Intellectual commitment and politics sometimes don’t match up as neatly as you might think they would:

Sometimes the positions taken by certain groups—especially certain radical groups—surprise us, given the commonly accepted wisdom of the political sides in which they are aligned. For instance, take gay groups and their sympathizers—it is commonly accepted wisdom there that gays do not choose to be gay, that such condition is highly likely to be genetic, biological, or inborn—either wholly or to some significant degree. There is virtual unanimity of sentiment at least among male homosexuals that they didn’t choose their orientation, and that they, since a very young age—at latest early puberty, at earliest, early childhood (between 2 - 5)—were aware of their orientation, at the very least being “different” than the other boys.

Of course the anti-gay right often challenges this narrative. Although I believe in the narrative (lived it), I certainly don’t believe that homosexuality’s “naturalness,” or its “immutability” (or at the very least its “intractability”) justifies it. But I certainly believe it’s more deeply rooted in human nature than say, the religious right does.

Yet Marty over at Vigilance Matters has discovered a group of gay radicals who call themselves QueerbyChoice. Their name is self explanatory. Some might scratch their heads wondering how honest their personal testimony is or why they appear to give fodder to religious conservatives.

Yet, if we understand the philosophical underpinnings of such a radical group, we better appreciate why they would seem to go out on a limb and endorse such a position that seems counterintuitive to anyone who is homosexual or who knows well homosexuals. You see "queer theory" is just a smaller component of the larger, "social constructionist/deconstructionist/critical theorist" school of thought whose intellectual godfather is Foucault. This school has a racial component, a gender component, an "economic class" component and there are other "components" or "branches" to this way of thinking as well. And the "queer theorists" are just the "gay" component of this larger left-wing/nihilistic/Marxist mindset.

One central tenet to this school of thought is that "nature" doesn't exist, that it is wholly a "social construct," and that human nature is entirely malleable. As such, sociobiology is completely antithetical to them. They have a vested intellectual interest in demonstrating that all "group" differences, whether they be racial, gender, or class are NOT products of nature. As such, the "born gay," sociobiological viewpoint completely conflicts with their intellectual worldview.

Now on the other hand, here is an article that best sums up the case that homosexuality is a product of our biological nature. When I have shown this article to religious conservatives skeptical of this theory, their first reaction is to write it off as “pro-gay” or “liberal” propaganda. But if they looked further into the politics of the host website they would see that it is the antithesis of liberal political correctness. In fact, some of the most “hard-right conservative,” “un-PC” thinking can be found on this website (much of it, I certainly don’t endorse).

The website is run by sociobiologists who have a view of human nature & biology that is the polar opposite of the critical theorists’. These sociobiologists believe that nature & genetics are more and more responsible for human variation. That means racial, gender, class, psychological, and yes, sexual orientation differences are most likely to have strong biological causes.

Although not all sociobiologists are conservatives, there is a huge strain of sociobiolgists who are indeed quite conservative, starting with the late Garret Hardin (the creator of the “Tragedy of the Commons” theory), and presently, I’d say that Vdare.com’s Steve Sailer is one of the most influential intellectuals in such right-wing sociobiology circles.

In fact, National Review’s John Derbyshire is strongly influenced by Sailer and is part of a biodiversity group run by Sailer. Derbyshire is well known for his homophobic screeds. If anyone is unlikely to buy into pro-gay science (or dismiss it as “homo-propaganda,” a term that he used in a private email to me), it’s John Derbyshire. But in this article, Derbyshire writes:

Homosexual spokespeople nowadays lean heavily on the argument that "we can't help it, we're born that way." My guess, based on the evidence I have seen, is that in most cases this is true, so far as inclination is concerned.

And in this article he writes:

Now, the trend in current research on homosexuality, if I have understood it correctly, suggests that the homosexual orientation is indeed mostly congenital — the result of events in the mother's womb, or in early infancy, with perhaps some slight genetic predisposition. The thing is, in short, mainly biochemical — part of a person's physical make-up.

I am sure many fundamentalist Christians dedicated to the proposition that “gays can change” are wondering how such a right-wing homophobe like Derbyshire could believe what they would regard as “homo-proganda.” Yet, this is perfectly in line with what other right-wing sociobiogists believe. And simply believing that homosexuality is a matter or biological predetermination by no means equates with gay friendliness. In that same article, Derbyshire writes:

My personal bet is that homosexuality will disappear before homophobia does — possibly quite soon, in a generation or so. Here's my logic: One of the least controversial things you can say about homosexuality is this: Practically nobody wants his kids to grow up homosexual. Some people mind the prospect more than others, but practically nobody welcomes it — not even, I should think, homosexuals….

Supposing this [homosexuality’s biological makeup] is true, let us conduct a wee thought experiment — admittedly a fanciful one. A young woman in the late stages of pregnancy, or carrying a small infant, shows up at her doctor's office. "Doctor," she asks, "is there some kind of test you can do to tell me if my child is likely to become a homosexual adult?" The doctor says yes, there is. "And," the woman continues, "suppose the test is positive — would that be something we can fix? I mean, is there some sort of medical, or genetic, or biochemical intervention we can do at this stage, to prevent that happening?" The doctor says yes, there is. "How much does the test cost? And supposing it's positive, how much does the fix cost?" The doctor says $50, and $500. The woman takes out her checkbook.

Of course this is not happening anywhere in the U.S.A. right now. If my understanding of the state of current research is correct, however, it might very well be happening on a daily basis ten years from now.

If this really comes to pass, the results will be curious and interesting. They will not necessarily bring an end to homosexuality right away. No test, and no $500 fix, is likely to be 100 percent effective. Also, there must be some few borderline cases who "turn," or get "turned" quite late in life. For sure, though, if such a thing becomes reality, there will suddenly be a vast reduction in the numbers of homosexuals. From the current proportion — from 1 to 4 percent — of the population, we might, in a couple of generations, see a drop to, perhaps, 0.01 percent.

This passage in particular has led Derbyshire and his fellow sociobiologists to be accused of wanting to see a eugenics style wipe out of the homosexual condition.

And to further compound the irony: Let’s add one Francis Fukuyama into the mix. Fukuyama is one of those Straussian neoconservative/social conservatives. He is quite a reactionary social con on some issues, but very moderate on other social issues. Fukuyama is known for aligning himself with the religious right in taking a very reactionary stand on biotech issues against things like cloning and any sort of biological tweaking of our human nature. Yet Fukuyama takes a very moderate and reasonable position on acceptance of homosexuality (perhaps [??] because his intellectual mentor was the late, great, and very gay Allan Bloom). And his reactionary view on biotech and his moderate stance on homosexuality are connected. Fukuyama has anticipated exactly what Derbyshire mentions:

I suspect that if the U.S. ever gets into something like this in the future, it will have to do with potential "enhancement" targets other than sex. One I speculate about in my book is sexual preference: It seems pretty clear to me that if parents, including ones who are perfectly accepting of gays today, had the choice, they would select against their children being gay, if for no other reason than their desire to have grandchildren (contrary to Stock, by the way, gays can't reproduce, so I'm not quite sure how they'd do germline intervention to produce gay children). The proportion of gays in the population could drop quite dramatically, and I'm not at all sure that society as a whole (let alone gays as a persecuted minority) would be enhanced as a result.

Finally, just led me add, that, even though I don’t endorse much of what the sociobiologists believe on inherited racial differences and IQ, I do agree that many differences between social groups are caused by heredity and biology and that talents and abilities clearly differ among the various groups. And from what I have been able to observe, homosexuals, like Jews and Asians, are human-overachievers. Just go into any neighborbood or geographic location where gays disproportionately congregate and check out the average property values! Bruce Bawer writes in this article how homosexuals, particularly homosexual men, seemed to be vastly overrepresented among the great geniuses who have given us the “Western Canon.”

Even if gays constitute as much as fifteen percent of the population, the gay contribution to Western art, architecture, music, and literature far exceeds what it should be statistically. If you accept the right-wing claim that only one in a hundred people is gay, then the gay contribution is truly extraordinary. Think about it: A group comprising one percent of the population producing Erasmus, da Vinci, Michelangelo, Caravaggio, Marlowe, Bacon, Hölderlin, Hans Christian Andersen, Tchaikovsky, Proust ... the list goes on and on to include three of the four major nineteenth-century American novelists, one (perhaps both) of the two great nineteenth-century American poets, and two of the three most noted mid-twentieth-century American dramatists.

Now I do fear what Fukuyama fears (but still don't endorse his position on biotech): Imagine if what Derbyshire writes about comes to pass and homosexuality as a condition is either wiped out entirely or virtually. And imagine that at the same time, we would be eliminating the genius contributions of a Michelangelo or a Proust. That would truly be a sad day for the human race.

More on Epstein:

Sandefur has an excellent post on Richard A. Epstein, out-and-out genius, and (lucky for us) libertarian superstar. I have seen Epstein speak on TV and heard him on radio and can attest that what Sandefur has written about him is accurate:

If you’ve ever heard him speak, you know that his written work sounds just like his lectures, which come out in fully formed, highly articulated paragraphs, at rapid-fire rate. They’re often very hard to follow, and so are his books, which are written at a very advanced level. Following Epstein requires understanding things like Pareto optimality, Prisoner’s Dilemma games, and other law-and-economics talk.

Watching his mind tick can be quite fascinating. I’ve often thought that I missed something by not having him as a professor in law school. Yet, I’m not sure if I would want to be tested by him or have to worry about understanding all of his lectures. It might be too challenging (and I’ve heard from at least one former student—a prominent blogger and a fairly accomplished pundit in libertarian circles, who shall remain nameless—that many of Epstein's students found his classes too challenging and abstruse).

In a subsequent post, Sandefur asks my advice on how Epstein puts his theory of approval of government forced exchanges that are Pareto justified, with government restraints on private discrimination. Let me note two points that Epstein makes in Forbidden Grounds (a polemic against anti-discrimination laws). First, like me, Epstein doesn’t believe that the pattern of segregation that we saw in the Jim Crow south could have persisted absent enforcement by state and local governments. He notes the efforts of segregationists to restrict the black vote as powerful evidence of this. “Without ironclad white political control, someone, somewhere would have tried to gain entry into local markets, given the supra competitive returns.” (Epstein, Postscript, 8 Yale Law & Policy Rev. at 331).

In those areas of life where explicit ordinances demanding segregation weren’t present, private violence enforced the color line and the Jim Crow governments let that violence go by refusing, in violation of the 14th Amendment, to enforce the “equal protection of the laws.” Moreover, Epstein points outs that state governments could also enforce collateral restrictions against such firms that bucked the color line—taxes, zoning permits, health inspections, and the like, “could be brought to bear on firms that did not toe the line set by Jim Crow.” (Epstein, Forbidden Grounds, at 246.)

Yet, Epstein would indeed be willing to allow for the existence of anti-discrimination laws in the private sector so long as they were Pareto justified. But the problem is, according to Epstein, they clearly aren’t. Much of Forbidden Grounds and his law review articles on the subject were written to demonstrate this. Here is a passage from my unpublished law school paper on him:

According to Epstein, the rate of black social progress does not correlate well with the expansion of civil rights enforcement. The figures cited by [James J.] Heckman and [J. Hoult] Verkerke [two scholars whose work attempts to justify such civil rights legislation in private markets] show that the greatest black gains occurred immediately after the passage of the Civil Rights Act, and then leveled off after 1975. These gains coincide with the dismantling of the Jim Crow system, not with greater civil rights enforcement in private markets. Blacks made the greatest gains when the budgets available to the federal government were small and the EEOC was limited to the task of reconciliation and mediation with no specific enforcement powers. A greater push for civil rights enforcement in private markets came after the 1970s. The disparate impact theory was adopted in 1971. The EEOC was given judicial enforcement powers in 1972. The Supreme Court did not fashion the present day disparate impact tests until the mid-1970s. Voluntary affirmative action for blacks and other protected groups did not receive official Supreme Court sanction until 1979 and a stronger consensus emerged to make civil rights enforcement a national priority. Yet, as the engine of civil rights enforcement gained its greatest momentum, black progress slowed down, and perhaps stopped.

The black middle class did indeed continue to make gains throughout the late 1970s and onward. But around the 1970s, black unemployment rose such that it was worse in 1990 than it was prior to the passage of the Civil Rights Act of 1964. The black unemployment rate rose faster than the white rate did after 1975 when civil rights enforcement reached its mature form. Not only did Title VII not result in shrinking the unemployment gap between blacks and whites, Title VII’s regulatory constraint on private markets most likely, in Epstein’s opinion, contributed to the increasing black unemployment rates. In short, if the law makes it harder to fire people, the unintended consequence might be that that firms will less likely hire them. But if firms don’t hire blacks, aren’t they discriminating against them at the entry level? Well if you avoid interviewing blacks, it’s harder for a claim of discrimination to be advanced than if someone makes it to the interview but then gets turned down (or gets hired, then subsequently fired). Note this recent finding heralded by civil rights activists.

Anyway here is what I wrote on Epstein and whether antidiscrimination laws are justified under social welfare criteria [with some updated paraphrasing]:

Within economic theory, two ways exist in which to measure social welfare, by summing of individual welfare. The first is Kaldor-Hicks, which asks “do the winners from the social program obtain enough in benefits that they could wholly compensate the losers from that program and still come out ahead?” (Epstein, The Paradox of Civil Rights, 8 Yale Law & Policy Rev. at 301.) The Pareto test is the second. This test insists not only that compensation is sufficient to leave all parties at least as well off be not only payable, but also paid. (In other words, the winners have to compensate the losers for their loss—but the winners get the keep the excess gain). Some direct evidence of an overall shift in social welfare attributable to the Civil Rights Act is needed to justify the Act. According to Epstein, it is appropriate to adopt a standard that requires all white gains to meet the Pareto standard (so that no black losses occurred), and simultaneously justify black advances under Kaldor-Hicks (so that black gains exceeded white losses). In examining the relative wage figures provided by Heckman and Verkerke, Epstein concludes that neither test for social welfare can be justified using the relative wage measure. For instance, if black wages remain constant at $80, but white wages fell from $100 to $90, this move would show up as a favorable reduction in the relative wage ratio. Yet, this move would also likewise fail the relevant social welfare justificatory tests. If the black/white ratio reduction occurred along with rising absolute wage levels for both groups, the reduction would still not evidence a social benefit, unless it is also shown that “the overall rate of increase was as large as it could have been without incurring the administrative costs and allocative dislocations associated with the statute.” (Id.)

In my paper I note Rutgers Newark University of Law Professor Alfred Blumrosen, who sums up a critique that I’m sure many readers already may have in mind: “[C]ivil rights are a quest for individual and collective dignity—concepts that Epstein has difficulty converting to dollars.” (Blumrosen, Responses to Epstein, 8 Yale & Policy Rev. at 321.)

Postscript on economic discrimination:

Timothy Sandefur has a post that includes a reaction to my previous post on the matter.

And let me reproduce an email written to me by Bill Ware that he has posted on his blogsite regarding the nature of racial discrimination before the civil rights revolution:

Jon,

I enjoy your blog and comments on others.

I have to comment on your "Does economic discrimination deprive liberty? And what about its rationality?" post due to the fantasy land nature of your argument.

When I was a teen in the late fifty's, I asked my father why he didn't hire a Black to clerk in the retail store associated with his wholesale paper business. He said that if he did, he would lose half his customers.

This was in Northern New Jersey in a suburb that included many second and third generation emigrants who's parents had been successful after arriving in New York City. This was about as multicultural a group as one could imagine, well off and well educated for the most part. There was no government sanctioned segregation of any kind. There were Blacks in grammar school and high school and so on. We all got along fine.

Yet I could see my father's point.

So your suggestions that discrimination in employment could lead to a delay in hiring, overtime pay in the mean time, or paying more or having to do with someone less qualified are all trivial economic concerns when the alternative is losing half your customers.

When all businessmen react the same way, the economic effect on Blacks can be horrific. Yet no businessman could be the first to go against this reality, no matter how abhorrent they found it, because of the economic consequences to their business.

When the government initiated it's anti-segregation laws in the mid 1960's and applied them to businesses engaged in interstate commerce, which included virtually all businesses, it eliminated the economic disadvantage one company would have if it were the only one to hire Blacks by making this requirement universal.

How long would it be in a laissez-faire, market driven system, free from government interference before the first Black waitress was hired to serve at a South Carolina drug store food counter? We'd still be waiting.

Best regards, Bill

[Update: Sandefur posts a brief response to Bill Ware's comments.]

Reactions to my post on economic discrimination:

My last post on discrimination provoked some thoughtful reactions. First from Timothy Sandefur. This passage boils down the point:

Part of the problem lies in the concept of “state action,” as I’ve written earlier. If everyone in the state makes an agreement (even sub silentio) not to engage in trade with blacks, even if they don’t stamp that agreement with the state’s imprimatur, it is still a social compact, which means that it can’t pretend not to be state action. On the extreme, we get to the point that Mississippi was in in the 1950s, where a black person could legally register to vote, but never did so because blacks were all tenant farmers, and their white landlords would evict them if they dared to register to vote. I don’t know a laissez-faire policy that would prevent this from occurring. As Frederick Douglass put it in his response to the Civil Rights Cases, “[w]hat is a State, in the absence of the people who compose it? Land, air and water. That is all.” Rowe is certainly right that a person has the right to discriminate in almost all cases, but when that discrimination reaches such a massive collective agreement, it becomes state action, I think, and subject to the same objections as state discrimination: that since all men are created equal they have the equal right to consent, and should not be taxed to support a government that burdens them unequally.

This pretty much comports with what Richard Epstein has written in Forbidden Grounds where he argues that private discrimination ought to be allowable except when such discrimination is committed by those with monopoly power or who qualify as common carriers. I think it would be wrong, however, to suggest that even during the worst periods of Southern racism that whites as a group would act so single mindedly as to make private discrimination in most aspects of life the equivalent to an exercise of monopoly power. This is because those southern racists were still rational human actors (even if their racism was not rational). And the Jim Crow system of segregation in nearly all aspects of life (whether officially mandated by the government, or “customarily” mandated) was a fundamentally economically irrational system. Supra-competitive gains could be made by the few whites who would be willing to buck the Jim Crow line. Even racists would be willing to line their pocket-books.

So why didn’t they? Well for one, in certain circumstances it was explicitly against the law in order to do so. But the story is not so simple. I realize that there were many circumstances where racial segregation was not officially mandated but the patterns persisted anyway. So why couldn’t those self-interested whites, who wished to say, hire the available labor pool of blacks, or serve them in their restaurants, (thus taking their $), do so and realize the gains, if no such “official statute” prevented them from doing so?

Jason Kuznicki, in his response to me, nails the answer:

It strikes me, though, that this counterfactual is overworked. State violence was not the issue in the Jim Crow South. Non-state violence was key, and it took only a small measure of private violence to ensure that even the rational traders of the region could not do business without discriminating. Nonstate actors like lynch mobs and the Klan would see to maintaining the system, either through direct violence or through its persuasive threat. This violence also had the effect of perpetuating racism in the subsequent generations, as children grew up learning to follow the color line even before they understood what it meant.

Now Jason writes this paragraph in attempting to demonstrate, contra my claims, that Jim Crow was not about state, but rather private action. But in reality this was state action. And not only was it state action, but it was the type of state action that the framers of the 14th Amendment were keenly aware of and concerned with eradicating. Before I explain this in detail, most of us know that the nature of what the 14th Amendment is supposed to do is highly contested (for instance, did it intend to incorporated they Bill of Rights against the states?), and we also know that the 14th Amendment was clearly intended to apply to state, not private, action. This is why the Civil Rights Act of 1964 was passed not under the 14th Amendment, but rather under the Commerce Clause of the US Constitution. If the Amendment only outlawed government action, instead of private commerce, then it could have been passed under the 14th Amendment.

As much as the nature of the 14th Amendment is contested, what is uncontestable is that the type of “private action” that Kuznicki refers to that really is government action, is what the framers of the 14th Amendment clearly intended to eradicate. In fact, this is what a textual reading of the Equal Protection and other related clauses of the 14th Amendment, clearly on their face, seem to deal with. When the lynch mobs or the Klan either took violent action or threaten to take such action to enforce the color line, there were general laws that were on the books that illegalized all such behavior. It was the obligation of those state governments to figure out who was behind the violence and prosecute them to the fullest extent of the law. But they didn’t do that. In many cases the same local cops, lawyers, and judges whose responsibility it was to carry out the laws were the same fellows behind the masked robes threatening and carrying out violence. So the police wouldn’t arrest, the prosecutors wouldn’t prosecute, the courts wouldn’t convict and the state governors wouldn’t intervene.

The equal protection clause of the 14th Amendment reads, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Whatever else this clause may mean, at the very least, the framers meant it to mean that if you have a general statute on the books, for instance a murder statute, or one preventing assault or intimidating threats, that it be applied equally to all persons even if they be black or the whites who desire to do business with blacks. So if the Klan threatens or does violence against those folks, state officials have a federal obligation to apply the laws that deal with such violence exactly as they would apply them in a circumstance where a black person would commit violence against a white, or where anyone commits violence against anyone else. The police, governors, and courts have a federal obligation to protect blacks just as they would whites.

Moreover, everyone’s common law rights should be protected and applied evenhandedly—blacks, just as whites, have an equal right to sue and be sued, to give evidence, to enter into and enforce their contracts, and to sue in tort to be civilly compensated for harm done to them.

So if the Klan beats up a black guy or a white guy who wants to do business with blacks, the victims have a federal right to go into court and sue and collect tort damages just as the case would be if one white good old boy beat up another one. That’s what the most conservative “strict constructionist” or liberal “living constitutionalist” ought to agree that the equal protection clause, at the very least, was intended to mean.

The type of private violence that Jason refers to was indeed key to understanding the enforcement of Jim Crow. But it was also wholly within the reach of the 14th Amendment. But the solution that Congress opted for—outlawing wholly peaceful private discrimination as well—was not only not passed under the 14th Amendment (it couldn't have been), but instead relied on the Court’s specious post-Wickard v. Filburn understanding of the Commerce Clause, passing it there, under very shaky constitutional grounds.

Does economic discrimination deprive liberty? And what about its rationality?

Jason at Positive Liberty takes aim at my hypothetical where I attempt to demonstrate that (private) discrimination doesn’t deprive anyone of liberty, yet forbidding such discrimination clearly does.

He writes:

Economic activity has not fallen under the same rubric as intimate conduct, and with very good reason: The right to engage in commerce is something more or less guaranteed to all. The right to have whomever one desires in love is not.

A better example would run something like this: Phil asks Marcia on a date. Marcia refuses, because Phil has a long history of treating Marcia and all her relatives badly. Phil convinces hotel and restaurant owners in a dozen states that they should never serve Marcia, her relatives, or any of their descendants for all eternity. He does the same for the banks, the lawyers, the doctors, the department stores, the golf courses, and even many institutions of higher education. Marcia soon discovers that if she wants even a halfway decent shot at life, she may have to avoid a whole region of the country.

It seems to me that the question we should ask is not whether Phil has used the government to achieve his ends. Yes, such a use would be wrong. But the more salient question is whether Phil--acting very nearly as a quasi-governmental agent himself--has infringed on Marcia's presumed freedom to engage in commerce.

The law rightly scrutinizes corporations more closely than individuals in this matter, because corporations have a great deal more practical power than individuals do to harm other individuals' freedom of commerce. When an individual discriminates, it makes much less difference than when a corporation does. And when a league of corporations stretching across a wide swath of the country discriminates, the effects are even worse.

Yet I think I could have just as easily—with only slight tweaking—turned my Phil & Marcia example into an economic one and I don’t think the outcome would have been any different. Moreover, I submit that in order for Phil to be able to effectively convince enough private businesses to discriminate against the “Marcia clan” such that they will “discover[] that if [they] want[] even a halfway decent shot at life, [they] may have to avoid a whole region of the country,” Phil would have to get his grimy hands on the organs of the state to accomplish this feat. This outcome cannot possibly occur in a competitive market full of self-interested business-folk, without such government coercion.

Maybe this is Providence, but a paper that I wrote in law school on Richard Epstein’s polemic on employment discrimination, Forbidden Grounds, is staring me right in the face. So let me quote from my unpublished work:

Private discrimination in a free market radically differs from the use of force. The person who discriminates against another for any reason has power only to refuse to do business with that particular person. The victim of the discrimination, unlike the victim of force, “keeps his initial set of entitlements—life, limb, and possession—even if he does not realize the gains from trade with a particular person.” (Forbidden Grounds, at 30). Potential victims of discrimination can migrate to the other tail of the distribution and seek out those people interested in doing business with them. For example, if 90 percent of the people are opposed to doing business with a particular person [or class of persons], then that person [or class] can concentrate on doing business with the other 10 percent [or with one another—just look at how much successful business the gay community does with one another]. As long as the tort law effectively prohibits the forceful interference with contracts, a person’s enemies are powerless to block her mutually beneficial transaction with others by the use of force.

Shortly thereafter, I discuss why firms [and I see no reason why this wouldn’t include big corporations, who are in the business of maximizing profits for shareholders], absent coercion by government, would not do to the Marcia clan what Jason above describes:

Epstein and [economist Thomas] Sowell claim that a dominant majority in a free employment market will not effectively disenfranchise any particular group of people. Strong economic incentives against such behavior exist in competitive markets. Those who decide not to trade with or hire certain people because of race, sex, or age, etc. incur needless costs, even as it leaves those who are discriminated against free to pursue alternate opportunities. “The greater the class of persons who are regarded as off-limits, and the more irrational the preferences, the more the decisions will hurt the people who make it, and the more numerous the options it will open to rival traders.” (Id. at 42.)

Sowell gives specific examples of how such costs bear themselves out in the real world. When employers refuse to hire an individual simply because he or she belongs to the “wrong” group, “they must either take longer to fill their vacancies, or accept less qualified people, or pay more to attract a larger pool of applicants to select fully qualified people solely from the preferred group.” (Thomas Sowell, Race and Culture, at 88.) If discriminating employers choose to let their job vacancies remain open longer, rather than hire members of the disfavored group, then delays in accomplishing business goals often result in slower sales and loss of customers due to customer dissatisfaction. A shorthanded workforce can also lead to overtime work at premium wages to get the work done.

A categorical refusal to hire individuals because they belong to the “wrong” group invariably leads to paying more than necessary to hire someone from the group that the employer prefers. Meanwhile, non-discriminating employers employ their workers at market price. These employers stand to make greater profits and eventually displace their competitors who impose higher labor costs on themselves by hiring labor at pay rates above what is necessary to get the same work done. The firms with cheaper production costs can afford to undersell the discriminating firms in the product market, while still making a profit and in fact earn that profit on more units sold, because of cheaper prices. The point that Sowell makes is clear—those who continue to practice irrational discrimination do so at their own peril. “The particular choices made may vary with the employer or the industry, but the costs of discrimination remain inescapable in a competitive marketplace, and vary only in the form they take.” (Id. at 88-89).

Linked on sexual orientation & anti-discrimination policy:

Thanks to Jason at Positive Liberty for a pretty detailed analysis of a post of mine regarding sexual orientation discrimination codes and libertarianism.

A couple of reactions: First when discussing what antidiscrimination policy actually entails, Jason puts it this way:

We must either [if we have no anti-discrimination laws] 1) infringe on the liberties of racial and other minorities by allowing bigots to discriminate or [if we do have antidiscrimination laws] 2) infringe on the liberties of bigots by forbidding bigots to discriminate. Given these options--and accepting the premise that someone will have to lose some liberty--Volokh chooses option two, albeit with some hesitation, because taking anyone's liberty is always a bad thing.

Now, I’m not sure I agree with this characterization. That is, I don’t agree that allowing bigots to discriminate infringes on the liberties of racial and other minorities, unless of course, the bigots are using the organs of government to do the discriminating. But when bigots are forbidden to discriminate in the private sector (using their own property—their businesses, their real estate, their capital) then I think this does infringe their liberty.

Let me use dating as an analogy. Say Phil asks Marcia out on a date. And Marcia thinks Phil is a real troll. So she says no and no date occurs. Has Marcia diminished Phil’s liberty? I don’t think so. Phil is left with the exact same set of possession after the rejection than he had before. But if we don’t allow Marcia to discriminate—if we force her to date Phil when she doesn’t want to—then I think it is clear that her liberty is diminished.

As far as the 1964 Civil Rights Act is concerned, I agree it was a good Act. But, in my mind, it was good for one reason and one reason only: It helped to put the final nail in the coffin of Jim Crow, which was a state enforced system of discrimination. To the extent that the Civil Rights Act presently forbids private parties from discriminating, with no connection whatsoever to any kind of government discrimination, it should be repealed.

Jason likes an idea that I put forward (but reject) regarding generic antidiscrimination policy that I later reject:

Jon Rowe hits on a formula that I much prefer, even while he himself seems to reject it later on. Here is the formula I like:

...a code that says something along the lines of "any and all job decisions shall be made strictly on the grounds of merit" and "any behavior that is not illegal shall not serve as grounds for adverse job decisions." Arguably gays--like smokers, pork-eaters, short people, red-heads, flat-chested women or those with breast implants, guys that are too skinny or who have a beard--would all be protected against adverse decisions under such a policy, even as they receive no special protection on the official "civil rights list" that includes race, gender, religion, age, etc.

As far as I know, some governments are actually subject to such a code. I think Colorado had a very similar one when the Romer v. Evans case was decided (That's what I was thinking of. As I remember, Scalia discusses it quite a bit in his dissent). And such a policy would indeed be workable in the public sector where just about all job applicants are taxpayers and ought to be treated as evenhandedly as possible (AND where government holds a monopoly, and can pass off the cost of irrational discrimination to the taxpayer, such a policy would probably help to guide government’s hand towards economically rational decisions).

However, the impression I got from his post, Jason might wish for such a policy to be mandated in the in the private sector; such a broad policy in the private sector would constitute a radical turn away from employment at will, which is the default rule (subject to quite a few exceptions nowadays—like anti-discrimination policy). But employment at will represents the maximum freedom that both sides of the employment contract possess. While I have no problem tying government’s hands with a rule that says, “merit only,” I would have a big problem with such a rule in the private sector as a major diminishment of freedom of employers. How would we, as employees like it, if we had to put forth such a reason if we wanted to leave a job?

I agree with Brayton:

Timothy Sandefur was kind enough to send me this article as well. And it is a classic! It serves as a very nice complement to Randy Barnett's book on the Constitution & Liberty to boot. I hope Sandefur will be able to get this posted online one day. And, in the meantime, I plan on using it for future blog material.

What is bisexuality?

Here is an interesting article on the nature of bisexuality and the common confusion that surrounds this phenomenon (and I think the author is somewhat confused as well).

The term bisexual is misleading. Society at large believes this term means someone who likes both sexes equally. This assumption, which I also held for a long time, is not true. Most bisexuals lean one way or the other (most often towards members of the opposite sex).

Later on in the article the author talks about the need to clarify our language & definitions. Let me offer a suggestion: There are 2 types of bisexualities which I will categorize as “type 1” and “type 2.” Type 1 is “authentic” bisexuality. And this means that the person is roughly fully and evenly attracted to both sexes. That indeed is the proper definition of bisexuality. There are very few type 1 bisexuals (Truman Capote didn’t think they existed at all), but are much more common among the female gender. They are so rare among the male gender that one wonders whether any male true bisexuals exist at all.

Type 2 bisexuals are folks who are fully attracted to one gender, but have some sort of diminished attraction to the other. In my opinion, this covers a huge portion of the population. And most of these folks do not self define as bisexuals (nor should they) and most have regular sexual or romantic relations with that gender to which they are fully attracted (again—as they should). They are not real bisexuals. On the gay side, Jim McGreevy, Leonard Bernstein, Anthony Perkins (all those gay men who married & fathered children) might be this kind of bisexual. On the straight side, Hugh Hefner, Mick Jagger, David Bowie, Marlon Brando, James Dean, and Cary Grant may have been this type of bisexual.

Now, I don’t know what % of the population are type 2 bisexuals. I’ve heard some argue that 100% (that everyone has some sort of bisexuality, no matter how miniscule). I don’t know if I buy that. But it’s possible that as much as 20%, 40%, 70% of the population has *some* sort of bisexual orientation. Until people are upfront about their true feelings, I don’t think we’ll ever know the exact amount, other than it's more than just a nominal % of the human race.

Now here is where the confusion occurs: Society is constantly confusing these 2 phenomena. For instance, if 70% of the gay population have *some* degree of bisexuality, there are those who would mistakenly conclude that 70% are true bisexuals, with full and even attraction to both genders; hence 70% can choose who to settle down with. Or if 70% of the heterosexual population has *some* degree of bisexuality, then all of that pro-gay propaganda could lead to 70% of society going gay.

This is a mistaken assumption and it illustrates why only type 1 bisexuals should categorize themselves as such. Type 2 bisexuals should identify only according to that gender to which they are primarily attracted. Dan Savage once wrote that a guy who is 90% attracted to women but 10% attracted to guys should not identify as bisexual, because if he did, then gay guys are going to think that they have an even shot at a date with him, when, in reality, they don’t.

The only people who have a true choice as to which gender to settle down with in the long run are true (type 1) bisexuals. Society demands that when men & women do settle down, they be exclusively committed to one another. And I submit that each of us needs a full attraction to that person with whom we, in the long run, attempt to form meaningful relationships. Even when you are madly in love & lust with someone when you first meet them, no honest person can tell me that you feel the same way 10, 20 or 30 years later. That’s not to deny that there can be strong and satisfying romantic and sexual activity during all of this time. But please, sharing a bathroom with someone, seeing them warts & all for 20 years…it’s just not going to be the same as it was when you first met. And if the full attraction isn’t there to begin with…well it’s just not possible to make it work in the long run. This is why gay men who marry women, like McGreevy, find that they can perform sexually for a little while, but then just get to a point where they hit a wall and can’t do it anymore. Just try having exclusive and regular sex—say 3 times a week—for years, with someone to whom you might have *some* degree of attraction, but not full. That act is going to get real old, real fast.

Or take guys like Mick Jagger & David Bowie, both of whom had experimented with (and presumably enjoyed) homosexual behavior in the past. But both also evidenced a predominant heterosexual attraction. Take those guys and put them in an exclusive, monogamous, homosexual relationship—make them swear off women, and then expect them to have regular sex with their male partners, with whom they may have *some* but not full attraction. I would predict that they would, within a relatively short period of time, be just as miserable and feel just as trapped as do gay guys who get married to women and feel trapped, needing to come out.

On a similar note, most hetero guys—even the real gay friendly ones—claim that under no circumstances could they ever enjoy any kind of same-sex contact, thus leading to the impression that there might be some kind of “innate revulsion” to homosexual behavior. I used to buy this. But then, I did a little cross-cultural and sociological research and found evidence that belies this. Now I’m not denying that a significant % of the male population may have absolutely no sex-same attraction. But I believe that just as significant a % probably does. But the point is, even if *something* is there, if it’s not the full attraction (and that exists within maybe 4% of the male population), then that person is not gay, or even a real bisexual. The problem is, if a hetero male were to admit that he could possibly enjoy a homo act, even though that’s not where his predominant orientation lies, there are many in society who would accuse that person of being either “gay” or fully bi. And that’s just not the case.

So what is the evidence that I relied upon in drawing this conclusion? Very simply this: If that 96% of the male population who are self-identified heteros had an innate revulsion to all things homosexual, then we would expect to see this level of absolute exclusive heterosexuality as a constant across various cultures and sociological circumstances. But we don’t. There have been times and places where significantly more that 4% of society has engaged in homosexual acts and in some places literally 100% of the population engages in such acts as rites of passages (like the citizen class in Ancient Greece, or the Sambians of New Guinea, where, according to Judge Posner in Sex & Reason, they have “made a form of pederasty mandatory. All adolescent boys are assigned adult male lovers whom the boys fellate; the ingestion of adult semen is believed to be necessary to male maturation.”). And here is the rub, in those times and places where huge majorities of certain populations participated in homosexual behavior at some point in their lives, there continued to exist the same consistent percentages of adult homosexuals (that is those who have an exclusive or overwhelmingly predominant homosexual orientation) as everywhere else: around 2-3%. In Ancient Greece, all members of the citizen class would participate in man/boy homosexual acts, (essentially rites of passage for the entire group). But just about all of these males went onto marry women and have families. In both Ancient Greece and in Sambia there is NO EVIDENCE that exclusive adult homosexuality was any more prevalent there than it is in this culture or anywhere else. So much for the idea that experimenting with the behavior around the early teen years will lead to more homosexuals in the population. Practically every male, in those 2 cultures, experimented with the behavior, with the result being no greater incidence of exclusive adult homosexuality than we have today.

But, if there truly were some kind of innate revulsion to all things homosexual, we wouldn’t see things like this occur in human nature—these behaviors would just be unbearable (either that or we would have evidence that part of the rite was dealing with the “disgust” of going through the acts—and as far as I know, there is no such evidence of such disgust).

Now in our culture, we can observe circumstances where normal heterosexual males are put into circumstances where there is a lack of available females: Prisons, all-boys schools, navy boats. And when this occurs, what we see is that significantly more than the 3-4% of males (the % of true homosexuals) engage in homosexual acts. What we see is many “straight” guys desiring to use other men as “female substitutes.” Men who are predominantly heterosexual may very well have an aversion to playing the “passive” or “female” role in a homosexual relationship. But take away available women, and a shockingly high number of them will find that they can enjoy using other males as female substitutes.

Now, if they truly had an innate revulsion to all things homosexual, then we wouldn’t see this occur. Even if their cell-mate were as pretty as Brad Pitt or Leonardo, if they had an innate revulsion, they would choose masturbation for release every time. Maybe some men do indeed have this revulsion. But it is by no means universal. Now I’ve discussed this with some people who are skeptical of this theory and they argue that you can’t use these awkward or unusual circumstances to demonstrate that the innate revulsion doesn’t exist in a large % of the male population. But they are exactly wrong. We wouldn’t expect a man who has a full attraction to females, but some diminished attraction to males to ever participate in homosexual behavior except in such unusual circumstances.

For instance, in the same book, Richard Posner writes, about the case where a man sets a “value” of “twenty” on “sex” with a “woman of average attractiveness,” and a “value” of “two” on “sex” with a “male substitute” (quoted from Ed Feser article). This, I submit, is probably the typical sexual orientation of the many males, perhaps a majority of the human population, who have a predominant heterosexual orientation. Now, if such a male is overwhelmingly attracted to women in a way he is not attracted to other males, and if there is a stigma associated with homosexual sex, and if he had to go out of his way to go into the gay subcultures or cruisy public areas in order to have gay sex under “normal” circumstances, we should not expect him to ever have same-sex relations, under these circumstances. It would logically follow that he would only have same-sex relations if there were a shortage of available females. And when such a male who engages in situational homosexuality under “abnormal” circumstances (the navy boat, the prison) returns to normal life, we observe that he goes back to exclusive heterosexual relations. Thus, he is not gay; he is not bisexual. He is a heterosexual who has the capacity to enjoy homosexual acts. He is normal.

Prank Calls & the Law:

Who would have known that trying to market your own prank phone call CD would require so much legal knowledge?

BTW: The guy that I link to is quite good; I have all 4 of his CDs. He has a quite novel idea: Incoming prank calls. He pranks people who call him, instead of him making outside calls. Now you may say, that doesn’t sound that original. But here’s the way he does it: He gets 800 #s that are like one number off from those of other firms, some of them quite big (he received such a high number of UPS’s calls that he ended up in a legal dispute with them. Check out this letter that was sent to him by UPS’s lawyers). People misdial & think they are getting say UPS, and he plays along. He then, using a variety of killer voices, treats them with unmerciful rudeness. And they tend to act how you would expect someone to act if you had just called customer service from a reputable firm and talked to some rude asshole.

When I first heard his recordings, I thought that he had found some way to intercept calls to businesses or maybe that he moved in and out working as real customer service for a variety of these businesses for the sole purpose of getting to make these CDs. UPS too thought that he had some method of illegally diverting their calls. Nope. Just similar 800#s and careless fingers when dialing (makes for one funny recipe!).

Terrorism: Weapon of Losers:

From the indefatigable PJ O’Rourke:

As frightening as terrorism is, it's the weapon of losers. When someone detonates a suicide bomb, that person does not have career prospects.

And no matter how horrific the terrorist attack, it's conducted by losers. Winners don't need to hijack airplanes. Winners have an air force.

Happy Constitution Day!

Happy Constitution Day!

Thanks to Volokh for the link:

Regarding one of Les Kinsolving's bizzare anti-gay rants, where he blames gay marriage advocates (the "sodomy lobby" he calls them) for wanting to "slip" down the "slope" into a type of marriage that has never been illegal in the first place.

[Update: And thanks to Julian Sanchez at Reason for the link as well!]

Who knows whether the allegations are true:

If they are it could be another “televangelist scandal.” It is being alleged that Paul Crouch, president of Trinity Broadcast Network had a homosexual affair. There was a payout to a former employee. But in reading the facts involved—in all likelihood it could be a simple shakedown with no truth behind it (he was a disgrunted former employee. And while innocent parties generally don't pay strangers, sometimes employees that organizations are attempting to get rid of are paid to go away and not cause trouble...but then again...).

I formerly had this network on cable—what a laugh it was to tune in. They reinforced all of the clownish stereotypes of fundamentalist televangelists (this is Benny Hinn’s main stomping grounds).

And from what I understand, many very serious doctrinaire fundamentalists loathe TBN for what they see as heresy on that network.

And have you seen Paul Crouch’s wife, Jan Crouch? She makes Tammy Faye Bakker look like Margaret Thatcher.

Are hetero S&M marriages illegal?

Rightwingnut Lester Kinsolving is all up in arms about an email that he received from gay rights pioneer Dr. Frank Kameny, who suggested that perhaps purveyors of S&M have a “right” to partake in the behavior and marry one another.

Kinsolving wrote in a previous column:

What if Mr. One-Heartbeat-Away in the White House had a daughter who was a masochist who fell in love with a sadist? (And she loved being beaten, as much as her lover enjoyed beating her.)

Would Mr. Cheney have announced in Davenport his support of weddings with leather dresses, whips and chains?

To which Kameny responded:

If a sadist and a masochist wish to marry, on that disclosed basis, what possible rationale is there for prohibiting such a marriage? There is none.

The rest of the article—Kinsolving’s hysterical reaction—is what you would expect from him. But my question is, under current marriage law, if the marriage is between one man and one woman who happen to be S&M enthusiasts, is such a marriage illegal in any state in this nation? If the answer is “no,” then there already exists such a right, so what is Kinsolving so hysterical about? If the answer is “yes,” then I’m completely unaware of this, could someone please fill me in? If a prospective husband and wife like to partake in S&M, and if they made it clear that “a lot of that” would be going on in their bedroom during the course of their marriage, on what legal grounds would they be forbidden from obtaining a marriage license?

Gay Marriage, Tradition, & Founding Principles:

Andrew Sullivan has an interesting piece on gay marriage where he makes the case (like Jonathan Rauch) that the gay marriage battle is best fought at the state level. But he also recognizes, paradoxically, that this issue is not at heart, wholly a “states rights” issue. Sure marriage & family law are primarily within the domain of state law. Yet, civil rights—in this case, the right to marry—are established federal issues.

Should the case come before the Supreme Court, I think a strong case can be made that the right for gays to marry the person whom they love is a federal right that no state may abridge. If I were on the court, I could be persuaded that the right to marry constitutes a “privilege” under the 14th Amendment’s “privileges or immunities” clause that no state may abridge. Moreover, the ban on gay marriage is also governmental gender discrimination, which, according to established precedent is subject to “intermediate scrutiny” (which is heightened scrutiny, unlike the default “rational basis” test). Thus, the combination of the denial of a right to marry the person one loves combined with the heightened scrutiny of the suspect gender classification would be enough to declare gay marriage a constitutional right under the 14th Amendment.

Yet, like Sullivan, I don’t think the Supreme Court ought do this…at least not yet. This probably angers many gays & their supporters because “equality” isn’t something that folks ought to have to wait for. Moreover, as a matter of principle, right is right and wrong is wrong. If it’s wrong to deny gay marriage in say 40 years, it’s just as wrong to deny it now. I don’t believe that morality evolves (but our understanding of what constitutes right & wrong, certainly changes with the times—usually our understanding betters), and I don’t believe that the Constitution is a “living document” that should change with the times. I don’t believe that denying gay marriage ought to be “constitutional” one minute, and then unconstitutional the next. If the Constitution, properly understood, demands gay marriage be recognized, I understand the sentiment that would argue for this right being recognized at the federal level, now rather than later.

But if history teaches us anything, it teaches us that, unfortunately, it’s necessary to make temporary compromises with unchanging ideals. That sometimes, it’s just not feasible to secure an ideal at the moment—justice sometimes must be delayed.

And our founding is instructive. This nation was not founded on “slavery”; rather we were founded on the antithesis of slavery—that “all men are created equal” and endowed with certain unalienable rights. Yet, it simply wasn’t possible at that time to secure the consent of the southern states to join the union (also necessary according to our founding principles) and abolish slavery. So that ideal had to wait before being fully secured.

It’s true that recognizing gay marriage would constitute a radical break with tradition. Yet, the modern principles of political and natural right that found nation also represented a radical break with tradition. Contrary to the revisionism that goes on in some circles, America was indeed founded on the same Enlightenment principles of “liberty” and “equality” as the French Revolution. If conservatives don’t agree with this, then let me quote Francis Fukuyama, whose intellectual and conservative bona fides are beyond reproach, from his booknotes interview on The End of History and the Last Man, to support my contention:

Now, by the French Revolution, we don't mean just the limited historical event; what we mean is the emergence of what we understand as modern liberal democracy because in the French Revolution, ultimately what it was about was a revolution in favor of the principles of liberty and equality. Now you could substitute the American Revolution for that because, I think in that kind of ideological sense, those two revolutions were equivalent. I mean, they were both revolutions to create what I earlier defined as a liberal democracy as a political system based on popular sovereignty with guarantees of individual rights.

But the French Revolution turned out to be much different (worse) than the American. What were the major differences? They were not primarily ideological (Jefferson, one of the most important “thinkers” of the American Revolution, supported the French), but rather methodological. Both revolutions represented a radical break with tradition. But what the French sought to do was immediately reshape society according to those revolutionary ideals and throw out everything that it deemed inconsistent. Yet, because human beings are human, and thus error prone, something went drastically wrong along the way and their society went into convulsions. In essence, they moved too far too fast.

The American Revolution on the other hand, founded itself on the same revolutionary principles, but didn’t try to reshape then present society very much at all. Modest changes were implemented and most of the old order was left intact. But many aspects of the old order that were left intact were flat out inconsistent with our revolutionary ideals: slavery, state establishments of religion and impingements on the free exercise thereof and religious tests for public office, and other forms of racial, ethnic and gender inequality, etc. Yet, those revolutionary ideals weren’t going away and over time these illiberal vestiges of the old order would be challenged. And society would be transformed gradually. Slavery ended in 1865. The states, by themselves, disestablished their churches and granted free exercise rights. By the time the 14th Amendment passed, state establishments of religion were virtually gone. Eventually the 14th Amendment would apply the bill of rights to the states. Many of the changes that society experienced in the 20th century (the greater, more universal expansion of liberty and equality rights) were necessarily implied by our founding principles.

But the bottom line is, by making slow and gradual changes (when the time was *right* for each change), America far more effectively implemented those revolutionary principles. The French Revolution shows us what can happen when we move too far and too fast in the pursuit of the greater good.

So back to gay marriage. What should the Supreme Court do? Not take a gay marriage case in the meantime. If they took such a case, in principle, I might wish them to decide in favor of gay marriage. But, if done too early, it could blow up in our faces. Better for them not to take the case, or if 4 members decided to grant cert., dismiss it on a technicality like they did with the Newdow case.

How many states currently have recognized gay marriage? One. Even though the equal protection clause was passed in 1868, Loving v. VA wasn’t decided until 100 years later. And how many states prohibited interracial marriages at the time Loving was decided? Only 16. There once was a time when sodomy laws were universal throughout the nation. How many were still on the books when Lawrence v. Texas was decided? Only 13.

So let’s fast forward 30 or 40 years when say, 35 or so states have voluntarily recognized gay marriage. Then, that’s when the Supreme Court should take the gay marriage case and guarantee such a right.

Never Forget:

What those bastards did to us!

Islam doesn’t need a Reformation, but an Enlightenment:

Sandefur beat me to the punch in commenting on this spot on post by Jason at Positive Liberty. Here is the money passage:

It is a common platitude that Islam needs a Reformation, a Martin Luther to modernize and shake things up a bit. Whenever you hear this platitude, you may rest assured that the speaker is wholly ignorant of history. Reformation is probably the last thing that Islam needs--and a Reformation in Islam is certainly the last thing that we need.

In 1500, Christianity lay unconsidered and rather lightly upon the shoulders of Europe. It was gaudy, more than a little superstitious, perhaps a bit mildewed at the edges--but above all, the Christianity of 1500 was not nearly so violent as it had been in earlier times.

The great medieval heresies had almost all been extinguished; the Crusades were but a memory. Significant tensions still existed between Christianity and Islam, but inside Christendom, religious warfare was looking more and more like a thing of the past. Across the Catholic Church, a wide variety of different religious practices and doctrines actually flourished, beneath the radar of the establishment.

But by 1550, all of Europe was in an uproar. The intellectual apparatus of the Reformation was substantially intact, and all of the major arguments had appeared on the scene in some form. Ecclesiastical courts, both Catholic and Reformed, subjected every practice, every doctrine, to the most exacting scrutiny, resorting quite often to fire and the sword. Whatever good the Reformation may have done to Europe's souls, it extracted an astonishing price in blood.

Religious warfare had returned with a vengeance; killing for God suddenly made perfect sense once more, and well over a century would pass before that urge subsided. The Reformation was a ghastly atrocity from start to finish, full of fanaticism and cruelty.

Arguably, Osama bin Laden is the Martin Luther of Islam. But what Islam needs instead... is a Voltaire.

It needs science, skepticism, satire, and subversion. It needs a militant tolerance, one that is determined to stamp out fanaticism wherever it may lie. It needs someone to ridicule the foibles of Saudi high society--and to link them, mercilessly, to the cruelties of the Taliban.

And behind this Voltaire, Islam needs exposure to a society were tolerance is de rigeur, where being a citizen of the world comes before all else--and where the people, sometimes within living memory, have seen the ultimate consequences of intolerance.

A little bit eerie:

Beautiful day in the northeast -- not a cloud in the sky. This is the exact type of day that we had 3 years early on September the 11th. Except, today, it's the 10th.

Some thoughts on the three branches of government & questions of constitutionality:

Commonly held wisdom suggests that after Marbury v. Madison, the courts have the sole power over the constitutionality of laws. This is wrong. Rather (and appropriately in my opinion) the courts are the final stop (well, the Supreme Court in particular is “where the buck stops”) regarding the question of constitutionality, but the other two branches of government—if they do their jobs appropriately (and alas, more often then not, they do not)—have an equal say over questions of constitutionality. They just get their say earlier on in the game.

So how do Congress get to decide the constitutionality of federal laws? Very simple, they are supposed to know their constitutional limits, and they aren’t supposed to pass unconstitutional laws.

What about the executive? The President is supposed to veto unconstitutional laws. George Bush was not being a “good President” when he signed Campaign Finance Reform into law, doubting its constitutionality, and noting that it was up to the Supreme Court to decide that question. No, if the President believes a law to be unconstitutional, then the President has an obligation to veto that law (just as Congress has an obligation not to pass laws that are unconstitutional).

And the courts have far less power over what laws come into being than the other two branches of government. Congress and the President can prevent laws that are perfectly constitutional, yet unwise in their respective opinions, from coming into existence. The courts are allowed to strike down unconstitutional laws only (and have to justify their decision with a written opinion). Yet, unwise but constitutional laws must be allowed to pass.

Now I know many “conservatives” who decry “activist judges” would argue that courts often strike down laws that may be unwise (or not) but perfectly constitutional. Well, what about the much greater problem—a scandal if you will—of courts not striking down laws that they ought to? What about all of the unconstitutional laws that are passed by legislatures and signed into law by executives, that courts let go? Much of the federal law passed in the last 50 years and currently on the books is clearly unconstitutional.

Our founders envisioned a government with very limited powers. Government has certain limited “legitimate functions” and if the laws that government passes don’t fall into these very narrow areas of acceptable government power, then such laws are unconstitutional (or, at the very least, they violate natural right). While it’s true that state & local governments were given more leeway in their ability to pass laws in order to properly deal with the “minutiae” that state & local governments invariably will have to deal with (hence their general police powers, that the federal government lacks—or is supposed to lack), the principles of modern politics that found this nation likewise envision a strictly limited role for state & local governments as well.

When a court declares a law to be unconstitutional, it is effectively saying to some other branch of government (not the people), “you can’t." But when the legislature passes a law, more often than not, it's government saying to the people "you have to" (meaning government enacts a program which limits the liberty of the folks and forces or prevents us from doing X,Y, or Z). When courts are being “activistic” in striking down laws, they are in effect, operating in the tradition of conservatives like Ronald Reagan who are supposed to believe that “the government that governs least, governs best.”

It is the legislatures who pass laws (and the executives who sign them) that say, “the people have to.” They are the true villains. For instance, no court ever ruled Social Security into existence. And if we get socialized health care in this nation, it won’t be a court that is responsible for its coming into being. If courts are at all to blame, it is for not striking down these bureaucratic programs when the Constitution demands that they so do.

A Matthew Shepard before Matthew Shepard:

This event occurred in 1987. And although it did make the national news at that time, it received nowhere near the coverage of the Matthew Shepard case, and today, this murder is all but forgotten (nationally). People get murdered everyday, and while I have no objection to the amount of coverage that was given to the Shepard case and the consciousness that it raised about gay bashing, it received WAY more coverage than the Milano case, because, let’s be realistic, gay rights were at a more advanced stage when Shepard’s murder occurred, and political hay could be made of his case, at that time, that could not have been made at the time the Milano case occurred (even thought the Milano case occurred relatively not that many years earlier. But that just tells us how much progress gay rights have made in the past decade or so. For instance, in the socially liberal Northeast where I am from, neither my high school—in which I graduated from in 1991—nor any others in that general area, had “gay-straight alliances”; now practically all of them do).

In any event, the factual parallels are striking. The two assailants, now 40 and 35, were just about the same ages as the two in the Shepard case, when the murder occurred. And the victim, Anthony Milano, was 26, just a few years older than Matthew Shepard. The murder went down in the same way. Milano met these two “rough looking” guys at a local bar. They gave Milano the mistaken impression that they were “interested” in him. Milano left the bar with them. They took him to a remote area and brutally murdered him. Instead of being bludgeoned to death (as Shepard was), they slashed Milano’s throat “to the point where the coroner was unable to count the cuts.” “Both men allegedly made anti-gay comments prior to the murder, including: ‘I hate fucking homos,’ and ‘I hate fucking faggots,’ according to court testimony.”

A couple of interesting twists. The first is, this hits me literally close to home. The murder occurred in Lower Bucks County where I now live and where I grew up. One or both of the assailants graduated from my high school and the victim may have as well. (Pennsbury High School). One of the perps went to high school with my brother (is in his yearbook). The victim’s father was my best friend’s barber.

Right now I live in Yardley, which is a fairly upscale part of Bucks County, as is most of the real estate in Bucks (Yardley, Washington's Crossing, Doylestown, Newtown, New Hope, etc.). (And New Hope is a very artsy town with a huge gay population). But we also have our share of working class “blue-collar” towns as well: Levittown, Bristol, Langhorne, and Tullytown. The murder occurred in Tullytown and the 2-perps (and the victim as well) had a “blue-collar” background. Nothing against these folks—they are the “salt of the earth” and I’ve spent more than my fair share of time drinking in local bars with them (my older brother—who can be a bit of a “snob” sometimes—wouldn’t be caught dead in such a place where the “Pep Boys” crowd drinks). But I did notice, growing up, that the homophobia was stronger among that crowd as opposed to the more elite crowds in Bucks county (My high-school had a very “Outsiders”—the “greasers” v. the “socs”—dichotomy going on. Up until 11th & 12th grade, the Yardley [elite] students and the Levittown & Fairless Hills [blue collar] students of the Pennsbury system, were segregated in separate schools [nothing nefarious—we just went to different neighborhood schools]. Then in the high-school, they threw us all together [but today—it’s integrated though the 6-10 levels as well]. While there never were any “group brawls” that came down on class lines, those class lines were still evident and there was a lot of “behind the back snickering” that went on).

Hopefully, the gay-straight alliances in our public schools have tempered the homophobia that I noticed among many of the students generally, but more so among the blue-collar crowd.

The second interesting twist: The killers are seeking new trials. And a district court judge has already granted one his wish, “saying Laird's constitutional right to a fair trial was violated in 1988 due to errors by the trial judge, defense attorney and prosecutor.” Prosecutors appealed the "ruling, so a three-judge appellate panel will hear arguments Sept. 28 as to whether Laird should have a new trial. The judges are Maryanne Trump Barry, Theodore A. McKee and Jane R. Roth.”

Both of these bastards presently are on death row. Let’s hope “a technicality” doesn’t change this.

One more reason not to have kids:

Is this story for real?

It almost reads like an Onion story. I wonder what Charles Murray, et al. would have to say about this.

Update: A reader tells me to look at the "about us" section of the site, and it is apparent that the site is satire.

There's no way that the quote in this paragraph (which is quite funny) could have been said by a serious researcher:

The IQ tests show that when a child is born, the part of the brain that makes one think objectively takes the biggest hit when it comes to losing brainpower. “This explains why every parent thinks their child is the smartest kid in class or the best athlete, even if that child is as dumb as a box of rocks or needs a calendar to time their forty-yard dash. People who before were intelligent and open-minded turn into raving lunatics who want to blame a teacher or coach every time their mediocre child fails,” said Lee.

Just a thought…:

While I am on the issue, I am going to continue with the topic of gender that I brought up last post. And let me interject some social science and family law issues into the mix (parenting, divorce, and custodyship over children) as well.

Among the many issues that Rhoads discussed were the need of a child for two parents in the home and the problems that occur when one parent is absent. And in this society, we are invariably talking about absent fathers. This culture realizes that mothers are necessary for children and we do so probably more profoundly than we realize the necessity of fathers. When parents get divorced, as far as I remember back from my family law class in law school (and if this has changed, please let me know), mothers almost always are granted primary custody of the child (unless there is something seriously wrong with the mother, and even then, a mother is still probably going to get custody—there’s got to be something really wrong). Many folks, especially expositors of traditional gender roles, believe that mothers, more so than fathers, are naturally geared towards being the “primary caregivers,” (and I think it’s the legal rule that says “the primary caregiver ought to get custody of the children” that women are invariably granted primary custody). That a child who loses his mother—perhaps a mother that tragically dies, or walks out on the family, “a motherless child,” if you will—is in a worse position than a child growing up fatherless.

Now, I’m not sure how strongly I wish to endorse the notion of mothers being more suited at raising—nurturing—children than men, but let me assume arguendo that this is true, that all little children need a mother’s nurturing that a father cannot provide, and that if one parent has to raise the children in the house, and one parent cannot be there (because of a divorce, or something along those lines), it ought to be the nurturing mother who gets the children. That she has a bond with the child that the father just doesn’t have. Oh sure, a good father will have a very strong bond with his children. But, as I understand the sentiment, because the children literally come out of the mother, her bond with the child differs in kind from his—the children are literally hers in a way that they are not his.

But now let’s also interject the issue of “fatherlessness” into the mix. And indeed, these same social traditionalists, who might argue that mothers better nurture young children, also have been sounding the alarm about fatherlessness. Now, as much I, as a libertarian, have taken umbrage with social conservatives on this site, I tend agree with social-con thinkers such as James Q. Wilson, about the problems in society relating to out-of-wedlock births and fatherlessness. But one need not consider himself a social conservative to be so concerned. Charles Murray, a self-described “libertarian,” has similarly sounded the alarm for many years. And moderate lefty-liberal William Galston has done so too.

[Note: Rhoads, on the CSPAN show I saw, stressed much what I am about to write. But I’ve also read the same facts from others, Wilson, Murray, et al.] Single parent/fatherless homes tend to have children who are much more likely to be involved in poverty, crime, sexual promiscuity, and a whole plethora of other social pathologies. And the most serious of these problems start to manifest when the children become teenagers or young adults. A father in the home makes a girl less likely to get pregnant before marriage and will make a boy less likely to get in trouble with crime and treat women in a sexually irresponsible way. Fathered homes have children who study harder and achieve better academically.

I have even seen evidence that shows that motherless households do not tend to have these same problems as do fatherless households. (Who knows why this is so? Because there are so fewer of them? Because society realizes that a motherless household is a tragedy and the community steps in and pays more concern to those children?)

So what is all of this leading up to? If social science shows that fathers are necessary in households, especially during the years where adolescents transition into adulthood (and especially for young men, whose life might start to go astray—problems with the law and all that—at that time…but also for young girls—who make the ultimate choice as to whether to bear a child out of wedlock—as well), why not make fathers, at that point in the child’s life, the presumptive primary caregivers (or in other words, give them primary custody of the children)?

Assuming that young children need a mother’s nurturing and caregiving more so than a father’s, mothers would still get primary custody of children, say, up until the age of 10 or 11. At that point, the child would have gotten the needed “motherly” nurturing, that a motherless home would not be able to provide. But for children 11 and over, the father would be the presumptive parent—because social science shows that fathers more so than mothers, are necessary for children to make that transition into responsible adulthood.

This would also make the child custody system seem fairer. I know many fathers who feel screwed by divorce. The women get the children permanently and they only get custody on every other weekend—up until the children are 18. Yet, they still have to pay full child support. And if the divorce was nasty (as many of them are) that gives the mothers a lot more time to brainwash the children against the fathers (in fairness, many of those nasty divorces are precipitated by the father’s irresponsible behavior, like cheating or leaving the wife). Presumptively giving the first 10 years of life to the mother, but 11-18 to the father would probably give more of an even period of primary custodyship to both parents.

So what if the child was 7 years old at the time of the divorce? Then the mother would get custody of the child until the child turned 10 or 11, then over to the father. What if the child was 13? Then he or she would go with the father. What about multiple children? I don’t know. Would splitting the children up based on this “age-line” cause problems (the children, 10 and under, with the mother, 11 and over, with the father)? And of course, the parents would be free to work things out by agreement.

Now this is just a thought. I haven’t really fully thought through this. And I am by no means a family law scholar (I don’t plan on writing any law review article endorsing this notion). And I haven’t even had time to verify all of the social science assumptions that this commentary rests on. I would welcome any thoughts—comments, criticisms, or corrections, in emails.

One problem that I anticipate is that much of the problem with fatherlessness that I reference comes from out-of-wedlock birth scenarios where the father was never there to begin with. But my proposition deals with a divorce scenario where the children began with a father and where a father will most likely take an active role in their lives. Moreover, many divorced families have two-parent homes: Stepparents. And the presence of a stepfather may obviate many of the problems caused by single parent/fatherless homes. To compound the matter further, I have seen conflicting social science on how divorce impacts children. I know divorce has a psychological impact on children. But I have seen data that says on the one hand, if a child begins life with 2-parents in an intact marriage, which subsequently breaks up, that he or she has no higher a probability of suffering from social pathologies—crime, out of wedlock births, high school dropouts and educational failure—than children whose parents stay together. On the other hand, I have seen data that say just the opposite. Anyone care to clarify this for me.

I would especially appreciate the female or the feminist perspective on this. In law school, on this issue, and on the issue of alimony, I felt as though many of the feminist students didn’t know how to come down. On the one hand, primary custodyship and alimony are big time gender double standards (something that feminists are supposed to be against -- but what about gender neutral alimony? I remember one female student who noted that she was projected to make much more $ than her husband and would die before giving him alimony if they ever broke up), but on the other hand, if women lose their alimony and their primary custodyship, women will actively lose something very important to many of them (and feminists are not supposed to be for women losing important ground in society).

What about the men who like to pick out china patterns?

Cathy Young has a nice piece on a new book about real differences between the sexes entitled Taking Sex Differences Seriously, by Prof. Stephen E. Rhoads. I saw Rhoads speak on CSPAN, and pretty much agreed with most of what he said (and most of it were conclusions that I myself had previously drawn). It’s a book that I’ll probably get from the library one day. Still I sensed that he overstated his case, and that he, in observing natural sex differences, derived too much of an “ought” from an “is.” Also that he focused too much on majority “is’s” and ignored the significant minority “is’s.” Young’s piece on his book adds much needed perspective.

Rhoads seemed to note many commonsensical gender differences (Note—some of what I am about to write I distinctly remember Rhoads saying; other things are gender differences that, I, over the years, have become familiar with and Rhoads probably anticipates in his book, or most likely would agree with): Men tend to be more aggressive and competitive (and this leads to good and bad results—men might tend to achieve more in various ultra-competitive areas—even those areas having nothing to do with the greater levels of physical strength that men naturally posses over women [like being on the floor of the NY Stock Exchange]. Yet, men are also greatly overrepresented in such bad things as violent crime). Men are more promiscuous; men value sex more than women and think about it more often. Women tend to be more nurturing and intuitive (women’s intuition may not be just an “old wives’ tale”). The male brain is better geared towards math & science, while the female brain is more geared towards the verbal side of things. Although men & women have the same “average” level of IQ, the male bell curve is longer—that is men are overrepresented on the tail ends of both “smart” and the “dumb” end of the IQ bell curve.

A classic example of this: the sexual revolution—particularly the notion of “sex outside of relationships” that became en vogue among a lot of heterosexuals in the 70s (and still is among many homosexual men). The sexual revolution, as it was idealized in the 70s, to me, seemed to be a big “male” fantasy. I’ve read accounts by many women who, at that time, decided to rebel against their 1950s upbringing and experiment with promiscuous sex, but were utterly unsatisfied by easy sex with no commitment (and didn’t engage in the experiment for very long). The men of that period, however, had no such complaints. Males tend to consume pornography; women don’t—or if they do, it’s only porn that has “romantic storylines,” none of those cheaply made videos where it’s just wall-to-wall sex clips (either that, or they watch porn, because that’s what their boyfriends or husbands want to do with them and they don’t want to ruin their good time). A good romance novel will satisfy women more than a good porno. There is literally no market for male prostitutes for women. If you are a male and you want to prostitute yourself, you have a much better chance of selling yourself to the 2% of the population who are gay males than to the 49% of the population who are heterosexual females (much to your chagrin). The Chippendales, who are, by the way, much smaller in number than the number of female go-go bar dancers, are much more of a “girls night out” novelty, than an appeal to real carnal desire.

There is a reason why we are all familiar with the term “nymphomania,” but very few of us are familiar with the term “satyriasis” (its male counterpart). And that’s because, for a woman to have a “nymphomania” orientation, is aberrant, but men generally, as a group, have the “satyriasis” (seed planting) orientation. And this, in turn, is why gay male relationships—made up of two normally promiscuous males—tend to be more promiscuous than heterosexual relationships made up of a normally promiscuous male and a woman who normally demands monogamous commitment before sex. (And this is why lesbian relationships are the least sexually active—more so based on the “emotional” aspects of relationships, than any other).

And those women, that small %, who, for some reason, are promiscuous (the “nymphomaniacs” or to use the street term, “sluts”), are responsible for a disproportionate amount of males’ promiscuous behavior. It is these women who the men tend to cheat with or lose their virginity to earlier, than women, as a group, do (men reportedly lose their virginity at a slightly younger age than women. Given that men tend to mature later and tend to date women their age and younger—and women, conversely, tend to mature earlier and date men their age and older—it seems counterintuitive that men would, on average, lose their virginity before women. There is one logical explanation: men, with their promiscuous desires, tend to, at very young ages, seek out those women who will consent to sex with them. Here’s an example (this story should not be uncommon): In growing up, I remember a few friends of mine who had had sex with one of these, fairly attractive, but not “gorgeous,” promiscuous females. You only had to call and make an appointment and you could get some. She was very busy, and many a young man sought her out for easy sex without commitment. I know a few guys who lost their virginity to her. But her male counterpart is virtually non-existent (although many a man wish he could be in such a position): Sure there are some men who are so attractive or so charming, that they manage to have constant sex with many partners (literature's Don Juan)—but I know of no similar anecdote about a guy, “cute” but not “gorgeous," who could just put his name out there—“ladies, if you are looking for easy sex, I’m the man to call”—and then have lines of women waiting for easy sex (unless of course, he were famous, or had something else going for him, besides being a decent looking guy willing to have sex, that would explain for his having constant promiscuous sex)…some or many girls might be curious about a “relationship” with him…but lines of girls looking for easy sex? It’s just unheard of.

And men and women cheat for different reasons. Men might cheat simply because they are sexually bored. Women invariably cheat because their emotional needs aren’t being met and tend to cheat with men who satisfy their emotional needs in some way.

Now all of this may seem very commonsensical except for the fact that many elite academics have spent the last 30 years telling us that “gender” doesn’t exist; that it’s all a social construct; that every difference between the genders except our child-bearing capabilities is a social construct. In fact, horrifying social experiments have been done based on this erroneous belief.

But still, Rhoads overstates his case and Young adds much the much needed balance that is perfectly encapsulated in this one passage of her writing:

Perhaps more important, nearly all sex differences are characterized by vast overlap: Generally, a trait more typical of one sex will occur in the other sex 35 percent to 45 percent of the time. Of the two brain-difference studies most widely publicized in the 1990s, one found the "male" pattern of brain activity in 40 percent of women; the other found the "female" pattern in about a third of men.

Now this “overlap” is, according to Young, vaster than I thought it was. But, clearly, it naturally exists. That is, just as men as a group tend to be a certain way and women tend to be a certain way (our dominant “is’s,” if you will), a significant minority % of each gender tend to not so easily fit into the dominant norm. Of course, the gay population has many of these males & females who don’t quite fit the gender stereotypes in certain ways (but in other ways, gays as a group, very much do fit their gender stereotypes). In other words, while most men might like roughhousing & football, etc., a significant # of them naturally don’t. They might be, like women in general, naturally geared towards nurturing activities. And there are women—the “tomboys” if you will—who naturally seem to have many of the stereotypical “male” attributes.

Now, I might be wrong about Rhoads, but the impression that I got was that he, like many social conservatives, thinks that those dominant “is’s” that make up our natural gender roles should be “oughts.” And this, in turn, tends to marginalize those of us who don’t naturally “fit” so well, into the dominant gender stereotypes. A tendency that I notice among religious & social conservatives is to believe that there is something wrong with those of us who naturally buck gender stereotypes in some way. And there is likewise a tendency among the “social constructionist” left to believe there is something wrong with the notion of any kind of natural gender differences entirely.

And along come folks like Young & I who might wish to chart some middle course and that is this: Gender differences naturally exist. So do minorities within each gender who naturally “buck” those norms. Both of these norms—the dominant and the minority—are “natural” in the “is” sense, not necessarily the “ought” sense. That is, this is naturally the way people are, the way human nature is. This doesn’t justify the behavior, as there are many aspects of human nature (many “is’s”) that are not good, or that otherwise deserve to be suppressed. But in the absence of compelling evidence why these naturally occurring “is's” are not the way things “ought to be,” I think that we, as a society, have an obligation to accept and accommodate the “is's” (both the dominant and the minority).

And that means that we will find that most men and most women, in their relationships, might naturally prefer separating their tasks along gender lines. The men might prefer cutting the grass, shoveling the snow, roughhousing with the kids, and providing, and the women might prefer the more nurturing behaviors. But we should also expect to see a minority of folks who naturally don’t fall into these roles. Yes, we should expect to see women who naturally are geared towards providing and shoveling the snow and men who are more naturally geared towards cooking, cleaning, and nurturing the kids (Mr. Mom are Mrs. Dad are natural minority variations).

Many social and religious conservatives in particular tend to stick with these very rigid gender roles. Sure much of this comes from their interpretation of the Bible or just plain unexamined tradition. But, they could also try to justify such beliefs on “naturalistic” grounds (after all, a majority of both men & women tend to naturally fit into these stereotypical roles). I remember conversing with a such a women on an Internet thread where one poster—a gay male—had talked about his exuberance for picking out “china patterns” for an up and coming “gay wedding.” My fundamentalist interlocutor commented that she was “nauseated” by men acting “the role” of women.

And I think that such anecdote says it all: Yes, women more so than men, might be naturally geared towards “picking out china patterns” and if men and women, as groups, take it upon themselves to divide their labor in such a manner because that’s how they naturally feel comfortable, we as a society should be understanding and accommodate such gender differences. Yet, in the absence of a compelling reason as to why this “is” should be an “ought,” we should also, at the same time, realize that a small but significant percentage of men and women naturally won't feel comfortable in such strict gender roles, and we should likewise accommodate those “minorities” within each gender.