Why We Are Here, Ctd.

I have a mishmash of topics I’d like to discuss in connection with Obergefell, but first I’d like to remind readers that I have discussed the legal issues relating to same-sex marriage quite extensively in earlier posts, albeit posts that pertained to earlier cases.

The first topic is fundamental rights, equal protection, and levels of scrutiny. The recurring issues in connection with laws burdening gays include: is the problem with the law that it violates a fundamental right, or that it violates equal protection? If it violates a fundamental right, then we are automatically at the highest level of scrutiny. If it violates equal protection, then we have to decide what level of scrutiny we are in; if classifying people as homosexual is a suspect classification, then we are in strict scrutiny. The interesting point here is that it has been very tempting for people to assume that all the laws which burden gays, including the marriage laws that preclude same-sex marriage are problematic because they violate equal protection, a claim which then invites the inquiry as to what level of scrutiny we are in. But if we look at the past Supreme Court cases, it appears that the only one which exclusively relies on equal protection is Romer (the case in which Colorado amended its constitution to forbid antidiscrimination statutes that protected gays), and in that case, no heightened level of scrutiny was involved: the Court in essence held that no legitimate end (for example, conserving antidiscrimination resources for higher priority forms of discrimination) could be credited as rationally related to the means adopted, and thus the only end must be to facilitate discrimination against gays as such, an illegitimate end. The other signature cases, Lawrence (sodomy laws), Windsor (the Defense of Marriage Act), and Obergefell (marriage laws which do not permit same-sex marriage) all depend either primarily or exclusively on Substantive Due Process.

The reason why this is important is that it does shift the discussion in ways that make the case for the majority in Obergefell much stronger. While conservatives have always been troubled by all substantive Due Process case law, none of them with the exception of Justice Thomas, who is perhaps the purest originalist on the Court, has unequivocally rejected the notion. But the Court has an old line of cases invoking substantive Due Process which say “you can’t prevent so-and-so from getting married.” Of course, the specific descriptions of who is and is not covered by this argument is not written in the constitution at all: it’s a non-textual right implicit in the constitution’s guarantee of liberty. My point is simple: who’s to say that gays are not covered by this fundamental right? That is, the “plucked from nowhere” quality of this right seems no better or worse than any of the other marriage cases which were decided against states. The much stronger position here for the opponent would be to say that all such decisions have been ludicrous because they pluck marriage rights from nowhere. Once you concede that any of the marriage rights cases are legitimate, it’s very difficult to see what justifies objecting here.

Some have complained, quite cogently, that states regulate marriage in all sorts of ways, prohibiting incestuous marriages, for example, and that if those laws presumably are constitutional, how could laws limiting marriage to opposite sex couples not be? But I think this cuts the other way: I think we will find, in the very long run, that laws prohibiting incestuous marriages are unconstitutional because, marriage. Such laws surely would not survive strict scrutiny in a world in which genetic testing is an option, and the prospects for standing in the way of the marriage juggernaut by relying on moral notions looks bleak indeed.

Another question is: why is it that conservatives make the kinds of arguments they do? Here I must assume some degree of familiarity with the arguments made in various cases. My first hypothesis is that conservative jurisprudence is a species of legal positivism of the John Austin variety. This should be contrasted with views that hold that law is the expression of the concept of natural justice, or an evolving social consensus about the nature of justice, say. For Austin, laws are essentially commands by a sovereign. In order to know whether something is lawful or not, you must know who the sovereign is and what they commanded. The emphasis on sovereignty suffices to explain the conservative jurist’s preoccupation with democracy, for in a republic, a non-monarchy, the sovereign would have to be the People Themselves. Now in these kinds of cases, we’ve really got two different sovereigns sharing power: the People of [state] and the People of the United States. The emphasis on commands helps to explain the resistance to contextual (by which I mean non-explicitly textual) constitutional provisions. Marriage is not mentioned in the Fourteenth Amendment. Nothing is said except that one cannot deprive someone of life, liberty or property without due process of law. A very natural way to construe this following either an understanding of English as used at the time of ratification or an understanding of what kinds of laws the ratifiers of the Fourteenth Amendment were troubled by (the notorious Black Codes after the Civil War) would be to say that there could be no executions, prison sentences or fines without some sort of trial (and perhaps no takings by eminent domain without some government process for same). There is no obvious way from that to “therefore gays can marry” if we imagine the words as a command issuing from a sentient being. If that sentient being was concerned about same-sex marriage and uttered these words, its communication skills are sorely lacking.

There are many philosophical reasons for being enamored with legal positivism, the largest being its austerity both metaphysical and epistemological. Originally, legal positivist views were especially attractive to progressives because of the propensity of the Court, roughly from after the Civil War to before the Great Depression, to find non-textual libertarian principles lurking behind the text, and to use them to invalidate laws which burdened business.  (This is, to this day, perhaps the easiest way to tell if someone is conservative or a libertarian: ask them what they think of Lochner). Naturally, conservatives were enamored with the legal positivism earlier championed by progressives because it served to shelter not only progressive economic legislation from judicial attack, but conservative moral legislation as well (especially abortion laws).

Setting aside the idea that people adopt the jurisprudential theory that gives them the political results they want (which probably should be set aside here, because I don’t think that you can get a consistent partisan result by adopting a particular jurisprudential theory and applying it consistently across the board) I can think of one reason why conservatives might find legal positivism attractive. Scott Alexander has argued that the best way to understand the difference between progressives and conservatives is in terms of a “Thrive or Survive” hypothesis. The easiest way to express this idea is: imagine that the Zombie Apocalypse had come. What would you need? “First and most important, guns. Lots and lots of guns.” But it doesn’t end there. Will you need to limit the extent of your support for the unproductive? You betcha! Will you need strong leadership and strong defensive capabilities? Indeed. Will you want to indulge women’s reluctance to reproduce? No way: the survival of the species is at stake. Should you welcome total strangers from who knows what other tribe with open arms? Are you nuts? They might kill you! Scott Alexander quickly shows that almost every political position you can think of looks more conservative if viewed in light of the Zombie Apocalypse (or, put differently, from the perspective of an assumption of maximum risk and maximum scarcity).

By contrast, progressives operate on the assumption of maximum abundance and maximum security. Should you cruelly cut off the less-well-off? Why would you! Should you waste money on defense? Of course not! Will taxing the rich, which might diminish the efficiency of the economy, do enough harm to worry you? No way: the economy is a goose that not only lays golden eggs, but has amazing superpowers–it’s essentially indestructible. Should you replace strong and fast leadership with rule by consensus after exhaustive discussion? It’s only fair that everyone have a say. What could go wrong? Of course the real world cannot be characterized crudely in terms of whether it is a basically risky, resource-scarce place, or if it is a basically benign, abundant place–this is emotional processing we’re talking about, not an (impossible in any case) overall assessment of “what the world is like.” (By the way, my use of the phrase “resource-scarce” as a conservative, not progressive, assumption may strike you as puzzling insofar as environmentalism resides on the Left. But actually, it makes sense that [mainstream] environmentalism resides on the Left: it presupposes that there will still be plenty if we make some sacrifices for the sake of the environment; it’s the conservative who thinks that if we restrict greenhouse gases, the economy will collapse and we’ll all starve in the dark. For a glimpse of the fundamental optimism of mainstream environmentalism, see the last few minutes of Watchmen. Radical environmentalism is another matter, but then again, I don’t think Scott Alexander’s model explains radicalism of the Left or the Right anyway.)

What on earth does any of this have to do with legal positivism? Simply this: conservatives who embrace legal positivism seem to be drawn to slippery slope arguments. “If we commit ourselves to this principle, look what can happen if we rigorously apply it ever after?” For example, the principle “the judiciary can invalidate laws.” Does that open the door to a fascist world in which we are ruthlessly governed by nine (five, actually) wise elders, who will act against our interests and grind us into the dust? It does indeed. Will anyone actually walk through that door? That’s another question entirely. The power of slippery slope arguments depends, implicitly, on a causal assumption: that people act on the principles they adopt, and that people will continue to act on them even when the consequences of doing so are manifestly bad. This deeper assumption seems intuitively plausible to conservatives; to progressives, it seems manifestly ridiculous. Put it this way: if my principle is P, and it is already true that if P, then Q, and Q is bad, well adopting P is a terrible mistake if the prospect of actually drawing the inference to bad Q can be seen on the distant horizon. But why worry? the progressive says. We don’t have to infer to Q today, and at the moment P looks like a useful temporary expedient. What happens when it begins to look like we will have to infer to Q? Simple: just modify the original principle which reads “P” to a new principle “P but not Q.” Crisis averted. This is why slippery slope arguments mean nothing to progressives; their force depends on the causal assumption that inferences drawn will lead to action, and that principles once committed to can never be revised.

Since that’s not obviously always the case, why would the conservative tend to think otherwise? Here’s the Scott Alexander hypothesis: cognitive and deliberative resources are superscarce too. “Look, we’ll cross that bridge when we get to it.” “No! We won’t have time to do anything but follow the implications of the rule now because we can’t spend all our time thinking and deliberating about our rules… after all, the zombies are coming!” “Huh? What zombies? We’ve got all the time in the world. Doesn’t everyone spend all their days engaged in political debate, legal reasoning and philosophical reflection? I know I do! Hand me another grape from the Horn of Plenty over there and lets talk about this.”

(If you haven’t noticed, Scott Alexander’s hypothesis has implications for class analysis too: the lower on the class hierarchy you are the less revolutionary you are likely to be. Which explains why the Republican Party so often adverts to populist rhetoric and accuses Democrats with remarkable success of being elitists.)

There are other reasons for thinking that legal positivism is plausible, but its attractions for conservatives in particular are a bit puzzling, given that, in other settings, one would think a conservative would be more attracted to natural law notions of justice, while progressives would be skeptical of them, along with anything else that clashes with an overall commitment to Enlightenment Anticlericalism. The virtue of the hypothesis is that it traces the attraction of an austere and elegant theory to a style of thinking informed by a need for simplicity and fast, infrequent decision-making. Progressives like to think that the real reasons for conservative styles of thinking are either to conceal their service to nefarious interests, or else stupidity (c’mon, don’t you basically think exactly that, Gentle Reader?). But perhaps the truth is that for conservatives, the world is simply a darker and scarier place than it is for progressives. As you shop at your Whole Foods for arugula while reading the New York Times on your iPhone, in the nation with the largest GDP on earth, not wondering about whether you will become unemployable and poor, and not risking your life to protect people who speak Arabic, you might think that such a vision calls for therapy.

Then again, it may be that your perspective is conditioned by circumstances exceptional in the extreme, exceptional even within your own country.

Why We Are Here

I’ve already written extensively at this blog on the legal issues pertaining to same-sex marriage, and won’t repeat myself here. Instead, I want to talk about marriage itself.

What marriage means to people depends to some extent on the era, and on the stage of life in which one finds oneself. In the 1950s, for many in their twenties, to become married was a rite of passage that signified achieved adulthood and independence, a change in one’s relationship with one’s own parents. In the 1970s, for many in their forties, to remain married seemed to remain shackled to an institution which repressed sexuality and oppressed women. And marriage has always signified to some extent the commitment to share in the long-term burdens of childrearing.

If a marriage survives past the phase in which for many the focus is on childrearing, a new aspect comes into view. When we are children and we become ill, our parents are the ones we turn to to care for us. As adults, if we are ill, we must care for ourselves, and if we cannot, our spouse plays that role. The older you get, the more salient illness becomes, and looming ever larger in the background, death. Interestingly, people, even very young people, often describe their interest in marriage half-seriously in terms of not wanting to die alone. If all goes well, we face gradual decline and inevitable death, but if we are happily married, we don’t have to face them alone.

My father is at the last stages of his life, but many years ago, his younger wife was diagnosed with a rapidly developing form of dementia. Although he has always been a generous man, I would not describe him as someone overly moved by compassion and empathy. Nonetheless, he dutifully cared for her, in a role that began more like that of a friend and ended more like that of a hospital worker, throughout much of his late 70s, perhaps almost killing himself in the process. Eventually his own health made it impossible for him to discharge that duty, but he always expressed the intention of striving to do so until he died. There was utterly no possibility of reciprocity at that point; it was just what one does. They were married.

I grew up in a very different world than the one I face today, a world in which homosexuality was perceived as a dangerous weakness and a repulsive vice even by those who did not regard it as a sin. Accordingly, most who found that this was the only way to experience sex as others do did so secretively, in dread of discovery, the consequences of which would be ostracism and contempt. And as people tend to do, some people formed emotional attachments to the people they had sex with.

During the 1970s, our society flirted with a more broadminded attitude towards all this, as a part of a larger transformation in how people regarded gender roles, and the word “androgyny” became a kind of buzzword of emancipation and transgression. But one does not build a society on transgression.

I remember quite vividly when the world began to change. I was in college in the early 1980s, and there were rumors of some sort of mysterious “gay cancer.” By the time that I graduated and moved back to my hometown of San Francisco, the AIDS epidemic was in full swing. I have no doubt that the political activism galvanized by AIDS led directly to the marriage equality movement, but not merely because activism had become a matter of life and death, and that once awakened, it was bound to turn its attention to other issues of interest to the gay community. The connection is deeper than that.

During the first job I worked in San Francisco, one of my co-workers quit at one point, and I later learned he did so because he needed to devote all his attention to caring for his lover, who was dying of AIDS. This was the first time that AIDS became something concrete to me. Later, when I was taking night classes at San Francisco State, I shared a ride with some friends, one of whom began talking in a casual way about his waxing and waning opportunistic infections; I learned later that he went home to his parents to die–no one else was there to care for him.

Our sense of obligation and empathy towards the people we share our lives with, to the point of wanting to ease their suffering and make sure that they do not die alone, is something deeply rooted in human nature. It is not just an artifact of the law. By now, my point should be clear. San Francisco in the 1970s may have been full of people who moved there in a spirit of defiance of convention and sexual self-emancipation, but by the 1980s, it had become ground zero of a truly horribly way to die, and many of those same people were discovering, to use a tepid phrase for a profound thing, the “meaning of commitment.”

Same sex marriage was born in that matrix. For imagine, if you will, that by force of circumstances you find yourself discharging the most important and painful obligations that marriage ever involves, and then realize that this institution, which you may have been defiant of before, is closed to you anyway. You will see to it that the person you share your life with does not have to die alone, but let us not dignify that with the word and privileges available to people whose sex lives are not characterized by a repulsive vice best kept secret.

This is the moral argument, ultimately, for why same-sex marriage was ever an “equal protection” issue in constitutional law. I have been critical of that argument in the past; my purpose today is not to defend it, but to render it comprehensible to those baffled by it. If you do the same things, you want to be treated the same way. The more important the things themselves are, the more urgent that desire becomes. Call it “a sense of fairness.”

I say all this because for those most deeply opposed to same sex marriage, the roots of this are, I suspect, not just a difference of religious opinion. They are not even a concern with maintaining a certain conception of gender roles for the sexes. I think that  the concern is ultimately rooted in a perception that sex is self-indulgent, that marriage is sacrifice, and that the gay community wants to scramble the cultural code so that we honor self-indulgence instead of self-sacrifice. These concepts are already problematic and much could be said about them, but my main point is: no. If gay relationships hadn’t already become self-aware under the shadow of suffering and death, if they hadn’t achieved “seriousness,” none of what followed would have ever occurred. In as concise a form as I can put it “I too shelter a mortal; why am I too not honored? How is that fair?”

That was the question the gay community has posed to America for the past several decades, and today, the highest institution in the land concerned with fairness answered: it isn’t.

Race Again, Ctd.

One of the points I tried to make yesterday is that how one frames the Rachel Dolezal story has a lot to do with what you think it means to be black in America. Freddie DeBoer, for example, offered an analysis that implied that we have over-incentivized being black. Who wouldn’t want to be black, right? At best, if you think that the only issue is employment fraud, that in turn would seem to presuppose a background perception that being black in America is, not should be, but is, a neutral condition.

Nine people in Charleston, SC would know that they’d be far better off in America being white than black. But they don’t. The dead know nothing except that it is better to be alive.

Race Again

It is our deep debt to Rachel Dolezal that her behavior, whatever one may think of it, has triggered one of the deepest debates about race in America that we’ve seen in years. This is one of those rare occasions where I don’t feel the need to set the whole world straight in light of its silliness: most of the salient issues are on the table and the discussion has been surprisingly diverse and complex. So we’ve got that going for us, which is nice.

I don’t aspire to the definitive response here; I merely wish to highlight some points that I think have been not sufficiently emphasized thus far. But before I get to that, let me say that Ms. Dolezal has all my sympathies, and that my sympathy is not contingent upon her being a perfect person: only fanatics demand perfection.

The first large issue in our story is the tension between two conflicting conceptions of what race is, and the fact that our politics are driven, not by a disagreement over this, but over the fact that both sides (crudely, liberal and conservative) are committed to some degree to both of them at the same time. There’s a reason for that: it enables people to hold others accountable for what is within their control while excusing what isn’t–unless your thing is to excuse what is within people’s control while simultaneously holding people accountable for what isn’t. Ambiguity is nice that way: it’s adaptable.

The first is the question of whether race is a natural category or not. Let’s be clear: you could lie about many things related to your self, your life history, etc., but you cannot be caught out in a lie of having concealed your real race if there are no such things as real races. If a lie is involved here, it will have to be about something else. Although it is seldom expressed openly on the conservative side, I think there is evidence that liberals, following a train of biological research (alas, decades out of date) and a train of sociological research (happily, not out of date at all), believe that race is some sort of myth, and yet somehow racial status gets attached to people by social processes which are caught up in the oppression of some by others on the basis of this ascribed status. This in turn justifies a raft of moral and political stances. Conservatives, by contrast, seem to silently think that the biological status of race is a no-brainer. While this is seldom stated openly (discussing the biological basis of race is one of the few things that can get you ostracized from movement conservatism) the reaction of many conservative pundits to the Jenner and Dolezal cases seems to imply that they are perceived to be sick individuals in rebellion against their natures. It follows, then, that they think that Ms. Dolezal has a nature.

What is the truth here, if I may be so bold? Well, tentatively, the most recent biological research, which the humanities and social science leaders and followers of the Left seem largely unaware of, is that there actually is a high degree of convergence between folk-racial classification, and statistically defined geographical populations. That is to say, if we sequence DNA, and then look at whose DNA more closely resembles whose, an overall population of DNA samples will tend to cluster, with people whose ancestry traces back largely to one geographical region having a higher degree of convergence with each other than they will with people whose ancestry is from another region. Of course there are anomalies, grey areas, etc., but this broad fact shouldn’t really come as a surprise to anyone. If race is real, the most one can say is that it is real as a statistically defined group of DNA sequences. Some sophisticated race theorists have argued that the concept of a population defined by statistical convergence in this way is not close enough to the folk concept of race to count as both showing what race really is, and that there therefore is such a thing. It seems to me that this puts far too much weight on the folk concept. Certainly discovering the molecular compound H2O counts in favor of the thesis that water is real (or more precisely, a natural kind) but in countless cases, whether the discovery of the underlying scientific truth about a phenomenon vindicates a folk classification (almost always with some modification in the process) is a matter of some latitude. In short, it is somewhat up to us whether we say “race is statistically defined geographical DNA sequence populations” or “there is no such thing as race; rather, what there is are statistically defined geographical DNA sequence populations.” This loosey-goosiness is something that has escaped liberals and conservatives alike, for various reasons, but it is worth noting. If you are not familiar with the philosophy of science issues here, it may be helpful to turn your attention to the debate over whether Pluto was a planet or not. Planet, originally, was a folk classification of observable celestial objects, but this concept changed significantly with the shift to heliocentric astronomy. Happily for the folk concept, all the things that had been called planets before seemed enough alike in light of the new knowledge to continue to be planets, and we ended up saying “planets revolve around the sun, not around the earth” although given the earlier views about what planets are like, we might well have said “there are no such things as planets as traditionally understood; Mars is really a solar orbiting body, or SOB.” Anyone who followed the “is Pluto a planet” debate will grasp immediately that this hinged not primarily on a new discovery about Pluto, but the discovery of vastly more bodies in the solar system than we had been aware of previously, bodies which Pluto resembled more than the “traditional” planets, and a proposal of a new definition of planet which would justify excluding all these new bodies… at the cost of excluding Pluto as well. If you think that scientists simply discovered that Pluto is not a planet, then you either don’t know enough about the debate, or enough about how science works. Race is similar (in light of the most recent research utilizing DNA sequencing and statistical methods).

If we hook “being black” to instantiating the concept of race held by people in the 19th century, then there are no such things as races, and it is impossible to “conceal one’s true race.” If we decide that the older concepts of race are not enough like the new concept of geographical population, and choose not to call such things “races” that continues to be true. If we decide that they are enough alike, so that we reform rather than reject the folk concept, then it is possible to conceal one’s true race. Such concealment would involve concealing the fact that one was statistically far closer to one geographical population than another.  It is partly in light of this fact that Ms. Dolezal has stated that she has not had her status confirmed by DNA test. Indeed, such a test would be the only way to determine whether she was “black” in the only scientific sense remotely in the running. Indeed, it would be most interesting if it turned out that she had some genetic convergence to people we folk-classify as “black” and even more interesting if that convergence was not so high. At that point the fact that it is somewhat up to us what to make of all this would become quite apparent to the dispassionate, if not to the majority.

All that said, the social constructionists have a point, and a big one: the only importance any of this has, is the fact that some phenotypes can be readily perceived with the naked eye, and on that basis, societies have singled out members of these populations and treated them in certain ways, e.g. giving some the opportunity to buy and sell others, forbidding marriage across these boundaries, etc. As W. E. B. Dubois explained long ago, these social practices cause people who are subject to them to internalize an identity and membership in a community, and if nothing else, that community is as real as anything purely social ever is. Over time the communities will develop their own distinct cultures. The profound depth of this enculturation is perhaps best illustrated by spoken language accents. One could, with a high degree of reliability, absent deceit, determine whether a voice sample, without any further data, was from an African-American or a European-American. But of course accents are not genetic to any significant degree and certainly not here. Yet one’s accent is a very deep fact about oneself. It is almost as immediately recognizable as skin color, and can be every bit as effective as a criterion for discrimination.

So, to review: if there were such things as racial essences, then Ms. Dolezal could lie about hers, and probably did. But there aren’t, so she didn’t. If we wish to regard the new concept of statistically convergent DNA-sequence geographical population as “what race really is” then there could be such things as races, but then it remains to be seen whether she lied about anything because none of the relevant information that has come to light is dispositive in absence of a DNA sample, and even then, since there would likely be some convergence to several populations, it would then be up to us to decide where the boundaries are, much as it was up to us to decide what Pluto was.

No doubt many will be impatient at this point. Of course her DNA sequence is not at issue! they will insist, and it’s a distraction to suggest otherwise. The social realities of race mean that she was “white” before she was “black” and she had to lie her way into ever having been labeled as black, not by making false claims about her DNA, but about her parentage, family history, life experiences, etc. But this is trickier than may at first appear, for a number of reasons, any of which should be accessible to today’s liberals and progressives.

First, if social constructionism about race means that there is no deep truth about race, but rather that race is a matter of where one lives, how one speaks, how others perceive you, etc. then the dishonesty complaint about Dolezal must be, not that she lied about her biological race, but that she refused her assigned racial role in the social construction process. She’s supposed to self-identify as white because that’s what society tells her to do, so that she can better claim her privileges as a white person, and better be the object of moral criticism for having done so. It seems a bit perverse (to put it mildly) for people committed to destroying racism to complain about someone for refusing to help participate in our racism-reproducing processes. Think about that some. She refused to become a presumptively racist recipient of white privilege, and by refusing to help prop up a racist society by how she herself lived (and what is more, did not choose to be apolitically black, but a black activist) what more could she have possibly done to combat racism as liberals and progressives understand it? Or is it that we don’t really want white people to surrender their privilege because if they all did so, black activism would necessarily die as a result? It would not be the first time that political “entrepreneurs” hoped against hope that they wouldn’t actually win, and then put themselves out of business.

But that seems ungenerous. For one, it doesn’t do justice to the understandable outrage that people feel towards those who lie in order to claim a benefit. After all, it is always wrong to lie, as Kant famously said. Then again, maybe it isn’t, as Plato equally famously said. It depends upon who you are lying to, what they are up to, in what ways they motivate you to lie, and what you hope to achieve by doing so. Everyone would agree that lying about being Jewish to escape Nazi Germany is an OK lie. So, I guess it’s OK to radically misrepresent who you are, to achieve just goals in a deeply unjust society, say, a deeply racist one…

Which is more praiseworthy? For a Jew to lie to the Nazi and claim to be a Gentile in order to avoid suffering a horrific injustice… or for a Gentile to lie to the Nazi and claim to be a Jew, in order to be sent to a camp so that she is better situated to help others escape? It may be a mistaken moral principle in itself, but we do tend to think that the more you give up, the more strenuous your conduct for morally good ends, the more praiseworthy. In order to see Ms. Dolezal primarily as a fraud by focusing narrowly on whatever advantages she may have received as, say, a candidate for employment by the NAACP, or a candidate for employment as a professor of Africana studies, is to be willfully blind to a larger context. It’s like saying about my hypothetical Gentile that of course they would lie about being Jewish in Nazi Germany! Who wouldn’t want to go for those plummy synagogue jobs?

At this point, the liberal/progressive may feel that my analogy is strained. But isn’t it your analogy? There’s no paucity of conservatives happy to tell us that racism is a thing of the past, and that race-neural policies and attitudes should suffice henceforth, and if some individual who happens to be black suffers under such policies and attitudes, let the chips fall where they may. It is precisely the liberal/progressive that wants to emphasize the fact that the cup is half empty, indeed, the emptier the better. The closer we are to Nazi Germany, the more sense activism makes.

But these points about dishonesty should be obvious to liberals and progressives for another reason: one of the central objects of liberal and progressive concern, is the plight of gays and lesbians. Remember the bad old days? If not, let me help you. In the bad old days, homosexual activity was considered (1) a sin, (2) a vice, and (3) a psychiatric disorder. In light of this pervasive attitude, most people who engaged in homosexual activity concealed it, lied about it, to the point that, first, the pervasive dishonesty of homosexuals was taken as a kind of corollary confirmation of the fact that homosexuality was a vice (people prone to one vice are likely to be prone to others), and second, the experience of being pervasively dishonest and then at some point ceasing to be so became “a thing”: coming out of the closet. Liberals and progressives have all accepted the idea that the closet is not to be equated with the morally bad conduct of being dishonest for gain, despite the fact that it involves being dishonest, and leads to gain (social acceptance… at the cost of inner suffering, but presumably all dishonest people experience some sort of inner suffering related to their dishonesty). Instead it is almost perceived now as a kind of wonderful episode of self-actualization within a kind of Bildungsroman narrative that all gay people share. The pro forma dishonesty involved is drained of any moral significance which speaks ill of the gay person. I am not contesting this; I’m saying that this is one thing you can do with self-misrepresentation, and whether or not we should goes back to our earlier questions about the context in which one lies, and how morally compromised the society one finds oneself in is. Now one might say that this is 180 degrees different from Ms. Dolezal’s case because she chose to conceal her dominant status, her “heterosexuality” if you will. But that simply takes us back to the question of how burdensome or not it is to be black in America. I suppose this is as good a time as any to put my cards on the table: in my opinion, pretty fucking burdensome.

Last point: the liberal and progressive criticism of Ms. Dolezal seems to emphasize that it is offensive of her to use her privilege to play at being black, when blacks cannot with the same ease opt out of blackness. Setting aside the issues above, it is of a piece with the very nature of race as a social construction that it is possible for people, black and white, to opt out, if they are fortunate enough to have an ambiguous appearance (if the appearance is not ambiguous at all, and you’re a social constructionist about race, then it is unclear what you mean when you say that someone black passes as white because they are absolutely indistinguishable from white people–if they are and “act white” they are white, by definition–this is one of the consequences of adopting an anti-realist stance about a phenomenon), and brave enough to go undercover, so to speak, to “pass.” It is simply not true to say that it is a part of the essence of blackness or whiteness that “passing” is impossible as a matter of racial classification ex ante. The fact that it has occurred, in both directions, proves that false. So what we’re really talking about is the unequal distribution of natural gifts: it is easier for some to pass than others.

Now if you “are” black and yet succeed in passing for white, and then proceed to actively belittle and thwart black people, if you become a facsimile white racist, the people of the culture from whence you came have every right to be resentful, outraged even (this is the background for the great “outing” debate in gay politics of the 1990s). But if, instead, you pass in the opposite direction and then use your acquired status as black to do literally nothing but help the black community, then to direct resentment at that person seems misplaced. All else being equal, people should be happy for people who enjoy natural gifts… however rare that phenomenon may be. The ire should be reserved for the system, not for the person who was given more degrees of freedom within it, and especially someone who used that freedom to engage in near heroic measures to renounce that very privilege in as absolute and total a way possible–by trying to completely efface the fact that the privilege had ever existed for them, lest they benefit from it.

One of the great challenges that faces progressives is the task of assimilating Nietzsche’s critique of resentment as the root of leveling, and still remain a progressive. I believe that is possible, but more importantly, I believe that it is necessary. To blame someone for defecting to your own side in a war because that diminishes your opportunities to shoot at them, especially when it is a target-rich environment anyway, speaks so ill of the progressives who have, if not said as much, given indications (shall we say), that that is what they are thinking, that I would think that they would be ashamed to even insinuate as much. Still, rage makes one blind, and much must be forgiven of those who rage against the injustices which they themselves have suffered, if they find themselves occasionally raging against allies and adversaries alike.

Great Moments in Cinema, XV

Starling: You were telling me the truth back in Baltimore, sir. Please continue now.

Lecter: I’ve read the case files. Have you? Everything you need to find him is there in those pages.

Starling: Then tell me how.

Lecter: First principles, Clarice. Simplicity. Read Marcus Aurelius: Of each particular thing, ask what is it in itself? What is its nature? What does he do, this man you seek?

Starling: He kills women.

Lecter: No! That is incidental. What is the first thing he does? What needs does he serve by killing?

Starling: Anger. Social acceptance. Sexual frustrations.

Lecter: No! He covets. That is his nature. And how do we begin to covet, Clarice? Do we seek out things to covet? Make an effort to answer now.

Starling: No. We just…

Lecter: No, we begin by coveting what we see every day. Don’t you feel eyes moving over your body, Clarice? And don’t your eyes seek out the things you want?

Starling: All right, yes. Now please tell me how…

Lecter: No. It is your turn to tell me, Clarice. You don’t have any more vacations to sell. Why did you leave that ranch?

Starling: Doctor, we don’t have any more time for any of this now.

Lecter: But we don’t reckon time the same way, do we, Clarice? This is all the time you’ll ever have.

Starling: Later. Now please listen to me. We’ve only got five…

Lecter: No. I will listen now. After your father’s murder, you were orphaned. You went to live with cousins on a sheep and horse ranch in Montana. And?

Starling: And one morning I just ran away.

Lecter: Not “just”, Clarice. What set you off? You started at what time?

Starling: Early. Still dark.

Lecter: Then something woke you, didn’t it? Was it a dream? What was it?

Starling: I heard a strange noise. What was it? It was screaming. Some kind of screaming. Like a child’s voice.

Lecter: What did you do?

Starling: I went downstairs. Outside. I crept up into the barn. I was so scared to look inside, but I had to.

Lecter: And what did you see, Clarice? What did you see?

Starling: Lambs. They were screaming.

Lecter: They were slaughtering the spring lambs?

Starling: And they were screaming.

Lecter: And you ran away?

Starling: No. First I tried to free them. I opened the gate to their pen, but they wouldn’t run. They just stood there, confused. They wouldn’t run.

Lecter: But you could – and you did, didn’t you?

Starling: Yes. I took one lamb and I ran away as fast as I could.

Lecter: Where were you going, Clarice? –

Starling: I don’t know. I didn’t have any food, any water and it was very cold, very cold. I thought… I thought if I could save just one, but… He was so heavy, so heavy… I didn’t get more than a few miles when the sheriff’s car picked me up. The rancher was so angry, he sent me to live at the orphanage in Bozeman. I never saw the ranch again.

Lecter: What became of your lamb, Clarice?

Starling: He killed him.

Lecter: You still wake up sometimes, don’t you? Wake up in the dark and hear the screaming of the lambs?

Starling: Yes.

Lecter: And you think, if you save poor Catherine, you could make them stop, don’t you? You think if Catherine lives, you won’t wake up in the dark ever again to that awful screaming of the lambs.

Starling: I don’t know. I don’t know.

Lecter: Thank you, Clarice. Thank you.

 — Silence of the Lambs

Ex Machina

The allusion to Wittgenstein, which leads to his quasi-behaviorism, which leads to the Turing Test, was clever.

The allusion to Frank Jackson? Less clever. Worries about the rights of artificial persons? Tired. We’ve heard this discussion before, since Blade Runner at least.

But the deep dependence on the plot of The Magus was a surprise; the likely fact that no one will mention this because Fowles is not taught is itself interesting, as is the consilience with the change in the plot [spoiler]: things don’t work out for our “Nicholas” quite as well. The object of his affection, rather, becomes the protagonist ultimately. It’s not that The Magus couldn’t be written today: it’s that it would have to be written from the perspective of Rose and Lily, and love would not be the answer, but an worst an illusion, at best a manipulative tool for facilitating liberation from the patriarchy.

What does this tell us? That the bourgeois individualism of The Magus is probably not a permissible object of study in academia anymore… unless the bourgeois individualist doing the self-discovery and self-liberation is A Person of No Privilege (in this case, white and straight, but at least female and non-human). By contrast, A Person of Privilege is allowed to critique bourgeois individualism (even though this is essentially self-criticism, thus self-discovery, thus bourgeois individualism all over again, and as long as the critique focuses on the cultural surface effects and in no way speculates as to the mechanisms which produce them, and hence to strategies of dismantlement.)

The Text of the Indiana Religious Freedom Restoration Act

[Offered as a public service, in the event that someone wants to read it, instead of misleading and inflammatory statements about it. My own analysis will follow in a future post.]

SENATE ENROLLED ACT No. 101

AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana: 

SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3. (a) The following definitions apply throughout this section: (1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, “demonstrates”means meets the burdens of going forward with the evidence and of persuasion.

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.

Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. 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.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.