Politics: April 2011 Archives

The usual expectation of the Justice Department when a federal law is being challenged in court is to defend the law, as long as some good-faith argument can be mustered in its defense, even if the administration in power at the moment disagrees with the law on policy grounds. The Obama Administration has chosen not to defend the Defense of Marriage Act (DOMA), a law that it had been defending with what it had taken to be good-faith arguments for most of the Obama presidency.

The president's change of heart on this issue isn't just a question of consistency between his past statements (including what he ran his campaign on) and his current views, because it's possible to change your mind on important issues. It also isn't just about whether the solicitor general always has to defend policies that the sitting president disagrees with. There are plenty of cases of other presidents choosing not to defend laws that are challenged in court.

What especially worries me about this current move is that there are people on both sides of the issue who do have good-faith arguments. They each believe there are convincing arguments. The Obama Administration acknowledged this by presenting those arguments. They seem to have gotten tired of offering arguments they no longer agree with (on the more charitable explanation: I would say "or have been politically pressured to abandon" on the less charitable explanation). Barack Obama was convinced enough by such arguments, if we take him to be remotely honest, that he defended the law during his run for the White House. He directed his solicitor general, who is now his second Supreme Court appointee, to defend the law in the courts. But if he's supposed to defend the law unless he thinks there are no good-faith arguments for it, that means he implicitly has indicated that he (no longer?) thinks there are good faith arguments for it.

I've been thinking about the implications of this, in light of one of the key themes that got him elected. He talks about putting yourself in the shoes of your political opponent, thinking how they think, coming to understand them so that you don't simply present them as evil incarnate. They differ from you on policy matters, but it's often based on core values that we all share, just applied differently (and in your own view incorrectly). In other words, he spends quite a lot of energy calling on people to do politics differently, in a way that recognizes they have good-faith arguments for their positions.

Now this isn't the first place where I see a conflict between that message, which is a major theme of his book The Audacity of Hope, and how he actually describes his political opponents when disagreeing with them, which strikes me as not abiding by his own advice. I could give numerous examples from that very book, but I don't have a hard copy from the library yet, so I'll have to come back to that at another time. (But see my discussions of his comments about Bush's Supreme Court picks for a clear example of this.)

I have to wonder if this is another example. By implicitly indicating that he doesn't think there are good-faith arguments for DOMA, is he therefore tarring all proponents of DOMA, including every member of Congress who voted for it (and it was a popular bill on the Democratic side) with having no good-faith arguments for the bill? They were all supporting it disingenuously, in other words. What would motivate them to support it if they had no good-faith reasons to support the law in principle? Presumably corruption, right? Is he asserting that of all supporters of DOMA, including the Senator Obama who ran for president in 2008 and succeeded in getting elected, who went on to instruct his Solicitor General Elena Kagan to defend the law with arguments he was claiming were good-faith arguments? The arguments often given about his inconsistency on this issue are too simplistic, given that people really can change their minds in good faith. Perhaps he has (though I admit some skepticism). But I'm not sure he can consistently claim that there's no good-faith argument without thereby admitting deception and political opportunism on his own part.

The only way out of this argument I can see is if he's going to insist that you can think there are good-faith arguments for a position but still refuse to defend it. But that does go against significant tradition, and it has him falling afoul of another problem he raises in his book, and that's the biggest criticism he thinks he has of the Republicans under Bush. He accuses them of being unwilling to abide by how things have traditionally been done. Some issues he picks on involve issues where he sees a constitutional violation. (On many of those issues, I suspect he's changed his mind and simply continued the Bush policy, since he mostly had in mind war on terrorism issues, where his policies haven't different much from Bush's.) One place he applies this is to the so-called "nuclear option" issue in the Senate, where he thought they should continue to allow the filibuster in judicial nominations, in part because it's a longstanding tradition. Now he's going against a significant tradition, if he thinks there are good-faith arguments, anyway.

So either way, he's going against a major theme in his book.

Imposing Religion

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There are several different things someone might mean when they speak of imposing religious beliefs on those who don't hold them. There are two different axes to pay attention to. One is what is meant by "imposing", and the other is what is meant by "religion".

On the first axis, what is meant by "imposing", I can think of a number of things in decreasing order of severity:

1. Forcing people with threat of force or imprisonment
2. Coercing people by some manner less severe than force or threat of imprisonment (e.g. giving them incentives like a right to vote, to drive, to hold an independent job) that most Americans consider rights or close enough to it
3. Incentivizing by some manner less severe than coercion (e.g. government influencing social acceptance, giving tax credits or deductions, criminal penalties of smaller sort such as a fine)
4. Calling on people to change their mind or behavior, perhaps with strenuous argumentation
5. Explaining one's attitude on the issue
6. Simply stating what one's view happens to be

On the second axis, what is meant by "religion", I can again think of a number of things, in decreasing order of centrality to religion:
A. espousing a statement of faith or unfaith (that they might not actually agree with)
B. engaging in certain behavior that is motivated (on the part of those instituting the policy) merely by religious beliefs and not by any attempt at rational argument
C. engaging in certain behavior that is motivated (on the part of those instituting the policy) in part by religious beliefs but also by some attempt at rational argument, even if it's not a strong argument
D. engaging in certain behavior that is motivated (on the part of those instituting the policy) in part by religious beliefs but is held by most who hold it (even if controversially) by rationally-motivated arguments that, while disputed, at least are philosophically-driven in addition to or, for some, without the religious motivation
E. engaging in certain behavior that is motivated (on the part of those instituting the policy) in part by religious beliefs but is commonly held by most people, and for most people there is motivation that in their minds is on grounds entirely independent of religion

There are those who insist that even stating one's religious views counts as imposing them in an improper way, never mind preaching them. Fortunately, in the United States even 4A is protected speech by the first amendment. I'm not about to argue for 1 either, so we're really looking at 2 and 3. In the history of the world, we've certainly seen pseudo-conversions coerced at swordpoint or recantations of religious beliefs at the threat of martyrdom. In comparison with that, the idea that one is imposing one's religion merely by trying to make a case for it seems absurd. It's similar to the War on Christmas people complaining of Christians being persecuted in the United States just because schools are refusing to sing Jingle Bells in schools on the ground that the song is tied to a religious holiday. (In my experience, schools nowadays don't reduce Christian content at Christmas but simply include it alongside religious content for other religions' holidays too, so this complaint is getting even more stale than it was when I was younger, when such songs might have been excluded on the strange claim that they're somehow religious).

We do have some laws that are all the way down to 1E or sometimes 1D, however. For example, same-sex sodomy laws, bans on selling contraceptives, and bans on teaching evolution (all deemed unconstitutional now) were often religiously-motivated but did include arguments, often arguments widely accepted at the time, that didn't rely on religious premises. Evolution was thought not to be as well-supported as its proponents think. Creation science has insisted that evolution is just bad science. This isn't about whether their arguments are good but about what kind of arguments they are. Similarly, bans on same-sex sodomy were justified more by disgust at such acts than any biblical prohibition on them, and the Connecticut ban on selling contraceptives was supported by an argument about population control.

But there remain some laws at level 1E or 1D and some attempts at instituting laws at this level. Sodomy laws are deemed unconstitutional by the Supreme Court since 2004, but incest laws vary from state to state. It's not criminal in Rhode Island to have sex with a close relative, but you can't marry them unless you're Jewish (to allow for Levirate customs, I assume). In Ohio it's criminal to have sex with your children, but only the parents are criminal even if the children are adults. But in Massachusetts you can get 20 years in prison for having sex with your adult sibling, even if one of the two parties is demonstrably infertile or if it's a same-sex act, in either case removing any chance of genetic problems with offspring. Such a law is, as far as the courts have so far indicated, perfectly constitutional. Yet I can think of no easy argument against it unless you rely on beliefs that are either very controversial and often supported by religion or simply feelings of disgust. Arguments against pornography aren't all religious (see the feminist arguments), but we make distributing or producing certain kinds of pornography illegal in part because a lot of people have religious objections to it. (But I should say that this is clearly 1E and not 1D, since almost all religious people who object to pornography would agree with just about the entire feminist case against pornography, despite feminist claims to the contrary.)

In fact, 1E prohibitions occur all the time. Laws against murder or robbery fit into this category. People certainly have religious reasons for thinking such acts are wrong and ought to be given severe penalties. But the arguments for them are widely accepted by religious and non-religious people, and the secularly-accessible arguments are usually present even for religious people.

Coercion of sorts 2 and 3 is a little more commonly thought of as imposing religion, and there are some ways that can occur today in the United States with legal sanction (although for letters further down the list than happens with Islam). You're not going to find 2A or 3A in the U.S. today, but you will find both in Islamic countries. Most debates in the political context of the U.S. about imposing religion aren't even about 2B or 3B. The kinds of things that get labeled as Taliban-like behavior in the U.S. aren't about matters that have purely religious support. They at least make an attempt at rational argumentation. But that's also true of the Islamic laws requiring women to wear veils or prohibiting girls from being educated in any formal way. The supposed rational argumentation in both cases is extremely weak and based on false views of the capabilities of women or false priorities, elevating the concern with provoking male lust to a point where it overcomes eminently reasonable considerations about freedom in how women might dress and conduct themselves in public. Even the most stringent Christian concerns about modesty in women's dress are going to allow for much more freedom than you'll find in many Islamic prohibitions on female dress.

I think most cases I'm aware of on level 2 are actually all the way down to 2E. I'm thinking of laws that prohibit minority religious behavior, such as requiring a photo ID for a driver's license (which some orthodox Jews resist and even some Muslims, or like the Florida law requiring a photo ID not to have a face covered too much, which some Muslim women won't do). The attempted ban on peyote even in Native American religious ceremonies would have fallen into this category, but Supreme Court, in an opinion by Justice Scalia, overturned that. Banning certain kinds of political protests that someone might have religious reasons for insisting on doing, e.g. perhaps an abortion protest of a certain nature, amounts to a 2C imposition.

Level 3C is much more fair game for a lot of issues in the U.S. We don't imprison people for much at level C, but we do incentivize religious charitable giving by giving tax deductions, and we recognize (so far) a privileged position for opposite-sex unions to be called marriage at the federal level and in most states. That gives government sanction for something with some secular arguments but also based on religious motivation for many supporters of that policy, and it has an effect of cultural sanction or respect for certain behavior over other behavior. If we ban a certain religious act but without criminal penalty other than a fine, that would fall under 3C. There are religious and non-religious arguments for abortion protests that cross the line into illegality to a point of a fine but not to the point of imprisonment.

In the UK and Canada in the last couple years, pastors have been carted off to prison for preaching that same-sex sexual acts are immoral. This isn't quite an expectation of having a certain view, but it's prohibiting the speaking of such a view. It's a level 1 prohibition of level 6 behavior. Americans rightly deride such policies as contrary the value of debate as a basic, fundamental component of civil society. Speech codes that prohibit even stating your religious views if such views are considered offensive to someone, while indisputably unconstitutional in the United States, somehow manage to appear at most universities anyway. Even 4A is uncontroversially protected speech under the first amendment, unless it takes it to a level of actually provoking people to a fight or to the level of panic that would result by yelling "fire" in a crowded theater. Yet I've encountered a number of people who have considered it a clear case of immorally imposing one's religion, as if trying to persuade someone of a view you happen to find true is somehow wrong. Some take it to a further extreme, considering even the reporting of your view to be inappropriate when it's a controversial view that some might find offensive. Merely indicating that one believes Jews who don't accept Christ as the Messiah will go to hell would, to some people's mind, count as imposing one's religion in an immoral way. I find such an analysis so unhealthy that I almost consider it undeserving of a reply. But if pressed I would insist on the value of philosophical debate, the importance of understanding those who disagree with you, and the moral importance to certain religions of attempting to win people over to something they consider very urgent for all humanity, which prevents them from remaining silent if they're taking their own religion seriously.

What's the moral of the story? Mostly what motivated me to work through all this is that I think we should be wary of anyone who makes blanket statements about imposing religion, whether moral statements or simply factual claims that it has happened. It should be pretty clear from all this that it's never clear what people mean by that unless the specify, and the debate that might ensure once they do specify is probably worth having. Most people who make such comments haven't thought them through and could benefit from some effort to explore precisely what they mean. The term "imposing religion" is at this point so unhelpful as to be worth avoiding whenever we can, and in its place let's clarify the particular elements that we're concerned about, since the different items in both lists above certainly do involve different moral considerations.

Pro-choicers regularly accuse pro-lifers of favoring policies that increase abortions by (a) being one-issue voters who care only about laws restricting abortion (and politicians who will appoint, confirm, or be judges who will move things back in a direction that allows more of such restrictions), (b) actively opposing laws and policies that will decrease the number of abortions, or (c) promoting policies that will actually increase the number of unwanted pregnancies.

I'm sure there are people who are inconsistent in applying their pro-life principles by doing such things, but there are plenty of unfair ways to make such arguments, particularly when they ignore other beliefs held by many pro-life people that make their position fully consistent.

For example, contraception decreases the number of unwanted pregnancies, it is argued, and therefore pro-lifers who want to decrease the number of abortions ought to promote contraception. So the charge is that pro-lifers who oppose contraception are thus inconsistent.

It doesn't take much reflection to see that this argument is patently unfair to some pro-lifers. Consider the following proposal. Let's kill everyone on the planet. That would surely decrease the number of unwanted pregnancies. But no pro-lifer would advocate it, because it would be wrong to decrease the number of unwanted pregnancies by using such a method. Now no one is offering that proposal, but consider the proposal in question. The suggestion is that by promoting contraception we would decrease the number of unwanted pregnancies, and therefore we would decrease the number of abortions. You might think that this proposal is much better than simply killing everyone on the planet, which would also produce that same goal. In fact, it is. I'd be shocked to find anyone, pro-life or not, who wouldn't agree. But a proposal doesn't have to be as bad as killing everyone on the planet to be immoral, and at least one possible view would still consistently hold to pro-life views on abortion and anti-contraception views.

Some pro-lifers are simply opposed to contraception in principle. They think it's immoral. They surely don't think it's as immoral as wiping out all human life. But they do think it would be wrong to participate in it or promote it, and supporting policies that attempt to get more people to use contraception would indeed participate in and promote contraception. To such a person, it doesn't matter if they are opposing a policy that would decrease unwanted pregnancies. Decreasing unwanted pregnancies is a good thing, since it removes the occasion in which some people will do something immoral. But we shouldn't do something immoral ourselves in order to remove the situation where someone else will be tempted to do something immoral. So such a person is consistent with pro-life principles while opposing policies that promote contraception, and it's extremely unfair to such a person's actual views to accuse them of inconsistency before exploring what views they might have for resisting the promotion of contraception.

Similarly, if someone thinks it's immoral to promote economic policies that will put more people in better situations and thus remove some of the concerns that lead to abortions, then they should oppose those policies. Suppose the person is a pro-life economic libertarian of an extreme enough sort that they think welfare amounts to stealing, for example. They won't see the good consequences of welfare for those who are tempted to have abortions as good enough to overcome the wrongness of stealing from one group of people to help others. Preventing one bad situation that prevents a temptation for an immoral act is surely a good thing, but if it means adopting an economic policy that one considers immoral, it might eliminate that method, depending on what moral theory we're working with and how one sorts through potentially conflicting moral principles.

Now the argument is much better when directed against someone who doesn't see the policy in question as being intrinsically wrong but just sees it as a bad idea. Most economic conservatives don't oppose welfare programs at any level. Many pro-lifers don't oppose contraception as intrinsically wrong. In the first case, they have to weigh the bad consequences they expect from an economic policy they disagree with against the bad consequences they should expect if something isn't done to change the unwanted pregnancy rate. A lot more factors come into play here, such as which methods will be most effective at reducing unwanted pregnancies, which methods will have better consequences in other respects, how much energy the person is already putting into attempts that they don't see as having bad consequences, and how effective restrictive laws will be as compared with simply changing people's circumstances.

What about the contraceptive issue with those who don't see contraception as intrinsically wrong? A lot of pro-lifers who don't have a problem with contraception in principle will still be extremely hesitant about efforts to promote it among teenagers (or among the unmarried in general, depending on their views about sexual morality). One reason for this hesitation, I think, is that they see such promotion as endorsement of teenage sex (or unmarried sex), and they would see that as participating in something they shouldn't. Or it might be thought of in terms of promotion of something one wants not to promote. Then the wrongness of promoting something wrong or participating in something wrong might be decisive for someone, and we don't have an inconsistent position after all.

Then there might also be bad consequences to consider. I've seen claims that promoting contraception doesn't decrease unwanted pregnancies but actually decreases them. I've never looked at the details of studies on the subject, but I think the explanation for why this might be is that people who most (but not all) of the time use contraception are more likely to feel safer in avoiding contraception than without contraception-promotion, in which case they might have been more willing to abstain from sex than to engage in contracepted-sex most (but not all) of the time. Now it doesn't actually matter to my argument whether these claims are true. Perhaps this effect isn't very strong, and the effect of promoting contraception in preventing pregnancies is much stronger. What matters is that some people believe this claim to be true, and it's not totally unreasonable, even if a closer look at facts might disabuse someone of it (if in fact it's wrong, which I'm not taking a stand on one way or the other). That means they have a consistent position of why they think the effects of contraception-promotion do not actually decrease unwanted pregnancies, and thus they can consistently hold to pro-life principles and want to reduce unwanted pregnancies without wanting to promote contraception.

I recently listened to a Bloggingheads TV diavlog between Sarah Posner and Michael Dougherty, and along the way one of them (I believe Dougherty) mentioned an argument that I don't think I've ever heard before. Apparently some people have argued against promoting contraceptives because they think such efforts will lead to a bad consequence, not just in other areas, but one that has a direct impact on abortion. It may well be, as far as this argument goes, that promoting contraception will decrease the number of unexpected pregnancies, i.e. the number of pregnancies that were not wanted before they occurred. But emphasizing contraception might at the same time reinforce the sense that pregnancy is a bad thing worth avoiding. Of those unexpected pregnancies, such an increased sense of pregnancy as bad might increase the number of unexpected pregnancies been seen as unwanted. That might then increase the number of abortions resulting from unexpected pregnancies, even if the number of unexpected pregnancies goes down because of the contraception. You'd then have to see if it's possible to figure out which effect would be more significant, and my suspicion is that such a task would be very difficult, if not impossible, which might lead one toward caution about a policy that might have a good effect but might also have a bad effect. That would then contribute toward explaining the hesitation from some pro-lifers with respect to policies that promote contraception.

There are plenty of other things that might come to play here, but this should give enough sense that it doesn't automatically follow from pro-life convictions that one ought to favor policies promoting contraception or supporting economic policies that might have the effect of helping more women at risk for unwanted pregnancies to have more economically-viable situations where they'd be less tempted to have an abortion. Perhaps when all is said and done, the best pro-life policy is to oppose abortion and favor restricting it while also promoting contraception. Provided you don't think contraception is intrinsically immoral, that's going to depend on a number of other factors, including some empirical data that I'm not sure is readily available in an indisputable form. But it's not an automatic implication of pro-life principles, and how people settle those other issues will affect what they might consistently say about efforts to promote contraception. Similarly, it's certainly possible that pro-lifers ought to support some given effort to increase the quality of life of those who might be at risk for having an abortion. But whether they should consistently do so will depend quite a bit both on their other views and on empirical data that isn't easily available to most people and may, frankly, not even exist in any understandable form.

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