Wrong, Do It Again!

And today, the only possible agent of political reform is the President.

Lawrence Lessig, explaining why he ran for president, and reminding me yet again that most lawyers are lousy political scientists.

Posted in Executive Power | Tagged , ,

A Non-partisan Argument Against Justice Obama

Hillary Clinton, never one to miss an opportunity to pander, told a prospective Iowa voter that he had “a great idea,” in suggesting she appoint Obama to the Supreme Court.

It’s a terrible idea, and that has nothing to do with how I feel about Obama’s presidency, his character, or his qualifications for the job.

My friend Ed Brayton, who blogs at Dispatches from the Culture Wars, noted on Facebook that “Obama’s record on civil liberties and in cases before the Supreme Court is pretty terrible. I would have no faith in him as a justice.” He has been bad on civil liberties, but sometimes people change their perspective when they’re in a different position (c.f., Earl Warren). I’m not positive Obama would be a horrible civil liberties justice (although I’d be happier with the appointment of someone with a better track record, for sure).

Others might worry that Obama is too much of a leftist, because apparently there are people who still believe that. I don’t find that a serious concern. More pointedly, some might note that he doesn’t have any judicial experience, and that having been a part-time teacher of constitutional law isn’t the most impressive resume for a SCOTUS appointee. But of course it’s a fairly recent tradition that all appointees must have lengthy judicial experience, and one that appears to me to be largely driven by the American Bar Association’s inappropriate assumption of the role or arbiter of qualifications for a public office (and we worry about the Koch brothers!). Personally, I I think there are umpteen thousand Americans who are qualified for the job, and presidents’ talk about selecting “the best” person is 100% FDA Prime bullshit. And a little less technical lawyering and a little more understanding of the Constitution as more than a legal document–I’m looking at you, Tony Scals–wold be good.

But my overriding concern is the growth of presidential power. And one of the factors promoting that has been a Supreme Court that has been less eager to check presidents, and that–according to political scientists Matt Crenson and Ben Ginsberg in their book Presidential Power: Unchecked and Unbalanced–is at least in part because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere. They become enculterated in the concerns and needs of the executive, and more willing to give presidents some leeway, rather than trying to keep them in check.

Presumably, presidents have always appointed judges whom they found politically congenial. What has changed is that preisdnets no longer choose judicial appointees with legislative backgrounds, and the political milieu in which judges originate presumably affects their institutional affinities and sympathies. During the nineteenth century, federal judges typically emerged from the country’s electoral and representative systems. …

The fact that many federal judges had served, continued to serve, and often would serve again as legislators helped to reinforce legislative primacy by ensuring that the federal bench would hvae a certain respect and partiality for legislative institutions. …

Judicial deference to legislative power has practically disappeared today …

What has changed in recent decades is the character of judges’ political and governmental experience. Few recent or contemporary federal judges have ever served in a legislative body, but many have served in executive agencies or in federal or state judicial institutions…Today’s judges are recruited primarily from executive and judicial positions, not from legislatures. [pp.305-314]

Crenson and Ginsberg have a table showing the decline of federal judges with judicial legislative experience from a high of almost 81% in 1830, to 38% in 1900–around the time presidential power began its upward trend–to 4% in 20005. We need fewer judges with executive backgrounds, not more, and certainly not one so deeply steeped in sympathy for the office of the presidency itself.

LBJ adviser George Reedy, in The Twilight of the Presidency regretted that the President has become so sheltered that there is no one to tell him “go soak your head” How likely is it that a Justice Obama would tell future presidents–not just a President Hillary Clinton, but a President Rubio, Cruz or Trump, too–to go soak their head?

Posted in Uncategorized | Tagged , , , , , | 2 Comments

Trump’s Democrats

[cross-posted at Hit Coffee]

While many Democrats are eager to deny that Trump is drawing support from their party, the data show a different story. That data also reveals the falsity of the pretense that Republican party leaders could somehow have prevented their party from being largely captured by an ugly populist contingent.

It’s important to remember that both parties have traditionally had their reactionary factions. While the GOP had the John Birchers, the Democrats had their boll weevils—socially conservative and racist southern Democrats, but who often supported populist initiatives, such as rural electrification. Not only did the Democrats have that group, that group was the foundational core of the Democratic Party, with its Jeffersonian origins in anti-nationalism and defense of a racially stratified society.

The boll weevils are mostly forgotten now, but not wholly gone. The South has shifted from being overwhelmingly Democratic to being highly contested territory where Republicans win regularly. In 1960, 100% of the U.S. Senate seats from the Confederate states were held by Democrats. In 1980 they still held 55% of those seats. Today, the Democrats only hold 18%. But Democrats are often more successful on the local level, where politics is more personal and party label less significant…and where people can know that Candidate Smith isn’t a liberal, but an old time Democrat. Many of these voters still identify as Democrat, even as they vote Republican at the state and national levels. Think, for example, of Kim Davis, the Tennessee County Clerk who refused to give out marriage licenses to same sex couple—a Democrat, not a Republican.

And those folks are often Trump supporters. Other than his home state of New York, Trump’s best states are in a bundle of the old South states plus West Virginia, another state where the old southern Dems long dominated. Out west in the intermountain states, which have always been predominantly Republican, )his support fades.

OK, one might say, they’re not real Democrats (although they are what Democrats predominantly once were), because they’re really conservatives. But as reported by RealClearPolitics, 20% of the Trumpenproletariate identify as liberal. True, a strong majority of 65% describe themselves as conservatives, but only 13% say they are very conservative, and less than 1/3 say they are Tea Partiers. Trump’s supporters are not the radical right-wing revanchists liberals claim are taking over the Republican Party.

All of this helps explain why over 2/3 of Trump’s supporters say they would vote for him if he left the GOP. A lot of them aren’t strongly committed to the party—they are in fact not the mythical Republican base.

Liberal and establishment Democrats don’t want to admit that many of these people are still Democrats. But many of them are, or they are about as much Democrats as they are Republican, willing to vote for either party depending on the candidate.

And this is the reason it’s ridiculous to talk about how the GOP establishment should have kept these people from taking over the party. First, they haven’t; that’s largely a different group of people. Second, parties don’t choose their supporters as much as supporters choose the party. If we think in spatial terms, on a left to right continuum, many of these people find themselves to the right of the median Democrat, so they’re going to take a look at the party that’s also to the right of the median Democrat. If they find that they’re also to the right of the median Republican, they’ll be more attracted to the Republican Party, not necessarily because it is welcoming to their extremist views, but because it’s median is less far away from their views than the Democratic median. Those folks will pull the party away from its establishment, but there’s precious little the establishment can do to stop that.

But those aren’t the Trumpa Loompahs (hattip Steve Horwitz). Those folks tend to support Cruz or Rubio, because they recognize the liberal elements in Trump’s message.

So suck it up, Dems. Trump’s your party’s phenomenon, too.

Posted in Executive Power, The Democratic Process | Tagged , , , , , , , , , ,

Prostitution, Amnesty International, and the Consequences of Prohibition

Amnesty International has found itself in a controversy over its new draft policy on sex work, that calls for “the highest possible protection of the human rights of sex workers, through measures that include the decriminalisation of sex work.” A group of well-known celebrities has penned a letter denouncing the draft policy, and journalists are voicing their dissent.

At times the misrepresentations of Amnesty International’s claims are blatantly dishonest. Jessica Neuwirth, for example, suggest Amnesty has “been hijacked by proponents of the global sex trade,” and falsely implies that they called prostitution a human right. At no point in the draft policy does Amnesty say prostitution itself is a human right, but that their concern is protecting against human rights abuses against sex workers, including: stigma and discrimination; physical and sexual violence; and criminalization that prevents access to health care.

Others have come to Amnesty’s defense, arguing that we should be listening to the voices* of the sex workers themselves, rather than to Hollywood celebrities. The left often asks us to listen to the voices of the subaltern, but this issue tests their commitment to that principle. They also support treating women as competent adults, except in this issue.

Amnesty’s critics are foolishly putting their idealism above the opportunity to make positive gains for women in the sex trade.

Let’s talk seriously about public policy.

1. The first thing we need to ask is, is the sex trade harmful in ways that justifies a policy response? I say the answer is yes, and that it would be hard to argue against that position. Prostitution can harm the wives of johns, causing them to be infected with sexually transmitted diseases. Prostitutes are at risk for violence, slavery, and sexually transmitted diseases, and this is not a complete list.

2. Can prostitution effectively be eliminated or at least reduced to a rare activity? Some think so, but I believe there is no evidence to suggest it is possible. Sex for remuneration is found, as far as I know, in every human society anthropologists and sociologists have studied, and in the non-human world as well.

3. If we cannot effectively eliminate an activity that has harms justifying a policy response, we have to look to how we can minimize those harms. And the overwhelming evidence from a broad range of prohibited activities demonstrates that prohibition, particularly with strict enforcement, exacerbates rather than reduces the harms. A superior solution is to decriminalize and regulate with an eye towards the health and safety of the participants.

I’m not going to dive into the weeds of what that regulation should look like. There are no doubt better and worse models, but they are models we can learn from and adapt beneficially. But I support Amnesty’s direction on this, and I think anyone who cares about ensuring the safety of sex workers, and cares seriously enough to think seriously about how that can realistically be accomplished will come to the same conclusions.

*Astute readers will have noticed that all of the news sources to this point have been from the Guardian. There are others, of course, but kudos to the Guardian for publishing essays by voices on each side of this debate. Note that the final link in that sentence actually predates the current contretemps, having been published last year.

Posted in Policy | Tagged , , , , , | 1 Comment

The Battle of Indiana Didn’t Have To Happen

[Note: A Guest Post by Hit Coffee’s Will Truman]

There really is an odd feeling of the ground shuffling from under my feet. Fifteen years ago, I was on the far left of the same-sex marriage movement, and pretty far to the left on gay rights in general. Around ten years ago, most of my peers were coming from the same place. This appears to be the moment where, at least in respectable company, my views have gone from liberal to bigoted. While I do not grant the Indiana legislature the benefit of the doubt when it comes to the RFRA law they passed, I thought that the reaction was overwrought compared to the likely consequences of the law, and I am actually reasonably sympathetic the right of individuals and businesses not to provide services for gay weddings. Some of that is nascent libertarianism on my part, and a lot of it is that it was one of the things I said over and over again when trying to sell people on gay marriage: This won’t affect you.

The theoretical implications of the Indiana RFRA law could go beyond gay weddings and into public accommodations. Here I am often (though not always) less sympathetic to anti-gay business people. When it comes to emergency (health care, auto towing) and essential (food, shelter, employment) services, I don’t believe that discrimination against gays should be legal. But attending a gay wedding even if just to cater? I believe a degree of discretion is called for. It’s become quite clear that puts me well to the right of the gay marriage movement that I have belonged to my entire life.

The right is freaking out. The thing is, though, it’s not just those who are anti-gay or anti-gay marriage. A lot of erstwhile supporters of gay marriage have become very uncomfortable. Not because of disagreement about the wedding caterers, but over the apparent unacceptability of any disagreement. As well as the conduct of some (just some!) opponents of the Indiana law, from the TV news crew that went trolling to find some business that wouldn’t cater a gay wedding, to the harassment and threats the company got afterwards.

This may prove to be a watershed moment for gay rights, and in the final analysis the ends may justify the means. If given a binary choice between gay acceptance to the point of requiring businesses to cater gay wedding, and the status quo of fifteen years ago, I’ll take the former.

But on the whole, it’s not a good situation. And it didn’t have to be this way. And ultimately, I believe the fact that the blame for where things are lies not with the left but the right.

Ross Douthat has made repeated mentions that the right is “negotiating its surrender.” He makes a point similar to the one I am about to make, but he seems to view it in the context of “the left changed” while I see it as “the right refused to until it was far too late.”

The problem here is that they are coming from such a place of weakness that there isn’t much to negotiate. The have to play off latent sympathy from the other side, to which they have shown none. Actions have consequences. Rather than relating this to a war that is winding down, though, I think the more applicable comparison is to trying to negotiate a settlement after the verdict is in. You had your chance to get a much better settlement. You were unreasonably cocky, and these are the consequences.

The writing was on the wall a decade ago. Gay marriage was going to become legal. It was just a question of when. We’re slightly ahead of schedule by my predictions. But the right had plenty of time to “evolve” on the issue and make a swift and orderly accommodation of the fact that gays, too, would like to be married, and the perspective that there aren’t many logical reasons why they shouldn’t that don’t involve an open bias that was likely to become increasingly unsavory.

The retort to this is, in the words of Dave Pinsen, “you can’t negotiate with a steamroller.” Not when it’s right at your doorstep you can’t, perhaps, but it took a long time for it to get here. And coming at it from the pro-SSM side, there was a really long time that the SSM would have traded a lot to get the fight over with. When the climb is uphill, they’re still willing to compromise, as they did in Utah. But you made them (us) fight for every yard. And victory is so close as to be a foregone conclusion.

There are limits to this, of course. Jacob Levy argues that they could have avoided this if they’d offered Civil Unions in the 90’s, but I can say pretty firmly that such could never have been a stable compromise. The distinction between marriage and union is just too artificial. Rather than the 90’s, I look to the late-ish aughts all the way to 2013, before it became clear that the courts were going to do what the legislature wouldn’t. Gay marriage still seemed at least a dozen years off in 2007, and this is not the sort of law that they really wanted to wait on.

Had they come to the table and asked, in return for gay marriage, rock solid protections for the religious consciences of the marriage industry (exempting them from existing anti-discrimination laws and future ones unless explicitly stated otherwise), and there is no doubt in my mind they would have taken the deal. Would they have returned ten years later to try to force the caterers to act? It’s possible, but there again I think the impetus would have been on getting general anti-discrimination law passed and trying to insist that wedding caterers lose their exemption would have gummed up the works for something that is a really, really small (and non-emergency, non-essential) segment of the economy. It probably wouldn’t have been worth going back to.

But now? Now they can just incorporate it with everything else. And its opponents have spent so much on delaying the inevitable, they are in an exceptionally weak position. By delaying the inevitable, they allowed the other side to marshal all conceivable forces, from Apple to the NCAA to NASCAR to Walmart, to join their army. This is, first and foremost, the result of their own strategy.

Posted in Politics in General | Tagged , , | 12 Comments

Indiana’s RFRA Is Almost Certainly Not Actually What You Think It Is (Because You’re Talking Out of Your Ass)

Note: This post is really long, and violates the laws of blogging by not making an implicit claim of being absolutely true, correct, and inarguable, so you’re better off not reading it. And if you have the common-sense not to actually read it, I hope you have the common sense to not comment on what you haven’t read.

Last week, as Indiana’s Religious Freedom Restoration Act (RFRA) was being passed, one thing was clear in all the hoopla–almost nobody who was chattering about it, friend or foe (including, I regret, myself) had actually read it. Nor had nearly anyone really taken time to compare it to other states’ RFRAs, digest the actual legal meanings, and ruminate upon what they meant. As is normal now in our 24/7-news-cycle-social-media-driven culture, the prime directive was to make an authoritative-sounding statement right now.

But these issues are more complex than we chattering classes like to let on. Even we really smart people need more information than is immediately available, and particularly we need the various bits and pieces that come dribbling out over a matter of days from various sources. For example it took a few days of people saying “so what, lots of states have RFRAs” to get critics of Indiana’s RFRA to point out that the particularities that (allegedly) make it different from the others, and then a couple more days for people to start actually looking at those others to see if it’s true, and for someone to point out that arguably at least one state’s RFRA (Connecticut) actually protects the right to discriminate even more strongly than Indiana’s does.

So for all those, whether pro or con on Indiana’s RFRA, who asserted a confident opinion right off the bat, I say just shut the fuck up already because you only think you knew what you were talking about, and were actually responding ideologically rather than will anything like a complete understanding of the facts.

As for myself, I drifted across that line a few times myself (shut the fuck up, Hanley), but mostly tried to focus not on the meaning of the law itself, but on the politics of the issue. Given the tone of the general debate and my own pussyfooting around, though, I doubt that was clear to anyone. So, about a week down the line, I’m ready now to make some tentative comments about the law itself.

First, though, here’s where I’m coming from, politically:

  1. I believe there is an individual right to free association that allows people to discriminate, up to a point. At the absolutely a protected right end, I’d say if a person is looking for a roommate, they can discriminate on any grounds they want, because they’re looking for someone to share their living quarters, their most personal private spaces. At the absolutely unprotected end, we can’t use the power of government to create legally mandated discrimination against any group. That far, I think most people agree. Where I draw the line, then, is between sole-proprietorships and joint-stock corporations. I would allow owners of business organized along sole-proprietorship lines to discriminate, because the person is the business and the business is the person, or near enough to count. (Not all my friends agree, and I understand and respect their reasons.) I would not allow joint-stock businesses to discriminate because the owners are not the business and the business is not the owners. That distinction is formed in our law, as joint-stock corporations’ owners have limited liability–they are not responsible for the debts of the firm, so they are not the firm in the same way a sole-proprietorship is.*
  2. I despise people who would discriminate on grounds of race, gender, sexual orientation, religion, etc. I may defend the right to discriminate, but that doesn’t mean I defend the fact of discrimination, or the decency of the discriminator. Not everything I find vile is thereby legitimately banned, a crucial distinction that I think is lost on most people, left and right.
  3. I’ve been commenting a lot on the politics because 1) I despise discrimination, 2) even if they have the right to discriminate, I think Christians are being hypocrites by expending so much effort on protecting themselves from having any connection with this particular sin, 3) I’m amused that their determination to be so hypocritical is likely to blow up in their faces by costing them millions of dollars, and 4) I’m irritated by my fellow-haters of discrimination who are acting like this law is the great crisis of our times, as though not having that particular baker make you a wedding cake is in any way as destructive to the gay community as the war on drugs is to the African-American community. Yes, it’s nasty, and yes, it can be painful, but it’s a goddam first-world problem, folks. The law won’t give Christians or Muslims the right to stone gay people as an exercise of their political beliefs.

Now, on to what Indiana’s RFRA really says. The text is here. If you want to argue about it without taking the time to read it, just shut the fuck up right now and go away. This is my bawdyhouse and I reserve the right to discriminate against people who are too lazy to read.

  1. First, it’s worth pointing out that the bill does not explicitly give a right to discriminate. It does not say, for example, “a business may refuse service to homosexuals.” And the significance of the absence of such explicit language means that ultimately it will be up to the courts (both Indiana and federal) to determine if the law actually allows that. I’ll come back to that.
  2. Second, some quick background is useful. The original RFRA is a federal law. It was designed to apply also to the states, but the Supreme Court ruled that element of it exceeded Congress’s authority. Since the federal RFRA could not apply to the states, some states has passed their own RFRA laws. Indiana makes, depending on which count I believe, the 20th or 22nd state to pass one.Additionally, the original RFRA was broadly supported by both liberals and conservatives. The predominant motivating event for the federal RFRA was the Supreme Court’s ruling in <i>Employment Division v. Smith, in which the Supreme Court approved the denial of unemployment benefits to a Native American who used the illegal drug peyote as a sacrament in Native American Church ceremonies. Across the aisle people saw this as a bad decision, one that should have granted more respect to Smith’s free exercise rights.

    And now 2/5 of the states have their own RFRAs, so why, suddenly, are liberals backing off from their support? Two reasons, I think. First, because of the Hobby Lobby, in which the Supreme Court used RFRA to uphold Hobby Lobby’s right to not cover contraceptives. Second, because of conservative Christians’ objection to same-sex marriage. In brief, liberals no longer see RFRA primarily as a tool to protect the rights of politically weak religious minorities, but one to protect the rights of more mainstream and more politically powerful religious groups to take actions that negatively affect liberal interests.

    Live by the sword, die by the sword.

  3. In at least one important way, Indiana’s RFRA is similar to the federal RFRA (and maybe to most state RFRAs, but I haven’t reviewed them all): It requires the state courts to use a strict scrutiny standard when judging any action that violates a person’s free exercise of religion. This means there has to be a compelling interest of the state in burdening a person’s religious freedom rights. To take the extreme example, we can use murder laws to punish volcano worshippers who sacrifice virgins to appease the volcano gods–preventing murder is a compelling state interest.The federal RFRA’s attempt to tell the U.S. Supreme Court what standard to use is risible. Congress doesn’t have that authority over the federal judiciary. But what about at the state level? Beats me–I don’t know enough about state-level law to know if a state legislature can dictate the state courts’ interpretive standards (that is, I don’t know if at the state level courts are truly co-equal branches; state and local government isn’t really my area of study), and I haven’t yet seen anyone address this question. So, possibly, the state’s courts could thumb their nose at the legislative insistence upon a standard of review. Or possibly not.

    However telling the courts what standard to use and telling them what result to reach are not the same thing. Eliminating discrimination is arguably a compelling state interest, because in the end a compelling state interest is what the courts say it is. And Indiana’s justices are certainly knowledgeable enough to write legally reasonable opinions arguing that non-discrimination is a compelling state interest, if they are of a mind to do so. Are, or will they be, of a mind to? We need a specialist on the Indiana Supreme Court to tell us that, and there are damn few political or legal scholars specializing in close analysis of their state’s Supreme Court. Were we California, I’d have some real hope of an answer. But Indiana isn’t California.

  4. So what about the ways Indiana’s RFRA is allegedly different? One notable characteristic is that Indiana’s law applies not just to sole proprietorships–where I would be sympathetic to it–but also to publicly traded corporations.

    Sec. 7. As used in this chapter, “person” includes the following: … (3) A partnership, a limited liability company, a corporation, … a joint-stock company,

    For reasons I explained above, I find that very problematic. However in this day and age I’m dubious that there are many joint-stock corporations that are going to bother with using religion as a justification for discrimination. Their discrimination is going to happen the standard way for this day and age–through bad management that is oblivious to what they’re actually doing.

  5. The law is arguably too loose on what counts as religious exercise.

    Sec. 5. As used in this chapter, “exercise of religion “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

    I’m not sure how this compares to other state RFRAs, and I have mixed thoughts on it. One the one hand, a lot of what we think are “religious” beliefs are really more culturally based, and we confusedly bind them up with religion (Christmas celebrations, for example), and I’m dubious that these fringe elements of religious practice deserve the same protection as practices that are more fundamental, or central to the belief. On the other hand, I don’t like the idea that the courts would get involved in determining what practices are central to a religious belief, because ultimately that is between an individual and their (perspective of) God.

    Further, if, like me, you accept a right to private discrimination by sole proprietorship-type companies, then this doesn’t matter, because it’s not their justification of their right that matters, but the right itself. However if you don’t accept that there is a right to private discrimination in any business enterprise, then this potential looseness in the law could be cause for concern.

  6. Garrett Epps at The Atlantic argues that Indiana’s law differs in that it allows the religious freedom defense to work in private causes of action–e.g., the gay couple suing the baker who won’t make them a wedding cake–as opposed to applying only to defenses against the application of laws by government agencies. This part of the law clearly is directed at creating a defense for that kind of discrimination, and so to that extent this is the clause that justifies the claims that the law is targeting gay people.It’s not clear to me why that would matter, though. It seems to me that if religious freedom is a defense against government action, then it is also a defense against government either forcing you to provide a service or forcing you to pay compensation for not providing that service. So it’s a new wrinkle, but not obviously (to me) a hugely significant one. But I’m open to someone more expert in this area of the law explaining why I might be wrong.

    And further, the law appears to explicitly allow a government agency to intervene in such cases.

    Sec. 9. … If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

    It appears, then, that any non-governmental action can, without conditions, effectively become one, so the lines of distinction upon which the critique relies are blurred.

  7. And then there is the new revelation that Connecticut’s RFRA may provide even greater protection for discrimination on religious grounds than Indiana’s. This has come forth in the context of mocking Connecticut’s governor Dan Malloy for his criticism of Indiana’s RFRA. Malloy is a possible Democratic presidential contender next year, so both his criticism and the gleeful response that he’s ignorant of his own state’s law are overburdened with political posturing.Nevertheless the underlying argument is correct. Indiana’s law refers to laws that create a “substantial burden” on religious freedom, while Connecticut’s only specifies a “burden” on such freedom. In practice, as interpreted by the Courts this distinction could mean nothing, or it could mean a great deal because that word “substantial” has great legal meaning (if the justices are inclined to pay attention to it). The word “burden,” absent any modifier, would include–if the judges so decide to interpret it–merely incidental burdens. In contrast, Indiana’s law would apply onto to laws that create a more than incidental burden, a substantial one. And it’s quite legally plausible that the state’s courts could determine that having to bake a cake (or a flower display, or take pictures at) a same-sex wedding is a merely incidental burden on religious freedom, not a substantial one.

    How do you know whether the court would interpret substantial that way or not? Find out what they ate for breakfast.

    In conclusion, yes, the law does appear to be clearly designed to allow businesses to discriminate for religious reasons. However it’s not certain that the Indiana courts will interpret the requirements of strict scrutiny, compelling government interests, and substantial burdens in a way that allows that to actually happen. Maybe they will. But you don’t know that they will, so shut up already.

    And, yes, I think there’s a right to private discrimination, at least within particular bounds. But if you’re more dedicated to vindicating your right to religious discriminate so you don’t have to linger around someone else’s sins than you are dedicated to getting your own sins under control, then you’re not really understanding what Jesus said, so shut up already.

    Seriously, all of y’all, just shut. the. fuck. up.

    *I find the Hobby Lobby case tricky because its form of ownership fell between these two models, being joint-stock, but closely held rather than publicly traded. Is Hobby Lobby the Green family, and the Green family Hobby Lobby? Well, less so than Joes’ Garage is Joe and Joe is Joe’s Garage, but more so than GM is GM’s stockholders and GM’s stockholders are GM.

Posted in Laws | Tagged , , , , , , , , , | 13 Comments

We Will Require You to Vote Because It’s for Your Own Good (and ours)

[Cross-posted at Hit Coffee]

President Obama has suggested that mandatory voting could offset the influence of big money in campaigns. There’s much that is incoherent in this idea.

First, Democrats are doing as well as Republicans in bringing in big money, but their own electoral failure demonstrates big money itself does turn elections.

Second, the non-voters are generally the least engaged,* who presumably are the most likely to be easily swayed by the advertising of big money, or else might vote essentially randomly.

Third, mandatory voting is illiberal. Forced political participation is another form of social control, rather than a form of liberty. Thorouean types are forbidden. The quiet person who harms no one, pays her taxes without complaint, volunteers in the community, but prefers to not vote is made into a criminal.

Fourth, I object to the instinct to motivate people through punitive action. If as a public policy we want people to vote, then let’s look for positive ways to do so. Traditionally this is done via the parties. Voter mobilization is, in fact, one of the primary purposes of parties, and perhaps the primary purpose.

Fifth, Obama is suggesting that these people should vote for their own good. Mandating that people act in their own interest is perverse, and in my view an improper task for government.

Sixth, it’s not at all certain that big money actually deters turnout, rather than stimulating it.

Overall, it appears to me that the President is concerned about Democratic voter turnout specifically, under the guise of being concerned about overall electoral turnout. He specifically mentioned low turnout among young, lower income, immigrant and minority groups, and criticized efforts to deter their turnout. While it’s fair to argue that efforts to deter turnout are a legitimate public policy problem, the fact remains that Obama is particularly focused on low turnout among populations that he expects to be more supportive of his party, so his solution is not to strengthen his own party’s GOTV efforts, or to find ways to effectively combat voter suppression efforts, but to mandate voting by his party’s likely supporters. Even if successful, though, the lack of close races suggests mandatory voting would have little effect on outcomes.

Under the guise of public policy, this appears to be a means of using law to rig the vote in the Democrats’ favor, no less than voter ID laws are (unsuccessful, I think) efforts to rig the vote in Republicans’ favor, and again under the guise of public policy.

Politicians will normally obscure self-interest behind appealing public interest slogans. They do so because it works, which means appeals like my post here to ignore the slogans will only be effective at the margins.

*Not solely. I have not voted when I have disliked the options, and I have had a political scientist far more reputable than me assert he gives money rather than voting because it gives his effort more influence.

Posted in Politics in General | Tagged , , , , , | 13 Comments

No, Oklahoma Is Not Banning Atheist Marriage

There’s a lot of foofaraw going around the internet and Facebook these days reposting articles that claim the Oklahoma legislature is passing a bill that would ban atheists from getting married. See, for example, here, here and here. A slight variation on the theme is that the bill gives clergy sole power over marriage licenses, as claimed here.

All these articles have two features in common: 1) The writers are idiots; 2) none of them actually cite even one line from the bill. Don’t take my word for it, check their posts.

So what does the bill actually say? Here’s the actual text.. See, what none of these geniuses seem to understand is that you can actually look up the bill’s text, thanks to the same internet that allows them to write inane and misleading commentary.

Now to be slightly more fair than these writers deserve, a bit of the confusion stems from a previous version of the bill that deleted the authority of judges to perform ceremonies. That was a foolish bit that seems to have been a part of the author’s stated purpose of trying to protect state officials from having to participate in same-sex marriages. But as I’ll show you, judges are back in. It’s not sure just when that occurred, but some of the articles criticizing the bill are from January, which likely was before judges were put back in the bill, so I’ll give those folks a pass. Those writing more recently, though, are just passing on rumors without checking them.

Here’s what the bill really does: it ends the practice, in Oklahoma, of the state giving out marriage licenses, and changes that to the state just recording the existence of a marriage. So how does a marriage come into existence? In either of two ways, via a ceremony which then gets reported or via an affidavit of common law marriage.

Let’s look at the bill’s text, that any of the above lazy fool writers could have looked at but didn’t. First, the explanation of the bill’s purpose (redacted to focus on the relevant elements).

An Act relating to marriage licenses; …providing fee for recording marriage certificate or affidavit of common law marriage; deleting marriage license fee collection procedure;…deleting reference to marriage license;… allowing affidavit of common law marriage; providing for filing of affidavit with court clerk; … requiring execution of marriage certificate; … directing filing of certificate with court clerk; instructing court clerk to record certificate or affidavit;

Let’s break that down. The bill would add a fee for recording a marriage certificate or affidavit of common law marriage, because these are new things that don’t currently exist. It would delete the marriage license fee because the bill would get rid of the traditional marriage license. That is, instead of getting a license prior to getting married, if this bill passes, in Oklahoma you will just record a certificate of marriage or an affidavit of common law marriage after the fact. The following text from the bill makes even clearer that licenses would no longer be required.

No person herein authorized to perform or solemnize a
marriage ceremony shall do so unless the license issued therefor be first delivered into his or her possession nor unless he or she has good reason to believe the persons presenting themselves before him or her for marriage are the identical persons named in the license, and for whose marriage the same was issued, and that if there is no a legal objection or impediment to such marriage.

Note here that all the language referencing a license is stricken, and all that remains is language specifying that there is no other legal reason why the couple cannot be married.

More importantly, the bill would instruct the clerk to record the certificate or affidavit. There would be no discretion on the part of the clerk–if someone brings in the certificate or the affidavit, the clerk must record the marriage. That is, if this bill passes, if you say you are married in Oklahoma, they’ll record you as being married.

Let’s dig in a little deeper. The initial criticisms of the bill came from the section specifying who can solemnize a wedding and transmit a marriage certificate to a clerk. And apparently–extrapolating from what I’ve read–the original version of the bill struck out judges and included only religious officials. I get the impression this was just bad drafting on the part of the sponsor, who wanted to protect judges from having a duty to perform same-sex marriages, on the expectation of the Supreme Court striking down bans, including Oklahoma’s constitutional ban on SSM (the law’s author is, it appears, an opponent of SSM, yet as I’ll show the bill would allow for SSM, once Oklahoma’s constitutional ban is either struck down or repealed). But the language now explicitly allows judges again [note: stricken out words are proposed deletions of current statutory language, while underlines are proposed additions]:

Section 7. A. All Except as provided in subsection E of this section marriages must be contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by a judge or retired judge of any court in this state, or an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.

Now I don’t care for this emphasis on religious dignitaries being specially mentioned as authorized to solemnize marriages, but note two things, please. First, that language is not underlined, meaning it is now new–that’s extant language in the law. Second, note that judges and retired judges are explicitly mentioned. You don’t need a religious person to perform your ceremony; if you’re virulently atheist and you can find a judge who’s happy to cash your check, you, too, can get married in Oklahoma.

But, wait, there’s more. Despite that irritating emphasis on religious persons, anyone can become ordained, and thanks to the First Amendment, the state of Oklahoma doesn’t get to pick and choose which religions really count. See here, for example. And believe me, the theology of on-line ordination is quite simple–all you have to believe is that the ordaining organization will happily cash your check and send you a certificate in return.

But wait, what about that “Except as provided in subsection E” bit? That’s a bit that’s even more friendly to the unchurched.

E. Marriages not contracted by a formal ceremony pursuant to subsection A of this section may be acknowledged by filing an affidavit of common law marriage with the court clerk. The affidavit of common law marriage shall be signed by both parties, notarized with official seal affixed and include:[Edit: appropriate identifying information, and] 4. That the parties are not disqualified from or incapable of entering into a common law marriage.

Don’t want a ceremony of any kind? Just hit the notary public then take your form to the clerk and the state will recognize your marriage. Or if you prefer a ceremony without even a pseudo-clergyman, have the ceremony, enjoy the reception, then hit the notary public, etc. This would be actually quite a simplification over the current status of common law marriage in Oklahoma.

And these common law marriages would be identical for all legal purposes to the ceremonially solemnized marriages.

B. Any entity requiring proof of identity or marital status shall accept a certified copy of the marriage certificate or affidavit of common law marriage that has been filed with the court clerk. Any reference in the Oklahoma Statutes requiring a marriage license as proof of identity or marital status shall be interpreted to include a marriage certificate or affidavit of common law marriage executed on or after November 1, 2015.

So there you have it. If anything, this bill would make it even easier for atheists to get married in Oklahoma simply by submitting a notarized affidavit, if they object to even having to nod toward religion to the extent of having an officiant from a totally make-believe church that doesn’t really ask its pseudo-ministers to believe in anything at all.

So, can we all just take a deep breath and quit panicking, please?

Posted in Politics in General, Uncategorized | Tagged , , , , , | 11 Comments

Politics Remains Stupid

Senator Jeff Sessions won the 2006 “Guardian of Small Business” award from the National federation of Independent Businesses, so he should be pro-business, right? But here he is now denying the right of business owners to hire whom they want.

Well, what if your child wants a job? What if you want a job? What if your spouse wants a job and is looking at a job and now we’ve got another, what, 250,000 job applicants, contrary to law?

The first thing we should do is be focusing on getting jobs for Americans that are unemployed. Are we going to keep Americans on welfare and benefits while we bring in more and more foreigners to take jobs when we’ve got Americans ready and willing to take those jobs?

Obviously the reason to hire an immigrant over a citizen is because you think the immigrant will provide greater value for the price of their labor. So Sessions is demanding that businesses be forced to operate with less efficiency.

Of course Sessions is also implying that Americans can’t compete. If he’s right, then that’s their damn problem, and exactly the kind of thing conservatives don’t generally care about. If he’s wrong, where are the conservatives who should be shouting at him for his disdain for hard-working Americans?

So it seems to me that Sessions is both anti-business and disdainful of blue collar Americans. I doubt conservatives will think deeply enough about these issues to recognize that, though. They’ll just applaud his anti-immigrant stance, because for all their talk about liberty, they don’t really believe in liberty for those who take great risks and sacrifices to come to America to get some of it.

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The Zendaya Comments Weren’t Racist

Today’s meme is that the comments by (the heretofore unknown to me) Giuliana Rancic about (the heretofore unknown to me) Zendaya’s dreadlocks were racist (see here and here, for example. I call bullshit.

Rancic apparently said ““I feel like she smells like pachouli oil. Or weed.” Having spent close to a decade of my life in San Francisco, California, and Eugene, Oregon, I can say truthfully that if someone says the words “dreadlocks, patchouli, and weed,” my mental image is of a white hippie-wannabe adolescent or young adult unable to leave adolescence behind mooching off passersby.

Rancic’s comments may have been dumb–Zendaya looked anything but dirty-hippyish, but then again isn’t the point of Kelly Osbourne’s show to talk snarky about how people look?–but they weren’t racist.

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