I side with

isidewith was an interesting attempt started back in 2012 to get some members of the public to think more about matching their policy interests and goals with political candidates who might better support those. I'm rather skeptical that this project is likely to have much fruitful action in and of itself, for reasons that have to do with how most people vote and why not having very much at all to do with policy goals, particularly in a polarized voting environment. But it was a laudable project at the time to try to get people to think about third parties and more rigorously evaluate their policy visions and compare them to something like the actual positions of candidates.

I'm less sure of its current development still fulfilling that mission, but I have other uses for it all the same.

*I don't really have a positive opinion of some of the methods of matching being used, and the site seems to have taken a somewhat more distinguishably liberal tone to some of its questions and answers rather than being more obviously neutral (I say this as someone who on many issues regards Democratic candidates as illiberal squishes rather than anyone invoking a liberal political and policy tradition). A further problem may be the online sampling is likely to skew younger than the overall population. This has implications on a variety of issues more likely to be popular among younger voters than older voters (note these are not necessarily predictable. Support for entitlement reform for instance tends to be greater among older voters than young people). What that may be suggesting is that some of these issues that are closer in appearance here may be possible for reform, but not for several more years as demographics shift to have fewer of the existing older voters still alive.

But there's still some interesting results in looking at the poll results on specific questions that I wanted to pull apart more.

Issues with general agreement of some kind across parties that might actually get something done in the next few years (and not totally annoy me). 

Welfare-work requirements: Pretty popular with both parties. About 3/4 of Democrats and 80% of Republicans are in favor. I think this would make a possible case for an expansion and better tax incidence smoothing of the EITC and other social welfare programs. But not something like a negative income tax (my favored solution instead of min wages and smoothing out transfer payments by eliminating many programs and consolidating them as a cash transfer.)

Paid family/sick leave: Popular with both parties (60-40 Republicans, 90-10 Democrats). I would prefer this be implemented by having the government pay for it, in a way that it operates like disability insurance of a sort, rather than risk providing distorted incentives for employers to fire or not hire people who are more likely to get sick or avoid hiring or promoting fertile aged women capable of reproducing. It is however an issue on which there appears to be some possibility for reforms, which is rare.

Universal background checks for guns: This gets almost 90% support from either party. One caveat to this is that the support for "more gun regulations" is highly split (80-20).

Euthanasia: There's a gap here, but both Republicans (55-45) and Democrats (90-10) supported this as an option.

Issues with odd divides or near uniformity that annoy me:
ISIS - declaration of war ends up being mostly pro. Democrats were split about 35-65. I could see some number of people suggesting a legal procedural problem of allowing the military and President to conduct a conflict without the input of a Congressional vote but this wasn't offered as a legitimizing feature in the "more options" categories. A very similar partisan split occurred in using "ground troops" however, suggesting that if there is some sort of legal procedural voting bloc, it isn't very big.

"Decrease the military budget" - Republicans were almost united in opposing any decrease, but even Democrats were about evenly split. This was utterly horrifying to me given how much money we expend on defense budgets annually and what little return we receive for it (even in reference to what the defense department receives, this is less than clear it is getting what it asked for in exchange for the money allocated).

Foreign aid - reliably, everyone hates this (across both parties). Also reliably, I expect pretty much no one knows how much we are spending and on what.

GMO labels. The only political group that opposed these in substantial numbers is libertarians (and then it was still about 50-50). Both Democrats and Republicans were at 80-20 margins.

Drug testing welfare recipients. Despite considerable evidence this is either unconstitutional or totally ineffective, both parties supported this. Republicans do so to an absurd degree (93-7). But Democrats do themselves no favors (58-42).

Farm subsidies: There's not much of a divide here. Democrats are marginally more supportive of them. Republicans are about 50/50. Again, libertarians were the only political group that opposed these in substantial numbers. There hasn't been a good economic case for these since the Progressive Era under Hoover. Which is to say there is not one.

Prosecuting bankers for the 2008 financial crisis attracted bipartisan support (more from Democrats, but it's about 60-40 from Republicans). I am unclear what good this would do and tends to be pretty hard to do.

Marijuana legalisation: Still pretty opposed by Republicans (60-40). Democrats are up to about 90-10 in favor. I'm constantly annoyed this has not translated at the elite level very much at all. Few Democratic candidates are openly in favor. Drug decriminalisation more broadly (potentially including say, cocaine) has a similar split of around 70-30.

Patriot Act/NSA reforms, not supported very highly by either party. Republicans are more apt to back the existing architecture of the national security state. Libertarians of course hate these powers. The Apple-FBI fight has a similar split in support of demanding Apple hack phones for the government.

Social security. Both parties tended to have about 70-30 opposition to raising the retirement age for Social Security. I had other ideas on how best to fix the problems here (means test the benefits). Others would prefer raising the tax limit for it. But I can't really see a basis for leaving the age where it is either.

Term limits. Both parties support this at nearly 90%. I've never seen a good argument in favor of this idea. It's entirely populist nonsense. Fortunately nobody in office will do anything about it.

Campaign finance laws: both parties oppose the current Citizens United framework. I think the case against this is pretty weak and that greater funding transparency would be of sufficient fix for now. It misdiagnoses the problem as election laws rather than lobbying.

Voter ID laws: Both parties support these. Republicans are at extremely high rates but Democrats are still at around 2/3s. I find there's little or no basis for this form of voter fraud protection and that methods of suppressing or preventing individuals from voting are really poor ideas (even though I think many voters are poorly informed at best, and misinformed at worst).

Death penalty: Supported by both parties. Democrats around 2/3s. Republicans at 90-10. I can conceive of a moral case for killing certain people based on the severity of crimes and the possibility of rehabilitation, but the amount of burden of proof and expense, and the civil libertarian moral case for not killing people who might be innocent or may be otherwise "redeemable", and that there does not appear to be an effect of deterrence for the sort of crimes that we use it for, and the case that we are often using it for racist reasons, all weigh heavily against this being still a good and necessary idea in a modern state.

Issues with odd divides or near uniformity that may annoy partisan elites:

Cuba - There's a partisan split here but it's an odd one for the way Republican elites have been talking about it. Democrats almost universally support this change (95-5), while Republicans come out as almost a 50-50 split. I'm not sure there's much of a cohort available to them to pander toward (neoconservatives?) that it would actually be beneficial to reverse course on this policy trend toward normalizing relations with Cuba. It probably seems pretty clear to almost everyone what we were doing wasn't working.

Global Warming - big partisan split here too, but there's a cohort of Republicans that still favor doing things (about a third). Democrats are almost universally in support of doing something, but almost none of them favor taxing carbon emissions. Which is really disheartening. I think it's probably one of the simplest methods of attacking the problem.

TPP - Both parties voters were about 60-40 against. I have mixed impressions of this because of intellectual property rights law intersecting with the treaty in a way I find undesirable (strengthening and expanding the protections rather than reducing them to be more sensible).

NSA metadata collection - both parties seem to have about a 60-40 opposition to these programs. Further reform to squash them may be possible.

Issues with large partisan divides (things that we should expect to come up in the elections)

Syrian Refugees (accept or not) - For the record I answered this with "we should accept many more than 10k". I'm about as pro-refugee and asylum as someone gets, particularly given all the restrictions and system of checks involved in accepting such people as we already have making it difficult to accept and integrate as many people as we should.

This comes out as a near 50-50 split. But on partisan grounds both parties ended up closer to 80-20 or 20-80 splits. It's likely to be a sore point over which partisans will argue, but no middle ground can occur.

There isn't a cohort that broadly supports overthrowing Assad or preventing Russian support of Assad through their airstrikes. This seems to be a big disconnect between the public, particularly the conservative public, and most of their candidates (Voldemort seems to have tapped into this best, though it isn't a focal point of his blustery word salad presented as a campaign).

Iran - There's a big partisan split over attacking Iran though. Republicans favor airstrikes on nuclear facilities by an 80-20 margin. The polling there is older, but I doubt it has shifted very much since. (For the record, I wouldn't favor airstrikes even if I thought they were building a bomb. Which I do not think is or has been the case for some years now anyway).

College loans/college debt. There's a big partisan split over how to fund these. Sanders plan of a Wall St tax or raising taxes on rich people to fund colleges is very popular among Democrats and liberals. But nobody else likes it.

Immigration: Democrats on virtually any immigration question favored much broader admittance and acceptance. Republicans did not. There was a huge split over whether local law enforcement should detain people based on minor crimes (like traffic violations or other misdemeanors). This is likely because this is believed to be used (and has been shown to be used) for racial profiling purposes rather than immigration enforcement. There was another 80-20 split over birthright citizenship and over the restriction of Muslim immigrants. There was also a gap between Democrats (50-50) and Republicans (96-4) over "border security".

There was no real divide over "immigrants should be required to learn English". Which in practice makes sense, but in terms of the legal system does not.

Unions were regarded negatively by Republicans (70-30) and positively by Democrats (80-20). Which probably explains min wage discussions. Speaking of which, minimum wage increases were along a similar split (80-20 each).

Obamacare: huge partisan divide here. Democrats favored 85-15, Republicans 95-5 against. This essentially forecloses the ability to do either a) reforms to the existing system that make it work better or b) any substantive discussion of further liberal policy choices. It also limits the prospect of conservative policies being put forward instead as the existing system is essentially one put in place by moderate conservatives (Mitt Romney for instance).

Abortion: Remains a pretty strong partisan split. Republicans are "only" coming in at 70-30 "pro-life". Democrats at 90-10 pro-choice. Planned Parenthood funding achieves similar results as a proxy fight in this issue.

Gay marriage: Republicans come in 70-30 against still (Democrats are nearly universally in support).

What to do when doing nothing isn't an option?

"In a previous post, I claimed that there is a bias in public policy debates toward doing something, rather than nothing, even if doing nothing might be the right thing to do.  But I also promised in a future post—this one!—to say more on the matter.  The gist of my earlier post is that people in the liberty movement often lose arguments by simply denying that there is a problem, or by claiming—which amounts to the same thing—that the proposed solution won’t work, and therefore “we” should do nothing.  Since libertarians often want the state to do nothing (though the “Right Kind of Nothing,” to be sure!), this seems facile.

We can do better, I think, by agreeing with the premise that there is a problem.  Often, a small restatement of the problem helps.  If someone is upset about inequality, I always wonder what they are really worried about.  So, I ask:

Isn’t the real problem not inequality, but poverty?  Rather than taking envy, which is a sin, and trying to raise it to the status of a virtue by calling it social justice, why don’t we try to help poor people?  Furthermore, if the poor in the U.S. have it so rough, why do genuinely poor people from the rest of the world want so desperately to come to the U.S. and be poor here instead of being poor where they are?
As you can imagine, hilarity ensues.  Still, I actually agree that poverty is a problem.  The best cure for poverty is a job, however.  If I can get my conversational partner to agree on that, we have a place to start."

There's several issues on which this is a useful critique. The War on Drugs or the War on Terror I'm not inclined to see as very serious problems worthy of massive state involvement, much less along the lines that the governments involved have typically proposed to wage these fights. But I'm fully aware there are (many) people with serious problems with drug addiction and some (very small) number of people who might wish to commit acts of atrocities upon civilians and citizens in this country for political or discriminatory purposes. It's very easy to see that these are problems worthy of "doing something" about. It is not so easy to convince people that "what we are doing" or "what is proposed to do about it" is not helpful toward alleviating those problems or indeed may be making them worse rather than better. But supposing that's done, there still needs to be something involved as an alternative. I typically would propose something at that time, assuming people are still listening. Likewise if people want to complain about legal abortion I can point out that there are pretty beneficial things going on (even at planned parenthood) that have made abortions less likely. And have done so far more safely and easily than whatever it is they propose to have people do. This isn't exactly greeted as wondrous news either.

So I would suggest one of the problems is simply convincing people what's going on isn't actually working usually succeeds in moving the goalposts. And that will usually show they have other preferences revealed besides actually dealing with a problem as listed. That can be helpful and clarifying. But it is usually not that productive. I'm less convinced that there's a case to be made that immigration is a serious problem. Or that Citizens United has undermined democracy in some critical way. So sometimes there's a strong problem of not seeing a problem and not being able to find some common ground.

The bigger problem this identifies therefore is simply not wanting to find the common ground for many libertarians. By ignoring the possibility of pushing the existing state toward a more free society in favor of demanding the demolition of the existing state this is engaging in a pointless intellectual exercise. Nobody else fights that battle. The hill to die on there is of no value to the existing world. By contrast, pushing the state to do a little less somewhere is something almost everyone does some of the time and to which is a cause people aware of things government does (and probably should not do) can usefully apply themselves.

Liberals wanted the state to be less discriminatory in marriage laws, and allow both straight and homosexual couples to marry. I viewed this as a positive benefit in the freedom of individuals, as deciding who to marry and accord various privileges and benefits to is a significant act for (most) individuals, and as such it should be to someone of their own personal choice rather than someone the state approves of such choosing. The correct and helpful response to this as a movement was not "demand the state abolish thousands of marriage regulations" by "abolishing marriage as a state institution" but rather help to see that the state applies them in a non-biased way. One could always come back around later and start tearing up some of the less useful and effective regulatory benefits once that benefit to freedom is established. Start with the benefit to others first though, or it is less clear that your motive is in fact the liberty of human beings (and is not something else like "traditional religious views should dominate the public sphere").

In other spaces. Liberals used to have a civil libertarian streak (during the Bush administration, it has clearly faded now that Obama was in charge of the nefarious organs of power to which they objected), and wanted to limit (if not abolish) the powers of the surveillance state to impinge on the rights of citizens to privacy and protection against general and unreasonable searches. This was a useful ally to have to protect the rights of individuals and their freedom from an overextended state. While I'm often more dubious of the interest of modern conservatives to protect individuals and individual liberties (particularly their current crop of Presidential candidates), they do occasionally nod toward making less arbitrary regulatory red tape in the formation of businesses or the sale of otherwise safe goods or to the experimentation of new goods. As an example, medications long approved for sale in both the US and EU for instance should be purchasable from EU sources, at steep discounts, and in general, much of the FDA's drug regulations seem more productive at (excessively) protecting existing markets than allowing new and safe drugs to enter and compete (and perhaps lose). Conservatives have noticed this as a fair target for reform. They've also slowly started to help to push against the growth of the prison state, because of its bloated size and ineffectiveness at continuing to lower crime while also re-integrating some of those we send away to prisons and jails in the first place.

It would be helpful if these sorts of pragmatic approaches predominated. Seek some form of common ground, and then ruthlessly ally with whomever demonstrates a path toward it that can be agreed upon.

Series of quick blurbs

Or maybe not so quick. We'll see.

1) Was the clock kid arrested/suspended because he brought a clock to school or because he was a Muslim kid who brought a clock to school.

Short answer is probably a bit of both, but mostly the latter. There's some, but not much, justification to question what it is that a kid has, but if they don't have it out, and show it to a teacher rather willingly and openly, that should be a sign it isn't intended as a prank and was intended to be something random and fun that they built and hoped would be appreciated. It wasn't. That ought to be have been the end point. It wasn't. So here we are. The key points though that suggest there's a racial/ethnic/religious dimension on top of the overzealous school safety considerations would be that the school never took any of those overzealous school safety considerations at the time. If it was thought at any time to be an actual bomb, the school (and the police) never behaved as though they thought it was. I would be suing the cops for wrongful arrest/detention as a violation of civil rights (they had no probable cause for an arrest) and I'd be at least changing schools pronto if I were his parents. Sounds like at least one of those is happening.

2) Will Kim Davis end up back in jail for fiddling with the state forms?

Short version: maybe. She probably shouldn't be. Most of the state officials seem to think the forms her office is issuing are legal or at least will be recognized as legal for their purposes, and that this point it appears to be a question of state law that would matter. But they're very clearly being issued in an defiant "fuck you" manner to the court that required the issuance of certificates. Which courts and judges don't tend to like very much.

3) Why is Sam Harris still talking about racial profiling (particular of Muslims at airports).

Short version: I have no idea. He seemed very clearly to have lost badly in public debates he himself posted online several years ago on this exact topic. But he seems to have ignored this rather glaring flaw of history of his engagement to the subject matter. It ties into the clock story and the Harris/Republican narrative that "Christianity is under attack", whatever that means, in so far as there's a lot of strange rhetoric based upon fear that isn't easily translated into effective and legal policy. Maybe Harris' underlying argument is that Muslims are the most likely source of threats to airplanes and airport security, which is perhaps a plausible case for now but hasn't always been true and isn't the best way to secure them even if they are to treat such people as we can identify as possibly Muslim as the only likely source of threat. How that translates into an effective security process from that assumption is a very big logical step that overlooks a lot of costs and difficulties. Secularists and liberals tend to want to govern processes of law by reasonable steps, such as cost-benefit analysis or effectiveness. Apparently not when fear is concerned. Then the arguments look very much like the same ones that conservatives make when telling us Davis was in jail for practicing her faith, rather than violating a court order.

A short legal primer. Sort of

So. Kim Davis is a trendy topic. Those probably were not words most of us would think to write a couple of months ago.

Some explanations for people who haven't followed this closely or imagine themselves to agree or disagree with her.

1) County clerks in Kentucky are elected officials. They're still public officials charged with doing public duties, like providing marriage licenses. One result of this elected status though is that they cannot be fired by another public official (a Governor for example). They have to be removed from office via an election or a process of impeachment that is typically complicated and time-consuming.

2) States could decide they don't want to issue marriage licenses, which to me seems like an idea likely to be less popular than is being imagined by some Christians or anarchists and some number of libertarians, but until or unless they do so, some city or county official will be charged with providing these licenses officially. In this case, a county clerk's office was tasked with this duty. There may be other public officials in the county that can perform this legal duty but they have other duties often (judges for example). Since the state gives out marriage licenses on a fairly regular basis, it is not productive to have this task on an ad hoc basis rather than an appointed office handle the regular business of the state.

3) Court rulings based around the 14th amendment have decided, I believe rightly, that these licenses should be issued regardless of gender in the couples involved. This means that any Kentucky law preventing such licenses between same-sex couples from being issued is invalidated and that such laws are to be enforced as amended. So the licenses must be issued and the court's interest is in gaining compliance with its orders that the state officials no longer be violating the Constitution.

The relevant factor here is that it is the state of Kentucky, not Kim Davis, which is seen to be acting when it refuses to issue a marriage license. Kim Davis does not make or decide state laws as a clerk. She carries them out and as such represents the state in that capacity.

4) The judge who issued the order to provide the licenses lawfully a) wrote in the 6th circuit opinion that was overturned that he effectively did not agree with same-sex marriages and b) gave Davis several avenues to lawfully comply.

Most significantly, she was to be allowed to turn over the duties to another clerk in the office rather than issue licenses she disagreed with herself. She refused to allow another clerk in her office to comply whether they wanted to or not or agreed with her beliefs or not. She imposed her beliefs upon others in her employ. This is not a power any elected official possesses, whether they imagine themselves to or not. This is ultimately why she was found in contempt of court and jailed, not for practicing her own religious beliefs but refusing to allow others to live in accordance with their own interpretations of faith and law and imposing upon them a required action that was deemed to be illegal by the federal court system and out of step with directives issued by the sitting governor of the state to comply with those rulings.

One of the apparently forgotten aspects of Jim Crow was that it was a binding legal obligation upon all citizens to segregate, not merely the beliefs of racists but the laws of racists as well were in force and on display. There were ways around this, but it was officially sanctioned by the state to require certain private behaviors, whether people agreed with those laws or not. If people do not agree with allowing same sex couples to marry, they are allowed to disagree with this, to voice opposition, to protest, to attend church services that reinforce these beliefs, and so on. What they are not allowed to do is prevent this from occurring legally and prevent others in their employ from executing the required public duties of issuing a license.

4a) (Update) It appears her dispute is that her name has to be on it as though this is constituting a personal endorsement. It is extremely unlikely that federal courts and judges will decide to amend a state law as to whether her name has to appear on a public form from a county clerk's office as a basis for official documentation being deemed valid. Their concern will be the relevant constitutional status of marriage law enforcement more broadly and not the precise mechanics that the Commonwealth of Kentucky decides to use to provide those marriage licenses, who has to sign where, etc. State laws may provide some protection if she were to sue in state court that some accommodation could be imposed or the state could act to amend the statute to provide such accommodations as allowing a deputy clerks name to be valid, etc, though that's not guaranteed of course. And she hasn't done that anyway. Suggesting her legal arguments are less about seeking accommodation and more about something else, or that her legal team is not very good (also plausible). (update to that part, it looks to me unlikely that the state courts would grant some variety of exemption either as the relevant forms only require the endorsement of the "office of", and not the "person of").

5) The absurdity of claiming that people could drive 30 minutes away for a public service required by state law seems to be a point of order as well. What this suggests in logical terms is that Davis does not agree with same sex marriage, but will abide by such marriages as endorsed legally by others in the same official capacity as herself as long as she has nothing to do with it. Except that she won't do that in her own county.

This is very different from say, abortion providers and distance traveled questions and constraints. The state is not in the business of providing abortions. It does not have to mandate that its officials provide them in a reasonable fashion within a legal jurisdiction of a county or major city. The state is in the business of providing marriage certificates. Since the state is in that business, it is required to do so in a non-discriminatory way (roughly speaking, since the state can prevent you from marrying your cousin or sister or father, or an under age child), and more significantly to this question here, the public and elected officials are tasked to do so as well. If they are unable or unwilling to do so, the effective response is that they should be removed from office in order to gain compliance with the legal environment.

Those public officials are free in their private capacity to complain all they want so long as they comply with the law in a non-discriminatory way or make reasonable accommodations to do so. Not issuing licenses at all in a county, without the approval of other city, county, or state officials, and thus requiring people to go to another county to receive a public service they are entitled to legally is not a reasonable accommodation.

6) The wisdom of jailing her to assure compliance with the law has been frequently called into question. I suspect that the intention of her or her lawyers was for her to go to jail for violating the law and that this is why she refused other methods of compliance. This made it unlikely that other forms of compliance would have worked in the interim to prevent violations of Constitutional law and the state's basic obligations from being ignored in the meantime.

As a form of civil disobedience, this is fine. She was willing to pay the consequences. As a form of protest intent on amending the legal environment, I'm less clear on how this would redound to anyone's benefit if they oppose gay marriage and the change in the legal environment. Some are claiming this makes her a martyr. A martyr to an already activated minority is still a losing opinion on this matter. Her actions would have to in some way change people's minds rather than just fire up people who still agree with her. She is not a church, whose practices were not changed by the legal framework of the 14th amendment requirements to civil institutions, and she was being allowed not to perform the ceremonial tasks personally as a requirement of her official duties. I don't see where that changes people's minds in a meaningful way. If anything, more people being aware that what she was actually doing was refusing to let anyone else operate in an official capacity under her charge should suggest that this is not likely to be a very inspiring case.

7) This question of the intersection of religious liberty with gay marriage (both in the public sphere and in the private business sphere) will come up again with a more presentable case. The Supreme Court refused to hear this one on appeal because it was a terrible case easily dismissed on the merits, most likely being used to fund raise by the legal team rather than attempt to actually reform or repeal the legal environment.

The slippery slope argument

Most of this I disagree with. 

I do think there are sound strategic reasons for advocates of same sex marriage not to move on to this; namely that the status of same sex marriage is still going to need to be reinforced over the next decade or so in the US, and remains unrecognized in various moderate to liberal nation-states. That part I certainly agree with. The focus of advocates for same sex marriage need not begin to fracture into other causes in order to achieve these ends however.

Morally and legally, these are not persuasive arguments for the state to be involved in restrictions against polyamorous arrangements. Viewed in a utilitarian sense, I do not see this as a very strong case myself (as a semi-utilitarian, particularly in public policy views). I'm not sure why this is described as a "utilitarian" case against it: that it causes some number of people (who are not party to the arrangements) unpleasantness is not a case for government restriction on its own (it might be a case for coercive restraints of a sub-state nature). A similar and perhaps stronger utilitarian case could be made for any number of existing marriages that they will fail or be singularly unpleasant for one or both parties (or their children, should they have any) for the state to step in and prevent them from occurring in the first place if this is an argument for government intervention. Why this flaw of reasoning does not occur to people in rejecting pluralistic marriage arrangements is very strange to me.

The basic statement boils down to some sort of claim that every person must have equal possible sexual and intimate right to another person. Some people are assholes however. Not every person is easy to live with, or desires to make formal arrangements for their sexual partnerships. Simply because some men or women would be able to amass more partners via their popularity, sex appeal, etc seems like a flawed case for "some men or women would have no access to these partners". This suggests that they would be able to marry or even enter into an intimate relationship with these other men or women in the first place (those who are "closed off" by entering into multiple marriages). Perhaps this suggests some sort of trickle down effect where more eligible candidates for marriage are effectively destroyed because they are bound up in this other arrangement and this eventually screws some number of people. I do not follow that this is likely to be a significant effect.

It also implies that the marriages will be permanent effects. While the divorce rate has been going down (for various reasons), it's still a considerable weapon for marriage arrangements that are deemed unfair or unpleasant to be amended, or for people within those arrangements to revisit these concerns prior to breaking off their marriages, and so on.

Stability arguments at the end are the same gobbledegook that were thrown at homosexual "marriages" being less stable for many years, and in fact to me is and was an argument for recognizing and providing a method of stabilizing influence (a legal contract with social capital behind it, aka, marriage).

As for making extra demands for more people in the marriage arrangement, I'm not sure this is a case against polyamorous arrangements either. People already have the option of engaging in extramarital intimacy and sexuality. When confronted by this, people often find it to be pretty destabilizing to their existing relationships and marriages, often because it occurs without consent or permission or knowledge. This is not an argument against allowing people to try to do this openly or within the confines of marriage. Indeed, I would argue this would be a more healthy social outcome that people who wished to be monogamous could insist on this as a demand (rather than assume it to be the case at their own peril) and people who do not have this as a wish for their private relationships could choose among people who do not make such insistence to conduct their relationships.

The strongest arguments against such arrangements aren't utilitarian but are I think feminist or humanist concerns about consent to such arrangements being often unipolar or overly domination concerned rather than resulting from the active consideration of all parties will and desires for one another. Example: one man deciding on his own to have another wife than his existing partner consenting to this equally as a party to the arrangement, or even that both wives are actively consenting to marry this man in the first place is not clear. This lack of clear consent or equal party to contract is a significant problem ethically (even in a utilitarian sense as it is the source of harm). It is theoretically possible to construct such arrangements in a way that all parties have consented. But it will be difficult to conceive of arrangements for the government to determine this and regulate it (for that matter, the same arguments again apply to regular two-party marriages, as de Boer points out).

The complexity argument for regulating currently standard legal decisions is also a factor. Laws should be simple and easy to transparently enforce in my view. Two-party homosexual marriages are fairly easy to regulate as they're virtually identical in the legal sense to two-party heterosexual marriage in how the various rights and benefits could be conveyed. This is not some invincible argument against polyamory however. It is possible to construct legal rights and methods of conveyance that could account for this. It just requires more work.

Some thoughts on public policy, global warming edition

I've been fairly well persuaded over the years that this is a) a serious problem for the flourishing and survival of future human generations, b) a serious problem for which human action is both responsible and possibly needed to ameliorate if not reduce or prevent it and c) a political problem.

What I am finding from discourse is that it often seems that many of the people capable of explaining and understanding the science involved very quickly assume that strong central government controls will be needed to resolve this, and that this agenda is often, let's say, poorly received and reflects upon the capacity of people to accept the underlying scientific information. One problem I think that's involved here is that many scientists are not public policy experts. They do not study economics. They do not study political movements. They just see a (very large) collective action problem and assume a certain set of policy interventions must be needed. It's possible they may be correct in some elements, but they've overlooked something: politics is messy. People disagree and rent seeking interests can easily prevail over disparate action needs. We ended up with corn ethanol subsidies and sugar import restrictions as a consequence of politics. Both of those are net contributors to the problem rather than sources of resolution. We could very well, by relying on the political process solely or largely, end up with something much worse, or much less efficient than what we have now even. I worry about this as a probable effect given what we have seen so far as a response at the policy level is often not encouraging.

But I'd also say that observing the more quasi-libertarian response, if it even takes this seriously as a problem (which is itself a problem), we aren't going to get very far that way either. Suppose we say that if we removed government and its distorting subsidies, we could get reasonably cheap and cleaner sugar-ethanol instead of burning corn, we could stop subsidizing coal and oil production and infrastructure production (more roads), or make it easier to set up smaller scale hydroelectric power or nuclear, or stop subsidizing water for agricultural production in what amounts to deserts (in California or Arizona or Nebraska), and push agriculture into more water friendly arable parts of the country (the SE for example). Many of the more-free market approaches have an undeniable appeal toward pushing toward cleaner energy production because there are still costs associated with fossil fuels (pollution for example) that aren't associated with wind or solar in the same way. But all of these approaches still rely on fixing the existing political process first or at least the political process associated with these interests. This seems unlikely. Popular support for agricultural subsidies is still overall around 50%, much less industry support with a concentrated political voice. We are not going to succeed in sweeping away these problems as theoretical concerns when the arrayed interests are against it. A cost needs to be imposed to make those interests less concentrated and action more possible.

Where I think we are probably better served as a model is, strangely enough, observing how the rights of homosexuals have dramatically and swiftly been altered. It was barely a decade ago that it was legal to criminalize private sexual behavior at the state level and to invasively police such conduct. Now not only is that legal, but the rights of consenting adults who wish to do so with an intimate partner can have this recognized if they wish to do so as marriage, complete with the variety of set rights available to "ordinary" marriages. This change did not in fact happen in just a decade. It happened over many decades. And it had a number of cultural markers and markets in which to compete over time to change hardened minds, make it easier for same sex couples to announce their affections to each other and to family and friends, no longer have this treated as a form of psychological deviancy, and so on. Almost none of those changes involved changes to underlying and easily available empirical information on the nature of homosexuality in human beings. Almost all of these changes were perception changes, and necessary steps to make other changes available later. They snowballed into an avalanche of social change to the point that a majority of the country now recognizes that civil same-sex marriage should just be "marriage", not a distinct civil institution. This culminated in a series of civil actions and court rulings recognizing this change, and a few ballot initiatives that were supportive in a very short period of time.

For global warming policy advocates, this suggests that there's a path forward for change, but it's unfortunately slower. That there are lot of individualist appeals to conservation and charity that should be made and which will appeal to many Americans but that people may have to learn to speak in a slightly different language to make what governmental changes are needed palatable and possible. Information should still be communicated, but also an understanding of what can be done at the local or personal level.

For more free-market advocates, what I think this highlights is the improbability of using the "get government out of the way" mantra as a club for defeating arguments of what government is or is not doing. For the case of marriage rights, a popular argument often circulated that "government should get out of marriage". At a practical level however, marriage doesn't exist without government. At least not as most people understand it with the complications of immigration status, medical visitation and living will rights, inheritance and tax policy, and so on. Each of these rights and benefits extended to marriage contracts by governments would have to be argued down and eliminated as a casual default benefit rather than a simple "get government out of it" arrangement as is commonly argued. The problem for such arguments in climate change policy is to say "there is a problem, and government isn't helping by making it worse", and to then focus attention on places where government policy should be abolished or diminished in making it worse. This is even easier if such policies have other distorting effects.

With that in mind I would propose a few policy and cultural priorities

1) Phase out the home mortgage interest deduction. This is heavily distorting to the housing market, mostly flows to upper-middle class incomes and realtors (by inflating housing prices), adds a level of decreased mobility to residents of cities and metropolitan areas alike, and is an inefficient way to help poorer people to provide themselves with either income mobility or housing, and even distorts K-12 education and policing strategies (more aggressive in poorer more isolated communities). That's before getting to the global warming problems: it is anti-densification (dense urban areas would be more efficient to power and provide with water and food than suburban and exurban sprawl promoted by the HMID), does not help public transit, helps fund inefficient highway construction, wastes time and fuel on commuting, increases production of automobiles needed for said commuting, and so on. There's not much support for this as a policy measure, but I'm not sure there isn't a more damaging environmental policy we conduct presently as Americans and it comes with a complete package of other fucked up effects. It must end as a result for us to continue to flourish as a country.

2) Push for more recycling or food waste collection methods. Ideally push for less waste generation (especially with food), but start with these. There are many otherwise cultural conservative people where this has a certain appeal, crunchy cons or granola conservatives so to speak, who accept the general notion of leaving the Earth in better or no worse condition for their children and grandchildren as a steward of the planet argument even if they don't accept the science of global warming. One problem here is waste disposal. In dense urban areas, probably the most efficient method available right now is incinerating garbage. This is probably not something we'd like people to be doing from an environmental perspective, but it's almost certainly better than the alternatives that are being used (trucking or shipping garbage hundreds, if not thousands, of miles to landfills in other states or countries). Convincing environmentalists to get people to accept marginal improvements rather than total scorched earth improvements is also a problem here as it is typically environmentalists that oppose building garbage incinerators on the theory that "people must recycle" instead. They could do both.

I'd also advise doing things like cleaning up the "Pacific garbage patch" (the massive floating island of garbage in the central Pacific Ocean). This is a collective action problem with a variety of solutions (including innovative technical research and private market actors) that will provide a good model for other more severe problems with the environment.

3) Avoid pushing mostly localvore solutions. These are typically less environmentally friendly than buying cheaply produced groceries from halfway around the world. Chief among some of the environmentalist movements problems is that it often gets wrapped up (by opponents) as anti-globalisation and anti-capitalist. If you want this to be resolved, you're not going to get there by alienating powerful elites who depend upon on globalisation and capitalism for wealth and prosperity. Where you have to annoy such people, it should be because the methods being promoted would actually improve the environmental situation unequivocally (such as by increasing the price of burning coal or gasoline, say). And not by doing things that make the situation worse by forcing agricultural production in less than productive areas of the globe. This would also mean endorsing and supporting at least some forms of GMO production for agriculture for similar reasons. This too is a too common environmentalist rant is to oppose scientific tinkering with the food supplies. "Organic" and "natural" are useful marketing terms but their automatic relevance and connection to environmentalist causes seems suspect at best. Gardening is a recreational hobby that can be encouraged, but large scale farming for local purpose seems unlikely to be a positive net gain for the environmental problems we are facing. GMOs offer another way out of that problem.

4) Push for broader immigration reforms. One of the problems is that we will probably encounter a number of amelioration needs even under optimal policy responses. Since we aren't getting optimal policy responses, more aggressive ameliorating methods will be needed. One of these will be the ability of people to flee countries where the effects of drought, flooding, coastal sea water rises, and general poverty or inability to respond to such problems are most severe. Providing aid and assistance if it will buy time and ease suffering in the meantime through charity and foreign aid is certainly advisable also. But some number of countries and their residents and citizens are basically fucked if we do nothing, or even if we do the barest minimum to help them in the meantime. They will have to be able to pick up and leave to go somewhere better off if they wish. This will be vastly cheaper than making them stay where they are because of a national boundary. The US in particular should be prepared to accept as many as 100 million immigrants over the next 50 years (~2M/year), if not more. EU should be in a similar circumstance, and Australia or Canada should probably look forward to potentially doubling its population. Developed countries have the resources to provide some levels of adaptation and accommodation with environmental problems that extremely poor countries do not. There are hundreds of millions of people at risk here therefore living in places that may not functionally exist as countries (much less landmass) in 100 years and something will need to be done about that. Ideally peacefully.

5) Allow for some amount of geo-engineering tests, particularly by the scientific community to examine these as options. These are potentially problematic in that they would produce their own negative effects and may conceal problems rather than solve them. But if they will help buy time until more effective policy and market solutions come online, and we may need time for such things to happen, we should endorse it as a short-term solution.

6) Push for phasing in a basic carbon/energy tax. This could be done in a "net zero" fashion to encourage both businesses and individuals to reduce coal or gasoline consumption and also make the price of solar or wind (or nuclear) power more attractive without distorting subsidies. I'd also favor doing this over regulatory schemes (which could be overturned by unfavorable court rulings or blocked by Congressional action, or receive inefficient carve-outs), a carbon trading scheme (sources of carbon are difficult to price in the way most industrial pollutants are and don't seem to produce a favorable reduction over general energy reforms), fuel efficiency standards for automobiles (fuel efficiency will rise if low efficiency cars are less popular because the costs of fuel are too high), and so on. This would also require more monitoring of things like fracking, to determine any leakage of carbon fuels for example.

7) Push for more market prices on water. A basic water allowance for living needs could be made, but this would increase the price of water use in agriculture, or lawn care, such that irrigation and water forcing to shift water hundreds of miles would be more and most costly and less and less profitable. There is no automatic reason that farmers and farming interests in California should be producing rice, cotton, almonds, broccoli and so on in large amounts. Parts of the state this may be more viable than others. Some parts however, not so much. There's similarly little reason that people living in West Texas or various parts of the American Southwest should demand lawns and pools and other extravagances. If they can afford them fine, but the price of water should reflect its relative scarcity. It would remain pretty cheap in the Eastern part of the country. It's pretty dry in much of the west however.

8) Take into account adverse regulatory effects. I do not mean just the cost of enforcing and complying with a regulation, though that may be a concern. I rather mean that if a state or local government applies a certain regulation, business or local concerns wishing to construct something will probably take their money (and pollution/energy/water demands) elsewhere rather than nowhere if it's otherwise a productive economic venture. If people want to build a lot of stuff in California to make cars or computer chips, or to live in homes there, let them, within reasonable strictures. California's mild climate is pretty good for that. West Texas or Arizona is not. Forcing people to move their interests into environmentally unfriendly or undesirable areas is not a good idea. I say "forcing" not because the regulatory compliance costs are too high, but because often there's a court ruling saying they can't build it there at all in NIMBY fashion, and a concern or housing development gets built somewhere else instead. Pyrrhic victories are not helping.

9) Make individual signaling about the environment more efficient. Example. People often buy solar panels and display them on the street side of their homes even if that does not receive much sunlight. Make it easier to signal that you are doing really cheap environmentally friendly things: installing insulation, designing a home that provides for good air circulation for heating and cooling, buying energy efficient appliances or automobiles, etc. One of the problems I think is that many individuals seem to be presuming that this is or has to be a collective action problem, but that the actions are mostly to be undertaken by other people. Make it easier for local communities to find ways to compete to reduce waste or energy consumption or suburban sprawl into forests or wetlands and signal and casually enforce these as communal values.

Thoughts of the day

1) As before with the gay marriage cases before SCOTUS, I'm not interested in displaying a changed photo status on social media. I don't go in much for symbolism for one, and secondly, I think the case will be basically about the final score (whether it is 6-3 or 5-4) and not the outcome. I don't think any marginal lobbying on twitter or facebook is going to make a difference to the score. Where my (our) focus would need to be is on people who don't think this is an okay change, or at least think it happened too fast, and not on the justices, and finding ways to connect to these people and change their minds or at least understand their objections and help them find ways to live with it now as a disfavored minority. Gay marriage being equal is all but a done deal, if not now by court ruling then very soon by public mandate as demographics shift away from older conservative Christians to younger more progressive Christians (at least on this topic). Now supporters and opponents have to live together and deal with this new reality. This has become a more vital project as court rulings have greatly and rapidly expanded the equal recognition of homosexual couples at a more rapid pace than I would have thought likely. I regard that as a good thing that it has, and that it likely will continue. But the fact remains there is still bitter intolerance and hatred present among a subset of the population, and considerably larger population that is uncertain or uneasy about these changes and what they will mean either from prejudices or ignorance of the issues at hand, and all of that will continue to need to be moderated even with these changes in legal status as applied to marriage and marriage contract benefits coming swiftly.

The gay rights cause seems to be winning something in my lifetime and bully for that as it is a much needed change in social tolerance and respect for individuals and their liberties. I've written or spoken generally in support of such a change for years (with a detour into the fantastical realm of the government not recognizing marriages at all and letting people make private contracts as they see fit, but still not proclaiming that any government or government official should ignore or refuse those contracts when made between same-sex couples). It's also impacting a much smaller number of people ultimately than some other issues that often dominate my attention, so I don't have as much to say on it now that progress is being made. Like whether we as Americans are being policed or occupied in our own communities. A topic where progress is much more diffident and uncertain.

2) Baltimore.

On the one hand, I'm not a big fan of riots. They're generally destructive to the city involved, rarely raise the value of the underlying issues causing people to generate mayhem or to demonstrate angrily (but peacefully), and don't seem to change people's minds regarding the strangeness of seeing APCs and police decked out like they're invading Iraq wandering through American cities. Very little good comes of it. They are a point of protesting when people feel they are rendered voiceless and a means of relieving their need for aggression against this frustration. But that's not generally what people hear and it often drowns out the message as a result. Typically people not involved but necessary to act oversimplify the basis for protests and riots down to single, isolated, circumstantial incidents (bad apples) rather than the systematic problems which put thousands of people in a position to demonstrate angrily.

So. On the other hand. I regard the need for police reforms on militarization of equipment, aggression toward the public in the form of escalation and authoritarianism rather than de-escalation and public service, violence and brutality viewed as unacceptable and unfortunate outcomes rather than excused as "by the book" , methods of dismissal or penalty for brutality and mayhem by police, penalties for violations of civil rights and unwarranted arrests (for example, "resisting arrest" should be abolished as a possible charge), and so on as very high on my list of "things I want to see changed positively in my lifetime".

One of the major problems during previous riots in Missouri (Ferguson), was that there was a perception among many Americans that this was all stemming from a single incident of violence or brutality by police (in that case, Michael Brown being shot and killed, also Eric Garner being strangled to death by a chokehold in NYC). Such shootings or killings of citizens by police are fairly common, distressingly so in fact. There's a fairly reliable crowdsourcing effort putting the number over 1200 per year of people killed by police. Official government statistics, which have accountability and reporting/self-reporting problems, have been recently revised upward from around 400 to around 800. But even if it were only at 400, this should be regarded as a serious problem worthy of scrutiny and reform in our methods of policing, if not a serious failure of how we police and enforce laws more broadly or an indictment of our cultural preferences for violence. That's at least 1 person per day killed by a police officer somewhere in the country, and probably closer to 3 people per day.

Most other developed nations do not kill that many people in a year via their police forces. We do so every day. Even if that were the sole impetus behind the protests and riots, it should be a cause in which we should be concerned that this is the result of our choices and policies for police.

But it wasn't just about cops shooting or killing people and a perception that they will always get away with it. Baltimore is a large city, with thousands of police officers. Ferguson is a modest suburb, with a few dozen officers. Both however have been investigated by the Department of Justice. And both find similarly disturbing behavior on the part of police officers in their treatment of residents, particularly on racial divisions. Violence and brutality are far more common than should be tolerated as necessary. Police are often seen much more as an occupying army in many parts of these communities than a helpful and reliable ally in a fight against crime, with their purpose being to rack up fines in Ferguson, and to roust and harass residents for petty, seemingly arbitrary, infractions in both cities.

This is not just the fault of police. The public has demanded it as well. The public, certainly among the well-to-do middle class white Americans, believes crime is much higher than it actually is as a risk and danger, and often sees police responses as capable and justified. Their interactions with police are often limited to polite but unpleasant traffic tickets and fines, not flashbang grenades in the window and family dogs being shot, and your person detained and questioned without probable cause on a weekly basis (if not more often). So there's an understandable division in how the police are interpreted. There are communities where violence and crime are serious problems requiring a firm police intervention, but these are not resembling the types of criminal actions we commonly are seeing resulting in violent actions by police. Walter Scott was shot because he faced possible arrest for not paying child support payments and fled from police (shooting someone who merely runs away is, of course, not considered kosher under the law, and the officer involved is facing a murder charge, thanks mostly to a citizen cell phone recording the incident). Freddie Gray was killed in part because of a series of low-level arrests for drug enforcement laws and because he ran after looking at a cop (he was arrested, it seems, because he supposedly had a knife which he was not wielding aggressively at anyone at the time or likely visible at all to the public). Michael Brown as an incident seems to have started because he was walking in the street. Eric Garner was killed while being arrested for selling loose (untaxed) cigarettes. At best, none of these cases represents enormous threat to safety of other people and yet all apparently allowed us to deploy violence to enforce these laws.

A better, more torturous example of how this indicts the public though is available. Tamir Rice and John Crawford were killed basically for holding air guns in an unwise manner. What seems to have aggravated these last two was the public response to seeing a young black male holding what appeared to be a fire arm and doing so in what seemed like a strange way. Rice was pointing it at passerbys in the park he was in, but the only reported call suggests that they knew or suspected it was a prank and a toy gun. Crawford sounded like the caller greatly exaggerated the threat as there doesn't appear to be much evidence he was threatening or menacing anyone and in any case, police fired upon him while he was talking on a cell phone and not threatening anyone. In both cases, police response was aggressive, moderated for what we might think appropriate for a terrorist incident or a potential hostage crisis. This is typical training for aggressive uses of forces and the escalation of violence rather than the de-escalation allowing everyone to at least be arrested peacefully. Militarized high-risk raids on homes are typically undertaken rather than detaining someone by knocking on the door or at or coming to or from work, as a more widespread example of this type of thinking. These are the most adverse risks and consequences of what is demanded of police to enforce and against whom (mostly poorer minorities).

The most common risks however are just as poisonous in their effects upon a community. A person who is arrested risks losing a job that sustains them and risks difficulty obtaining a new one. They generate costs for themselves in the case should it proceed to court (many do not), and additional costs  in time and money if it should go to trial (most convictions are arbitrated without a jury). Most people who are being detained, arrested, and charged in Baltimore and Ferguson and hundreds of other cities cannot afford either the time or the money for their infractions, which makes it more difficult for them to properly defend themselves or moderate and navigate the penalties to something appropriate for their crime. If they go to jail or prison for any extended period of time, they then have a criminal record, which further makes it difficult to re-integrate into society. Many jobs now require occupational licenses or at least background checks, which frown upon criminal records. All of this makes it difficult to maintain a respectable job. If someone is being arrested for armed robbery, that's rather understandable that it should be punished with an inconvenience like this. But many arrests are trivial, for example drug possession charges or "disorderly conduct" or "resisting arrest" or easily chalked up to bias and misunderstanding and essentially are arbitrary crimes (most people in prison, less so). The cost of this is not inconsequential in the economic disruption it causes a community in the form of fines, bail money, loans, and lost time and productivity. In many communities, such penalties begin racking up with teenagers (if not earlier, Tamir Rice was not even that old), costing gains from education as well, or leading kids to abandon education entirely as too adversarial rather than beneficial. Crime imposes such costs as well, but fighting it should not.

Many states (and juries and public opinion) likewise frown upon someone who has a prior criminal record by perceiving violence against such people by police more likely justified, or should they be arrested again perceive that as justification for additional and much more severe penalties in any new infraction, or perceive it as more likely they are guilty of whatever they are accused of owing to their prior recklessness. All of this makes it more likely that people may repeat offenses, or end up back in prison, or out of work and willing to do shady or outright hazardous things to generate a living. If a community sees police as an enemy, not an ally, and yet demands a response to its problems with crime, that is the fault of the police and the communities that fund such forces and provide them with missions and arms through the force of law.

I propose to resolve this issue we should consider the following:
a) Whether all of the laws we want enforced are justifiable if they should result in the death or injury of fellow citizens who may be suspected of violating them by police. If they are not, we should reconsider whether the force of law is the appropriate vehicle for amending or coercing bad behavior as this is a risk of having laws on the books. Many things which are laws in my opinion should not be written into legal code for this reason. For example, there is evidence that a charge like "resisting arrest" is essentially code for "I beat someone up" when used by police as it is typically used by a very small cohort of police, and that that cohort in turn shows a higher likelihood of being accused of brutality or excessive force (in these or other cases).

b) Whether or when enforcing the law should permit violence in defence of a community as a minimum necessity of use of force rather than aggressive tactics and maximum force. Self-defence is typically regarded as an acceptable moral landscape, as is the defence of others against violence. A large number of these controversial cases appear to be based more around compliance to authority rather than aggression. Pepper spray or other non-lethal weapons (tasers especially) get used pretty casually under the logic that a use of force that doesn't kill someone is justified to get them to obey commands or to punish non-compliance. It sounds likely Gray's death may have been related to rough car rides in the back of a police van as a "disciplinary" practice, under a similar vein. Defending other people is an acceptable use of violence under the law. Meting out extra-judicial penalties for someone being an asshole or having a bad attitude toward a cop is not.

c) What level of armament is appropriate or necessary for police to carry out a minimum necessity of violence. This includes uses of "non-lethal" force. A baton or even a fist can still kill someone. So can a taser or a flashbang grenade or even pepper spray. A gun isn't necessary to kill a suspected criminal. This means we should think very carefully about use of force protocols as a society for the people we empower to enforce laws, but also think very carefully about what weapons they are given to do so, and how they will be used or trained for. An APC or submachine guns seem to serve very little purpose in this process. There's little evidence they're even that useful for riot control (the best available practices there should be to aim to prevent the riot from starting in the first place).

More complete thoughts on RFRA

This will be the last I have to write on this. It's sucked up too much attention from the Iran negotiations and police misconduct/shootings stories/studies that I'd prefer to be paying attention to instead as there's very little actually happening.

First. My understanding of the law (the original, not including the clarifying aspect) is that it does not actually protect the baker-florist-photographer example, much less more than that like a hotel denying accommodations, with a religious disclaimer to any discrimination claim. RFRA's primary use was religious practices intersecting with government regulations (traditional drug use, beards, etc) and isn't primarily useful in overriding significant government interests, like discrimination arbitration.

Which is to say that the law as written did not actually accomplish much. Neither the supporters pushing for its passage or the opponents demanding boycotts of the state seemed to have understood this. Suggesting the law was poorly thought out, surely, though that is not that unusual.

The problem there is not the RFRA process, but the lack of anti-discrimination laws that protect homosexuals (and others) from being fired, say. In states like Indiana. In states that have such laws protecting sexual orientation as a class from discrimination, there are generally few claims against businesses for discrimination of services. There are two ways to interpret that

1) There are not many businesses which actually have any basis, much less a religious basis, in being interested in discriminating against their customers or employees on the basis of sexuality. It's actually a fairly expensive way to discriminate for one. Race or even class is generally very easy, religion or sexuality are less so and we should expect them to be less frequent. There are also very strong social signals for employers and businesses not to discriminate against people for sexual orientation. Even for people trying to claim some sort of religious determination suggesting they should.

It is perhaps surprising to some people that even in the presence of RFRA laws, there are not successful lawsuits defending the desire to discriminate, and there are not many such cases, given the rhetoric surrounding this debate.

2) What discrimination does exist is masked by people not stupid enough to claim that the basis for this is "I don't want to serve/employ homosexuals". That is, they find some other reason to claim they won't do so which is much more difficult to prove. They may even do so in an implicit bias way, rather than an explicit "fuck off" kind of manner we are accustomed to legislating. This is to say that there are not very many legal approaches we can take that will alter this variety of behavior. Such approaches would require a great deal of intrusiveness (monitoring a business' schedule to see if they are in fact not available at that time for example), and would otherwise be very expensive ways of reducing the likelihood of such activities.

What all of this comes down to, to me, is a different determination. Generally when the state gets involved, and there are legal remedies and approaches being constructed, I want there to be a very large externality (positive or negative) that is being resolved. This is so there is a certainty that government action is helpful and necessary. If there are widespread instances of restaurants refusing to employ or serve homosexuals in a general sense, this strikes me as a fairly large externality worth resolving as it potentially denies access and opportunity to an entire class of people to the market and there is no right being protected to generally oppress others in this way. Likewise the state should not be interceding in determining which private contracts between consenting adults are or are not marriage. At least in so far as it applies to sexual orientation this is a very small cost (some number of people might be offended), and a very large gain (some number of people's privately preferred associations can be fulfilled and recognized with the same rights and privileges as others when they do so).

Where this is less clear for me is more specialised economic services. A business which is generally open to the public must be fairly accommodating and non-discriminatory, at least so far as general classes of people are concerned (a grocery, a hospital, a hotel, or a restaurant). A business when or which makes fairly individualised services (an attorney, a doctor, a cake maker, etc) has more latitude to say when there will not be services offered. It is in effect, inherently a discriminatory service. A family doctor or an attorney does not have a legal obligation to treat everyone who walks in their doors. We might think it strange that a photographer doesn't serve gay weddings (but will do wedding photography generally), but they may also decide not to serve by doing baby portraits, say, or nude photography. This analogy is not perfect, but the point is that we already allow individual businesses a fairly wide latitude in how they will perform their services. It also means there is a market available for those that will perform those services. So there is a market for people to go do wedding photography, and do so where it involves gay or lesbian couples. In most cities, it would be strange to find that no photographer would do so I suspect. Or no cake baker. Or not one florist. None of these are themselves rights of consumers to expect that we may necessarily engage others to do for us. These are general promises made by businesses to make accommodations for us and vice versa. Most businesses will probably do so. Those that do not are at issue.

What that means removed from the market and the intersection with discrimination lawsuits is that the burden of proof that there is a discrimination proceeding is somewhat higher. Someone who foolishly evinces a (potentially bigoted) desire not to serve certain people, or to do so only for general services and not for others, lowers that bar such that it is easier to prove (as in the pizzeria example in Indiana, which explicitly said they will serve gay persons and couples, except under a hypothetical example of catering a wedding, something that I'm dubious has occurred even for many straight couples).

It also suggests something else however. What that does not necessarily mean is that the only right and proper remedy is that the business should be fined by the government or shuttered and any licenses revoked, and so on. Indeed, even if that is a remedy made available, it does not strike me as the necessary path of resolution. It is not clear, and has not been clear to me for the entirety of this debate, why someone would want to compel someone who has already demonstrated a desire not to work with "people like me" to perform a service that requires them to be creative and involved in the manufacture of food or decoration. I would not be confident in the quality of service I would receive and would think it strange to compel it. Particularly if there are alternatives available who would do so without compulsion. Provided there are alternatives, or alternatives could be manufactured to compete easily enough, it might be enough to identify such businesses that are less participatory and to compete economically through boycotts, or through the normal operation of markets to have less-discriminatory players benefit from those that are paying the cost of discrimination (less business opportunities, or fewer qualified employees, etc). There are limits to the amount of backlash to backlash I would sanction. In that I would not be prepared to say we should do anything to destroy or defame the property or harass the owners and operators or employees. But those owners can be made aware that there are problems with their decisions and that those decisions will have economic and social consequences. Perhaps some number of them will backtrack and decide their ideas about what their religion demands of them are incorrect. On this topic, given the rapid shifts in popular opinion, I would expect that there are many people still racing to catch up with what is and is not considered okay or what is or is not considered a demonstration of their faith as it applies to these questions. It is not clear to me that denying services to a wedding is required by any dogma and that mostly these are people who are in the "ew, gay people can get married" mode of thinking and wildly seeking any justification for that offense that they believe others will tolerate. Most people do not in fact tolerate religious pluralism on this question and there appears to be very limited legal backing for that position.

As to the more general atmosphere, and why these kinds of laws are emerging in the first place. I believe one of the reasons I've taken a more "meh" approach is that I recognize the laws themselves are, in most cases as there are exceptions, actually fairly powerless on these questions of discrimination law and what protections they would provide. But that does not mean that the laws are not representative of some legal or cultural attempt that deserves to be recognized for what it is and what is being attempted (haphazardly and fruitlessly as it is doing). In most cases, the recent attempts to enact RFRA statutes by state legislatures are transparently about the legal recognition being extended to homosexuals through marriage laws being overturned to provide legal equality. Since these legislatures, and a few cases the populations of states, are powerless to prevent this, this is a bizarre attempt to fight a rear guard action. It is itself toothless symbolism. I don't mind the existence of general protections of religious freedoms and favor such laws being passed. But under these circumstances, and with some of the exemptions that more extreme laws than Indiana's more general interpretation of the federal law, one cannot hope to notice that these attempts to demand pluralism are coming from the backing of people who have never demanded pluralism before and indeed, sought to suppress it for decades. Pluralism for me and not for thee is not how it works. To that extent, I think it is wise to oppose any new legislation be authored on this topic of religious liberty and to let things continue to play out in the economic, social, and cultural spheres as much as possible.

Some of the other arguments against such laws strike me as more standard progressive interpretations, which may also explain why I sort of shrugged is I'm more classical liberal than modern. Hobby Lobby for instance gave rise to a belief that "now for-profit companies can have religious beliefs". Which wasn't really what the case did. Aspects of the ruling applied to say this, but the RFRA application was to say the government can intercede to provide its interests if there is a minimal burden, the least restrictive one available, or the interest cannot be satisfied in some other way (which in the case of Hobby Lobby, was the case, the government had already provided an alternative that was less restrictive). This does not seem to me an overly offensive interpretation of reality anyway. Most everyone knows the religious stances of certain business owners (Chik-fil-A for instance), and this is in and of itself not objectionable that they should seek to conduct their business in a manner consistent with those beliefs. Some of those beliefs are objectionable. Which is a key distinction. Not every business which aligns itself with the religious beliefs of its core management and not every practice they undertake provides a direct manner of scrutiny in this way.

Similarly there was an argument that Indiana was different because it protected individuals in private lawsuits (as the New Mexico case was). But this is not actually that unusual either. The original interpretation and debate of RFRA included a lot of discussion surrounding private discrimination, rather than discrimination by the government in the form of "public discrimination". Private discrimination claims are typically introduced and taken up by states rather than pursued by those private individuals who are discriminated against. This is not that unusual of thinking or process. Such claims are typically involving many persons who would each have to mount a case separately for instance and the state's interest in preventing discrimination and being seen as preventing discrimination encourages it to take up large cases. The only reason this emerges is a circuit court split allowing for local or state courts to decide that this is not explicitly protected under RFRA laws (because it's not in the text usually). But a fairly standard understanding of how discrimination claims work would say that this is what is being discussed is private actors discriminating and being able to advance an affirmative defense against those claims.

There is a more compelling argument against this, to me anyway. That is that it allows religious claims to be advanced, but not necessarily taken at face value to override government interests like anti-discrimination, but does not necessarily allow non-religious claims. Say an atheist wants to discriminate for some reason, or perhaps more likely is accused of doing so. On the position of discrimination lawsuits, here I think it seems strange that a religious defense is rhetorically and ethically treated as morally superior to a secular defense and given some protection in law. In so far as religious adherents have specific practices, rituals, and requirements that are to be protected against government intrusion or permitted within reasonable accommodation by employers/businesses, and that was one of the primary intents of RFRA laws, that is perfectly understandable. Secular people tend not to have such rituals or requirements, so protecting such actions would be strange. In so far as religious adherents operate their business under the belief that it requires certain discriminatory actions, this is much less plausible as a defense. One that isn't typically being accepted anyway.

The difference of opinion for me is how to respond to that and whether to recognize it as a systemic problem in the market when it occurs or one that we can find a way around easily and resolve through the continuing and evolving standards on how society should treat one another fairly in our private transactions.

RFRA

So a neighboring state decided to pass a law. Lots of reactions occur. Some thoughts

The actual text of the law isn't substantially different from the federal statute (passed back in the 1990s over a different issue). The main difference I can find is that it specifically allows for religious-based defenses in private lawsuits (concerning discrimination). This is possibly true in the federal statute but the Supreme Court hasn't issued any opinion on it as yet and there's a circuit court split over whether the federal RFRA protects private individuals from each other or not on this point.

Actually the main difference I can find is that in between this statute being enacted and the federal one, a Supreme Court decision occurred (Burwell), which potentially allowed large scale corporations to have religious beliefs. Smaller scale ones kind of could always do some weird stuff that would pass unnoticed.

A second main difference is that Indiana, among other states, currently has a legal standard owing to court rulings requiring the recognition of homosexual partnerships as marriages. Which is what is primarily what is at issue in these religious liberty exercises sought to be protected is the practice of some small number of people to privately refuse to recognize such by being required to provide services in the attendance of ceremonial duties at weddings between such. More broadly other forms of discrimination against homosexuals such as hiring/firing practices or perhaps residency in apartments or some other manner of discrimination could be at issue for reasons that will be examined in a second.

A crucial aspect of the law is that it requires a "substantial" burden or the possibility of such in order to be invoked at all. On that point I'm a bit confused as to why Indiana is getting a lot of attention and, say, Mississippi is not. Because Mississippi's statute is different and does not require a "substantial burden", just a "burden". But the basics here would be that Hobby Lobby (supposedly) can not purchase certain kinds of birth control when otherwise compelled by law, because it is believed to be relevant to their religious practices (there were factual grounds for dismissing that claim I thought, in that those beliefs were factually wrong and therefore without merit on at least several of the drugs under consideration in that case). I would think this would generally allow for a baker or florist of a fundamentalist Christian affiliation not to be required to provide services at a wedding for which they have some religious disagreement (principally those between homosexuals, though there may have been some that refused service on remarriages or those between divorcees, etc). What it doesn't do is allow a restaurant owner to decide their religion protects and even demands that they not service anyone they believe is homosexual. Or some such related case. That kind of claim is very liable to be dismissed as there is no factual basis for a substantial burden test.

But. Because the Burwell/Hobby Lobby case was decided without having any kind of factual examination for the claim being made (it was simply assumed that the burden existed because the religiously based belief asserted it did), we do have a somewhat wider and weird legal realm where it is unclear what is in between those positions and what will be considered a substantial factual burden on the exercise of someone's religious beliefs and what will not, what will be considered a protected class of action and what will just be discrimination. That I think is worthy of consideration to say that this law was a potential problem in that we do not have a clear legal guideline on what constitutes free exercise, even when discriminatory, and what is just discrimination being masqueraded as religious expression.

The thing I have trouble understanding here is why that same claim isn't applicable to other states that have pre-existing statutes like this, or the US government itself. There are now 20 states with some variety of RFRA, generally similar to the federal statute as Indiana's is. Including Connecticut and Rhode Island and Pennsylvania (it isn't just random loony red-states). Plus another 13 that have something in the pipeline that could be passed within the next year. Plus the federal government. It may be worthwhile to oppose the signing of any new laws, and some laws have been very overt and specific (Arizona's second attempt for instance. The first had already succeeded but apparently didn't go far enough for the "religious liberty" crowd). It may be worth attempting to overturn these statutes even. What isn't clear is what singling out one state does when others have the same basic framework in place. Illinois for instance.

Those other states, or the US government, aren't going to overturn their laws and will suffer no major ill effect from a boycott targeting one state in the attempt to get it to overturn the law. Part of the reason apartheid eventually failed in South Africa or even Jim Crow to some extent was economic pressure. So I understand the impetus to boycott. Just make sure you know where and how wide the net has to go. Or you kind of look silly.

As far as these laws. I'm unclear on how widespread this particular type of discrimination is, both legally and physically. I can definitely imagine there will be some number of businesses try to deny service to homosexuals. Some of them could be hotels or restaurants and likely will be prevented from exercising that form of discrimination as it will not rise to be a substantial burden (there isn't any religious belief that I'm aware of that could apply). Some may try to fire people or deny a job being offered on those grounds (this type of decision usually allows for people to make other determinations and claim those instead. Only morons actively claim that they discriminated against someone purposefully, but there are of course plenty of morons). I believe that's likely fairly widespread but as I insinuated, difficult to prove without specific claims. And some of these businesses may be bakers or florists or photographers refusing service at a "gay wedding" (or as I'd refer to it, a wedding). And those claims may end up being defended by these varieties of laws. I'm assuming there are a number of scenarios in between these that I'm less certain of still or less aware of. I'm unsure of how many of these kinds of cases there actually are, whether the existence of new laws would make them more likely, whether the existence of these said new laws would provide some social bulwark that would sustain them economically in spite of any backlash, and so on.

My general position on any of those claims is that people should be allowed to make them, but that the general public will be made aware of it and be able to coercively respond. In the form of a baker/florist/photographer, the public will usually have other options who won't deny service and word will quickly spread which options will or will not. Those that will not may see their services overall suffer from economic attention and pressure, both from boycotts and from other businesses who do not discriminate. Some of them may change their minds. Which should be the goal. That they change their minds about whether this is a religious expression that they are required to make in the business of offering a service in exchange for money. I think this would, in most states and most localities, work out much differently than Jim Crow, in part because of the standards that anti-Jim Crow legislation eventually provided (that it is morally repellent to refuse service to people at a publicly available business for random and stupid reasons like race, or religion) and that the explicit need for legislation either protecting the right of business owners to do this or the right of consumers to be served is unnecessary. This is something that could be worked out privately on that point. I favor neither the need for any explicit protection to discriminate nor the explicit protection against it in the absence of evidence that either is needed.

There is likely evidence that individuals will be sued over discrimination claims, and likely evidence that without some pre-existing law that recognizes it as a form of discrimination, such suits will not succeed (as they did in New Mexico). This however is not clear to me that using lawsuits is necessarily the most effective method of changing business standards or affecting the bottom line versus other more overt and public methods (boycotts for instance) and that we need a clear legal standard for everyone that allows, if not encourages, lawsuits to be a primary form of working such things out.

I have several major considerations here.
a) Public opinion is still shifting and forming regarding homosexuality and the recognition of proper legal rights regarding marriage. I favor such legal rights being equally extended for what are to me, obvious moral and legal reasons (it improves the quality of life potentially for some number of people to be able to enter into private contracts that are recognized with special rights and privileges by the government and for the government not to extend those special rights and privileges only to those legal contracts over which it approves of, while denying it to those that are similar in any reasonable respect). But I recognize that a large body of the public is still uncertain over this change. Mostly for religious or traditional reasons. I am uncomfortable imposing upon this minority every possible demand we can conceive of in order to get it to shift to be a much smaller minority.

b) Recognizing that the public's opinion has shifted, dramatically at that, this is a change largely coming about not because of the relatively small number of secular people whose minds shifted some time ago, but because an increasingly large number of Christians have changed their minds about what the appropriate legal standards should be, regardless of the standards of their religious congregations. They are recognizing that extending legal rights on a level playing field isn't going to make lots of people suddenly become homosexual (it is unclear to me how that is a bad thing if it did), or make lots of marriages that already exist weaker and invalidated (also unclear), will not harm children adopted or raised in such households, and will also make some number of their friends, family members, co-workers, and so on much happier with their own relationships and affections to be able to affirm them with the same legal sanctions that they did in their own lives. That is a good thing.

c) Recognizing that it is to these Christians who have changed their minds that the cause of gay marriage as a result owes some basis (albeit slowly), those people who favor advancing this as a cause to be protected and tolerated should seek to continue to change people's minds. There are many forms of argument available. The strongest is "you are legally required to do what we say", but this carries with it no requirement or mechanism that anyone actually change their mind and beliefs. They can resume being a bigot or privately intolerant if they find a means to do so. For instance, Christian florists could decide to form a private club where floral arrangements would be provided for a membership fee. Or they could do something else instead of running a flower shop. A weaker argument is "we do not approve of what you are choosing to do by discriminating against these people". But this argument also implies a dialogue can occur rather than imposing a final decision. Which is what has been happening for a couple of decades now is the general public is working out amongst themselves, very publicly at that, why this is a legal and ethical requirement that they should endorse and uphold and shifting toward that state of affairs. If their arguments against this are grounded in religion, so are many of those that have shifted to accept the situation now. Perhaps such arguments may be more compelling than simply issuing demands. Perhaps not. I am inclined to continue to let those arguments work themselves out. They will have to privately anyway. There are fewer ways to craft and impose laws that would compel families to accept a homosexual child, even if there are many ways to allow homosexuals to form families (marriage, adoption, etc).

d) One crucial aspect is whether the "public" as formed into governments may discriminate. This I think is a wholly different question than from what the diverse set of individuals may privately do in their homes and businesses. This is among the more compelling arguments for why the rights and privileges governments establish as coming along with our private arrangements for marriages should be equally available to both straight and gay couples seeking them. So a government would not be able to prevent someone access to public services and assistance, housing, licenses, and so forth on the basis of that person's personal sexual orientation. These laws are not centered around this question. Rather we are arguing about how much we can compel the public at large to decide the operation of their businesses and private affairs, and how much the government could compel such decisions. For instance by restricting business licenses. Eg, the case of the doctor in Michigan who denied her personal services in pediatric care for a lesbian couple and their child and demands by some that her medical license be taken away post haste. Medical licensing is done by the state (a somewhat less dubious state requirement than most). I'm uncomfortable with the state making that as a determination. What was most alarming was the unprofessional manner and the lack of dialogue (a refusal to engage with the couple once a decision was made, when that decision was a clear reversal of prior arrangements to boot), and for that some variety of sanction is perhaps appropriate. But what I do not wish to see is the public effectively demanding that everyone must orient themselves immediately and without delay to a world that has radically shifted over the last couple of decades. I do not expect that businesses will necessarily stop demanding drug testing for marijuana even in states where it has been legalized (either for medical or recreational purposes). That also has been a radical shift. I am not prepared to demand that employers must accept marijuana use as they tend to with alcohol (even though they should probably tolerate the former more than the latter, especially if someone is showing up drunk to work).

When we are making major changes in society's laws and operations, we should expect that some people resist those changes, sometimes for very dumb reasons. It is incumbent on us not to accommodate stupid reasons, but to recognize that they are there and convince people that they are in fact stupid and not reasons. This is, by and large, working in the case of gay marriage (and to some extent drug legalisation, albeit so far just a couple of presently criminalised drugs). I would advise that we continue to let that process work itself out and shake out where the bugs are going to be. If these are more widespread problems than I estimate that they will be, that there will be dozens of legal cases per year, every year in a given area instead of one or two say, then more action may be warranted.

Keep in mind also that I do not advise people not to boycott or to organise non-discriminatory alternatives, among other sub-governmental (but legal) actions to be available to respond to these as problems, employee strikes or walkouts could be another option, and so on down the line. I also do not think that such actions are a form of repression, nor do I think there would be some way to legally protect against them even if governments are to become compelled to allow people to be discriminatory on the basis of their religious beliefs. These actions are coercive, but they do not automatically force anyone to shutter a business or change their religious beliefs. Instead more people who tried to practice their beliefs in this way would have to engage with the uncomfortable notions that they may be wrong about their beliefs, or how those beliefs must intersect with their work at any rate, and they may also be able to try to present an argument as a result as to why their beliefs do or why they are correct. That is a good thing to have beliefs being challenged and argued in this way.