Conscientious objections

I’ve waited a while to write about the Hobby Lobby case, because I think the underpinnings of the decision are much more complicated than most critics seem to think. For the record, I think the case was wrongly decided, but it draws from an intellectual tradition in American law that I think is noble and vitally important. And liberals, as a rule, should embrace that tradition.

I start with this sentence, which I consider to be the most eloquent and lucid summary of our Constitution ever written:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

That was written by Justice Jackson in West Virginia Board of Education v. Barnette, holding that a school district could not force Jehovah’s Witnesses to recite the Pledge of Allegiance in violation of their religious beliefs. The first time I read that case, in law school, I was floored by that sentence. It resonated with me at a very deep level, and it still does. It called to mind one of my favorite poems, in which Lord Byron celebrates the “eternal spirit of the chainless mind.”

The image of the “fixed star” captures the amalgam of values that unites and animates the different strands of the First Amendment. And although freedom of religion is part of the equation, the principle is broader. No government official has the right to tell anyone what to believe, period. (I also love the phrase “high or petty.” In the course of dealing with civil rights and civil liberties cases against school boards and local governments in Texas, I found that low-level officials were “petty” in every sense of the word, anxious to impose their values on anyone under their jurisdiction.)

I am convinced that the spirit of this passage was what saved Roe v. Wade from being overturned in 1992. At the time, it seemed inevitable that the Reagan appointees would succeed in rolling back abortion rights entirely. According to some later reports, Justice Kennedy was initially willing to vote with Rehnquist and Scalia but changed his mind. (Sadly Justice Kennedy has become much less deferential to a woman’s right to choose in the decades since 1992). He joined a plurality opinion preserving Roe, with a passage that echoes Justice Jackson:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Justice Scalia has mocked this as the “sweet mystery of life” passage, but it expresses an essential truth about the relationship between governments and individuals under our Constitution. Justice Kennedy returned to this idea in Lawrence v. Texas, in which he wrote an opinion holing that Texas could not criminalize same-sex relationships: “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Hobby Lobby still strikes me as an ill-advised decision. As I’ve written before, it’s analytically wrong to view the employer as “paying for” birth control, since the health insurance is part of an employee’s compensation. It’s an even further stretch to say that the owners of a corporation that’s paying for insurance are being forced to approve of an employee’s birth control choices. In addition, the decisions made by employers impose very real costs on their employees, taking the case further out of the realm of individual conscience. To use the example mentioned earlier, I would support allowing Quakers to refuse military service, but I wouldn’t let them fire or demote employees for serving.

Hobby Lobby is not a good decision, but it draws on principles that are worth protecting. Properly applied, religious or philosophical exemptions can serve important liberal values, even when those exemptions are extended to socially conservative views. I am not saying that individual scruples should win every close call, or even most of them. My only certainty is that such claims deserve more consideration than they receive from defenders of the liberal tradition.


The political spectrum

Although the spectacle of prominent politicians vilifying the President’s tan suit is weird, the conservative movement’s antipathy to neutral colors has a long history. Nixon, of course, loved to refer to his opponents as “pink,” but in truth conservatives have never had much patience for any pale shades. In Invisible Bridge, an account of Ronald Reagan’s 1976 campaign for the Republican presidential nomination, Rick Perlstein recounts a memorable bit of color-coded rhetoric. Reagan – who, let’s be honest, could rock a tan suit – sought to rally Republicans demoralized by Watergate and the bumbling of Gerald Ford with this rousing line:

Is it a third party that we need, or is it a new and revitalized second party, raising a banner of no pale pastels but bold colors which could make it unmistakably clear where we stand on all the issues troubling the people?

Governor Tom Kean, who gave the keynote address at the 1988 Republican National Convention, believed that the Democrats’ fondness for lighter colors should disqualify them from high office:

You see this flag behind me of red, white and blue? To us that symbolizes the “Land of the Free” and “Home of the Brave.” Well, you know [the Democrats'] media consultants in Atlanta said they didn’t think those colors looked too good on television. So they changed that red to pink, and they took that blue and they changed it to azure, and that white became eggshell. Well, I don’t know about you, but I believe Americans, Democrat and Republican alike, have no use for pastel patriotism.

And of course, no one who lived through the soul-crushing triviality of the 2000 presidential campaign can forget the endless attention paid to Al Gore’s decision to wear more “earth tones.” As the economy slowed, and climate change worsened, and extremists made plans to launch terrorist attacks on American soil, we all for some reason decided to talk about whether the Vice President of the United States should wear taupe.

And of course, in the aftermath of 9/11, bold colors have become a pervasive symbol of patriotic fervor:


It’s probably too reductive, but one is very tempted to draw connections to certain aspects of the conservative psyche. Some (admittedly controversial) brain research has suggested that people with conservative political leanings are less “tolerant of ambiguity” because of neurological patterns. This kind of rigid worldview would tend to gravitate toward unambiguous colors.  When you see everything in black and white, beige is the enemy.

Studying ick-ology

I’ve written before about the role of disgust in moral judgments, particularly among traditionalists preoccupied with “corruption” of modern attitudes toward sex. I’ve had very little direct experience with these feelings: for example, I don’t want to participate in heterosexual sex, but the thought of it doesn’t creep me out.  Through the magic of television, I recently got a glimpse into what the feeling must be like.

A friend introduced me to a very good Swedish science fiction show called Real Humans, about a society in which highly realistic robots are employed as servants and companions. Like all good science fiction, the show examines social and philosophical questions through the lens of its premise, and it set up a deliberately provocative scene involving a divorced woman who was intimately “involved” with her robot companion.

The actors playing robots are very convincingly made up to fall squarely in the uncanny valley – human but not quite. And during the scene, watching the woman snuggling with the robot, I experienced the full-on “ick” factor I’ve heard described so often. I even thought, without a trace of irony, “There’s a kid in the room, they shouldn’t be doing that.” I was not reflecting on the philosophical issues; I was having an immediate, visceral reaction to something that felt deeply unnatural.

I was aware of an obvious parallel with the reaction that some straight people have to same-sex relationships. Of course the situations are different: same-sex couples are composed of humans with free will and all that. But for purposes of understanding the feeling at a basic level, it felt comparable. And I came away feeling that we make two opposite mistakes in assessing this kind of instinctive aversion.

The first mistake, made by social conservatives, is to conclude that the feeling of disgust has moral weight, as an indication of the natural order of the universe. That does not really follow, particularly since social conservatives are at war with virtually every other “natural” sexual impulse. If instinct does not sanctify masturbation, instinct should not disqualify homosexuality.

But the socially liberal make an equal and opposite mistake, regarding the visceral reaction itself as a moral failing. The feeling itself seems largely involuntary, no more a moral choice than a dislike for cilantro. Yes, if indulged, it can lead people to adopt bigoted attitudes, but that is a separate issue. A person who supports equality despite being squeamish about same-sex relationships is arguably doing a better job of being open-minded than someone who has no negative reactions at all.

More generally, I think it’s a mistake to regard these immediate, unreflective reactions as an indication of someone’s “real” character. This stems from a largely inaccurate theory of mind, in which there’s an authentic “self” buried under layers of social convention. The human brain appears to be much more modular, and no part can really claim to be the one true self. Our overall character is the sum of many different impulses and judgments, and it’s a mistake to focus exclusively on one link in the chain of personality.

This was expressed beautifully by the novelist Helene Wecker in The Golem and The Jinni (a wonderful book which is well worth your time). In the book, the golem finds herself without a master and is taken in by a wise and compassionate rabbi. She is able to read people’s thoughts — including those of the rabbi — and finds them troubling. The rabbi responds: “A man might desire something for a moment, while a larger part of him rejects it. You’ll need to learn to judge people by their actions, not their thoughts.”

It’s foolish and counter-productive to make people feel guilty about thoughts they can’t help. We should be appealing to the “larger part,” the part that values equality and seeks justice, even for those whose lives seem so different.


Why the “libertarian moment” will never come

The first opinion column I ever wrote (circa 1986) was about how the political future was destined to belong to a “libertarian” philosophy, loosely defined as laissez-faire economics combined with tolerant social views. In retrospect, that prediction was way off base, produced by a kind of political solipsism common to teen-agers. When you are surrounded by young, healthy, relatively affluent pot smokers, libertarian views are not exactly thin on the ground. Among the electorate at large, only about 5-10 percent of the population at any given time holds anything resembling a consistent libertarian philosophy, and even those few tend to break down along conventional party lines in practice. The Koch brothers, for example, are in favor of marriage equality — an ideological conviction that drives exactly zero percent of their prodigious political spending.

But the miracle of selection bias has once again brought breathless declarations of an impending “libertarian moment” that will finally drive the government our of our boardrooms and our bedrooms. Those claims have been pretty thoroughly demolished elsewhere, but what interests me lately is the idea that libertarianism may just be structurally incapable of sustaining a viable political movement of any size. I don’t think it’s an accident that the two major political parties embrace significant government intervention in different spheres.

Political movements require a lot of intellectual and emotional investment from people. They need to have goals, aspirations, milestones, heroes and villains. The libertarian philosophy is poorly equipped to satisfy those needs. As one goes down a list of economic and social problems, asking “What should our government do?” it becomes monotonous when the answer is always “Nothing.” Even when “nothing” is the correct response – for example, when one is asked what to do about an unwinnable conflict in a foreign land – it can be difficult to sustain. People tend to be biased toward active solutions, even when inaction is the wiser course.* When Harry Truman campaigned against Congress, he called it the “Do-Nothing Congress,” even though it had actually passed a record amount of legislation. But Truman was politically savvy enough to know that “Do-Nothing” was an effective epithet.

It’s not difficult to motivate political coalitions to fight government intrusion in some particular area (particular when one’s donors are suffering the brunt of the intrusion). It’s not even that difficult to build coalitions around redirecting governmental action (e.g., away from fighting poverty and toward fighting terrorism). But it’s impossible to sustain a political coalition around the principle of doing nothing at all.

* This is not to suggest that I think libertarianism is right on the merits. I think capitalism is currently regulated too little, not too much. I’m disturbed by the private arsenals being built by gun fanatics. And even on social issues where I agree with libertarians, I sometimes find their thought process strange and off-putting. I frequently hear libertarian acquaintances who favor marriage equality, not so that loving couples can have legal protection, but because they think the government should get out of the business of recognizing marriages altogether. Thanks, I guess?




Manic Pixie Fed Chair

This article about Fed Chair Janet Yellen in Politico set something of a record: it managed to enrage me twice before I’d even finished the opening sentence. Here is that sentence, which would not have been out of place in Us Weekly:

A diminutive woman with a pixie haircut is deciding the future of the world’s biggest economy, and we don’t know what she’s really thinking.

Will we ever reach a point where someone can write a profile of a powerful woman that does not talk about her hairstyle? Alan Greenspan chaired the Fed for almost two decades, and I don’t recall ever reading one word about his hair. Even if Janet Yellen’s hair were somehow relevant to her job (spoiler: it’s not), you’d think a writer in 2014 would stop and ask “Am I falling into a sexist cliche here? Maybe I could focus on some more relevant detail to give my story a hook.”

Actually, I was annoyed even before I got to the manic pixie dream hair because of the word “diminutive.” Can we please get over the journalistic trope where we pretend to be surprised that a physically small person (often, but not always, a woman) is occupying a position of power? It’s not like you become Fed chair by completing a series of grueling physical challenges. You’re thinking of American Ninja Warrior. In this newfangled era, with all our modern conveniences, all sorts of people exercise political and economic power. It’s not a revelation that some of those people are short.

Alas, the article does not get much better. The words “diminutive” and “pixie” turn out to be a signal that the writer is going to paint Yellen’s (entirely mainstream) policy views as some sort of flighty, quirky set of attitudes. The writer acknowledges that Yellen is a “regular person” with a “warm smile” (everything seems to circle back to physical appearance). But the article makes her policies seem much more idiosyncratic and mysterious than they actually are. The fact is, all Fed chairs are guarded in their public pronouncements. Their choice of words can literally cause markets to crash. This does not make Janet Yellen a “mystery woman.” As far as I can tell, Yellen has been fairly clear and consistent about her approach: a focus on reducing unemployment in the near term and somewhat stricter regulations on banking. It’s the approach of a disciplined, capable professional, regardless of what her hair looks like.

(Thanks to Brian Zabcik for inspiring the title of this post)

Marco Rubio’s dilemma

This story about Sen. Marco Rubio  illustrates part of why immigration is such a toxic issue for Republicans over the long term. It’s not just that the candidates are required to take a hard line on immigration (which is, on balance, politically harmful). It’s that candidates are required to project hostility, if not outright contempt, toward even the most sympathetic immigrants. It’s as if Democratic voters, in addition to wanting their candidates to support separation of church and state, also demanded that Democratic candidates display open scorn toward churchgoers.

Angels, altar boys and the rhetoric of negation

Like many people I was appalled by the New York Times article on Michael Brown, which included a litany of his alleged sins summarized in the instantly infamous phrase “no angel.” I was also reminded of something Rudy Giuliani said back in 1999, after a police officer shot another unarmed black man, 26-year-old security guard Patrick Dorismond. In an effort to smear the victim, Giuliani unsealed Dorismond’s juvenile record, revealing an arrest for robbery at the age of 13. Giuliani declared that this proved Dorismond was “no altar boy.”

As it turned out, Dorismond had been an altar boy, making the statement inaccurate as well as vicious. But details aside, the strategy was depressingly familiar. Find something, anything, that will allow us to place the victim outside the sphere of those who deserve protection: which, apparently, is reserved for angels, altar boys and other paragons.

The technical term for the figure of speech employed by Giuliani and the New York Times is “litotes,” in which a claim is made by affirming its opposite. It’s a somewhat pretentious device, as when a writer describes something as “not uncommon,” and it is very useful for denigrating people without appearing too nasty. Rather than coming out and saying that a shooting victim is a bad guy, one can make the point indirectly, preserving the appearance of decorum while making the slander just as clear. The word “litotes” derives from a Greek word meaning “small” or “meager,” and that is the point: making the victims seem smaller, less important, less deserving of our attention or our grief. It’s an ugly strategy, and it’s become too commonplace in the aftermath of outrage.

Michael Brown was not an “angel” – he was something much more important. He was a human being. He was somebody’s son, with a past and a future. That future has been cut short, and that past is being distorted and defamed.

The problems with Rick Perry’s indictment have nothing to do with Rick Perry

I have some serious objections to the legal reasoning behind Rick Perry’s indictment, which have nothing to do with the Rick Perry (or Rosemary Lehmberg, for that matter). I am concerned because the underlying legal theory seems dangerously open-ended. The proposed remedy seems worse than the disease.

I yield to no one in my contempt for Rick Perry as a politician and as a human being. As I mentioned in this post, my son literally burst into tears when he saw Rick Perry announcing his presidential candidacy. And as I mentioned in this post, I think Rick Perry is a moron. I have no doubt that, among the many terrible things Rick Perry has done, he has committed crimes. My question is whether it’s possible to charge and convict him of this particular crime without doing violence to certain basic constitutional principles.

I’ve been informed, at every possible opportunity, that the special prosecutor is a Republican. This may shock you, but Republican prosecutors are sometimes overzealous and insufficiently sensitive to constitutional rights. The prosecutor’s partisan affiliation might be relevant to someone claiming that the indictment is partisan, but that’s not my claim. I believe that the prosecutor’s legal analysis is (1) nonpartisan and (2) dangerously wrong. It is possible for both of those things to be true.

The crux of this is the fact that Rick Perry may have been seeking to disrupt or delay an investigation into his cronies. I say “disrupt or delay” because any Perry appointee to the DA’s office would have been up for election in 2016 and would likely have been replaced by someone who would pursue the investigation aggressively. But for purposes of this argument, let’s stipulate that the evidence will show that Perry’s veto threat was motivated in whole or in part by a personal desire to kill the ongoing investigation.

I am completely in favor of a criminal statute that prohibits elected officials from intentionally hindering criminal investigations. It would have to be crafted with some care to make sure that constitutionally protected activity was not affected, but I think such a statute would be viable. Texas does not have such a statute. So the question is whether existing laws can be reinterpreted or extended to cover Perry’s conduct here. As venal as Perry’s actions may be, the effort to stretch the existing law to reach them poses some very real threats to principles of due process, free speech and separation of powers.

The essence of due process in a criminal case is that a defendant of ordinary intelligence (omit obvious joke about Perry’s intelligence here) must be able to determine in advance that his conduct is illegal, based solely on the text of the penal statute. When, as here, the actions are all legally authorized (no one disputes that Perry had the constitutional right both to veto the Public Integrity Unit’s funding to threaten such a veto), the statute must give the defendant fair notice of what element makes a particular action criminal. Under Texas law, that means an indictment must not merely repeat the words of the statute, it must explain in clear language why the conduct at issue is criminal.

The first count against Perry is “Abuse of Official Capacity,” which charges that the Governor “misused” the funding for the Public Integrity Unit by vetoing it or threatening to veto it while it was in his “custody or possession.” The statute defines “misuse” as using property in a way “contrary to an agreement under which the public servant holds the property” or “contrary to the oath of office he took as a public servant.” The indictment does not identify any applicable “agreement,” so one must assume that the theory is that the veto violated Perry’s oath of office. Here is his oath of office, in its entirety:

I, Rick Perry, do solemnly swear that I will faithfully execute the duties of the office of Governor of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

What exactly is the theory here? (Incidentally, we are guessing because the indictment never explains, it just cuts and pastes the text of the statute, which is in itself a potential reason to quash the indictment for lack of fair notice). I suppose you could argue that the terms “faithfully” and “to the best of my ability” is broad enough to cover any sort of improper motive on the part of a public official, but that seems like an impossibly vague and shaky foundation for a criminal prosecution.

Is each prosecutor in Texas just going to have to make his or her own determinations about whether elected officials are living up to their oaths of office? Over the summer the Dallas County judge courageously offered to let refugee children stay in government facilities. A lot of his constituents considered this a failure to execute his duties faithfully, a virtual invitation to people entering the country unlawfully. By what standard do we hold that his conduct was lawful but Rick Perry’s was not? It doesn’t matter to me that in one instance you approve of the conduct and in the other instance you don’t. Criminal law requires a clear, objectively understandable dividing line between what is lawful and what is not.

The second count is “Influencing a Public Official,” which suffers from all the due process problems as the first count, plus a bonus First Amendment problem. Under normal circumstances, “influencing public officials” is not only lawful but constitutionally protected.  The right to petition and persuade government officials is the essence of living in a free society. In very narrowly defined circumstances, involving things like bribery or physical threats, we limit the types of “persuasion” citizens can employ. Even in those extreme cases, we take care to exempt legitimate activity, rather than outlawing campaign donations or violent rhetoric across the board.

In the case of elected officials, most of what they do is designed to influence other public officials. Public officials promise or threaten to exercise their authority in the hopes of getting colleagues, opponents, regulatory agencies and other officials to do what they want. Although I know a lot of people find the whole political process distasteful, there’s nothing intrinsically dishonorable about it, and it’s generally the best way to meet the difficult demands of self-government.

The claim in the indictment is that Rick Perry sought to “coerce” the DA into resigning. “Coercion” is defined to include, as well as threats of bodily harm, a threat “to take or withhold action as a public servant,” which is presumably the provision the indictment seeks to apply. The problem, as Eugene Volokh discusses in great depth here, is that most actions by a public official can be characterized as threats to do something or not do something. Many of these threats are directed at other public officials, seeking to entice or pressure them into doing or not doing something. Obviously that’s not all illegal, so what is the distinguishing factor that would put Rick Perry on notice that he was violating the law? No one has a clue. 

Perhaps this example will make the absurdity clear: If the special prosecutor went to Rick Perry’s lawyer tomorrow and said “We will reduce the charges to a misdemeanor if Governor Perry resigns” (a fairly common practice in such cases), the special prosecutor would be guilty of a crime under his own theory.

Not only does this create a due process problem based on lack of notice, it creates intolerable uncertainty about virtually any attempt to persuade elected officials. The statute applies not only to direct actions by public servants but to those who may “cause a public servant to take or withhold action,” which would include constituents, advocacy groups or lobbyists who have influence with public officials. Even if no one is ever successfully prosecuted, the threat of legal action (and the need for legal advice) represents a huge threat to freedom of association and freedom of speech.

Does anyone think that Greg Abbott (or his right-wing successors in office) could not wreak havoc on Planned Parenthood or environmental groups or any other ideological opponents if this provision is left open-ended? Once again, it’s not even necessary for the prosecution to succeed. The mere fact of an indictment can dry up fund-raising, frighten off supporters and damage reputations (as Rick Perry’s critics have observed, with varying degrees of unseemly elation, over the last few days).

Finally, both counts of the indictment seem to suffer from a very serious problem rooted in the separation of powers. The veto, along with the pardon power, is one of the key checks and balances available to the executive branch. Everyone would agree that the Legislature could not simply pass a law making it a crime to veto (or threaten to veto) legislation. That would be using a penal statute to nullify a constitutional provision.

It’s not at all clear to me that the Legislature could criminalize a veto under any circumstances, but I’m willing to concede that it’s conceptually possible. But it would require much clearer statutory guidance than the statutes involved here. If the Legislature is authorized to place limits on such a fundamental executive power, it should do so clearly and in a way that acknowledges the separation of powers. The ad hoc invocation of broad statutory provisions is not a good way to go about it.

Lawyers are fond of citing an exchange in Robert Bolt’s play A Man For All Seasons, in which Sir Thomas More scolds his son-in-law for saying that to get the Devil he would “cut down every law in England”:

And when the last law was down, and the Devil turned round on you — where would you hide, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

I give Rick Perry the benefit of law, for my own safety’s sake.

Renting out your property is not “sharing”

This New Republic article discusses the deceptive marketing of the “sharing economy,” as represented by for-profit companies such as Airbnb, Uber and Lyft. I think the problem lies in the very term “sharing economy,” which is Orwellian in a touch-feely sort of way. The very fact that someone coined a whole new term is a little suspicious. We have a word for the age-old practice of granting temporary use of goods or real estate in exchange for money. It’s called “renting.” If new terminology was needed to distinguish web-based renting by individuals from big companies like Hilton or Hertz, I think a simple phrase like “peer-to-peer rentals” or “informal rentals” would have sufficed. But “sharing economy” is actively misleading in at least two ways.

First, the most distinctive thing about “sharing” as that word is used in kindergartens throughout the country is that it does not involve payment. Giving a friend half of your sandwich to be nice is sharing. Giving your friend half of your sandwich in return for a dollar is just running a very small-scale deli. So right from the start the term “sharing economy” tries to make a straightforwardly commercial transaction sound like some sort of altruistic act. Don’t get me wrong, I don’t have anything against commercial transactions, but they need to be viewed – and possibly taxed and regulated – in ways appropriate to their commercial character, not as though they involved a set of neighbors sharing gardening tools.

Second, the warm connotations of the word “sharing” obscure the fact that most of this activity is spurred by distressed economic circumstances. In good economic times, most people don’t spontaneously decide to rent their guest rooms out to strangers. I think new forms of renting are helping a lot of people make ends meet, but it’s just absurd to conclude that it stems from some newly blossomed sense of “sharing.” That’s how you get nonsense like the David Brooks (quoted in the New Republic article) rhapsodizing about Airbnb filling a need for people “hungrier for human contact.” You might as well think that people take telemarketing jobs do so because they love the art of conversation.

And really, apart from the ways in which “sharing” terminology distorts the discussion of policy, it’s a debasement of the idea of sharing. Individual acts of giving are beautiful, and sharing resources can be a vital part of sustaining larger communities. But if someone is asking you for your credit card number, it’s insulting to call it “sharing.”

We should absolutely be paying attention to new technology and new forms of commerce, but at the very least we should try to discuss them in ways that aren’t fundamentally misleading. And at a time when the mentality of the marketplace is intruding into every sphere of life, it would be nice to reserve a word like “sharing” for acts that deserve the name.