(Non)white (Wo)man’s Burden

When I was in law school, I had a professor who explained the “reasonable person” standard, a formulation that runs through most of Anglo-American law. All sorts of rules are formed by asking the question “What would a reasonable person under these cicumstances do (or refrain from doing).” My professor said this: “Just understand that when a judge says ‘reasonable person,’ he means ‘me.'”

Judges are not quite that biased, but there is some truth in what my professor said. One of the reasons people get so worked up about having judges with diverse backgrounds is that sometimes those backgrounds make a difference in what is considered “reasonable.” Conservatives attacked Supreme Court Justice Sonia Sotomayor for talking about the need for judges to have “empathy,” but that’s exactly what is needed. Genuinely understanding another person’s circumstances is a prerequisite to treating people fairly.

I’ve been thinking about this recently as courts review cases in two seemingly unrelated areas of law: abortion clinic regulations and voter identification requirements. What they have in common is this: in both areas of the law, a great deal hinges on what is or is not considered an undue “burden” on someone seeking to exercise her right to obtain an abortion or to vote. Not surprisingly, my home state of Texas is seeking to make both of those activities as burdensome as possible, particularly on lower-income people.

The problem is that what seems like a “burden” to a relatively affluent, typically white male judge may be very different from what constitutes a “burden” to those without their advantages. If you have flexible hours and can afford to be away from work, the idea of spending a day getting a photo ID may seem like a hassle but hardly that big a deal. If you are working double shifts, they might as well put the polling places on the moon.  If you aren’t a single mother with three kids who already demand your attention, driving to the next state to obtain an abortion (or just having the child and not making a fuss about it) may seem entirely reasonable. But the burden is real, and it falls most heavily on those least able to cope. (Interestingly, these same judges can be extraordinarily sensitive to even trivial burdens that fall on other groups, like polluters or gun enthusiasts).

In fact, federal judges have to try even harder to develop empathy because federal judges are even more privileged than the typical white-collar affluent person. They enjoy lifetime tenure and can throw people in jail if they don’t like their behavior. Not exactly a recipe for understanding the plight of the common man (or woman).

I think judges should consciously try to view burdens from the perspective of the least advantaged. If you’re stress-testing a product, it doesn’t make any sense to focus on the strongest parts. You want to make sure the weakest parts will hold up to use. And if you’re testing burdens, you should make sure they can reasonably be borne by those with the least resources, which means they can reasonable be borne by everyone else as well. The law should not impose burdens that only the well-off can meet.

Posted in Law

Rated “A” for Ambiguous


I made a joke on Facebook about this story – “Mother wants ‘Breaking Bad’ figures removed from Toys R Us,” mainly because I thought the idea of an “EZ Bake meth oven” was funny. One of my friends commented that he loved the show but thought Toys R Us was “negligent” in putting a toy like that on its shelves. (My friend is not alone; Time magazine referred to the sale of the toys as a “spectacularly bad bit of judgment” by the retailer.)

This reaction intrigued me, because the assumption seems to be that even having the toys (which are stocked in an aisle aimed at adult collectors) in a kids’ toy store is somehow damaging or at least inappropriate. I don’t find that premise very persuasive.

The idea of shielding children from distressing images or themes is itself controversial, and quite a few parents believe that we have gone overboard in trying to banish any dark or disturbing ideas from our children’s worlds. And the opposite is true: many people think that we are inundating our children with violent imagery that they cannot process appropriately, hence the ubiquitous letters – TV-MA, D, L, S, V – that symbolize adult themes, like a periodic table of naughtiness.

I regard myself as a moderate in this debate. We try to be mindful of what Carter is reading and watching and playing, although I will admit I tend to get more worked up about unhealthy social attitudes than violence or sexual innuendo. As squishy as I may be, I obviously would not let my child watch Breaking Bad. But I’m not sure I would have any objection if he wanted a Walter White action figure.

The things that make Breaking Bad inappropriate for children are carried in the show’s imagery and storylines, not in the physical appearance of its characters. luthorStripped of the context of moral entropy and existential dread, Walter White is simply a bald guy with a gun, not unlike Lex Luthor (who has probably killed or tried to kill more people over the years than a platoon of Walter Whites could dream of). The belief, whether conscious or unconscious, seems to be that the adult themes of Breaking Bad must somehow leach into the toys, like the psychic equivalent of lead paint, and that will ultimately harm children at some level.

As I’ve discussed before, ideas about contamination drive our moral reasoning much more than we know, so this idea of cultural contamination probably does drive some of the negative reactions to the Breaking Bad toys. It reminds me somewhat of a viral story earlier this year about how “Turkey in the Straw,” a song that survives in today’s culture mainly as the siren call of ice cream trucks, had its musical roots in extremely racist songs going back to the 1800s. And while I found this bit of cultural history interesting, I don’t think anyone should be worried that the tune is somehow broadcasting some sort of racist Morse code to children as they line up for their Bomb Pops and Choco Tacos. No matter what words are put to it, a tune cannot, in and of itself, be racist (I’m trying to imagine a really bigoted composer trying to write a piano piece with only white keys, but I still don’t think it would have any effect).

Even words steeped in racial injustice can, over time, become divorced from their ugly context. The term “grandfather clause,” which reflects a cornerstone of the monstrous Jim Crow regime, is used in legal and political contexts all the time today, without any thought given to the repressive laws that made such a term necessary. It is what Orwell would probably characterize as a “dying metaphor,” in which a metaphor essentially occupies the role of a literal term, with no real thought given to its origin.

Toys are in fact uniquely suited to resist cultural contamination, because a toy is first and foremost a vehicle for a child’s imagination. I have known many parents devoted to pacifism who have watched their children chew their organic whole-grain toast into the shape of a gun and shoot each other at the breakfast table. In the hands of different children (or even the same child over a few hours), a Walter White action figure could be anything at all: a vampire hunter, an international spy, a scientist who creates robot dinosaurs, or a weekend guest at Barbie’s Dream House. The themes of the show – powerful and haunting to any viewer – don’t have any jurisdiction over the toy box.

When Carter was very small, we got him a small plush toy shaped like the creature that bursts out of John Hurt’s chest in Alien.alien I remember being amazed that this thing, so horrifying onscreen, could be so cuddly. Carter loved it, often hugging it close when taking a nap. He had obviously not seen the movie (I hope to watch it with him one day, perhaps right after our Breaking Bad marathon), so to him it was just a friendly stuffed animal, no different from the stuffed elephants and alligators that littered his room. Even a toy that springs from a massively successful film franchise is still just a toy, ready to be whatever its young owner needs it to be. And if some child somewhere wants to put a Walter White action figure next to his pillow, I don’t have a problem with it.

For those who never saw the day

I have not written a poem in 30 years, and I probably will not write another one for 30 more, but while reading some of the essays on the recent marriage equality decisions (most notably Andrew Sullivan’s, which began “I think of all those who never saw this day”) I’ve been experiencing a combination of joy and grief that I felt I should try to express in some way other than my typical prosaic analysis.

For those who never saw the day

When they could speak their love aloud

Without euphemism or misdirection

When they would not live in fear of pronouns

With their telltale genders


Waiting while ugly doctrines

Are ratified by silence

Or loudly proclaimed by loved ones

Who open wounds they never see

And the wounded don’t complain


Whole lives muffled by shame

Curdled by loathing

Haunted by longing

Ended in despair


For those who never saw the day

And yet knew it could be better

Knew they were not broken

And did not need forgiveness or repair


What is better tribute now? Gratitude for better times

Or rage at past indignities

And what is yet undone


Neither seems adequate to the present task

Anger seems ungrateful

And gratitude seems servile

“Thank you for seeing at long last that we are human too”


We may need to invent a new emotion

Some hopeful indignation,

Some outraged joy

To give the past and the present and the future their due


The necessity of magical thinking

I’ve done a couple of posts now about how religious reasoning is more secular than people think (for example here and here), but the reverse is also true. Secular moral reasoning is much less empirical than people think it is. At its core, it relies on what could be described as magical thinking, although framed without reference to literal supernatural forces. Even those who pride themselves on their devotion to empirical rigor and the scientific method will find themselves thinking in abstract terms, bordering on mysticism, when addressing moral questions.

This should not be a surprise. Moral reasoning is, for the most part, about how we treat other human beings, and human beings are notoriously difficult to study scientifically. They are complicated and sometimes deceptive, and their reactions change dramatically if they know they are being observed or evaluated. Even if we could construct flawless experiments on human nature, we are still faced with what Hume identified as the gap between “is” and “ought.” No amount of empirical rigor can convert an observation about human beings into an ethical principle.

This may sound strange, but I think the only way to derive ethical principles about how we should treat other people is by essentially tricking ourselves. For example, our brains tend to react to observations of pain or pleasure in others by “mirroring,” reacting as if we ourselves were experiencing that pain or pleasure. It’s easy to see that the utility of such an adaptation in enabling individuals to learn more quickly about what to seek out or avoid in their environment. But it’s important to note that our brain is, in a sense, tricking us. We are not really experiencing the same stimulus as the person we are observing, we are simply reacting as if we were. Although it’s not “real,” this “mirroring” reaction is one of the fundamental building blocks of empathy. (The mirroring reaction is often noticeably absent in psychopaths). This empathy can give rise to complex moral judgments, most notably the “Golden Rule,” which exists in some permutation in every moral code ever devised by human beings.

But notice that this powerful engine of moral reasoning is fueled by an illusion. It only works if we suspend our disbelief and embrace the feeling of being in another person’s shoes. If we adopt a rigorously empirical stance, we can only describe the experience as the firing of certain neurons in response to stimulus, with no necessary connection to any broader ideas about behavior. At most, a strictly empirical view might allow that we should avoid harming people in our immediate vicinity, to avoid unpleasant neural reactions. But the idea that we should care about working conditions in a sweatshop on the other side of the world would never even come up.

Empathy is a sort of mental trick, but it’s the best kind of trick. If you examine creation myths from different cultures, one of the recurring themes is that the creation of the world, or of human beings in particular, is often sparked by a trickster. Some crafty deity will steal fire from the sun or make people out of mud, and the world as we know it springs into being. Humans recognize, on a very deep level, that a certain amount of deception is necessary to bridge the gap between what we are and what we can be.

The author Terry Pratchett articulated this idea beautifully in his fantasy novel Hogfather. The novel takes place in Pratchett’s Discworld, and the Hogfather of the title is a more atavistic version of Santa Claus. At the conclusion of the story, the personification of Death and his adopted daughter (it’s a long story) have this exchange about belief in the Hogfather:

Humans need fantasy to be human. To be the place where the falling angel meets the rising ape.

Tooth fairies? Hogfathers? Little—

Yes. As practice. You have to start out learning to believe the little lies.

So we can believe the big ones?

Yes. Justice. Mercy. Duty. That sort of thing.

They’re not the same at all!

You think so? Then take the universe and grind it down to the finest powder and sieve it through the finest sieve and then show me one atom of justice, one molecule of mercy. And yet . . . you act as if there is some ideal order in the world, some rightness in the universe by which it may be judged.

When I think about my own attempts at moral reasoning, one of the books that I go back to again and again is C.S. Lewis’s Screwtape Letters. It’s written as a series of letters from a senior demon to a junior demon about how to tempt a human being into sin. It’s a very cogent and thoughtful look at the myriad and often petty ways in which humans can make each other miserable. Lewis does something similar in The Great Divorce, which uses the conceit of a group of damned souls from Hell taking a day trip to Heaven and exploring all of the ways in which they are keeping themselves locked out of the rest of the universe.

At the time I first read both of these books, I shared Lewis’s religious beliefs. But although I am no longer a believer, I continue to find both books no less useful in thinking about the psychology of moral behavior. This makes sense when you think about it, since both books are already operating on at least one level of abstraction: Lewis does not literally believe in Screwtape either. Lewis did believe, literally and passionately, in the divinity of Jesus. But, at the risk of sounding dismissive, I don’t find that additional level of abstraction makes any difference in my appreciation of Lewis’s insights. The ideas that Lewis explored through Screwtape, and for that matter through Aslan and the rest of Narnia, inform my moral reasoning as thoroughly as they ever did. I suppose in this way I am like Puddleglum in The Silver Chair:

Suppose we have only dreamed, or made up, all those things — trees and grass and sun and moon and stars and Aslan himself. Suppose we have. Then all I can say is that, in that case, the made-up things seem a good deal more important than the real ones. . . . I’m on Aslan’s side even if there isn’t any Aslan to lead it. I’m going to live as like a Narnian as I can even if there isn’t any Narnia.

That’s really where moral reasoning should lead us. We can argue with each other about whether our abstract ideas are literally true in some sense, but ultimately we can never know. All we can do is try to imagine the world as it would be if it were wise and loving and just. Then we must continue the messy, imperfect business of moving our world a little closer to that ideal.



“People don’t derive their values from their religion — they bring their values to their religion.”

I just read this excellent interview with Reza Aslan, in which he explains a point I was trying to make in this post about the relationship between religion and moral reasoning. Religion and moral philosophy are intertwined, but it’s the philosophy shaping the religion rather than the other way around. Aslan captures this concept in a really lucid way:

People don’t derive their values from their religion — they bring their values to their religion. Which is why religions like Judaism, Hinduism, Christianity, [and] Islam, are experienced in such profound, wide diversity. Two individuals can look at the exact same text and come away with radically different interpretations. Those interpretations have nothing to do with the text, which is, after all, just words on a page, and everything to do with the cultural, nationalistic, ethnic, political prejudices and preconceived notions that the individual brings to the text. … People do not derive their values from their scriptures — they insert their values into their scriptures.

Indeed, the ambiguity of sacred texts is the reason those texts can be so influential across vastly different eras and cultures: “That’s the power of scripture, it’s the power of religion: It’s infinitely malleable. We do not read scriptures that were written 5000 years ago still because they’re true — we read them because they’re malleable, because they can address the ever-evolving need of a community, of an individual, because they can be shaped to whatever one’s political ideology is.”

Why arguments against marriage equality sound so stupid

Texas Attorney General Greg Abbott just filed a brief in defense of the state’s marriage laws, arguing that the state’s refusal to recognize same-sex marriage is “rationally related to the State’s interest in encouraging couples to produce new offspring, which are needed to ensure economic growth and the survival of the human race.” This has attracted a lot of well-deserved derision, and it’s just the latest in a long line of very bad arguments made against marriage equality. My personal favorite being the State of Indiana’s contention that its laws did not discriminate against homosexual people because “homosexuals often do marry members of the opposite sex.” Indiana law, in its majestic equality, requires the gay as well as the straight to marry members of the opposite sex.

I have a theory as to why these arguments sound not just weak but downright silly. Contrary to what many of my friends think, it’s not because the people making these arguments are stupid. These arguments are typically made by experienced lawyers, who understand perfectly well that the arguments are not very good. The reason I think these arguments sound so hollow is that they are really arguments about sanctity, being transposed into the language of harm.

I’ve written before about the idea of sanctity (or “purity”) as one of the fundamental building blocks of moral reasoning, one that looms much larger in the conservative worldview (this is based on the work of the social psychologist Jonathan Haidt, which everyone should read). Put simply, moral arguments about sanctity focus on avoiding corruption by avoiding “unclean” practices in eating, drinking, sex and other activities. By contrast, more liberal philosophies put more emphasis on other moral concepts, primarily preventing harm and treating people fairly.

Modernists tend to adopt an unduly patronizing view of sanctity arguments, but they occupy an important place in moral reasoning. For those with a more liberal worldview, it might help to use a term like “dignity” rather than “sanctity” to describe this concept. All of us have certain practices that we feel should be prohibited, even if we can articulate a specific, concrete harm. A few years ago a company paid homeless people to serve as wi-fi “hot spots” during South by Southwest. No one was actually harmed by this, but people were outraged, as a matter of basic human dignity. Ideas about sanctity represent certain moral boundaries that purely utilitarian calculations cannot cross.

The thing about sanctity arguments is that they are very powerful, until they aren’t. That is, as long as most of the members of a community recognize a particular taboo, it controls how people behave and even how they think about certain subjects. But if such a taboo starts to be questioned from a secular perspective, it’s very difficult to muster concrete arguments in its defense.

I distinctly remember, when same-sex marriage first became a political issue, watching Sen. Bill Frist on television saying that same-sex marriage should not be allowed because “marriage is a sacrament.” I was irritated on two fronts. As a civil libertarian, it irked me that a high-ranking official thought that the government should be in the business of protecting sacraments. And as a lapsed Presbyterian, it annoyed me that Sen. Frist did not know that our church does not actually regard marriage as a sacrament (Presbyterians, like most Protestant denominations, only recognize two sacraments: baptism and Holy Communion). He was using the word “sacrament” to appeal to a widely shared sense that marriage is sacred. And in the initial stages of the argument, that was sufficient.

But sanctity arguments are difficult to sustain int he court of public opinion, and even more difficult to advance in a court of law. Attorneys tasked with defending bans on same-sex marriage had to transpose these ideas about sanctity into an entirely different moral idiom, based on the types of concrete harms and equities that factor into legal decisions. And the resulting arguments sound vaguely ridiculous, just as this blog post would sound silly if I suddenly had to set it to music, or translate it into broken Spanish.

So you get weird assertions about procreation and economic growth, or transparently absurd claims that homosexuals have an equal right to marry members of the opposite sex. They are making arguments about harm where no real harm exists. One might as well oppose flag burning by complaining about the smoke.

This disparity is why I think Judge Richard Posner’s opinion on marriage equality was so powerful. Judge Posner is not at all concerned with arguments about sanctity. He is solely focused on concrete costs and benefits (which incidentally means that some of his views on economic regulation would horrify the people who love his take on marriage equality).

Because Judge Posner is writing in the idiom of harm and fairness, he can produce a truly robust, coherent argument. He can conclude, quite correctly, that opponents of same-sex marriage are not “going to be hurt by it in a way that the law would take cognizance of.” And he can mercilessly expose the absurdity and unfairness of the ban on same-sex marriage: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Judge Posner wrote, “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

For the record, I do think marriage is sacred, and its sanctity has nothing to do with the sexual orientation of the people getting married. It’s a deep and powerful commitment between two people, sustained by the support and recognition of a broader community. It is based on what the poet Philip Larkin called “our almost-instinct almost true: What will survive of us is love.” It is fundamentally an expression of love, which is the most sacred thing I know.

Love in the time of Instagram

At brunch, the official meal of Portland, I watched two other couples at nearby tables. The first was the very personification of the happy urban couple: drinking coffee and sharing the New York Times in a comfortable, companionable silence. At the second table, a similar couple looked at their phones, probably rotating through their respective social media sites. It occurred to me that, at least in the popular imagination, the second couple would be seen as uncommunicative, even alienated from each other. Yet for all we know, the couple on their phones could be reading the very same edition of the New York Times, engaging in exactly the same activity as the first couple, just using a different technological interface.

My first instinct, when confronted with this kind of disparity, is to chalk it up to the “rolling moral panic” inspired by social media. And that dynamic is certainly at play here. The sight of the couple reading the newspaper is familiar and therefore reassuring. The sight of the couple on their phones arouses all of our latent anxieties about technology eroding social connections.

As I was thinking about it, a sort of paradox occurred to me. For all we know, the couple on their smart phones could have been reading the exact same article. But that we know for certain that the the two people sharing the newspaper were reading different articles, because that’s how newspapers work. So the people reading newspapers are necessarily having different experiences, yet we perceive them as more connected in some way. And that’s not entirely due to bias against social media. Something about sharing a physical object really does seem to make a difference. It made me think of the idea of communion, in its broadest meaning.

When I was younger I sometimes took communion at different (Protestant) churches. At some, the communicants would be given small identical wafers, meant to simulate the unleavened bread eaten at the Last Supper. At others, an actual loaf of bread would be passed around, each person taking a small piece. The unleavened wafers were, in their way, more authentic and traditional. But the actual breaking of bread always struck me as much more true to the spirit of communion. Communion is about sharing a larger experience, which means that by definition each person may take something slightly different from it.

A relationship, which is a very specialized kind of communion, seems to work the same way. No healthy relationship is built around the idea of two people trying to have identical, simultaneous experiences. A relationship is about two people sharing something larger: a newspaper, a house, possibly a whole life. The very act of sharing a life may paradoxically require you to divide things up, taking on different roles or tasks, but even that separation is an expression of a deeper unity. We divide things up because they are part of a larger whole, and that larger whole is us.


Illusions of control

I’m reading The Magician’s Land, the last book in Lev Grossman’s transcendentally good Magicians trilogy, and ran across a line that really resonated with me. (Warning: this post might be construed as containing mild spoilers, but nothing that would really detract from your enjoyment of the books).

It’s spoken by a character, Jane, who has spent most of her life using a magical watch to travel through time, constantly trying to fix things. Jane is now in her 70s, living quietly in the woods, building an array of beautiful clocks. Eliot, the king of a magical land, comes to see her and assumes that she is building a new time-travel device. She says that she is not:

“If they don’t control time, what do they do?” Eliot asked.

“They tell time,” Jane said. “That’s enough.”

Our minds are heavily biased toward control, or at least the illusion of it. Behavioral psychologists have documented a strong tendency for people to underestimate risk in situations where they are in control (such as driving a car) and to overestimate risk when another person is in control (such as being in a car driven by one’s spouse). We want control because we believe on a very deep level that we can make things turn out all right.

And sometimes we can. But control is not the only objective worth pursuing. Sometimes the best thing that we can do is to bear witness, to experience a moment for what it is, without trying to push the hands of the clock forward or backward, or stop them altogether. The urge to exert control, to do something – whether or not it is likely to make things better – is at the root of a great deal of human misery and folly.

The rapacious desire for control is akin to what Buddhists call “attachment.” The overcoming of attachment – “detachment” – is a prerequisite to achieving wisdom and peace. Or, to bring things back to the realm of fantasy literature, we could consider this passage from Ursula LeGuin’s classic A Wizard of Earthsea:

You thought, as a boy, that a mage is one who can do anything. So I thought, once. So did we all. And the truth is that as a man’s real power grows and his knowledge widens, ever the way he can follow grows narrower: until at last he chooses nothing, but does only and wholly what he must do.



A funny thing

I wrote recently about the “ick” factor, the instinctive feeling of discomfort or even disgust that some straight people feel about the idea of gay sex. Such feelings are not in themselves bigoted or homophobic, nor are they somehow evidence that homosexuality is wrong. They are just feelings that need to be acknowledged and addressed.

I’ve been watching Transparent, a new Amazon show in which Jeffrey Tambor plays Maura, a person transitioning from a male to female identity, and it occurred to me that trans people face a similar kind of instinctive reaction that may be even more painful: laughter. The sight of a man in women’s clothes has been considered funny across many different cultures for centuries.

I don’t think this involuntary reaction is, in itself, malicious or bigoted. Many hateful people do use mockery and ridicule as weapons, but I suspect for most people the urge to laugh comes from a less hostile place. The essence of humor is incongruity, and a mismatch between perceived gender identity and the outward trappings of gender are humorous at a very basic level.

I admire the fact that the people involved with Transparent — particularly Tambor — are not relying on this incongruity as the source of humor.  The show is a comedy, but they manage to make it funny without presenting the mere fact of Maura’s gender identity as the punchline. Tambor, who is an extremely gifted comic actor, finds the comedy and the drama in the character while taking the emotional context seriously. Other characters laugh at Maura, sometimes cruelly, but often in an awkward, nervous way. Tambor does an excellent job of showing how painful that laughter can be.

More broadly, the idea of gender identity as farce poses real challenges in the fight for trans equality. It’s easier to dismiss people’s demands for dignity and justice when the whole idea can be dismissed as a joke. But as in the case of the “ick factor,” it’s counter-productive to scold people for involuntary reactions. Anyone who’s ever been in church knows that being told not to laugh creates an irresistible urge to giggle. Someone who has that reaction can still see that the issues facing trans people are serious – often literally matters of life and death.

We can also hope that increasing visibility of trans people, in real life and in the media, will take away some of the unfamiliarity that fuels nervous laughter. Paradoxically, comedy can be more powerful than drama in that respect. A show like Transparent – that finds humor and absurdity in its characters’ common human foibles – provokes a laughter based on empathy and identification. It’s the kind of laughter people mean when they say “laughing with” rather than “laughing at.” And perhaps we can take solace in Gandhi’s words about social movements: “First they ignore you, then they laugh at you, then they fight you, then you win.”