Good Riddance:
Roy Moore—the Alabama Chief Justice responsible for the 10 Commandments controversy, and all out religious nutcase who doesn’t understand the separation of Church & State—will not be reinstated to the bench.
The rule of law prevails.
I'm a libertarian lawyer and college professor. I blog on religion, history, constitutional law, government policy, philosophy, sexuality, and the American Founding. Everything is fair game though. Over the years, I've been involved in numerous group blogs that come and go. This blog archives almost everything I write. Email your questions or comments to rowjonathan@aol.com
Friday, April 30, 2004
Wednesday, April 28, 2004
Rowe on Naturalism:
Over at Freespace, Sandefur posted an excellent response to my post on polygamy and the naturalistic fallacy. I haven’t responded till now because I wanted take the time to give his post the good response that it deserves. I think that there really isn’t a whole lot of disagreement between us, but rather this stems from my use of terminology (from words & phrases that have more than one meaning).
First, Sandefur takes issue with my use of the term, “state of nature”: “[T]he term ‘state of nature’ in political philosophy doesn’t mean ‘close to the place in which human behavior most closely tracks the biological imperatives,’ but rather, ‘that state of affairs which would have prevailed had no outside authority asserted control over the behavior of the parties involved.’” I used the term referring to our “evolutionary state,” that is, when we human beings, as pretty much fully evolved Cro-Magnons, lived before any type of civilization (like that of the Old Testament) emerged. Although I realize that the “state of nature,” as the Enlightenment philosophers coined it, was a “hypothetical” scenario, I always figured its closest analog was to that of the “evolutionary period.” What I was referring to is better defined, in political philosophical terms, as the “state of war.” Hobbes, Locke, & Rousseau all found that in the absence of a formal governmental authority, nature led men to war—to this “state of war,”—this was in fact the defect in the state of nature, that caused men to leave it and form civil society (in which they brought their natural rights with them). Because of this defect, life under the state of nature (according to Hobbes) was “solitary, poor, nasty, brutish, and short.” Anyway, when I stated that Old Testament times were “closer to the state of nature,” I simply meant closer in time to our evolutionary period that closely resembled the Hobbesian state of war.
But the Ancient Jews—their culture—probably also bore a closer resemblance to what it was like to live in this “state of war,” than ours does today. That is, life was far more “nasty, brutish, & short,” for a Jew living during those times than for an American citizen today (one only need read from the many brutal provisions of the Old Testament, such as stoning a child to death for cursing his parents, in order to see this). But the Old Testament’s brutality must be seen in an historical context that takes into account what they were coming out of—this state of war. And in fact, the Old Testament was a marked improvement—that is life there was more civilized and desirable—over what preceded it (obviously, I’d rather live in Ancient Greece—but only as a “citizen”—life for the non-citizens [and women] was pretty bad there as well).
Our next quibble is over the concept of “what is ‘natural’ for human beings.” Sandefur writes, “When we speak of what is ‘natural’ for human beings, in the sense used in moral or political philosophy, we are using the term ‘nature’ in a different way than when we speak of what is ‘natural’ for the human body.” Exactly. I was using “nature” in the latter, not the former, sense. I was simply observing how human (or animal) biology that “exists” in nature, had, in my opinion, served as the natural source of the institution of polygamy. I was using nature in the pure “is,” sense.
And there is a whole other school of thought, that turns to nature in order to tell us not only what is, but also how things “ought to be.” And, “what is ‘natural’ for human beings, in the sense used in moral or political philosophy” relates more to this “nature as an ought,” philosophy. This school began with the ancient Greeks—notably Aristotle, was adopted and “Christianized” (some would say “bastardized”) by Aquinas, and then the Enlightenment philosophers used similar grounds to construct a political order upon which governmental institutions would rest (the concept of the “state of nature” referenced above). But the Enlightenment concept of “natural rights,” is not to be conflated with “natural law” (although they are, in *some* respect, related). As Randy Barnett writes, “Natural law ethics…is a method of assessing the propriety of individual conduct. This method is used to stipulate, for example, that persons should live their lives in certain ways and not in others. The concept of natural rights, in contrast…addresses a quite different problem. Natural rights do not specify what the good life is for each person nor how each person should act, but what the moral ‘space’ or ‘jurisdiction’ each person requires in order to pursue the good life in society with others.” Restoring the Lost Constitution, pp.82-83. What these two concepts have in common is “a common intellectual ancestry [Aristotle-Aquinas-the Enlightenment, etc.] and methodology….” Id. And the common methodology is man using his Reason alone, (unaided by Biblical Revelation) looking to Nature, in order to give a “rational account of the whole” (as Allan Bloom puts it). And in this “account” we should be able to determine not only what “is,” but also what “ought to be” (what our social norms should be).
But there is a relationship between our “is’s” and our “oughts” (the oughts are derived from observing nature for what is). And it’s during this process of deriving the “ought” from the “is” that the naturalistic fallacy often occurs. Now I don’t know if Sandefur believes in the naturalistic fallacy—he writes, “the term ‘naturalistic fallacy,’…has become a catch phrase for people who don’t like the way a particular argument goes, and wish to assert that it is fallacious without really explaining why it’s fallacious…and there’s nothing fallacious about seriously arguing that morality must be derived from human nature.”
Let me go out on a limb and state that I think it’s possible to believe in both the naturalistic fallacy AND that we can derive morality (or social norms) from observing human nature (perhaps so too do Sandefur & Dennett). The problem is that human nature has its good side, its neutral or tolerable side, as well as its defects. (As Sandefur writes, “polygamy… was based on the wrong 'nature.'”) And through the use of reason we must decide in what box we put each “is.” Perhaps this is what Dennett meant when he wrote, “We may just disagree about where to look for the most telling facts about human nature—in novels, in religious texts, in psychological experiments, in biological or anthropological innovations. The fallacy is not naturalism, but, rather, any simple-minded attempt to rush from facts to values.” In other words, simply looking to nature for what “is” and then immediately (that is without further, more appropriate deliberation) drawing an “ought” from it, is too quick a “rush from facts to values.” There must be something more. As Dennett writes, “the fallacy is greedy reductionism of values to facts, rather than reductionism considered more circumspectly, as the attempt to unify our world-view so that our ethical principles don’t clash irrationally with the way the world is.”
In other words, the “is” of nature is a start, and just a start, but we need more in order to determine the “telling facts about human nature.” Some who posit the naturalistic fallacy concept in its purest form believe that we cannot derive any set of “norms” or “oughts” from looking to nature—I certainly don’t endorse this version of the concept. Alan Dershowitz in his very thoughtful book about the Declaration of Independence, America Declares Independence, posits an understanding of the naturalistic fallacy that is pretty close to the one that I endorse:
“Nature has vote, but not a veto”—I think that line best sums it up. Dershowitz also rightfully notes that our knowledge about human nature increases with experience. We can build a better society than the Old Testament Jews had because we have more knowledge and experience upon which to base our rules.
But ultimately, the process of deriving an “ought” from nature, is a whole hell of a lot harder than simply observing nature for what “is” (which is not so hard). In other words, perhaps our “is’s” do inform our “oughts”; in fact, perhaps most of them do, but certainly not all. When we inappropriately derive an “ought” from an “is,” we commit the naturalistic fallacy.
Before I finish this very long post, let me throw out some examples of rightfully or wrongfully constructing our social norms from things that exist in human nature.
First, another example where I think the Old Testament Jews engaged in the naturalistic fallacy was age of adulthood; Judaic law holds that people become “adults” at the age of 13. Now what age does this coincide with? Puberty or biological fertility. Around and after this age, we human beings are fully biologically fertile adults, ready for mating. The Old Testament Jews needed a “norm,” needed to draw a line regarding when a “child” becomes an “adult” and they turned to nature—that is our biological nature—for the answer. But we know better now. Experience has told us that a 13 or 14 year old is not yet ready for sex, and is otherwise not yet a full adult.
Or take Aquinas and his teleology of sex, for instance. If we want to derive a “purpose” from nature for sex, the most obvious answer is procreation, or begetting. Our private parts were designed or evolved for sexual reproduction. Penis fits Vagina for purposes of procreation. That simply “is.” But this doesn’t mean that this is what sex ought to be about in each and every instance (which is the “ought” that Aquinas derived from this “is.”) As Andrew Sullivan argues, just because this is what sex can be about doesn’t mean that this is what sex must be about. In the same article, Sullivan writes that Aquinas’s list of sex that was off limits included “oral sex, masturbation, mutual masturbation, contracepted sex, coitus interruptus, and anal sex - any sex in which semen does not find its way into a fertile uterus.” I think just about all of us save a few Catholics realize that this is simply an untenable theory, and ridiculously so.
I think it was according this same process— observing male & female biological sexual functions, and deriving a social norm from it—that the Old Testament writers in Leviticus prohibited homosexuality (they of course, did not provide the elaborate rational that Aquinas did).
However, in observing our biological nature, we can just as easily go the other way than Aquinas did. Homosexuality certainly is “natural” in the sense that it exists in consistent percentages everywhere and at all times in human nature and the best evidence points to a biological origin (or at the very least a biological predisposition) for the “condition.” (This is the source of the gay claim, “we don’t choose this.”) But this “is” alone is not sufficient to justify homosexuality. There are plenty of other similarly “unchosen” biologically based or predisposed orientations or conditions—Alcoholism, depression, diseases—that society clearly shouldn’t vet. And there also are plenty of other unchosen biologically grounded facets of human nature that are rightly judged as neutral or even good, like left-handedness or the inclination that parents’ have to nurture their children, or the the way our brains are predisposed to learn language. All of these things are just part of the way human nature "is."
But ultimately we need to jump from the “is” to the “ought” and, while doing so, appropriately deliberate each determination. When we distinguish between homosexuality & alcoholism, we see why homosexuality can be justified while an “alcoholic lifestyle” ought not to be. Both may be similarly unchosen and unchangeable “natural orientations,” but homosexuals FLOURISH while satisfying their natural needs, in the same way that straights do (and in a way that they never could while being celibate or pursing a relationship with the opposite sex). Being in love and entering into meaningful relationships is a good part of the human experience. Alcoholics must give up drinking because acting upon their orientation prevents them from flourishing (for instance, it prevents realizing one’s full potential with his family, significant other or spouse, friends, co-workers, etc.). And alcohol—while it may be fun for those of us that don’t have the “alcoholic orientation” to have an occasional drink, or even occasionally get drunk—in the grand scheme of things, is not an important part of life. Finding one’s significant other, or even engaging in a search for one that ultimately fails (and having sexual fun along the way), IS an important part of the human experience that ought to be engaged in.
Over at Freespace, Sandefur posted an excellent response to my post on polygamy and the naturalistic fallacy. I haven’t responded till now because I wanted take the time to give his post the good response that it deserves. I think that there really isn’t a whole lot of disagreement between us, but rather this stems from my use of terminology (from words & phrases that have more than one meaning).
First, Sandefur takes issue with my use of the term, “state of nature”: “[T]he term ‘state of nature’ in political philosophy doesn’t mean ‘close to the place in which human behavior most closely tracks the biological imperatives,’ but rather, ‘that state of affairs which would have prevailed had no outside authority asserted control over the behavior of the parties involved.’” I used the term referring to our “evolutionary state,” that is, when we human beings, as pretty much fully evolved Cro-Magnons, lived before any type of civilization (like that of the Old Testament) emerged. Although I realize that the “state of nature,” as the Enlightenment philosophers coined it, was a “hypothetical” scenario, I always figured its closest analog was to that of the “evolutionary period.” What I was referring to is better defined, in political philosophical terms, as the “state of war.” Hobbes, Locke, & Rousseau all found that in the absence of a formal governmental authority, nature led men to war—to this “state of war,”—this was in fact the defect in the state of nature, that caused men to leave it and form civil society (in which they brought their natural rights with them). Because of this defect, life under the state of nature (according to Hobbes) was “solitary, poor, nasty, brutish, and short.” Anyway, when I stated that Old Testament times were “closer to the state of nature,” I simply meant closer in time to our evolutionary period that closely resembled the Hobbesian state of war.
But the Ancient Jews—their culture—probably also bore a closer resemblance to what it was like to live in this “state of war,” than ours does today. That is, life was far more “nasty, brutish, & short,” for a Jew living during those times than for an American citizen today (one only need read from the many brutal provisions of the Old Testament, such as stoning a child to death for cursing his parents, in order to see this). But the Old Testament’s brutality must be seen in an historical context that takes into account what they were coming out of—this state of war. And in fact, the Old Testament was a marked improvement—that is life there was more civilized and desirable—over what preceded it (obviously, I’d rather live in Ancient Greece—but only as a “citizen”—life for the non-citizens [and women] was pretty bad there as well).
Our next quibble is over the concept of “what is ‘natural’ for human beings.” Sandefur writes, “When we speak of what is ‘natural’ for human beings, in the sense used in moral or political philosophy, we are using the term ‘nature’ in a different way than when we speak of what is ‘natural’ for the human body.” Exactly. I was using “nature” in the latter, not the former, sense. I was simply observing how human (or animal) biology that “exists” in nature, had, in my opinion, served as the natural source of the institution of polygamy. I was using nature in the pure “is,” sense.
And there is a whole other school of thought, that turns to nature in order to tell us not only what is, but also how things “ought to be.” And, “what is ‘natural’ for human beings, in the sense used in moral or political philosophy” relates more to this “nature as an ought,” philosophy. This school began with the ancient Greeks—notably Aristotle, was adopted and “Christianized” (some would say “bastardized”) by Aquinas, and then the Enlightenment philosophers used similar grounds to construct a political order upon which governmental institutions would rest (the concept of the “state of nature” referenced above). But the Enlightenment concept of “natural rights,” is not to be conflated with “natural law” (although they are, in *some* respect, related). As Randy Barnett writes, “Natural law ethics…is a method of assessing the propriety of individual conduct. This method is used to stipulate, for example, that persons should live their lives in certain ways and not in others. The concept of natural rights, in contrast…addresses a quite different problem. Natural rights do not specify what the good life is for each person nor how each person should act, but what the moral ‘space’ or ‘jurisdiction’ each person requires in order to pursue the good life in society with others.” Restoring the Lost Constitution, pp.82-83. What these two concepts have in common is “a common intellectual ancestry [Aristotle-Aquinas-the Enlightenment, etc.] and methodology….” Id. And the common methodology is man using his Reason alone, (unaided by Biblical Revelation) looking to Nature, in order to give a “rational account of the whole” (as Allan Bloom puts it). And in this “account” we should be able to determine not only what “is,” but also what “ought to be” (what our social norms should be).
But there is a relationship between our “is’s” and our “oughts” (the oughts are derived from observing nature for what is). And it’s during this process of deriving the “ought” from the “is” that the naturalistic fallacy often occurs. Now I don’t know if Sandefur believes in the naturalistic fallacy—he writes, “the term ‘naturalistic fallacy,’…has become a catch phrase for people who don’t like the way a particular argument goes, and wish to assert that it is fallacious without really explaining why it’s fallacious…and there’s nothing fallacious about seriously arguing that morality must be derived from human nature.”
Let me go out on a limb and state that I think it’s possible to believe in both the naturalistic fallacy AND that we can derive morality (or social norms) from observing human nature (perhaps so too do Sandefur & Dennett). The problem is that human nature has its good side, its neutral or tolerable side, as well as its defects. (As Sandefur writes, “polygamy… was based on the wrong 'nature.'”) And through the use of reason we must decide in what box we put each “is.” Perhaps this is what Dennett meant when he wrote, “We may just disagree about where to look for the most telling facts about human nature—in novels, in religious texts, in psychological experiments, in biological or anthropological innovations. The fallacy is not naturalism, but, rather, any simple-minded attempt to rush from facts to values.” In other words, simply looking to nature for what “is” and then immediately (that is without further, more appropriate deliberation) drawing an “ought” from it, is too quick a “rush from facts to values.” There must be something more. As Dennett writes, “the fallacy is greedy reductionism of values to facts, rather than reductionism considered more circumspectly, as the attempt to unify our world-view so that our ethical principles don’t clash irrationally with the way the world is.”
In other words, the “is” of nature is a start, and just a start, but we need more in order to determine the “telling facts about human nature.” Some who posit the naturalistic fallacy concept in its purest form believe that we cannot derive any set of “norms” or “oughts” from looking to nature—I certainly don’t endorse this version of the concept. Alan Dershowitz in his very thoughtful book about the Declaration of Independence, America Declares Independence, posits an understanding of the naturalistic fallacy that is pretty close to the one that I endorse:
This is not to deny that there may be a relationship between nature and morality. Any attempt to build a system of morality that completely ignores nature will fail. Nature has a vote but not a veto on questions of morality (my italics). In deciding on a sexual morality appropriate for a given society, it is important to understand the nature of the sex drive. For example, efforts to deter adolescent masturbation as “unnatural” and therefore “wrong” are doomed to failure because the nature of adolescent sexuality is more powerful than the threats of punishment for this entirely harmless—and I would add “natural”—outlet. Many Catholics are now questioning whether priestly celibacy is incompatible with the natural sex drive. But even if sociobiologists were to prove that men are naturally inclined to force women into sexual submission, it would be morally wrong for society not to make every reasonable effort to hold this “natural impulse” in check, because even if it is natural it is wrong. p. 108.
“Nature has vote, but not a veto”—I think that line best sums it up. Dershowitz also rightfully notes that our knowledge about human nature increases with experience. We can build a better society than the Old Testament Jews had because we have more knowledge and experience upon which to base our rules.
But ultimately, the process of deriving an “ought” from nature, is a whole hell of a lot harder than simply observing nature for what “is” (which is not so hard). In other words, perhaps our “is’s” do inform our “oughts”; in fact, perhaps most of them do, but certainly not all. When we inappropriately derive an “ought” from an “is,” we commit the naturalistic fallacy.
Before I finish this very long post, let me throw out some examples of rightfully or wrongfully constructing our social norms from things that exist in human nature.
First, another example where I think the Old Testament Jews engaged in the naturalistic fallacy was age of adulthood; Judaic law holds that people become “adults” at the age of 13. Now what age does this coincide with? Puberty or biological fertility. Around and after this age, we human beings are fully biologically fertile adults, ready for mating. The Old Testament Jews needed a “norm,” needed to draw a line regarding when a “child” becomes an “adult” and they turned to nature—that is our biological nature—for the answer. But we know better now. Experience has told us that a 13 or 14 year old is not yet ready for sex, and is otherwise not yet a full adult.
Or take Aquinas and his teleology of sex, for instance. If we want to derive a “purpose” from nature for sex, the most obvious answer is procreation, or begetting. Our private parts were designed or evolved for sexual reproduction. Penis fits Vagina for purposes of procreation. That simply “is.” But this doesn’t mean that this is what sex ought to be about in each and every instance (which is the “ought” that Aquinas derived from this “is.”) As Andrew Sullivan argues, just because this is what sex can be about doesn’t mean that this is what sex must be about. In the same article, Sullivan writes that Aquinas’s list of sex that was off limits included “oral sex, masturbation, mutual masturbation, contracepted sex, coitus interruptus, and anal sex - any sex in which semen does not find its way into a fertile uterus.” I think just about all of us save a few Catholics realize that this is simply an untenable theory, and ridiculously so.
I think it was according this same process— observing male & female biological sexual functions, and deriving a social norm from it—that the Old Testament writers in Leviticus prohibited homosexuality (they of course, did not provide the elaborate rational that Aquinas did).
However, in observing our biological nature, we can just as easily go the other way than Aquinas did. Homosexuality certainly is “natural” in the sense that it exists in consistent percentages everywhere and at all times in human nature and the best evidence points to a biological origin (or at the very least a biological predisposition) for the “condition.” (This is the source of the gay claim, “we don’t choose this.”) But this “is” alone is not sufficient to justify homosexuality. There are plenty of other similarly “unchosen” biologically based or predisposed orientations or conditions—Alcoholism, depression, diseases—that society clearly shouldn’t vet. And there also are plenty of other unchosen biologically grounded facets of human nature that are rightly judged as neutral or even good, like left-handedness or the inclination that parents’ have to nurture their children, or the the way our brains are predisposed to learn language. All of these things are just part of the way human nature "is."
But ultimately we need to jump from the “is” to the “ought” and, while doing so, appropriately deliberate each determination. When we distinguish between homosexuality & alcoholism, we see why homosexuality can be justified while an “alcoholic lifestyle” ought not to be. Both may be similarly unchosen and unchangeable “natural orientations,” but homosexuals FLOURISH while satisfying their natural needs, in the same way that straights do (and in a way that they never could while being celibate or pursing a relationship with the opposite sex). Being in love and entering into meaningful relationships is a good part of the human experience. Alcoholics must give up drinking because acting upon their orientation prevents them from flourishing (for instance, it prevents realizing one’s full potential with his family, significant other or spouse, friends, co-workers, etc.). And alcohol—while it may be fun for those of us that don’t have the “alcoholic orientation” to have an occasional drink, or even occasionally get drunk—in the grand scheme of things, is not an important part of life. Finding one’s significant other, or even engaging in a search for one that ultimately fails (and having sexual fun along the way), IS an important part of the human experience that ought to be engaged in.
Tuesday, April 27, 2004
Judges drinking in public:
When I first began to read this post by Eugene Volokh discussing Washington’s governor Gary Locke’s admonition to judges not to drink in public, I thought that the governor was referring to judges drinking on the bench. No, he was referring to “even a single drink at a cocktail party or restaurant.” I do wonder however, how many judges have had a few drinks on the bench to help them get through the day. This reminds me of the scene in Cheech & Chong’s Up in Smoke where they were being taken into court and Chong had just ingested all of the drugs they had on them to prevent the police from finding the stuff after being pulled over. They get into court and Chong, out of his mind, wanders around the courtroom looking for something to drink. He goes to the judges glass, which he (and the courtroom) presumes is water, takes a big sip, and shouts, “It’s fucking Vodka.” And the prissy, older (female) judge, sheepishly looks down in embarrassment.
When I first began to read this post by Eugene Volokh discussing Washington’s governor Gary Locke’s admonition to judges not to drink in public, I thought that the governor was referring to judges drinking on the bench. No, he was referring to “even a single drink at a cocktail party or restaurant.” I do wonder however, how many judges have had a few drinks on the bench to help them get through the day. This reminds me of the scene in Cheech & Chong’s Up in Smoke where they were being taken into court and Chong had just ingested all of the drugs they had on them to prevent the police from finding the stuff after being pulled over. They get into court and Chong, out of his mind, wanders around the courtroom looking for something to drink. He goes to the judges glass, which he (and the courtroom) presumes is water, takes a big sip, and shouts, “It’s fucking Vodka.” And the prissy, older (female) judge, sheepishly looks down in embarrassment.
Specter v. Toomey:
This GOP Senate primary race perfectly illustrates why I, as a libertarian, don’t feel comfortable with the Republican Party. On the one hand we have Specter, who, although he has the “live & let live” on social issues attitude that I share, on economic issues, is a big-government statist, not much different than a moderate Democrat. And then we have Toomey, who is better than Specter on economic issues (but still not enough of an economic anti-statist for me…where is the Ron Paul of the Senate?), but is in bed with the Religious Right. I’ll just continue to vote my conscience: Libertarian.
This GOP Senate primary race perfectly illustrates why I, as a libertarian, don’t feel comfortable with the Republican Party. On the one hand we have Specter, who, although he has the “live & let live” on social issues attitude that I share, on economic issues, is a big-government statist, not much different than a moderate Democrat. And then we have Toomey, who is better than Specter on economic issues (but still not enough of an economic anti-statist for me…where is the Ron Paul of the Senate?), but is in bed with the Religious Right. I’ll just continue to vote my conscience: Libertarian.
The Book I Wish I Wrote:
At Reason, Cathy Young reviews a book, Freethinkers: A History of American Secularism, by Susan Jacoby, that makes many of the points that I, Timothy Sandefur, Ed Brayton, and other secularists have been making on our blogs in recent times. Young writes:
There is no doubt that those who claim that this nation—that is our public institutions—are founded on “Biblical Christianity” are perpetrating a fraud. This nation’s political institutions are founded on Enlightenment teachings, posited by philosophers who undoubtedly denied the (orthodox) Christian God, (and yes, this includes John Locke—who never came out and stated he was a deist—he protested that he was in fact a Christian [an orthodox one]—and had good reason for doing so. Heresy could get you killed back then). And one of the cardinal insights of the Enlightenment was that “religion” was a matter of “opinion,” not “knowledge,” and thus belonged in the private sphere of life. One only needs to view Jefferson’s Virginia Statute on Religious Freedom to see this point of view in action.
At Reason, Cathy Young reviews a book, Freethinkers: A History of American Secularism, by Susan Jacoby, that makes many of the points that I, Timothy Sandefur, Ed Brayton, and other secularists have been making on our blogs in recent times. Young writes:
The history in Jacoby's book is fascinating. She makes a convincing argument that, contrary to the assertions of many conservatives today, the Founding Fathers did in fact intend to create a secular government. The Constitution's lack of any reference to God or divine sanction was not an accidental oversight, or an omission of something that everyone implicitly took for granted anyway. On the contrary, the godlessness of the Constitution, along with its rejection of a religious test for public office, was a source of major controversy during the ratification debates. Religious traditionalists warned that the Constitution's irreligiousness would bring God's wrath down on American citizens—in language reminiscent of claims by some of their modern-day descendants after Sept. 11 that God withdrew his protection from America because Americans have turned away from him.
Jacoby also cites evidence that Thomas Jefferson championed religious liberty not only for different religious denominations but for nonbelievers, and that James Madison wanted not only the federal government but the state governments to be prohibited from making laws that would either interfere with or promote religion.
There is no doubt that those who claim that this nation—that is our public institutions—are founded on “Biblical Christianity” are perpetrating a fraud. This nation’s political institutions are founded on Enlightenment teachings, posited by philosophers who undoubtedly denied the (orthodox) Christian God, (and yes, this includes John Locke—who never came out and stated he was a deist—he protested that he was in fact a Christian [an orthodox one]—and had good reason for doing so. Heresy could get you killed back then). And one of the cardinal insights of the Enlightenment was that “religion” was a matter of “opinion,” not “knowledge,” and thus belonged in the private sphere of life. One only needs to view Jefferson’s Virginia Statute on Religious Freedom to see this point of view in action.
Big Bird to speak at Commencement:
Over in my neck of the woods, the Villanova graduating class this year is none too happy that after all of the $ that they (or their parents) put into attaining their education & degree, that their commencement speaker is going to be none other than…(drum roll): Big Bird. Actually, it’s the actor (puppeteer) who plays Big Bird, Caroll Spinney. While watching this story on the local Philadelphia news last night, I learned that the already disappointed students, became even MORE disappointed when they found out that… (another drum roll please) unfortunately, no, Mr. Spinney is not going to be delivering his commencement address in costume.
And I was disappointed when my Alma matter could only scrub up one James Taylor (yes, that James Taylor) to be commencement speaker.
Over in my neck of the woods, the Villanova graduating class this year is none too happy that after all of the $ that they (or their parents) put into attaining their education & degree, that their commencement speaker is going to be none other than…(drum roll): Big Bird. Actually, it’s the actor (puppeteer) who plays Big Bird, Caroll Spinney. While watching this story on the local Philadelphia news last night, I learned that the already disappointed students, became even MORE disappointed when they found out that… (another drum roll please) unfortunately, no, Mr. Spinney is not going to be delivering his commencement address in costume.
And I was disappointed when my Alma matter could only scrub up one James Taylor (yes, that James Taylor) to be commencement speaker.
Saturday, April 24, 2004
Polygamy, the naturalistic fallacy, & gay marriage:
The naturalistic fallacy, looking to nature for what “is” and then attempting to derive a social norm from it (even though the norm clearly is not the way things "ought to be"), is so common that practically no culture throughout human history has been able to avoid engaging in it. Tying this into the gay marriage debate, if we understand how polygamy ultimately was justified under the naturalistic fallacy, this helps us to understand why legalizing gay marriage ought not logically lead to polygamy.
Polygamy certainly is “natural and normal” in that it not only exists in nature but has been the norm of the overwhelming majority of cultures (that is, polygamous marriages did not exist in the “state of nature,” because “marriage” didn’t exist there, but one male having many more than one female partner did indeed exist in the state of nature. In fact it was the norm. In short, one male—usually the Alpha male—dominates many or the entire available crop of fertile females). In all human cultures and societies throughout recorded human history, 83% have been polygamous. And there is a universal within polygamy: It is always one man with more than one wife, (virtually) never the reverse.
A little bit of background as to why this type of polygamy was/is so universal throughout human history and what it has to do with human nature. Men are, by nature, promiscuous seed spreaders. Men are not monogamous by nature, but rather have a natural tendency to gratify themselves with as many women as possible—moreover, men have also tended to monopolize the women whom they have sex with (if they could, if they had the strength, the power & the opportunity to do so). That is, males have tended not to have the attitude “I’ll stick with one in the long term, fool around with many, and only concern my self that my wife stays faithful to me, my concubines can be concubines for whomever else….” No, the Alpha males want to monopolize THE ENTIRE CROP of fertile women. That is, if Solomon has 100 wives, he wants ALL OF THEM TO BE HIS and HANDS OFF to all of the other males.
But there is an obvious problem with this: If men & women are each roughly 50% of the population, and if some men have many wives, then that invariably leads to a shortage marriageable wives for many men. Indeed, Richard Posner, in Sex & Reason, estimates that in the state of nature only 50% of males actually got to spread their seed. Why? The 50% of the “stronger” males—the “Alphas”—monopolized the ENTIRE crop of fertile women. This is universal male behavior. And this is the naturalistic origin, the “is” if you will, of why this type of polygamy has been so universal throughout human history. But we now know better. We know that this is not the way “things ought to be.”
And it’s primarily because of the inherent inegalitarianism of polygamy (yes nature can be very inegalitarian, the state of nature sure was) that it is unfair to both the women involved in these relations, and especially to the non-Alpha males who were deprived of mates.
But so many cultures, including that of the Old Testament—a book written by men much closer to the “state of nature” than we are now—and currently, many notables such as Islam, have vetted polygamy. Why? The naturalistic fallacy. This is simply the way things are, were, have always been, and the way nature inclines males, the physically stronger of the two sexes and hence the ones who will be dominant in the “state of nature,” to behave. But this is one of those “natural phenomena” that needs societal correction. And that correction is the institution of monogamy, the requirement that one man only gets one woman (or at least one consenting woman at a time) for his life. Thus, the policy behind prohibiting polygamy has nothing to do with, (is wholly distinguishable from) gay marriage. (Hat tip to Jonathan Rauch, who makes a similar argument in his excellent new book, Gay Marriage: Why it’s Good for Gays, Good for Straights, and Good for America.)
The naturalistic fallacy, looking to nature for what “is” and then attempting to derive a social norm from it (even though the norm clearly is not the way things "ought to be"), is so common that practically no culture throughout human history has been able to avoid engaging in it. Tying this into the gay marriage debate, if we understand how polygamy ultimately was justified under the naturalistic fallacy, this helps us to understand why legalizing gay marriage ought not logically lead to polygamy.
Polygamy certainly is “natural and normal” in that it not only exists in nature but has been the norm of the overwhelming majority of cultures (that is, polygamous marriages did not exist in the “state of nature,” because “marriage” didn’t exist there, but one male having many more than one female partner did indeed exist in the state of nature. In fact it was the norm. In short, one male—usually the Alpha male—dominates many or the entire available crop of fertile females). In all human cultures and societies throughout recorded human history, 83% have been polygamous. And there is a universal within polygamy: It is always one man with more than one wife, (virtually) never the reverse.
A little bit of background as to why this type of polygamy was/is so universal throughout human history and what it has to do with human nature. Men are, by nature, promiscuous seed spreaders. Men are not monogamous by nature, but rather have a natural tendency to gratify themselves with as many women as possible—moreover, men have also tended to monopolize the women whom they have sex with (if they could, if they had the strength, the power & the opportunity to do so). That is, males have tended not to have the attitude “I’ll stick with one in the long term, fool around with many, and only concern my self that my wife stays faithful to me, my concubines can be concubines for whomever else….” No, the Alpha males want to monopolize THE ENTIRE CROP of fertile women. That is, if Solomon has 100 wives, he wants ALL OF THEM TO BE HIS and HANDS OFF to all of the other males.
But there is an obvious problem with this: If men & women are each roughly 50% of the population, and if some men have many wives, then that invariably leads to a shortage marriageable wives for many men. Indeed, Richard Posner, in Sex & Reason, estimates that in the state of nature only 50% of males actually got to spread their seed. Why? The 50% of the “stronger” males—the “Alphas”—monopolized the ENTIRE crop of fertile women. This is universal male behavior. And this is the naturalistic origin, the “is” if you will, of why this type of polygamy has been so universal throughout human history. But we now know better. We know that this is not the way “things ought to be.”
And it’s primarily because of the inherent inegalitarianism of polygamy (yes nature can be very inegalitarian, the state of nature sure was) that it is unfair to both the women involved in these relations, and especially to the non-Alpha males who were deprived of mates.
But so many cultures, including that of the Old Testament—a book written by men much closer to the “state of nature” than we are now—and currently, many notables such as Islam, have vetted polygamy. Why? The naturalistic fallacy. This is simply the way things are, were, have always been, and the way nature inclines males, the physically stronger of the two sexes and hence the ones who will be dominant in the “state of nature,” to behave. But this is one of those “natural phenomena” that needs societal correction. And that correction is the institution of monogamy, the requirement that one man only gets one woman (or at least one consenting woman at a time) for his life. Thus, the policy behind prohibiting polygamy has nothing to do with, (is wholly distinguishable from) gay marriage. (Hat tip to Jonathan Rauch, who makes a similar argument in his excellent new book, Gay Marriage: Why it’s Good for Gays, Good for Straights, and Good for America.)
Friday, April 23, 2004
The Mother Teresa of porn:
Also linked on Drudge today, regarding the recent HIV development in the porn industry:
Also linked on Drudge today, regarding the recent HIV development in the porn industry:
Former porn star Sharon Mitchell lived a "Boogie Nights"-style life of fame and excess, turning out more than 1,000 movies with titles like "Jail Bait" and "Captain Lust and the Pirate Women."
Along the way, she acquired herpes, chlamydia and a 16-year heroin habit. She was also raped and beaten by a deranged fan in 1996.
A few years later, though, she would return to the industry in a much different role: unofficial chief health-care officer.
Mitchell, holder of a Ph.D. in human sexuality, co-founded the nonprofit Adult Industry Medical Healthcare Foundation, which provides testing for sexually transmitted diseases along with drug and psychological counseling for porn actors.
"She is basically the Mother Teresa of porn," actor and producer Dave Pounder said.
Howard Stern Kicks Ass in Ratings:
Drudge reports:
Good for you Howard. Keep fighting the good fight against the Commissars.
Drudge reports:
HOWARD STERN TRIUMPHS IN NEW YORK CITY: BACK TO #1 AFTER INDECENCY FIGHT: ARBITRON ratings released this hour show badboy Howard Stern rocketing back to the top in New York City with a 7.2 share in 12+ listeners and a stunning 10.0 share in ages 25-54 [Up from a 5.9 12+ in the fall]... Stern, once again at the center of an indecency fight with the Feds, takes NYC morning drive for the first three months of the year...
Good for you Howard. Keep fighting the good fight against the Commissars.
Thursday, April 22, 2004
Necrophilia & Lockean Libertarianism:
The Curmudgeonly Clerk notes a recent case of necrophilia where the perpetrator was arrested for the crime of rape. The Clerk correctly points out that this crime is not rape or attempted rape and shouldn’t be prosecuted under this legal theory.
Social conservatives argue, post-Lawrence v .Texas, we are surely headed for a sexual free for all where the law, following this case's logic, must grant a “right” to all sorts of other sexual behaviors. Some social cons might even argue that Lawrence could lead to a “right” to necrophilia.
But if we ground our law according to the libertarian paradigm (and Lawrence certainly is consistent with libertarianism), then we need not fear this. This is how I think libertarianism ought to deal with necrophilia:
When it comes to conduct the state should proscribe, libertarianism centers around notions of “consent” and “harm” of “persons” and their “property." And it is clear that “rape” is unacceptable because it violates notions of “consent” and thus clearly “harms” the victim. It is equally clear that homosexual sex does not.
Although necrophilia is condemned by notions of traditional morality, libertarians do not hold this as a sufficient basis for criminalizing sexual behavior and after Lawrence, social conservatives (lamenting the decision) have argued that such notions of traditional morality are no longer a constitutionally acceptable basis for such legislation.
What about the "ick" factor? Most people find necrophilia “icky” (I don’t think there can be an ickier thing on the planet—this is the ickiest. And there is a difference between ickyness and harm. While this may be icky, there are many things—rape, for instance—that are far more harmful). But the “ick” factor, in my opinion, isn’t sufficient either to justify legal proscription of any behavior.
So what about harm? Is necrophilia “harmful” to a victim? Some might argue that if “harm” is our standard, this isn’t very. The corpse is, after all, dead. And the Clerk’s post more or less argues that necrophilia is not the equivalent of rape, that we cannot compare the “harm” done to a corpse with that of what occurs to a rape victim.
However, although the Clerk is dead on right regarding this comparison, harm still is being done by the act of necrophilia. Let us not forget some first Lockean libertarian principles. Each individual “owns” him or herself. And this ownership follows us to the grave. That is, we have the legal right to dictate how our property, including our corpses, may be disposed of. 99+% of folks would not “consent” to someone having sex with their corpses after they die. (Most folks won’t even donate their organs.) And let me go on record now stating that when I die, I don’t want anyone messing with my corpse in that way. Thus, if no permission by the person is ever granted during that person's life to have “relations” with the dead body, then even though necrophilia is not rape, it IS a violation of the property rights that the decedent (or his or her estate, obligated to follow the decedent's wishes) has in the corpse.
And what if someone wants to “donate” his or her corpse to necrophiles (just like some folks might donate their bodies to science, to be experimented on by medical students)? Then there is no violation and I don’t see any reason for the law to be involved.
The Curmudgeonly Clerk notes a recent case of necrophilia where the perpetrator was arrested for the crime of rape. The Clerk correctly points out that this crime is not rape or attempted rape and shouldn’t be prosecuted under this legal theory.
Social conservatives argue, post-Lawrence v .Texas, we are surely headed for a sexual free for all where the law, following this case's logic, must grant a “right” to all sorts of other sexual behaviors. Some social cons might even argue that Lawrence could lead to a “right” to necrophilia.
But if we ground our law according to the libertarian paradigm (and Lawrence certainly is consistent with libertarianism), then we need not fear this. This is how I think libertarianism ought to deal with necrophilia:
When it comes to conduct the state should proscribe, libertarianism centers around notions of “consent” and “harm” of “persons” and their “property." And it is clear that “rape” is unacceptable because it violates notions of “consent” and thus clearly “harms” the victim. It is equally clear that homosexual sex does not.
Although necrophilia is condemned by notions of traditional morality, libertarians do not hold this as a sufficient basis for criminalizing sexual behavior and after Lawrence, social conservatives (lamenting the decision) have argued that such notions of traditional morality are no longer a constitutionally acceptable basis for such legislation.
What about the "ick" factor? Most people find necrophilia “icky” (I don’t think there can be an ickier thing on the planet—this is the ickiest. And there is a difference between ickyness and harm. While this may be icky, there are many things—rape, for instance—that are far more harmful). But the “ick” factor, in my opinion, isn’t sufficient either to justify legal proscription of any behavior.
So what about harm? Is necrophilia “harmful” to a victim? Some might argue that if “harm” is our standard, this isn’t very. The corpse is, after all, dead. And the Clerk’s post more or less argues that necrophilia is not the equivalent of rape, that we cannot compare the “harm” done to a corpse with that of what occurs to a rape victim.
However, although the Clerk is dead on right regarding this comparison, harm still is being done by the act of necrophilia. Let us not forget some first Lockean libertarian principles. Each individual “owns” him or herself. And this ownership follows us to the grave. That is, we have the legal right to dictate how our property, including our corpses, may be disposed of. 99+% of folks would not “consent” to someone having sex with their corpses after they die. (Most folks won’t even donate their organs.) And let me go on record now stating that when I die, I don’t want anyone messing with my corpse in that way. Thus, if no permission by the person is ever granted during that person's life to have “relations” with the dead body, then even though necrophilia is not rape, it IS a violation of the property rights that the decedent (or his or her estate, obligated to follow the decedent's wishes) has in the corpse.
And what if someone wants to “donate” his or her corpse to necrophiles (just like some folks might donate their bodies to science, to be experimented on by medical students)? Then there is no violation and I don’t see any reason for the law to be involved.
Wednesday, April 21, 2004
Homosexual Reproduction & Eve's Rib:
Regarding the inherent natures of hetero v. homosexuality, I see heterosexuality as being inherently better than homosexuality only in one sense (I stress that word because although there may be many advantages to being heterosexual—being free from societal mistreatment because of your orientation, being able to marry the person you love, etc.—these are, I think, almost entirely the result of the way homosexuality is treated by society & the culture at large as opposed to the inherent qualities associated with the condition): the ability to procreate. That is something that only heterosexual, not homosexual couples, by nature can do. But that, much to the chagrin of the social conservatives, soon will change. A mouse with two moms and no Dad just gave birth. Fascinating story.
It’s interesting that it was 2 females as opposed to 2 males who gave birth. But this should not surprise us. Single sex reproduction does exist in nature. And when it occurs, it’s always the maternal genes that are involved. From the article, “Some lizards and other animals reproduce with only maternal genes, but mammals do not.”
Males are to some extent…an aberration of nature. From James Q. Wilson’s The Moral Sense:
And tying what Wilson wrote in with my thoughts on religion, as science discovers more and more about Nature, it makes anything but a metaphorical reading of the Bible (with it’s “male-centric” worldview) seem more and more untenable. As Andrew Sullivan has written regarding humans’ (mammals’) default gender, “The Book of Genesis is therefore exactly wrong. It isn't women who are made out of men. It is men who are made out of women. Testosterone, to stretch the metaphor, is Eve's rib.”
Regarding the inherent natures of hetero v. homosexuality, I see heterosexuality as being inherently better than homosexuality only in one sense (I stress that word because although there may be many advantages to being heterosexual—being free from societal mistreatment because of your orientation, being able to marry the person you love, etc.—these are, I think, almost entirely the result of the way homosexuality is treated by society & the culture at large as opposed to the inherent qualities associated with the condition): the ability to procreate. That is something that only heterosexual, not homosexual couples, by nature can do. But that, much to the chagrin of the social conservatives, soon will change. A mouse with two moms and no Dad just gave birth. Fascinating story.
It’s interesting that it was 2 females as opposed to 2 males who gave birth. But this should not surprise us. Single sex reproduction does exist in nature. And when it occurs, it’s always the maternal genes that are involved. From the article, “Some lizards and other animals reproduce with only maternal genes, but mammals do not.”
Males are to some extent…an aberration of nature. From James Q. Wilson’s The Moral Sense:
It seems clear that Mother Nature would much prefer to produce only girls, because she does such a poor job producing boys. Her preferences are quite clear in this regard: all fetuses begin as females (my italics); only in the third month of gestation does masculinization begin. And when it does begin, it sometimes is a process prone to error, leading to all manner of deficiencies and abnormalities. Not only do men have a shorter life expectancy than women, a fact that might be explained by their more violent tendencies, but the higher mortality rate appears almost from the beginning: male fetuses are more likely than female ones to die in utero, and male infants have a higher death rate than female infants.[] Having invented the male, Mother Nature doesn’t quite know what to do with him. It is as if she had suddenly realized, too late, what every student of biology now knows: asexual reproduction is far more efficient than sexual reproduction. But now we are stuck with men who are likely to be both troublesome and vulnerable. pp. 167-168.
And tying what Wilson wrote in with my thoughts on religion, as science discovers more and more about Nature, it makes anything but a metaphorical reading of the Bible (with it’s “male-centric” worldview) seem more and more untenable. As Andrew Sullivan has written regarding humans’ (mammals’) default gender, “The Book of Genesis is therefore exactly wrong. It isn't women who are made out of men. It is men who are made out of women. Testosterone, to stretch the metaphor, is Eve's rib.”
Saturday, April 17, 2004
Gay hotel (apparently) breaks “sexual orientation” discrimination law:
Key West has a city ordinance that prohibits discrimination on the basis of sexual orientation in housing and lodging and in other areas of life. And a gay owned and operated hotel apparently violated this law by kicking three heterosexual couples out of their hotel because of the the customers' sexual orientation.
A number of interesting issues are raised by this story. First, it demonstrates how anti-discrimination laws threaten freedom of association and may have consequences that supporters don’t fully appreciate. The gay community, via the market mechanism of voluntary association, has established subcultures in various parts of the nation that thrive economically and culturally and that otherwise effectively suit the needs and desires of “the group.” One of those desires may be having an “authentically gay” atmosphere, being around other gays only. And this may in turn require granting preference to those whose orientation is like that of the community (or, in a more extreme measure—like in our story, for instance—an outright bar on those with the “normal” orientation). “Sexual orientation” anti-discrimination laws threaten the ability of the gay community to do this.
From an article given by senior program officer at the Institute for Humane Studies at George Mason University, Nigel Ashford explains the implications of such anti-discrimination laws in the private sector:
Now perhaps what Ashford is warning against is a desirable outcome; perhaps this outcome is moral, the way things ought to be. Although a preference for “one’s own” may be understandable, it plausibly can be argued that acting on that preference is immoral and ought not to be permitted, even if it means gay bars have to give prospective “straight” employees, etc. an even shot. But it is undeniable that many who support gay rights, especially many gays themselves, may not be aware of (haven’t fully thought out) the implications of anti-discrimination laws that bar discrimination on the basis of “sexual orientation” in private matters.
The article also implicates that even though anti-discrimination laws do threaten freedom of association, they do not in fact (in theory) grant “special rights” to gays, but rather equal rights to all on the basis of their sexual orientation. If the law only granted special rights, then only those with the “minority” sexual orientation would have standing to sue under these laws. But that is not the way anti-discrimination laws are either worded or interpreted by the courts.
First, if we examine the wording of anti-discrimination codes, we do not see them drafted in a way that says, you shall not discriminate against minorities...on the basis of being “black or Hispanic,” being “female,” being a minority religion, etc. etc. Rather what they say is you shall not discriminate on the basis of “race,” “gender,” “ethnic origin,” “sexual orientation.” All individuals have a “race,” “gender,” “sexual orientation,” etc. Thus, if one is “white,” “male,” “Christian,” and “heterosexual,” in theory, this man should receive equal protection from anti-discrimination codes that forbid discrimination on the basis of all these categories. I know this last sentence may have aroused a chuckle in some of you because we realize that there is a disconnect between the way these laws ought to operate in theory and the way that they do operate in practice.
And the matter is further complicated by the fact that not everyone agrees on how these laws should be interpreted. Even though “equal protection to all individuals, regardless of majority or minority status,” is the way that these laws seem to be worded, some leftist legal theorists and thinkers do NOT think that anti-discrimination laws should be interpreted this way. They believe that “race” should only mean racial minorities, “gender” should only mean female, “sexual orientation” should only mean homosexual or bisexual, etc. As Mary Francis Berry once said perfectly summing up this interpretive philosophy, "Civil rights laws were not passed to protect the rights of white men and do not apply to them."
But no court has ever held that under anti-discrimination codes, “race” doesn’t mean white, or that “gender” only means female, and that a white male thus lacks standing to bring a civil rights lawsuit. What courts have said is that so called majority groups do have rights under these statutes, but in certain limited circumstances, preference may be granted on the basis of race, gender, etc., to the "minority" groups who "need" it (I put the word "minority" in quotes because this term is often used as a synonym for “oppressed” groups. Even though women are a statistical majority, they are the “minority” group for the purpose of these statutes). And no court has ever told us how to satisfactorily apportion these rights between the minority and majority groups in those circumstances where minorities are eligible for such preferences. Which is why I believe that if we have to have anti-discrimination laws in the private sector, they should apply equally to all groups, black v. white, male v. female, gay v. straight, and on and on.
So the next question is will gays, once granted anti-discrimination protection on the basis of “sexual orientation,” become one of those “minority group,” who receive more protection than the majority via preferences & quotas? I think it is highly unlikely. Why? Because there doesn’t seem to be the so called "need,"—the statistical imbalances, the under-representation and all that—that serve as the impetus for such affirmative action programs. Although there is much uncertainly here, some statistical measures have shown that homosexuals are over-represented in terms of wealth, education, and income. Now, even though anti-gay folks say that this ought to disqualify gays from receiving any kind of anti-discrimination protection, this is not the case. Jews & Asians are also over-represented in similar manners, and receive anti-discrimination protection as racial, religious, and ethnic groups. But there is no push for affirmative action for Jews or Asians because it is not needed. Likewise will be the case for gays when more “sexual orientation” anti-discrimination codes are passed.
Although I see problems with anti-discrimination codes that forbid discrimination on the basis of sexual orientation in the private sector, I still support the inclusion of this category into already existing anti-discrimination codes. The problems that I see with “sexual orientation” codes are inherent in all anti-discrimination code categories that exist in the private sector, not just this one. In other words, in my first best world, we wouldn’t have any anti-discrimination laws in the private sector (although I do support the existence of these laws in the public sector). But if such codes do exist in private matters, and if they include all of those other categories that go way beyond just race (it’s also color, ethic origin, gender, religion, age, disability, pregnancy, and others), then there is no fair or logical reason as to why “sexual orientation,” should not also be on that list.
Key West has a city ordinance that prohibits discrimination on the basis of sexual orientation in housing and lodging and in other areas of life. And a gay owned and operated hotel apparently violated this law by kicking three heterosexual couples out of their hotel because of the the customers' sexual orientation.
A number of interesting issues are raised by this story. First, it demonstrates how anti-discrimination laws threaten freedom of association and may have consequences that supporters don’t fully appreciate. The gay community, via the market mechanism of voluntary association, has established subcultures in various parts of the nation that thrive economically and culturally and that otherwise effectively suit the needs and desires of “the group.” One of those desires may be having an “authentically gay” atmosphere, being around other gays only. And this may in turn require granting preference to those whose orientation is like that of the community (or, in a more extreme measure—like in our story, for instance—an outright bar on those with the “normal” orientation). “Sexual orientation” anti-discrimination laws threaten the ability of the gay community to do this.
From an article given by senior program officer at the Institute for Humane Studies at George Mason University, Nigel Ashford explains the implications of such anti-discrimination laws in the private sector:
A gay bar owner could not employ only gay barmen and women. Gay clubs could not exclude straights. Do not believe that these laws would only apply against straights. In Provincetown, Massachusetts, a male gay bar was refused a renewal of its alcohol license because it excluded women and straight men, as was a lesbian bar in New York for its policy. In San Francisco a gay landlord was prosecuted for preferring gay men to women as tenants.
Now perhaps what Ashford is warning against is a desirable outcome; perhaps this outcome is moral, the way things ought to be. Although a preference for “one’s own” may be understandable, it plausibly can be argued that acting on that preference is immoral and ought not to be permitted, even if it means gay bars have to give prospective “straight” employees, etc. an even shot. But it is undeniable that many who support gay rights, especially many gays themselves, may not be aware of (haven’t fully thought out) the implications of anti-discrimination laws that bar discrimination on the basis of “sexual orientation” in private matters.
The article also implicates that even though anti-discrimination laws do threaten freedom of association, they do not in fact (in theory) grant “special rights” to gays, but rather equal rights to all on the basis of their sexual orientation. If the law only granted special rights, then only those with the “minority” sexual orientation would have standing to sue under these laws. But that is not the way anti-discrimination laws are either worded or interpreted by the courts.
First, if we examine the wording of anti-discrimination codes, we do not see them drafted in a way that says, you shall not discriminate against minorities...on the basis of being “black or Hispanic,” being “female,” being a minority religion, etc. etc. Rather what they say is you shall not discriminate on the basis of “race,” “gender,” “ethnic origin,” “sexual orientation.” All individuals have a “race,” “gender,” “sexual orientation,” etc. Thus, if one is “white,” “male,” “Christian,” and “heterosexual,” in theory, this man should receive equal protection from anti-discrimination codes that forbid discrimination on the basis of all these categories. I know this last sentence may have aroused a chuckle in some of you because we realize that there is a disconnect between the way these laws ought to operate in theory and the way that they do operate in practice.
And the matter is further complicated by the fact that not everyone agrees on how these laws should be interpreted. Even though “equal protection to all individuals, regardless of majority or minority status,” is the way that these laws seem to be worded, some leftist legal theorists and thinkers do NOT think that anti-discrimination laws should be interpreted this way. They believe that “race” should only mean racial minorities, “gender” should only mean female, “sexual orientation” should only mean homosexual or bisexual, etc. As Mary Francis Berry once said perfectly summing up this interpretive philosophy, "Civil rights laws were not passed to protect the rights of white men and do not apply to them."
But no court has ever held that under anti-discrimination codes, “race” doesn’t mean white, or that “gender” only means female, and that a white male thus lacks standing to bring a civil rights lawsuit. What courts have said is that so called majority groups do have rights under these statutes, but in certain limited circumstances, preference may be granted on the basis of race, gender, etc., to the "minority" groups who "need" it (I put the word "minority" in quotes because this term is often used as a synonym for “oppressed” groups. Even though women are a statistical majority, they are the “minority” group for the purpose of these statutes). And no court has ever told us how to satisfactorily apportion these rights between the minority and majority groups in those circumstances where minorities are eligible for such preferences. Which is why I believe that if we have to have anti-discrimination laws in the private sector, they should apply equally to all groups, black v. white, male v. female, gay v. straight, and on and on.
So the next question is will gays, once granted anti-discrimination protection on the basis of “sexual orientation,” become one of those “minority group,” who receive more protection than the majority via preferences & quotas? I think it is highly unlikely. Why? Because there doesn’t seem to be the so called "need,"—the statistical imbalances, the under-representation and all that—that serve as the impetus for such affirmative action programs. Although there is much uncertainly here, some statistical measures have shown that homosexuals are over-represented in terms of wealth, education, and income. Now, even though anti-gay folks say that this ought to disqualify gays from receiving any kind of anti-discrimination protection, this is not the case. Jews & Asians are also over-represented in similar manners, and receive anti-discrimination protection as racial, religious, and ethnic groups. But there is no push for affirmative action for Jews or Asians because it is not needed. Likewise will be the case for gays when more “sexual orientation” anti-discrimination codes are passed.
Although I see problems with anti-discrimination codes that forbid discrimination on the basis of sexual orientation in the private sector, I still support the inclusion of this category into already existing anti-discrimination codes. The problems that I see with “sexual orientation” codes are inherent in all anti-discrimination code categories that exist in the private sector, not just this one. In other words, in my first best world, we wouldn’t have any anti-discrimination laws in the private sector (although I do support the existence of these laws in the public sector). But if such codes do exist in private matters, and if they include all of those other categories that go way beyond just race (it’s also color, ethic origin, gender, religion, age, disability, pregnancy, and others), then there is no fair or logical reason as to why “sexual orientation,” should not also be on that list.
Friday, April 16, 2004
Linked (I wish this would happen more often):
I'd like to thank Steve Malcom Anderson's Up With Beauty for the perma-link.
I'd like to thank Steve Malcom Anderson's Up With Beauty for the perma-link.
Update on the Terry's:
Here us a fascinating pair of interviews of Jamiel and Randall Terry. One comment: While I clearly side with the gay son in this battle, I also feel that people’s religious convictions based on long-standing traditions ought to be respected (and they should be respected as long as they remain in the private sphere of life; they are not valid bases upon which public policy ought to rest). However, there is a WORLD of difference between honestly possessing religious convictions that may seem very harsh to some, and spreading outright lies about a group of people in order to stigmatize them. The former is defensible in a civil society, the latter is not (and it is accurately categorized as “hate”).
What am I referring to? Randall Terry states, (as have many others on the religious right), “The average death age of a male homosexual is 42 years old because of disease, because of suicide, because of alcoholism, because of drugs, because of violence. It's just not a good world. It's a self-abusive, self-destructive sexual addiction.”
This is a flat out lie. And it has been debunked years ago, among other places, here, here, and here. It comes from a gay hating crank and altogether fraud Paul Cameron.
You know, there are junk statistics proffered by all sides of the political spectrum. And I accept that some exist on the pro-gay side too. For instance, I don’t accept the Kinsey “10% of the population are gay” figure. But the folks on the religious right who are first to most vociferously criticize Kinsey turn around and cite one Paul Cameron, whose shoddiness and downright fraudulence Kinsey never approached.
I would remind such religious conservatives who would continue to cite Paul Cameron of two provisions of scripture: First, what Jesus said about looking for the speck in your neighbor’s eye while ignoring the mote in your own, and second, the 9th Commandment.
Here us a fascinating pair of interviews of Jamiel and Randall Terry. One comment: While I clearly side with the gay son in this battle, I also feel that people’s religious convictions based on long-standing traditions ought to be respected (and they should be respected as long as they remain in the private sphere of life; they are not valid bases upon which public policy ought to rest). However, there is a WORLD of difference between honestly possessing religious convictions that may seem very harsh to some, and spreading outright lies about a group of people in order to stigmatize them. The former is defensible in a civil society, the latter is not (and it is accurately categorized as “hate”).
What am I referring to? Randall Terry states, (as have many others on the religious right), “The average death age of a male homosexual is 42 years old because of disease, because of suicide, because of alcoholism, because of drugs, because of violence. It's just not a good world. It's a self-abusive, self-destructive sexual addiction.”
This is a flat out lie. And it has been debunked years ago, among other places, here, here, and here. It comes from a gay hating crank and altogether fraud Paul Cameron.
You know, there are junk statistics proffered by all sides of the political spectrum. And I accept that some exist on the pro-gay side too. For instance, I don’t accept the Kinsey “10% of the population are gay” figure. But the folks on the religious right who are first to most vociferously criticize Kinsey turn around and cite one Paul Cameron, whose shoddiness and downright fraudulence Kinsey never approached.
I would remind such religious conservatives who would continue to cite Paul Cameron of two provisions of scripture: First, what Jesus said about looking for the speck in your neighbor’s eye while ignoring the mote in your own, and second, the 9th Commandment.
Thursday, April 15, 2004
“Oh, I hate that guy.”:
Philadelphia radio personality and former (very successful) trial lawyer (he worked for the Beasley firm, the firm of James E. Beasley, who, a few years ago made a multimillion dollar endowment to his alma matter, [and mine] Temple University School of Law—mine was the first graduating class of the James E. Beasley School of Law of Temple University), Michael Smerconish, has a good guest column on NRO today. This is the first time I think he has done a guest column for them.
I sometimes tune into his show—his politics are a little too much Republican Party apologist (but he’s not nearly as bad as Limbaugh in this regard).
What I really respect about Smerconish is that he is not only a fan of the progressive rock genre, (as am I), but he actually takes the time to have big-name progressive rockers as guests on his show when they are in town. He has had Yes in his studio, as well as former Genesis guitarist extraordinaire Steve Hackett.
And I met Smerconish (briefly) at a Kansas concert last year in Glenside, PA. I approached him and stated, “did anyone ever tell you that you look strikingly like radio talk-show host Michael Smerconish?” And he replied, “oh, I hate that guy.”
Philadelphia radio personality and former (very successful) trial lawyer (he worked for the Beasley firm, the firm of James E. Beasley, who, a few years ago made a multimillion dollar endowment to his alma matter, [and mine] Temple University School of Law—mine was the first graduating class of the James E. Beasley School of Law of Temple University), Michael Smerconish, has a good guest column on NRO today. This is the first time I think he has done a guest column for them.
I sometimes tune into his show—his politics are a little too much Republican Party apologist (but he’s not nearly as bad as Limbaugh in this regard).
What I really respect about Smerconish is that he is not only a fan of the progressive rock genre, (as am I), but he actually takes the time to have big-name progressive rockers as guests on his show when they are in town. He has had Yes in his studio, as well as former Genesis guitarist extraordinaire Steve Hackett.
And I met Smerconish (briefly) at a Kansas concert last year in Glenside, PA. I approached him and stated, “did anyone ever tell you that you look strikingly like radio talk-show host Michael Smerconish?” And he replied, “oh, I hate that guy.”
Tuesday, April 13, 2004
"Liberal" v. "Fundamentalist" Christianity:
There is a big internal battle going on in Christian Churches in Western culture between the "liberals" & the "fundamentalists." I'd like to explore the distinction between these two variations of the Christian faith because I think more understanding is needed.
First off, it's very easy to see this battle in the larger context of modern politics, as a battle between the left & the right, with fundamentalists representing the traditional conservative forces, i.e. Republican voters, and the liberal Christians representing leftist Democrats who profess to be Christians. There certainly is a kernel of truth in this analysis. Christian fundamentalism does seem to be closely connected with religious conservatism, i.e. the religious right, who are, in turn, a big part of the Republican party's base (although it hasn't always been that way). And if one is a pro-choice, pro-gay rights card carry Democratic voter and also calls him or herself a "practicing Christian," it's unlikely that he or she will be of the fundamentalist variety. Folks like Peter Jennings, John Shelby Spong, Howard Dean, Phil Donahue, Garry Wills and countless others come to mind as examples of professing Christians who ascribe to this "liberal" version of the faith and also happen to be modern leftist liberals in their political inclinations. And "social justice theology," which is basically a leftist political ideology, steeped in Marxist economics, does seem to have pervaded some of the teachings of "liberal Christian" churches (as well as segments within the Catholic Church -- see liberation theology).
But the story is not so cut and dry. It's my contention that "liberal Christianity" ought not to be automatically conflated with modern liberal, i.e. leftist politics, even though there is a significant overlap between the two. In fact, it is not at all inconsistent for someone whose politics tend to the conservative side of the spectrum to nonetheless practice a form of Christianity that reasonably could be categorized as "liberal." (And even though I am not going to go into as much detail on this point, one can also be an evangelical or fundamentalist and have a fairly "social conservative" personal worldview, but still be more politically at home with leftist Democrats. I think Jimmy Carter is a good example of this. In fact, polls show that at least *some* significant minority percentage of self-identified evangelicals/fundamentalists [and yes, I know there is a difference between these two varieties of the faith] voted for Bill Clinton and then Al Gore and other Democrats in those respective elections).
Let us define the difference between a "fundamentalist" as opposed to a "liberal" version of the faith. Fundamentalists interpret the Bible literally. (With "Catholic," as opposed to Protestant fundamentalists, more of a focus may also be paid on dogmatically following official Church doctrine/teachings.) So if Leviticus says "a man shall not lie with a man..." or in story of Sodom & Gomorrah, that Lot's wife turned to salt..., fundamentalists believe that these things happened exactly as they are written. "Liberal" Christianity, on the other hand, posits that some scripture needs to be taken with a "grain of salt" so to speak, and that many of the things in the Bible really didn't happen in the way they were written, that perhaps such stories are better understood as metaphors as opposed to actually events. A liberal Christian might not believe that Lot's wife actually turned to salt or that two of every creature (that would be billions & billions of species) were put onto Noah's Ark and that God killed all humans save Noah & his family with the flood and on and on....
Now, I think we all know that there are many conservatives, social or not, who happen to be non-religious. But there are also many conservatives, again, social or not, who happen to be professing Christians, but not of the fundamentalist variety. And this makes sense; there are many who believe in a Deity and are conservative in their politics who nonetheless have a hard time taking the Bible literally. For instance, Bill O'Reilly, by no means a leftist, and with all of his talk about traditionalists v. secularists (coming down on the side of the traditionalists) is more of a "liberal" Christian than an Orthodox one, at least he is on some pretty important issues, particularly homosexuality. He has publicly stated that accepts homosexuals for who they are (gave an interview to the Advocate, a leading gay magazine), and really doesn't know whether being homosexual is immoral or not and leaves that up to God. When challenged with scriptural passages by an "ex-gay" now Fundamentalist, O'Reilly stated that he thinks many parts of the Bible, i.e., the story of Sodom & Gomorrah, Lot's wife turning to salt, really didn't occur, that they are just metaphors.
And there are others. In fact one of the most articulate and distinguished expositors of "liberal" Christianity, the Rev. Peter J. Gomes of Harvard University, is a card-carrying Republican and is conservative on many many issues (he's also gay). Not meaning to harp on conservative gay Christians who practice "liberal Christianity," but three other prominent figures, Bruce Bawer and Rich Tafel (former head of the LCR, and also a Christian minister), and Andrew Sullivan come to mind as examples of such. And I'm sure I can come up with examples of other heterosexual Republican conservative Christians whose Christian faith tends more towards the "liberal" as opposed to the "fundamentalist" side of things. I want to say Dick & Lynn Cheney (they fully accept their gay daughter; what are the chances that they take Leviticus literally?) -- and I'm probably correct. But then again, I want examples that don't tie into homosexuality. I'll come forth with some later.
There is an historical connection between political liberalism and liberal Christianity -- but that raises so many other issues that I will have to explore it in a subsequent post. Liberal Christianity is not new; it existed during the time of the Founding and some prominent founders qualified as "liberal Christians." But just as the "liberals" of today are different than the "liberals" of the Founding, "liberal Christians" of today also are distinguishable with the "liberal Christians" of the Founding. However, there is an important common ground between the two -- challenging traditional Orthodoxies and rejecting parts of scripture that don't comport with "reason" (back then, whether one believed in "the Trinity" was the classic line of demarcation between "liberal" and "Orthodox" Christians; the doctrine of the Trinity is a prime example of an orthodoxy that didn't comport with "reason.").
There is a big internal battle going on in Christian Churches in Western culture between the "liberals" & the "fundamentalists." I'd like to explore the distinction between these two variations of the Christian faith because I think more understanding is needed.
First off, it's very easy to see this battle in the larger context of modern politics, as a battle between the left & the right, with fundamentalists representing the traditional conservative forces, i.e. Republican voters, and the liberal Christians representing leftist Democrats who profess to be Christians. There certainly is a kernel of truth in this analysis. Christian fundamentalism does seem to be closely connected with religious conservatism, i.e. the religious right, who are, in turn, a big part of the Republican party's base (although it hasn't always been that way). And if one is a pro-choice, pro-gay rights card carry Democratic voter and also calls him or herself a "practicing Christian," it's unlikely that he or she will be of the fundamentalist variety. Folks like Peter Jennings, John Shelby Spong, Howard Dean, Phil Donahue, Garry Wills and countless others come to mind as examples of professing Christians who ascribe to this "liberal" version of the faith and also happen to be modern leftist liberals in their political inclinations. And "social justice theology," which is basically a leftist political ideology, steeped in Marxist economics, does seem to have pervaded some of the teachings of "liberal Christian" churches (as well as segments within the Catholic Church -- see liberation theology).
But the story is not so cut and dry. It's my contention that "liberal Christianity" ought not to be automatically conflated with modern liberal, i.e. leftist politics, even though there is a significant overlap between the two. In fact, it is not at all inconsistent for someone whose politics tend to the conservative side of the spectrum to nonetheless practice a form of Christianity that reasonably could be categorized as "liberal." (And even though I am not going to go into as much detail on this point, one can also be an evangelical or fundamentalist and have a fairly "social conservative" personal worldview, but still be more politically at home with leftist Democrats. I think Jimmy Carter is a good example of this. In fact, polls show that at least *some* significant minority percentage of self-identified evangelicals/fundamentalists [and yes, I know there is a difference between these two varieties of the faith] voted for Bill Clinton and then Al Gore and other Democrats in those respective elections).
Let us define the difference between a "fundamentalist" as opposed to a "liberal" version of the faith. Fundamentalists interpret the Bible literally. (With "Catholic," as opposed to Protestant fundamentalists, more of a focus may also be paid on dogmatically following official Church doctrine/teachings.) So if Leviticus says "a man shall not lie with a man..." or in story of Sodom & Gomorrah, that Lot's wife turned to salt..., fundamentalists believe that these things happened exactly as they are written. "Liberal" Christianity, on the other hand, posits that some scripture needs to be taken with a "grain of salt" so to speak, and that many of the things in the Bible really didn't happen in the way they were written, that perhaps such stories are better understood as metaphors as opposed to actually events. A liberal Christian might not believe that Lot's wife actually turned to salt or that two of every creature (that would be billions & billions of species) were put onto Noah's Ark and that God killed all humans save Noah & his family with the flood and on and on....
Now, I think we all know that there are many conservatives, social or not, who happen to be non-religious. But there are also many conservatives, again, social or not, who happen to be professing Christians, but not of the fundamentalist variety. And this makes sense; there are many who believe in a Deity and are conservative in their politics who nonetheless have a hard time taking the Bible literally. For instance, Bill O'Reilly, by no means a leftist, and with all of his talk about traditionalists v. secularists (coming down on the side of the traditionalists) is more of a "liberal" Christian than an Orthodox one, at least he is on some pretty important issues, particularly homosexuality. He has publicly stated that accepts homosexuals for who they are (gave an interview to the Advocate, a leading gay magazine), and really doesn't know whether being homosexual is immoral or not and leaves that up to God. When challenged with scriptural passages by an "ex-gay" now Fundamentalist, O'Reilly stated that he thinks many parts of the Bible, i.e., the story of Sodom & Gomorrah, Lot's wife turning to salt, really didn't occur, that they are just metaphors.
And there are others. In fact one of the most articulate and distinguished expositors of "liberal" Christianity, the Rev. Peter J. Gomes of Harvard University, is a card-carrying Republican and is conservative on many many issues (he's also gay). Not meaning to harp on conservative gay Christians who practice "liberal Christianity," but three other prominent figures, Bruce Bawer and Rich Tafel (former head of the LCR, and also a Christian minister), and Andrew Sullivan come to mind as examples of such. And I'm sure I can come up with examples of other heterosexual Republican conservative Christians whose Christian faith tends more towards the "liberal" as opposed to the "fundamentalist" side of things. I want to say Dick & Lynn Cheney (they fully accept their gay daughter; what are the chances that they take Leviticus literally?) -- and I'm probably correct. But then again, I want examples that don't tie into homosexuality. I'll come forth with some later.
There is an historical connection between political liberalism and liberal Christianity -- but that raises so many other issues that I will have to explore it in a subsequent post. Liberal Christianity is not new; it existed during the time of the Founding and some prominent founders qualified as "liberal Christians." But just as the "liberals" of today are different than the "liberals" of the Founding, "liberal Christians" of today also are distinguishable with the "liberal Christians" of the Founding. However, there is an important common ground between the two -- challenging traditional Orthodoxies and rejecting parts of scripture that don't comport with "reason" (back then, whether one believed in "the Trinity" was the classic line of demarcation between "liberal" and "Orthodox" Christians; the doctrine of the Trinity is a prime example of an orthodoxy that didn't comport with "reason.").
Monday, April 12, 2004
Cosmic Justice:
I know it's wrong to feel giddy over someone else's pain. But this couldn't have happened to a bigger creep. Keep in mind when you read this that Randall Terry belonged to a "Christian Reconstructionist" church that believed in executing, among others, adulterers & homosexuals. Last I heard Terry was kicked out of his church because he got divorced. But he is still a fundamentalist Christian. I'd really like to know whether he still believes homosexuals should be executed.
I know it's wrong to feel giddy over someone else's pain. But this couldn't have happened to a bigger creep. Keep in mind when you read this that Randall Terry belonged to a "Christian Reconstructionist" church that believed in executing, among others, adulterers & homosexuals. Last I heard Terry was kicked out of his church because he got divorced. But he is still a fundamentalist Christian. I'd really like to know whether he still believes homosexuals should be executed.
Thursday, April 08, 2004
Reason article on Feds & Porn:
Excellent article from Reason on the porn industry & the coming war on it by the Feds. There are many interesting aspects of this article; I'll just focus on one. The article details a husband and wife duo of porn producers, Rob Black & Lizzy Borden, from Extreme Associates (wouldn't link 'em for a million dollars) who will be one of the Federal government's "showcase" prosecutions:
I'd like to quote more from the article, but even the description that Reason gives is just too sickening. I first became aware of these two on the Frontline special on pornography. While I generally think that most mainstream hardcore pornography is utterly harmless—there is very little if any violence in mainstream triple X rated movies—these two produce utterly disgusting & disturbing movies. And I think I—as a longtime fan of Howard Stern’s—have a pretty high tolerance when it comes to being offended.
I still think that this porn is protected (just like the Nazis or the KKK's vile speech). Now is when the Voltaire’s adage (paraphrased by me)—I hate what you have to say but will defend to the death your right to say it—kicks in. Another way of stating this is free speech isn’t for the speech that you like, that you agree with, but for the speech that you disagree with.
“I am fond of Mrs. Jones. She is such a wonderful neighbor.” That kind of speech does not need protecting because its not controversial, no one would ever try to proscribe it. If the First Amendment only protects this type of speech, then our framers wasted their time in writing its Free Speech clause—because that type of speech would be permitted even if we had no “right” to Free Speech.
And the Reason article makes it clear, the Christian right to whom the Bush administration is pandering in going after this porn doesn’t want only the more extreme types of the material gone after. No, that’s only the first step. They want to go after the mainstream stuff, ala Vivid Video and all of those Fortune 500 companies that are profiting off of it. Here is the article quoting Jan LaRue, chief counsel of Concerned Women of America, regarding the policy of going after only the extreme stuff in porn, the stuff out on the margins:
Excellent article from Reason on the porn industry & the coming war on it by the Feds. There are many interesting aspects of this article; I'll just focus on one. The article details a husband and wife duo of porn producers, Rob Black & Lizzy Borden, from Extreme Associates (wouldn't link 'em for a million dollars) who will be one of the Federal government's "showcase" prosecutions:
[T]he pair are known for producing material that even fellow pornographers find objectionable. Their videos are products of a jaded, hypermediated era: explicit porn coupled with the over-the-top gore of slasher movies and the stunts and gross-out spectacles of reality TV.
I'd like to quote more from the article, but even the description that Reason gives is just too sickening. I first became aware of these two on the Frontline special on pornography. While I generally think that most mainstream hardcore pornography is utterly harmless—there is very little if any violence in mainstream triple X rated movies—these two produce utterly disgusting & disturbing movies. And I think I—as a longtime fan of Howard Stern’s—have a pretty high tolerance when it comes to being offended.
I still think that this porn is protected (just like the Nazis or the KKK's vile speech). Now is when the Voltaire’s adage (paraphrased by me)—I hate what you have to say but will defend to the death your right to say it—kicks in. Another way of stating this is free speech isn’t for the speech that you like, that you agree with, but for the speech that you disagree with.
“I am fond of Mrs. Jones. She is such a wonderful neighbor.” That kind of speech does not need protecting because its not controversial, no one would ever try to proscribe it. If the First Amendment only protects this type of speech, then our framers wasted their time in writing its Free Speech clause—because that type of speech would be permitted even if we had no “right” to Free Speech.
And the Reason article makes it clear, the Christian right to whom the Bush administration is pandering in going after this porn doesn’t want only the more extreme types of the material gone after. No, that’s only the first step. They want to go after the mainstream stuff, ala Vivid Video and all of those Fortune 500 companies that are profiting off of it. Here is the article quoting Jan LaRue, chief counsel of Concerned Women of America, regarding the policy of going after only the extreme stuff in porn, the stuff out on the margins:
Come on, DOJ. Go after the big guys....It’s time to make the porn industry’s fears a reality. It’s time to send a message to the white collars on Wall Street who think selling porn is a good way to improve the bottom line.
Wednesday, April 07, 2004
How would you like to have this person’s job? Or Art & Porn:
“Lam Nguyen's job is to sit for hours in a chilly, quiet room devoid of any color but gray and look at pornography.” He’s actually a "computer forensic specialist" who is part of the Federal government’s up and coming war on adult pornography.
The article also says that, “Nguyen does [this job] earnestly from 9 to 5, surrounded by a half-dozen other ‘computer forensic specialists’ like him…” What...they don't trust these specialists to work all alone in office rooms by themselves?
On a more serious note, doesn't the Justice Department have better things to do with its time? I learned while watching a Frontline special on porn, that right off the bat, Ashcroft planned on bringing this war on pornography; then 9/11 happened (I'll count that as 9/11's silver lining).
I come down on the side that sees this as a free speech/ free market issue. And the market has decided; the people want their porn. Pornography is a 10 BILLION dollar a year business, which various Fortune 500 companies, such as Comcast, are heavily invested in.
When the legal cases are brought, the case of Miller v. California guides us in terms of whether the government is acting consistent with the First Amendment. While “obscenity” technically is not protected speech, the test that the Supreme Court established in Miller, in reality does grant obscenity at least *some* degree of protection. In order to be prosecutable as “obscenity,” something must first qualify as such. Here is the Miller test for determining whether a particular work qualifies as obscene:
Like most people on either side, I don’t like this test for obvious reasons. I think that the Court should simply hold hard core pornography to be protected speech and be done with it. But the test does offer defenders of pornography some leeway to win cases. For instance, in 2001, Ashcroft et al. decided to bring an obscenity case in “St. Charles County, Mo., the heart of Ashcroft's conservative Missouri base.” In comes Paul Cambria—a First Amendment lawyer, who specializes in defending such cases—to the rescue. “Cambria defended a video store there against state charges that it was renting two obscene videotapes that depicted group sex, anal sex and sex with objects.” The outcome: “Cambria won, convincing a jury of 12 women, all between the ages of 40 and 60, that the tapes had educational value and helped reduce inhibitions. They reached the verdict in less than three hours.”
In other words, the third prong of the Miller test offered a defense, gave the jury an out, etc. Other types of unprotected speech—child pornography for instance—do not require the government to jump through as many hoops. If it has artistic and educational value but it involves children—tough, it’s still not protected. Here is Robert Bork lamenting the Miller test, how it makes it too hard to prosecute porn:
In fact, I remember reading something by William F. Buckley where he stated that he went to that museum in Cincinnati to see the Mapplethorpe photos and judge for himself what the controversy was all about. He—like most people—found the photographs to range from highly distasteful to downright disgusting. But Buckley was taken aback by the museum curator who presented Mapplethorpe’s work; the curator marveled at the artistic talent—indeed, the genius—displayed in the photographs, how they brilliantly exemplified classical line and form…
I think the bottom line is that Mapplethorpe indeed was a very talented photographer. But he used his talents to venture into areas that most find highly objectionable. But that hardly disqualifies his work from being serious art.
And some hard core pornography—triple X rated movies and the like—may similarly qualify as highly artistic. Here is Camille Paglia on the subject:
Later on in the book while discussing footage from the 1979 porn classic Debbie Does Dallas (I'll forego the link), Paglia states, “Pornography and art are identical for me, absolutely.” p. 279. And “Michelangelo is a pornographer…and the Pope is a collector of porn.” Id.
If the First Amendment ought to be interpreted as protecting artistic freedom, then we may rightly conclude that much, perhaps most, perhaps even all pornography is protected.
“Lam Nguyen's job is to sit for hours in a chilly, quiet room devoid of any color but gray and look at pornography.” He’s actually a "computer forensic specialist" who is part of the Federal government’s up and coming war on adult pornography.
The article also says that, “Nguyen does [this job] earnestly from 9 to 5, surrounded by a half-dozen other ‘computer forensic specialists’ like him…” What...they don't trust these specialists to work all alone in office rooms by themselves?
On a more serious note, doesn't the Justice Department have better things to do with its time? I learned while watching a Frontline special on porn, that right off the bat, Ashcroft planned on bringing this war on pornography; then 9/11 happened (I'll count that as 9/11's silver lining).
I come down on the side that sees this as a free speech/ free market issue. And the market has decided; the people want their porn. Pornography is a 10 BILLION dollar a year business, which various Fortune 500 companies, such as Comcast, are heavily invested in.
When the legal cases are brought, the case of Miller v. California guides us in terms of whether the government is acting consistent with the First Amendment. While “obscenity” technically is not protected speech, the test that the Supreme Court established in Miller, in reality does grant obscenity at least *some* degree of protection. In order to be prosecutable as “obscenity,” something must first qualify as such. Here is the Miller test for determining whether a particular work qualifies as obscene:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Like most people on either side, I don’t like this test for obvious reasons. I think that the Court should simply hold hard core pornography to be protected speech and be done with it. But the test does offer defenders of pornography some leeway to win cases. For instance, in 2001, Ashcroft et al. decided to bring an obscenity case in “St. Charles County, Mo., the heart of Ashcroft's conservative Missouri base.” In comes Paul Cambria—a First Amendment lawyer, who specializes in defending such cases—to the rescue. “Cambria defended a video store there against state charges that it was renting two obscene videotapes that depicted group sex, anal sex and sex with objects.” The outcome: “Cambria won, convincing a jury of 12 women, all between the ages of 40 and 60, that the tapes had educational value and helped reduce inhibitions. They reached the verdict in less than three hours.”
In other words, the third prong of the Miller test offered a defense, gave the jury an out, etc. Other types of unprotected speech—child pornography for instance—do not require the government to jump through as many hoops. If it has artistic and educational value but it involves children—tough, it’s still not protected. Here is Robert Bork lamenting the Miller test, how it makes it too hard to prosecute porn:
The first two prongs of the test become increasingly difficult to satisfy as contemporary community standards decline and as fewer and fewer descriptions of sexual conduct are regarded as patently offensive. But it is the third part that poses the most difficulty. There is apparently nothing that a flummery of professors will not testify has “serious value.” When Cincinnati prosecuted the museum that displayed Mapplethorpe’s photographs, the jury deferred to defense witnesses who said the pictures were art and hence could not be obscene.
Slouching Towards Gomorrah, p. 146.
In fact, I remember reading something by William F. Buckley where he stated that he went to that museum in Cincinnati to see the Mapplethorpe photos and judge for himself what the controversy was all about. He—like most people—found the photographs to range from highly distasteful to downright disgusting. But Buckley was taken aback by the museum curator who presented Mapplethorpe’s work; the curator marveled at the artistic talent—indeed, the genius—displayed in the photographs, how they brilliantly exemplified classical line and form…
I think the bottom line is that Mapplethorpe indeed was a very talented photographer. But he used his talents to venture into areas that most find highly objectionable. But that hardly disqualifies his work from being serious art.
And some hard core pornography—triple X rated movies and the like—may similarly qualify as highly artistic. Here is Camille Paglia on the subject:
My point in Sexual Personae is that one cannot make any kind of firm line between high art and pornography. In fact, porn permeates the high art tradition. Even Michelangelo’s Pieta, the supreme artifact of the Vatican, is a work of pornography—when you look at it up close.
Vamps & Tramps, p. 123.
Later on in the book while discussing footage from the 1979 porn classic Debbie Does Dallas (I'll forego the link), Paglia states, “Pornography and art are identical for me, absolutely.” p. 279. And “Michelangelo is a pornographer…and the Pope is a collector of porn.” Id.
If the First Amendment ought to be interpreted as protecting artistic freedom, then we may rightly conclude that much, perhaps most, perhaps even all pornography is protected.
Tuesday, April 06, 2004
New Racial Profiling Study
David Post notes a new study that casts doubt on current public understanding of racial profling. It looks interesting.
"According to an article by Stephen Michelson in the most recent 'Jurimetrics', while racial profiling of this kind may be occurring, none of the studies purporting to demonstrates its existence actually does so."
David Post notes a new study that casts doubt on current public understanding of racial profling. It looks interesting.
"According to an article by Stephen Michelson in the most recent 'Jurimetrics', while racial profiling of this kind may be occurring, none of the studies purporting to demonstrates its existence actually does so."
Sunday, April 04, 2004
Gays, Blacks, Civil Rights, & Marriage:
My post below arguing that sexual orientation may rightly be viewed as a civil rights category is more relevant in terms of whether we include “sexual orientation” into an already existing anti-discrimination code or policy, as opposed to whether we allow gay marriage. The problem, however, is that “sexual orientation as a civil right” today is being discussed in the context of gay marriage. And this is a different, albeit related, question. Marriage is a far more complicated question and raises a whole slew of concerns that are not implicated in the anti-discrimination code question. And many—including Judge Posner whom I cite—support granting to “sexual orientation” civil rights status, but do not support same-sex marriage (although he does support civil unions). Similarly, I’m sure there were many back in the day who supported anti-discrimination codes for blacks in employment & public accommodations, but drew the line at interracial marriages.
And bringing up Loving v. Virginia—the case that held anti-miscegenation laws to be unconstitutional—in many ways complicates the issue more than it clarifies. That case wasn’t just about race—it was about interracial marriages. One objection to comparing sexual orientation to race is that race is unchosen & unchangeable while acting on one’s sexual orientation involves conduct. While there is no question that race is immutable, whether one enters into an interracial relationship puts us in the domain of choice & conduct. In other words, one cannot choose to be black, but if one is, they can choose to look for sexual partners in their own race only, as the majority of individuals within particular races do. If we examine the implications of this logic as well as what we know about the nature of sexual orientation, then we might rightly conclude that, The Ban on Gay Marriages can be seen as even more cruel and unfair than the ban on Interracial Marriages.
I think what is important about Loving is that it did NOT narrowly deal with the issue of interracial marriages using Plessy v. Ferguson dissent like language—that the Constitution forbids any kind of racial classifications. If it did, it would have NO application to the issue of same sex marriage. Rather, the case relied on the fact that there is a “fundamental right” to marry. As Justice Warren wrote, "Marriage is one of the 'basic civil rights of man' ..."
Again, I reference the same Andrew Sullivan article,
My post below arguing that sexual orientation may rightly be viewed as a civil rights category is more relevant in terms of whether we include “sexual orientation” into an already existing anti-discrimination code or policy, as opposed to whether we allow gay marriage. The problem, however, is that “sexual orientation as a civil right” today is being discussed in the context of gay marriage. And this is a different, albeit related, question. Marriage is a far more complicated question and raises a whole slew of concerns that are not implicated in the anti-discrimination code question. And many—including Judge Posner whom I cite—support granting to “sexual orientation” civil rights status, but do not support same-sex marriage (although he does support civil unions). Similarly, I’m sure there were many back in the day who supported anti-discrimination codes for blacks in employment & public accommodations, but drew the line at interracial marriages.
And bringing up Loving v. Virginia—the case that held anti-miscegenation laws to be unconstitutional—in many ways complicates the issue more than it clarifies. That case wasn’t just about race—it was about interracial marriages. One objection to comparing sexual orientation to race is that race is unchosen & unchangeable while acting on one’s sexual orientation involves conduct. While there is no question that race is immutable, whether one enters into an interracial relationship puts us in the domain of choice & conduct. In other words, one cannot choose to be black, but if one is, they can choose to look for sexual partners in their own race only, as the majority of individuals within particular races do. If we examine the implications of this logic as well as what we know about the nature of sexual orientation, then we might rightly conclude that, The Ban on Gay Marriages can be seen as even more cruel and unfair than the ban on Interracial Marriages.
I think what is important about Loving is that it did NOT narrowly deal with the issue of interracial marriages using Plessy v. Ferguson dissent like language—that the Constitution forbids any kind of racial classifications. If it did, it would have NO application to the issue of same sex marriage. Rather, the case relied on the fact that there is a “fundamental right” to marry. As Justice Warren wrote, "Marriage is one of the 'basic civil rights of man' ..."
Again, I reference the same Andrew Sullivan article,
The right to marry whomever you wish is a fundamental civil right. That is not contestable in the history of this country's jurisprudence. Now you may argue that marriage is definitionally heterosexual and therefore such civil rights only apply to heterosexuals. But you have to make that case--that civil marriage as currently practiced and enforced is inherently heterosexual--before you can dismiss the notion that it is a matter of civil rights.
Saturday, April 03, 2004
Gays & Blacks Again...:
In my opinion it has become a tiresome and ultimately empty platitude of anti-gay social conservatives to make a comparison between sexual orientation & race for the purpose of telling us how being black & being homosexual are not the same, how sexual orientation doesn’t deserve civil rights, etc.
Of course race can meaningfully distinguish itself from “sexual orientation.” The history of race is so wholly unique in this nation and the world that it can distinguish itself with any group that tries to make an analogy with it and ask for civil rights. And here’s the rub: We don’t live in a world where “race & only race” receives civil rights protection and along comes “sexual orientation” asking for the same. Instead we live in world where race, color, ethnic origin, religion, gender, pregnancy, disability, and age receive civil rights protection at the federal level. None of these other groups can make a meaningful analogy with race either. But oh have they have tried—and their failure to make a meaningful analogy did not prevent them from receiving civil rights protection. Here’s Andrew Sullivan citing Shelby Steele, on “gender discrimination”:
Moreover, even though homosexuals—like every other group on the civil rights list save race—have never been through slavery or Jim Crow, gays have faced far more mistreatment by society than most of the groups who already receive such protection. Again from the same Sullivan article,
Thus, the relevant question regarding whether sexual orientation ought to receive civil rights protection is not whether it can make a near perfect analogy with race. Here is how Richard Posner, in his book Sex and Reason, frames the question:
p. 323.
In my opinion it has become a tiresome and ultimately empty platitude of anti-gay social conservatives to make a comparison between sexual orientation & race for the purpose of telling us how being black & being homosexual are not the same, how sexual orientation doesn’t deserve civil rights, etc.
Of course race can meaningfully distinguish itself from “sexual orientation.” The history of race is so wholly unique in this nation and the world that it can distinguish itself with any group that tries to make an analogy with it and ask for civil rights. And here’s the rub: We don’t live in a world where “race & only race” receives civil rights protection and along comes “sexual orientation” asking for the same. Instead we live in world where race, color, ethnic origin, religion, gender, pregnancy, disability, and age receive civil rights protection at the federal level. None of these other groups can make a meaningful analogy with race either. But oh have they have tried—and their failure to make a meaningful analogy did not prevent them from receiving civil rights protection. Here’s Andrew Sullivan citing Shelby Steele, on “gender discrimination”:
It is always both a little flattering and more than a little annoying to blacks when other groups glibly invoke the civil rights movement and all its iconic imagery to justify their agendas for social change. I will never forget, nor forgive, the feminist rally cry of the early '70s: “Woman as nigger.” Here upper-middle-class white women--out of what must have been an impenetrable conviction in their own innocence--made an entire race into a metaphor for wretchedness in order to steal its thunder.
Moreover, even though homosexuals—like every other group on the civil rights list save race—have never been through slavery or Jim Crow, gays have faced far more mistreatment by society than most of the groups who already receive such protection. Again from the same Sullivan article,
But it is nevertheless true that, throughout history, gay Americans have been jailed for being gay, physically attacked, barred from associating with each other, blackmailed, executed, and had their most intimate relationships criminalized. They have been used as scapegoats, described as internal enemies, and subjected to virulent attacks from the very same people who also demonized African Americans.
Thus, the relevant question regarding whether sexual orientation ought to receive civil rights protection is not whether it can make a near perfect analogy with race. Here is how Richard Posner, in his book Sex and Reason, frames the question:
[G]iven Title VII and cognate laws, is there a reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and in some cases, even young healthy male WASPs? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.
p. 323.
Friday, April 02, 2004
Julian Sanchez moves to the Nation:
Has the Nation Magazine gained a libertarian, or is Julian Sanchez becoming, gasp...a progressive?
(Or am I just an April fool?)
Has the Nation Magazine gained a libertarian, or is Julian Sanchez becoming, gasp...a progressive?
(Or am I just an April fool?)
Andrew Sullivan & Driving:
Only someone who doesn't drive could support something as insane as a 50 cents a gallon gas tax.
Only someone who doesn't drive could support something as insane as a 50 cents a gallon gas tax.
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