a student finds out that one of their "friends" believes that all of that should have happened; and will vote in order to make it more likely that this would happen, can we really say with a straight face that the student is wrong if they sever the friendship? If the friendship is indeed distanced -- and it won't always be, people are complex -- it would be both factually incorrect and uncharitable to the extreme to say that the student has shown an inability to tolerate "political differences", generally. The student surely would not make a similar judgment regarding political differences about the proper top marginal income tax rate. It is a specific "difference" that is beyond the pale for them, and with respect to that specific difference it's hard to say that their judgment isn't reasonable.

There are many classes of vulnerable individuals who face such questions as pertain to live political controversies. Gay and lesbian individuals, who learn a peer "differs" on the subject of whether their marriage should be forcibly dissolved and their very identity re-criminalized and subjected to prison time (both live subjects of political dispute, given emergent threats to Obergefell and Lawrence). If they distance from that relationship, is that really evidence of a broader failure to respect political difference? Undocumented "Dreamer" immigrants, who must reckon with the reality that "I may be torn from the only home I’ve ever known at any moment and a sizeable portion of what I thought was my community will cheer as they drag me off." If they react poorly to that difference, are they really engaging in cancellation?

We are not talking about "political differences" generally. We're talking about a subset of specific differences that pose deep, arguably existential, threats to individuals' lives and well-being. And to the extent there's asymmetry in how often progressives find a live political difference that fall into that category, that might reflect nothing more than an asymmetry in which political camp is overwhelming responsible for that particular type of existentially-threatening "difference." There is not any sustained progressive campaign to make it illegal for, say, Southern Baptists, to get married (and if you are a progressive who does support such a policy, any resulting loss of Southern Baptist friends would be entirely on your head!).

"Not every point of political disagreement can be treated as an existential threat to one's very existence." I could not agree more. Moreover, it seems blatantly obvious that nobody -- even the dreaded progressive Gen-Zers -- thinks otherwise. People have absolutely no problem making and keeping friendships and relationships across political difference, generally. They have a serious problem with certain specific political differences. Those who think that problem, is a problem, should do the courtesy of naming the issues. Then we can assess whether the young woman who was impregnated by rape is wrong to cut ties with the "friend" who says she should be forced to give birth on pain of a prison sentence.

After Bostock, Was It All Worth It?

It's been interesting to watch conservative reactions to the Bostock decision (holding that Title VII's prohibition on sex discrimination encompasses anti-gay and anti-trans discrimination, because that discrimination necessarily is also "because of" sex). Some of the usual suspects have been relatively muted -- likely because the outcome the Court reached is actually overwhelmingly popular. But there certainly are some on the right who are very upset. Josh Blackman collects anonymous examples here. Right-wing commentator Josh Hammer urges conservative judges to abandon procedural legal reasoning entirely in favor of an unabashed substantive commitment to social conservative principles. Senator Josh Hawley claimed the decision represents "the end of the conservative legal movement."

It's more than just Joshes, of course. And the theme of this critique is, as Hawley alludes to, the question of whether it was all worth it. The claim is that social conservatives, at least, have been holding their noses and voting Republican for years because "the judiciary". But if the conservative judiciary gives them results like these, is the bargain really worth it? The murmur is that after Bostock, the jig is up, and conservatives will no longer come out to support a GOP whose judges have betrayed them.

If you're a liberal reading this, it's rather striking. The undisguised insistence that judges should vote in alignment with conservative policy objections (up to and including explicitly disavowing neutral legal proceduralism!) is amazing to see -- less because of the content and more because it's being said out loud. But more incredible is the idea that this Supreme Court has represented anything less than a massive triumph for contentious right-wing causes. The Court of Citizens United, of Trump v. Hawaii, of Hobby Lobby, of Janus, of Masterpiece Cakeshop -- none of that registers? Is it really everything or nothing?

I, of course, heartily encourage social conservatives to adopt this reasoning and decide it's not at all worth it. Rise up by sitting down, and showing the Republican Party what's what! But that's because it's obviously self-serving for me: the result of social conservatives staying home and fuming because the Supreme Court only backs them 80% of the time instead of 100% of the time is, in five or ten years, a Supreme Court that backs them 40% of the time.

Indeed, the most important lesson liberals could learn from watching, agape, the social conservative reaction is "if this strategy looks ridiculous to you coming from the right, it's equally farcical when it's threatened from the left." You don't win by staying home, and you're not playing hardball when you insist on everything.

It's Coronatime! Roundup

While I'm dubious that there are actually large numbers of people who will consciously avoid Corona beer because of coronavirus, I still can't fathom what their PR people are going to do with this. It's like all those apartment complexes called "The Isis" -- you hate to see pretty word get ruined like that.

* * *

Trump campaign threatens the operating licenses of stations which run ads critical of Trump's handling of the coronavirus (the ad is damn good too). The real tragedy is that, with college campuses largely closed, there probably isn't some 19-year old Oberlin kid with a stupid protest we can all point to as "the real threat to freedom of speech in America."

Hobby Lobby CEO decides God wants him to keep his stores open, but doesn't really care about giving his workers paid sick leave.

Democrats made the coronavirus bill that passed the Senate much, much better than it was at the start.

Billionaires are ready for American workers to start working again, goddammit!

Technically ex-Rep. Brenda Jones (it's complicated) is seeking a rematch against "Squad" darling Rep. Rashida Tlaib. One might think Jones' unabashed stanning of Louis Farrakhan would present a problem given literally every Jewish opinion piece on antisemitism that's run over the past three years; but you'd be surprised (or not) at how, er, "open-minded" some folks are suddenly capable of being given the opportunity to take out Tlaib (Jones' ongoing praise and admiration for Farrakhan and his organization vs. a solitary article written by Tlaib in an NoI publication 15 years ago -- these probably wash out, right?). The ultimate kicker: Tlaib almost certainly will crush Jones anyway, so all this selling out of deep-seated principles will be for naught.

DOJ intercedes in court to argue that allowing trans women to compete in women's sports (and, one imagines, trans men to compete in men's sports?) is not required by and may indeed violate Title IX.

New Developments in the Right To Discriminate

A new survey measures people's attitudes towards businesses discriminating against various types of customers -- gays and lesbians, transgender individuals, atheists Muslims, Jews, and African-Americans. There are some really interesting takeaways.

• Republicans are -- across the board -- more likely to favor permitting discrimination than Democrats or Independents. This is true across all customer-identities.

• However, Republicans also exhibit considerably more variance across different groups -- tolerating discrimination against certain sorts far more than others. At the top end, circa 45% favor permitting discrimination against gay, lesbian, and trans individuals. At the bottom, only 18% favor it when it comes to African-Americans. Meanwhile, Democrats never stray out of a tight 14% - 19% band for any group -- suggesting a cadre that (perhaps for some libertarian freedom-of-contract reason) supports the "right to discriminate" on principle.

• Given the recent high-profile controversies about businesses serving gay customers and the extent to which GOP politicians have sought to make it into a culture war front (ex: Indiana, Masterpiece Cakeshop), I wonder if the commitment to the right to discriminate against LGBT individuals is having the effect of "dragging up" GOP support for a similar right as against other groups -- people believing that if they don't support a "right to discriminate" against Jews, then there can't be a right to discriminate against gays either. This hypothesis, however, clashes with the willingness of many Republicans (noted above) to just happily accept the double-standard.

• That said, again given the degree to which the GOP has sought to put the right to discriminate against LGBT customers into the news, I'm actually shocked that the figures here are so low. Again, we're talking (slightly) less than half of Republican voters, and less than a third of Americans total. There's actually a pretty strong bipartisan consensus against the position GOP politicians have been staking out.

• In the religion-bowl, Atheists are disliked more than Muslims are disliked more than Jews. The difference is very stark among Republicans (37% support a "right to discriminate" against Atheists, 32% against Muslims, 24% against Jews) but much narrower among the population writ large (24/22/19, respectively).

D.C. Circuit Dissolves Injunction Against Trans Military Ban

In a brief decision, the D.C. Circuit dissolved a lower court injunction against Trump's ban on military service by trans individuals who seek to transition, concluding that the injunction was not sufficiently deferential to the military and that in any event the ban was not a "blanket" prohibition on service by trans individuals because "not all transgender persons seek to transition to their preferred gender or have gender dysphoria".

If that latter determination causes you to roll your eyes, (a) you're right and (b) this is exactly what I've been warning about in, e.g., my "expelling Hillel can't be antisemitic because not every Jew likes Hillel" essays. This line of reasoning is one of the most powerful pathways for the conservative dismantlement of anti-discrimination law -- it is utterly unsurprising to see it used here to defend the otherwise transparently ridiculous assertion that the trans service ban isn't a trans service ban (see also: Trump v. Hawaii's "Muslim ban isn't a Muslim ban"). Find a tiny sliver of the relevant community you're okay with, gerrymander the discrimination so that sliver is admitted, and presto! No more discrimination.

As several other courts have also enjoined the trans ban, the D.C. Circuit's decision will not have any immediate effect.

But Do They Have Paradox-Absorbing Crumple Zones?

Eugene Volokh flags an interesting case out of Wisconsin lying on that intersection of religious freedom and anti-discrimination. Basically, a male Muslim prison inmate objected to being strip-searched by what appears to be (the record doesn't say explicitly) a transgender male guard. The inmate claims that part of his religious beliefs are that (a) sex is assigned by God at birth (so if you're born a woman, you're a woman) and (b) he cannot be seen naked by any woman save his wife. He's demanding a religious exemption from being strip searched by that guard under RLUIPA (he doesn't object to strip searches generally).

Reading about this, all I could think about it is: how would Breitbart cover this? Which hatred would win out? Would they back the Muslim prison inmate, or the transgender man whose job description includes seeing people naked?

I really think it's a toss-up.

Post-Bacchanalia Roundup

I had my bachelor party this weekend in Chicago. That sounds wilder than it was -- my fiancee and I have the same core friend group (we all went to college together), so we rented an AirBnb and spent the weekend as a group. We did split off Saturday to do our own things (mani/pedis for the gals, an escape room for team boy -- which we completed with seven seconds to spare), but by and large it was a non-traditionally gender-unified event.

Still a blast though.

Anyway, here's some stuff that's gone on in the interim.

* * *

In Foreign Policy, Jacob Levy has a neat essay on the philosophy of my great-grandadviser (the Ph.D. adviser of the Ph.D. adviser of my Ph.D. adviser), Judith Shklar.

Also in FP, a discussion of a possible Israeli-Palestinian confederation -- the first articulation of an outcome to the conflict outside the "classic" two-state solution model which I've found remotely compelling.

Labour's antisemitism policy under Corbyn has basically been "fuck you, Jews" in so many words, but I believe this is the first time a prominent Jewish Labour politician has explicitly said "fuck you" back to him.

Iraq has a long Jewish history, which is memorialized in a giant archive of Jewish artifacts. These artifacts were removed for safekeeping following the U.S. invasion, and unsurprisingly Iraq now wants them back. Problem: virtually no Iraqi Jews live in Iraq anymore, and they want the archives somewhere they can actually access them. For the record, this is a great example of the sort of problem intersectionality was designed to illuminate.

D.C. Circuit upholds funding structure whereby FERC gets its budget from fees assessed to natural gas pipeline projects it approves (against environmental challengers who say that incentivizes them to keep approving pipelines). The more interesting part of the case is a bit buried though -- the court concludes that Pennsylvania's Environmental Rights Amendment does not create an individualized liberty or property interest in a clean environment cognizable under the Fourteenth Amendment.

Meanwhile, the Seventh Circuit concludes that refusing to give an incarcerated transwoman medically-necessary hormone therapy -- and later, forbidding her from taking those hormones herself when she's released on parole -- can give rise to a "deliberate indifference" to medical need claim.

Man calls the police on a Black man over a basketball foul. No, seriously. What's his hashtag going to be? I vote #HardPickHal.

Post- (and Pre-)National Roundup

No, this isn't about Tillerson (or Goldstein, or McEntee ... goodness, this was a hell of a morning). I delivered the lecture on Nationalism in our Political Theory class today -- which went fine, except that I also have to teach a section on Nationalism tomorrow and now I've used up all my knowledge on the subject. Time for many rounds of my old standbys -- "say more on that", "well, what do you think?", and of course "break off into small groups to discuss."

Anyway, roundup time!

* * *

Advances in turbine technology are making wind power a real player in electricity market -- and not grading on the "renewable energy" curve either.

A powerful story on a UC-Berkeley student living in an unheated trailer with no sewage hookup .... that he's about to be evicted from. This is an extreme story, but it gets to why I get very defensive when Berkeley students are attacked in the media as supposedly epitomizing careless, unserious millennial frivolity. Many of the students here are coming from places and backgrounds where they're well aware of what it means to be attending UC-Berkeley, and are behaving accordingly under conditions that God willing I'll never come close to. When they're lazily stereotyped as aimless hippie stoners, it disrespects them, their work ethic, their talent, and their perseverance.

U. Penn. Law Professor Tobias Barrington Wolff on his colleague, Amy Wax, whom he persuasively argues has converted into the academic equivalent of an Ann Coulter provocateur. This passage is also generally applicable:

What academic freedom does not provide, however, is a free pass entitling faculty who say inflammatory things to escape denunciation or to engage in toxic behavior without consequence. Invoking academic freedom to delegitimize sharp criticism or to claim impunity for improper conduct is a misuse of that principle.

Many people have seen Adam Serwer's excellent commentary on Tamika Mallory's relationship with Louis Farrakhan (a sterling example, incidentally, of how to explain the NoI's appeal to certain segments of the Black community without washing away it's hideously bigoted track record), but Stacey Aviva Flint is another good addition to the list of Black Jews whose opinions you should read on this matter.

Gretchen Rachel Hammond -- the half-Indian Jewish transwoman best known for breaking the story of the Chicago Dyke March expelling Jewish marchers and then being fired from her own newspaper for covering the story -- has a powerful piece detailing her experience and her "divorce" from the trans community in its wake. It is a poignant, cutting, and often very sad piece -- not the least because, for all her fulminations against "intersectionality", the concept in its original manifestation would be very well suited to articulating the sort of marginalization and exclusion Hammond details (one would not be off the mark in summarizing Hammond's experience as one of being "split at the root" -- Adrienne Rich's felicitous phrase which has often been approvingly quoted in the intersectionalist literature).

On the Necessity of Debating Discrimination

The gods of the internet displayed their sense of humor today. Just as an article titled "Is Anti-Semitism the Only Bigotry That’s Subject to Debate?" crossed my twitter feed, I received an email invite to the Cato Institute's "The First Amendment vs. Anti-Discrimination Law: A Preview of Masterpiece Cakeshop v. Colorado Civil Rights Commission on the Eve of Oral Argument" event (featuring a Cato speaker up against an NAACP appellate litigator).

When it comes to Jews' comparative status as a marginalized group, there seem to be two dueling schools of thought -- completely opposite, yet seemingly unaware of the other's existence. The first will look at a wrong done to Jews and say "they would never say that about any other group." The second will look at a wrong done to someone else and say "they would never say that about Jews." Jews either stand in for perfect protection or unique vulnerability.

Both sides are wrong of course. They would say it about Jews; they'd say it about other groups too. We could all use a dose of humility regarding the pane of glass we cannot see.

The proximate argument, about whether we should "debate anti-Semitism", comes from the fall-out from a left-wing panel at the New School (including several JVP bigwigs and Linda Sarsour) discussing antisemitism, and the university's offer to have Tablet Magazine organize its own panel to provide an alternate perspective (Tablet spurned the offer in sharp terms).

Clearly, at least some of the sturm und drang here stems from a pretty naked obfuscation about what it means to have a "debate" on anti-Semitism. Obviously, debating "is anti-Semitism bad" would be offensive. But it's absolutely necessary to debate "what is anti-Semitism -- what is its definition, what are its contours, what effects does it have, what falls in and out of its ambit?"

The latter form of debate is obviously perfectly valid -- I do it all the time. And, it should be unnecessary to add, such debates are had about other forms of bigotry all the time. We know this precisely because sometimes we do see attempts to suppress such debates under the guise that even recognizing the existence of a debate is tantamount to justifying the bigotry itself. And I'm hardly confident about how certain issues of importance to the Jewish community will fare if we are too quick to run to "even having a debate with the likes of you legitimizes bigotry."

From my vantage, we live in a world where a great many people have the wrong idea about "what is anti-Semitism" (and, for that matter, "what is racism", "what is sexism", "what is transphobia", and so on). Consequently, I want people to change their perspective on those issues -- and a great way to do that is by having and promoting debates and discussion. It strikes me as a spectacularly misconceived appraisal of the status quo vantage to think that people's default assumptions about anti-Semitism -- formed without debate, discussion, or deliberation -- are well-formed and in-line with what we take to be necessary to facilitate Jewish equality in social and political life.

You Know Jews -- They're Only After That One Thing (Part II)

Back in 2009, I wrote a post commenting on the metacontroversy surrounding the appointment of Chas Freeman as chair of the Obama Administration's National Intelligence Council. Freeman was a controversial selection, along a variety of axes. One reason was that he had supposedly criticized Israel in a way that rankled certain pro-Israel voices (I don't recall the nature of his comments, and they're not relevant for this post). But other reasons also existed -- he was not particularly well liked by many in the human rights community, who viewed him as too sympathetic to authoritarian regimes like China and Saudi Arabia.

The issue, though, was that even when Jewish critics framed their concerns about Freeman in terms of the latter issue -- mentioning Israel in passing or not at all -- many commentators were explicit in basically saying the critics were lying. Sure, they said they were concerned about human rights in China -- but that's just a smokescreen. Really, it's Israel that's motivating them. I mean, what else motivates Jews? They're only after that one thing.

All of this predates the "pinkwashing" fad currently popular among some segments of the left. But in many ways, the claims of pinkwashing embody the same basic instinct: that Jews only care about one thing, and that when they purport to care about something else it's a facade designed to distract everybody from their true agenda.

Nominally, "pinkwashing" refers to a specific practice of the Israeli government to promote a "gay friendly" image as a means of distracting progressives from the occupation. Even along that narrow dimension I think this is significantly overstated as a tactic worth commenting on -- it is an argument favored by those activists for whom thinking two thoughts at once is two too many. But more importantly, as a political tool "pinkwashing" has stretched way beyond these relatively narrow boundaries to encompass virtually any Jewish political discussion of any variety -- no connection to the Israeli government required. Commenting on the "Creating Change" fiasco where protesters stormed a reception hosted by a North American and an Israeli LGBT NGO, I wrote that

[e]ven if there were some evidence that the Israeli government is actively seeking to leverage its relatively strong LGBT record to "cover" for the occupation (and I continue to think that's oversold), it's become abundantly clear that the "pinkwashing" label has taken a decidedly conspiratorial edge. Any LGBT organization in Israel, or any Jewish LGBT organization anywhere, that is not avowedly anti-Zionist (which is to say, any of substantial size) will simply be asserted to be part of a grand Zionist pinkwashing plot. At that stage, the "pinkwashing" charge has become anti-Semitic root to branch.

This week, we saw perhaps the apex of this conspiratorial, exclusionary deployment of "pinkwashing". Black trans activist Janet Mock was invited to give a talk at Brown University. She is not Israeli. Her talk was not going to be about Israel. Her invitation was extended by (among others) a Jewish group that takes no position on Israel. The event was to be hosted at the campus Hillel.

Over 100 Brown students signed a petition accusing the proceedings of being a form of "pinkwashing". Mock canceled the event.

This is past the point of parody*: The non-Israeli giving a talk not on Israel whose hosts include a Jewish group which does not take a stance on Israel, with Hillel providing a venue.  Basically, if Hillel hosts anyone on anything it's a facade to cover up Israeli crimes. Because why else would Hillel host someone except to make a point (or avoid making a point) about Israel? What else motivates the Jews? With them, you know it must be a plot.

I hope my tone doesn't understate the seriousness of the problem here. The petition sought to create a norm in which Jews are effectively (certainly presumptively) excluded from deliberative projects along all fronts. This is no trivial thing. The legitimation of the politics of ethnic or religious exclusion should rightfully terrify us -- not the least because Muslim persons are enduring an entire presidential campaign premised around it. The Jewish students at Brown targeted by the petition certainly understood what was at stake:

This petition does, however, make us ask: given that Hillel is the center for Jewish life on this campus — with a mandate to support the interests and meet the needs of a very diverse constituency of Jewish students on College Hill (ranging widely in their political, religious, and cultural inclinations) — does simply engaging in a Jewish space render one unfit to do justice work? 

The discussion of lateral violence within the LGBTQ+ community itself is central to this year’s topic. In challenging the legitimacy of our social justice work based on the group’s Jewish affiliation, the petition seeks to undermine our right to intersectional engagement and implies a need for us to cede spaces and relinquish causes that are very much ours. 

Exceptionally well said. But there is a trend here, and a scary one at that. We saw it when student government officials at UCLA tried to block a Jewish candidate simply because she was Jewish (and therefore biased). We saw it at Vassar when funding for Jewish groups to go to a Haaretz conference in New York were delayed because Jews meeting Israeli Jews was alleged to contradict the campus anti-racism policy. We saw it at Creating Change, when the conference organizers initially said that hearing from North American and Israeli queers would be too "divisive". And we're not that far removed from the days when campus Jewish Societies were being banned (there was a flurry of such activity in Britain in the 70s), because non-Jews did not accept the legitimacy of Jewish voices in multicultural dialogue.

The Brown Jewish community asked "does simply engaging in a Jewish space render one unfit to do justice work?" The answer they got was clear: If you're in a Jewish space, you're doing one thing and one thing only. And if you try to claim otherwise -- well, you know how Jews are.

* I keep on describing things this way, but I'm beginning to suspect that I've simply miscalibrated my mental line between reality and farce .

Israeli Court Affirms Transgender Woman's Request To Be Cremated

The Forward reports on an interesting and heartening case out of Israel involving a transgender woman's request to be cremated. Cremation is generally prohibited under traditional Jewish law (a prohibition which predates, but was emotionally strengthened by, the Holocaust), but for a variety of reasons some secular or Reform Jews prefer it to a traditional burial. Among them was a transgender woman who requested in her will that she be cremated because she was worried that in a traditional burial her status as a woman would not be honored by her family. As if it to vindicate those fears, the woman's mother sued contending that her "son" was "undergoing a deep mental crisis and was not capable of drawing up a will."

A Jerusalem court, however, rejected the mother's suit and allowed the woman to cremated according to her wishes. This of course seems morally correct and important both as an affirmation of transperson's rights of self-identity as well as a rejection of the notion that such self-identity is simply a "mental crisis."

May her memory be a blessing.

UPDATE: The Israeli Supreme Court just affirmed the lower court decision.