Saturday, July 28, 2012

What Same Sex Marriage is "About"

I've gotten to reading the blog "American Conservative," in part because I like Noah Millman's work--he has a blog there--and in part because I'd like to understand the point of view of a group of people I don't identify with.

One recent subject that I've seen discussed there is the boycott against Chick-fil-a.  Some supporters of same sex marriage [ssm] have called the boycott because the companydonates money to campaigns that ssm and because the company's president about two weeks ago made clear his personal view that marriage should be between one man and one woman.  (Actually, I believe he said he supported the "Biblical definition of marriage," which, as pro-ssm advocate Russell Saunders notes, could mean the company's president is"going to be out there stumping for polygamy and forced matrimony to one's deceased husband's brother any day now." [internal links removed])

Before I go further, I'll make a necessary disclosure.  I support ssm and I patronize Chick-fil-a.  I'm uncomfortable with my practice.  For one thing, I have a very close relative who has been with her partner for more than 30 years and who lives in a state that as of 6 months ago did not even have a civil union law.  That state might have one now or very soon, but it certainly doesn't have ssm.  A civil union law or, especially, a ssm law would give my relative and her partner more legal security and, potentially, certain benefits they otherwise can't have now.  More security would also be in the offing for them if the Defense of Marriage Act be overturned or rule.  I assume the Chick-fil-a president's substantial donations go to preventing the enactment of ssm laws and civil union laws and to preventing the overturn or repeal of DOMA, two developments that would substantially help this couple.  I'll not defend my decision to patronize Chick-fil-a, but I felt I ought to disclose it.

Now, back to the "American Conservative."  At least two blog posts written by Rod Dreher and one article written by another contributor on that site deal with the boycott. They evince a bitterness about the boycott that I to my sensibilities and more robust than I'm used to seeing when it's a question of people deciding to spend or not to spend money at a certain business.

In part this bitterness is part of an objection they register to certain public officials, like Chicago's own Alderman Joe Moreno, who apparently has threatened to invoke his "aldermannic privilege" to prevent Chick-fil-a from opening a restaurant in his ward.  Other politicians, elsewhere, have apparently intimated that they would refuse a license to this restaurant because of its opposition to ssm.  I join these conservatives in objecting to what seems to me and to at least one legal scholar, as well as Russell Saunders in the post I cited above and another one he wrote a bit later, a clear violation of freedom of speech.  (I'm also concerned about the notion of "aldermannic privilege," but that's a subject for another day.)

But these articles go beyond the freedom of speech argument and declaim against the "morality" or the ethics of the boycott itself.  Rod Dreher in an article that criticizes Newsweek for what seems to me like unconscionable journalistic overreach (assuming the facts as he presents them are true), suggests that what he sees as media bias in this instance is

this kind of thing is why many Christians and other social conservatives fear what’s coming. It is not enough for many on your side to achieve your goals of legal equality. You seek to destroy anybody who dissents, including ruining them professionally. And you have the mainstream media on your side.

I will continue to patronize businesses whose owners support gay rights, as long as the products and/0r the service is high quality. Why? Because I can live in a society in which good people can disagree on things, and still get along, and trade with each other. I have eaten at Chick-Fil-A exactly once in the past three years. It’s not my thing. The food is fine, but I don’t eat a lot of fried chicken. But now, seeing what they’re enduring, with this media-driven hysteria, and knowing that more of this sort of thing is coming for businesses run by people like them — which is to say, people like me — I’m thinking, “Eat mor chikin!”

Again, Mr. Dreher's post is about an instance of what appears to be media bias and not about the act of boycotting itself (Newsweek apparently solicited information that it expressly hoped would damage Chick-fil-a's reputation, therefore, according to Dreher, expressing an unconscionable bias).  But this statement also suggests certain assumptions behind the opposition to the boycott that suggest to me a certain hysteria and, ultimately, a misunderstanding about what ssm is actually "about."

He portrays the issue at the center of the boycott as one on which "good people can disagree."  In this reckoning, ssm is just one of many policy considerations, maybe on par with whether we should increase the corporate income tax or make it easier to claim the Earned Income Credit.  Different people of different political and moral persuasions arrive at different conclusions based on their notions of the good and on the expected outcomes of a given policy.  In this view, ssm is not about right and wrong, it's about, well, whether to confer certain benefits to certain agreements by certain couples.

Dreher in another post advances another claim about "tolerance."  He writes about the decision by Bill Gates of Microsoft and by Jeff Bezos of Amazon to donate millions of dollars to help defend Washington state's gay marriage law against a referendum challenge.  Nevertheless, he will decline to boycott those two businesses, even though he disagrees with their decision:
Why? Because I like their products and services. That, and I am a tolerant person, and I believe that same-sex marriage is an issue on which people can disagree without removing themselves from the company of decent people. Second, I know that my own ability to participate in social and economic life depends on commercial tolerance from others — a tolerance I can’t expect to have if I don’t extend.
The issue here is "tolerance," and framing the issue that way suggests two conclusions that I don't think Dreher makes explicitly but that I suspect he would agree with.  The first is that "tolerance" is about accepting people for who they are and for the positions they advance in good faith.  The second is that ssm is about "tolerance" in this sense of the word.

His point in both these posts is that a boycott is only called for--is only ethical--when the stakes are much higher.  Preferably, for him according to the second post, the stakes should amount to "matters literally of life and death."  He might indeed make allowances for other standards.  In fact, in that second post, he asks readers for their view on where to "draw the line on giving your trade to someone over a political issue[.]"  I should note here that he is not claiming boycotts are illegal or ought to be illegal.  He is not denying the right of people to boycott, but the morality of boycotts.  He says as much explicitly in one of his own comments to his second post:  "Nobody denies that the right exists. The discussion is about when the exercise of that right is morally justified."  But the point I take from both his posts is that it is probably inappropriate, uncalled for, or at least uncharitable to conduct a boycott on matters that decent people can disagree on, including cultural issues like "tolerance."

Another article by a different author appears to make the same point as an aside.  The article I refer to is "Bullying Chick-fil-a" by W. James Antle III. The gist of his article is the attack on what are probably the unconstitutional measures to deny a license to Chick-fil-a in Chicago.

I will point out that his article is a bit unclear about what exactly is happening in Chicago.  He notes now-mayor-but-former-Democratic-whip-cum-Obama-Chief-of-Staff Rahm Emmanuel's alleged hypocrisy on the issue when he successfully engineered a Democratic takeover of Congress in 2006 in part by running anti-ssm Democrats in socially conservative districts.  He also notes a statement, made on Fox news no less, that Emmanuel “did not say that he would block or play any role in the company opening a new restaurant here.  If they meet all the usual requirements, then they can open their restaurant, but their values aren’t reflective of our city.”  Still, he concludes with the standard disclaimer that ssm supporters "have every right not to patronize a business that gives money to their political opponents, as well as to voice their disagreement with Chick-fil-A’s president," and he adds that they shouldn't tolerate "thuggish threats" from people like Emmanuel. 

Of course and as I've said above, I agree that refusing licenses to Chick-fil-a because of its views on ssm is unconstitutional and even morally wrong.  (I say "morally wrong" because what if I want to open a business someday and the alderman doesn't like the way I vote?  Could he use the same rationale to deny me a license?)  And while I find the article a little vitriolic and suspiciously unwilling to account for the claim by Emmanuel's representative that the mayor won't actually wield the licensing power against the company, I agree with his main point.

But the article comes with a teaser right below the title.  This teaser is the first thing I saw when I noticed the link to the article on the "American Conservative" and has almost nothing to do with what the article actually discusses.  The teaser reads
If gay marriage is about tolerance, political intimidation of the restaurant undermines the case.
I want to be clear that I'm not sure whether to attribute this teaser to Antle.  I understand that in some publications, authors don't have a lot of control over the exact title that gets assigned to their articles, and they might not have control over the article teasers.  So I don't know for sure whose statement about tolerance this teaser comes from.  But at any rate, I think we can extract the same two assumptions about "tolerance" and ssm that I infer from Dreher's blog post.  "Tolerance" is the acceptance of differences.  For example, differences in whether to support ssm.  SSM is principally about "tolerance," or accepting gay people.

Now in these three pieces--the two Dreher blog posts and the teaser to Antle's article--I have inferred two assumptions behind opposition to ssm, assuming these pieces are representative.  One is that the debate over ssm is just a policy debate, on par with other policy debates.  It's important and different people have different views, but we're all part of the same team and we all take off our hats when they play the "Star Spangled Banner" at baseball games.  So the boycott is really just a "kumbaya...interrupted."  The other assumption is the notion that it's all about "tolerance" and although tolerance is important, let's not get carried away.

I respectfully--and I do mean "respectfully"--submit that these two assumptions are wrong.

To construe the ssm debate as "about" a simple disagreement among decent gentlemen and ladies obfuscates some of the very real, very immediate, and very material interests that ssm advocates are advancing.  I won't go so far as to say that it is impossible for someone to be decent and reasonable who declines to support ssm.  If supporters of traditional marriage* are honest with themselves and with me about what they want society to be like and about what they envision government's authority to be in extending that role, I will disagree but see where they are coming from.  Or, if a given supporter of traditional marriage perhaps hasn't thought through his or her position fully and perhaps may have contradictory views about what society should look like about about the role of the state therefor, well, I should realize I am capable of holding apparently contradictory views about such matters, too.  After all, I support the health insurance mandate even though I find its constitutionality and even its wisdom very questionable.

But it's not so simple as a mere policy disagreement.  For the supporters of traditional marriage, the debate over ssm is one part in a larger debate about what we mean by "the family" and about the state's proper role in shaping or endorsing or facilitating that notion of the family.  For them, the debate might also be about endorsement of gay relationships in general.  If society and polity permit ssm, then they lend their imprimatur of approval to such relationships.  Finally, inasmuch as traditional marriage is coincidental with straight marriages being ensconced into a privileged position vis-a-vis other types of relationships, ssm might even represent a challenge to, or even the dismantling of, "traditional marriage" in that sense.  (Kyle Cupp at the League has made this point, but I'm having trouble finding the citation.)  My point in all this is that for traditional marriage supporters, opposing ssm is part of a principled, but symbolic abstract debate over how we define things.

I'll add that that part of the debate is not unimportant for being "abstract" and "symbolic."  We must deal in abstractions to make sense of the world, and I'll not claim symbols are devoid of any practical consequences, nor will I claim we need make an idol of the "practical" over the "symbolic."  I'll also admit people who support ssm do so in part for the similar reasons supporters of traditional marriage invoke when they oppose it:  state recognition of ssm confers a degree of legitimacy and acceptance for gay relationships that has heretofore been denied them.  It's symbolic in that sense.

But support for ssm also invokes more immediate and material stakes.  Being allowed to marry means being allowed to enter into an agreement that confers certain rights, privileges, and prerogatives under the law.  Under non-ssm and non-civil union regimes, most of these rights, privileges, and prerogatives can be attained only by hiring a lawyer or hoping for free assistance from a gay friendly legal aid charity.  Even with with the legal documents in place, there is less of a guarantee that certain prerogatives--such as power of attorney--will be honored by the courts if challenged.  Or if they are a honored, it's possible they will be  honored too late.  Who wants to incur the legal expense and uncertainty of a trial after one is denied a visit to one's spouse at a hospital bed in that spouse's last hours in this world?  Even with civil unions and ssm, these relationships are sometimes in question and their portability is not settled, especially with DOMA being the law of the land.  But even if DOMA is repealed or invalidated by the Supreme Court, I believe it's still an open question, constitutionally speaking, whether states are allowed to refuse to recognize marriages from other states.

So, it is a policy disagreement, and it's possible for people to disagree in good faith and remain good drinking buddies at the end of the day.  But it's not merely a policy debate where the stakes are whether you get an A or a B in a high school speech class.  The stakes are asymmetrical.  Insisting on the "but decent people can disagree" formulation denies and to some extent delegitimizes the urgency some feel when, for example, they advocate a boycott against Chick-fil-a.

And now for tolerance and ssm:

"Tolerance" is not really what the three "American Conservative" pieces I discuss claim it to be, and ssm is not really about "tolerance" anyway.  One might think, reading these pieces, that tolerance means "accepting everything as within the pale for the sake of accepting things as within the pale."  There are usually restraints on the notion of what "tolerance" is, somethings beyond the pale that one must not tolerate.  I think most people, even or especially Mr. Dreher and Antle (or whoever wrote the teaser to his article), will refuse to accept as being beyond the pale.  Invoking "tolerance" seems to be a way of forbidding all but academic disagreement.

By that standard, upon hearing that Chick-fil-a's president gives money to combat ssm, a ssm supporter ought to say to himself or herself, "It's too bad he disagrees with me, and I wish he didn't.  I think I'll order the spicy chicken combo with lemonade."  (For the record and per my disclaimer above, this is pretty much what I do.)  Disagreement is sanitized into a debate merely about accepting people for who they are in a way that ignores some of the very material interests at stake, which I mention above.

And in the end, ssm is not only "about" tolerance.  At least for ssm supporters, it's about one notion of equality under the law.  Certain relationships between two adults are recognized as a matter of course, and certain relationships are forbidden or at least recognized inconsistently (by state) or incompletely (e.g., Illinois's civil union law) simply because in the former, the adults are opposite sex couples and in the latter, the adults are same sex couples.

To insist on this formulation is to beg the question.  Part of what is up for debate is whether state non-recognition of ssm is indeed a denial of equality under the law.  And admittedly I have a lot of trouble seeing how it's not such a denial, leading me to agree almost completely with James Hanley that there is "no good argument against same sex marriage."  (My principal disagreement is that there's no good argument only if you accept certain assumptions about the powers of government, assumptions, I will add, that most people in the US, conservative, liberal, and libertarian, usually claim to accept.)

Don't get me wrong.  Tolerance is pretty cool.  The fact that these "American Conservative" pieces have recourse to tolerance means they're accepting tolerance in principle.  And the three pieces have something of a point in that a lot of liberals look down on conservative Christians when they should take to heart that different people have different needs and histories. It's hard to stomach, for example, the sneering and, in my opinion, classist comments I hear from fellow grad students in history when the conversation turns to how "stupid" conservative Christians are; one would think from these comments that they are a separate and inferior race of people.

But we're past the days when "tolerance" was all we could hope for.  We're past the days when the most loving thing non-gays were comfortable saying in public was "hate the sin, love the sinner."  We're past the days when Bowers v. Hardwick was good law, when a state could enact an amendment to ban equal rights laws based on sexual orientation, and when a major network station could produce a documentary that represents homosexuality as a pathology or perversion.  I desperately hope we're also past the days when lynching a man or woman because they are gay is something that is gainsaid or defended on the grounds of "gay panic."

One doesn't need to vilify one's opponents to note real and serious disagreements.  But it is also true that we can't make all policy disagreements simple matters of courtesy.  Nothing gets done if we do.  In practice I don't honor the boycott against Chick-fil-a and in theory I have qualms about it in terms of its wisdom, its effectiveness, and its tendency to turn off potential allies.  But the impetus for this boycott is not reducible to a malicious desire to destroy people who merely see things differently.  It gains much of its urgency from the very immediate and very material stakes that are an inherent part of the campaign for ssm.  To say it's just about "tolerance" misses the point.

*I use this term because, per Rod Dreher's usage, that seems to be how opponents of ssm prefer to think of themselves.  I do this in the spirit of collegiality and decency and not because I buy into what I see are the value-laden, even question-begging, assumptions behind that phrasing.

Sunday, July 1, 2012

If it had been otherwise....

I have made no secret of the fact that I approve of Obama's health insurance reform (the ACA), nor that I am happy with the outcome of the case.  But as I've repeated in what was probably already a cliche by the time I was born, the devil is indeed in the details.

Now, I look at the many efforts by the writers of the Volokh Conspiracy to consider the meaning of the decision.  Almost all of them certainly dislike the result and are either surprised or upset at the ruling.  The possible exception is Orin Kerr, who if I'm not mistaken opposes the law on policy grounds, but believed that it was constitutional under existing precedent, even insofar was the mandate be considered a regulation of interstate commerce and not as a tax.

It is possible to adopt a perspective of Schadenfreude.   They "lost," and contributors there are struggling to find silver linings or to analyze the policy implications.  Sometimes, they venture into arguments that I find unpalatable.  See, for example, David Kopel's argument that Congress ought to overturn the "unconstitutional" mandate.  Now, I fully admit that a law can be unconstitutional even if the Supreme Court refuses to condemn it as such, and it is fully within the prerogative of the legislative branch to change the law for any reason, including its perceived unconstitutionality.  What I find unpalatable, however, is his invocation of the example of Andrew Jackson, who illegally pulled money from the Bank of the U.S. in order to "destroy" it and (not merely coincidentally, although Kopel doesn't mention this part, pay off his cronies at state-level "pet banks").

Anyone who champions the rule of law and the rule of the constitution ought to be disturbed at Jackson's easy flouting of the law, even an unconstitutional one.  I admit that some unconstitutional laws might indeed deserve to be flouted or disobeyed by the president, but it is hard to argue that one that was so complex and, in some ways, such a close call as the Bank of the U.S. issue, qualifies.  Would Kopel similarly champion a decision by Truman not to return the Youngstown Steel Mills, or a decision by Obama to say "fish it, I'm sending in my U.N. helicopters to imprison people indefinitely if they choose not to purchase a qualifying insurance plan"?

One might also wonder if Kopel would approve of a president who, say, agrees to use the U.S. military to violate America's treaty obligations to Cherokee Indians, even after the Supreme Court tells him not to?  An person unsympathetic to Kopel's argument might be tempted to say, "John Roberts made his decision, now let Sebelius enforce it."

But most of the posts at the Volokh Conspiracy are not like that.  Most of the posts reflect the intellectual curiosity and intellectual honesty that make the site such a joy to read.  I'd much rather read their after-the-fact diagnoses of what happened than the gloating at "paralegals, knives, and i.o.u.'s," one post of which says simply, and I quote verbatim:  "Gosh, I haven’t seen conservatives this mad at the Supreme Court since Brown v. Board of Education."  Apparently, the moral gravity of the ACA is exactly comparable to a state law forcing schools to deny persons of color the same advantages enjoyed by whites.

I'm glad that's cleared up.  Now I don't have to feel any trepidation that the law in its implementation might be a bad policy, or that the expansion of the federal government's prerogative might lead to a precedent I shall later find unsavory.

On the other hand, one might point out that Roberts's decision, while not based on the same reasoning or same part of the constitution, is part of the same trajectory that assures us the feds can imprison a terminally ill person for growing his own marijuana that he believes he needs as a pain reliever, even if he doesn't have mens rea intent to sell it or distribute it.

A question I have is what would the esteemed liberals at that site be writing if Roberts, as Mark Thompson at the League put it, had a bad hair day?  I suspect that we would not see informed comparisons to, say, the court's invalidation of the National Industrial Recovery Act in 1935.  (I say "informed," because in retrospect, the temporary emergency measure that was the NIRA was, if you look into the nuts and bolts, an awful (in the bad sense) policy.  And I say "awful (in the bad sense)" to mean, pretty much the exact opposite of what loominaries at that site would support.  Of course, at least one of them is a historian, and he probably knows better.)

Another question I have is what would I have written?  Under my "posts" tabs here at my blog, I already have a rough draft of a post excoriating Obama for not relying on the tax argument.  I wrote that draft in full anticipation that the Court would strike down the law on commerce clause grounds.  At the time of writing that draft, I bemoaned his and his solicitor general's apparent refusal to rely on the tax argument (I hadn't realized they kept it in reserve as a "just in case" that I've read the decision, I know better).  I was going to criticize Obama for not, as he claimed in 2010, "stak[ing] his presidency on it."  If he was willing to "stake his presidency" on the ACA, my reasoning went, he would  have 'fessed up that it was a tax, and he had signed into law a new tax that in effect raises taxes among some people who earn less than his campaign-promised $250,000.

What else might I have written?  I don't know, but I might have had some bitter, Kopel-esque moments.  I would have railed against what I imagine would have been the widespread self-congratulation among some of the libertarians who opposed the law and whose arguments I found so distressingly convincing.  In the lead-up to the case, I certainly wasn't adverse to engaging in ad  hominem attacks against those same scholars.  I imagine I would very likely have indulged my own self pity.

As a famous leader once said a while back, if something really bad happens, and it takes something even worse to remedy it, and if that remedy hurts people who in some way were responsible for that really bad thing, then it's probably overall a good thing.  But we ought to also express a little bit of empathy and even love toward those who saw things differently, even if they were in the wrong, because we might not have been clearly in the right, either.  I insist that as hopeful as I am about the decision, the issues at stake with the ACA are not as fundamental and astounding as what that person was referring to, and the side of the right as we're given to see it is not that clear.

But it's still good advice.