Odious speech

There have been two parallel trends of "free speech" discourse over the last several years I have observed with some disdain.

People who complain when other people who do not like what they have said and say so, or otherwise use their private ability to discriminate who may use a platform of speech they have provided, under a mistaken belief that "PC-policing" of this kind is infringing upon their rights to free speech.

Groups of people who cite anecdotal experience to suggest that there are broad, sweeping, and new trends which threaten civil discourse norms of engaging with political opponents in a polite disagreement over facts and motives.

The former is merely stupidity about what the Constitution means; that it restricts the government, but not the people, from imposing restraints upon what someone can say, or what they wish to hear. Which is par for the course, but still really annoying and tedious.

The latter position if true would be a deeply shared concern, but I have not really seen anyone making an attempt to demonstrate that it is in fact what, say, college campuses and college students on said campuses are doing in a new way that they have never before done. These two trends often intermingle in a way that suggests a major problem is in fact the demand for PC behavior. There are points on which I might agree this is the case. But in general, it is not.

The former situation operates in something like this manner: If I am attempting to engage with someone I likely may disagree with, it is best to do so in a method that treats them with a degree of respect. One way to do this is to answer questions in a civil manner. Another is to try to understand their perspective. One can still be quite dismissive of the manner they have arrived at an opinion, of the "facts" they have marshaled in support, of the flimsy nature of logic being used to move from one subject to another, and so on. But one should ultimately try to avoid being dismissive of the person with whom a conversation is being engaged with. This is not always easy to do but it is the proper and civil nature of a debate to carry out, and it has some noble aims in principle behind it. It is possible you might persuade them that they are wrong, or that they have considered a perspective that you have not and that you are in fact in the wrong. At "worst", it may persuade people with whom you haven't even engaged that one of you is offering a more sensible option for interpreting events or their proposed solutions. That is the purpose of engaging in civil debate and discourse with people who disagree with you. What I often find instead is that disagreement is then used as a means of divining and imputing all manner of ill-favored motives, character flaws, ethnic or racial origins (where not otherwise obvious), and an increasing slide into personal attack rather than argumentative cases being constructed for the matter at hand. The effect of such action is to persuade neither person of the wrongness or flaw in their argument, and most likely to make both of you look like complete assholes to any innocent bystander who happens by.

The Internet, for all its flaws in preventing or harnessing the ability of individuals to filter out bullshit from fact, actually does offer some amount of tools for dealing with this as a problem. The ban hammer comes out and away that person goes to cool down for a while, perhaps indefinitely. What it does less well is deal with this when it concerns an entire movement of people condemning an individual or groups of individuals, whereupon they have descended as locusts to feast upon the person, marrow and bone all.

One of the essential difficulties of this is that the former activities, banning an obnoxious troll from your sight and daily interactions, is a subjective action that protects the time and energy of the individual (and sometimes their viewpoints). I find it useful for abusive persons in social media debates, or for people whose arguments are so tedious and pathetic that I no longer wish to expend the time on them. But the latter action, banning a whole host of persons at once, or restricting one or more person's ability to influence said persons through a social media platform entirely, involves a more rigorous analysis than "this person annoys me". And as such, it often passes well into less decorous behavior before anything is or could be done. Threats (true or otherwise), abusive language, bigotry, and so on. Almost all of which is and probably should remain perfectly legal and free from public sanction by the mechanics of government and law. But a platform provided by a private company has no obligation to allow anyone to use it in that way either. It is perfectly legal behavior to be an asshole, and to carry forth senseless mayhem in argumentation. It is also a perfectly sensible action to point out that someone is acting like one.

This is the essential component of what gets termed PC. What is "politically correct"? A simple stab at an answer would be "avoiding being an asshole in public". Expressions of bigotry or intolerance do not need to be tolerated. Merely being annoying or offensive might need to be tolerated at some level, but doesn't need to be sought out either.

This is the part that I am having some difficulty understanding however is how this intersects with college experiences. There are definitely many specific stories indicating that there are some people who have difficulty understanding what to do with academic freedom, or whether academic freedom should exist, and instituting speech codes with fairly arbitrary purposes, and trying to suppress the public speaking appearances of controversial figures. I've encountered some people with a rather poor grasp of freedom of speech in academic settings myself, in debates on public forums, and so on. Getting from there to the supposition that the entire architecture of freedom of inquiry and debate is under assault because "kids today are weak and don't want to engage with tough ideas!" is a very large stretch however.

I consider these concepts like "trigger warnings" to be reasonably robust in the culture at large. We tend to use mechanics like parental ratings systems to screen out material we may not want to view on TV or in films or hear in music. This is not limited to trying to restrict access for children. But to tell ourselves as adults or parents that this is going to have some graphic material and to decide whether or not we want to deal with a show about rape and sexual abuse, or brutal violence or torture. To be sure, I probably have more tolerance with viewing nudity or sexuality, or violence, and certainly with hearing "strong language" than many other people. Nevertheless, I usually want to know that's what I'm about to be in for, implicitly or explicitly rather than just sit down and all the sudden be in the middle of hearing about a brutal rape case or viewing a fictional torture sequence in a film or TV show. If I were taking or teaching an ethics class, I would not expect to dive right into asking about incest as a moral topic. Or abortion. Or even humans (Westerners at least) eating insects (or other humans) as food. There's a certain amount of mental preparation most people need to make in order to get past shock or disgust and try to dig into the content.

If and where these concepts like trigger warnings or safe spaces are being used to destroy discussion altogether, or to prevent controversial figures from speaking and learning what, if any, rationale they might have for their views, or otherwise to present only a sanitized and sanctioned understanding of a topic, I would agree they are being misused and applied to an over broad practice of policing thought and expression. This is not generally what people are doing with them in academic settings. It's more like giving people a minute to collect themselves. I would feel it works more like the slow and relaxing climb up a roller coaster ride, before diving and twisting around.

One of the many beneficial features of free speech and free inquiry is that it allows people to go more or less anywhere with a thought or a hypothesis and to explore many ideas. It also means that when we are treading off into an area of exploration of ideas or the expression of them that is likely to be offensive or troublesome, other people will be free to say so. We can then ignore them. That is likely to make us come off not so well in a social sense, that it will have cultural and social consequences. This should encourage us not to automatically abandon our esoteric and unpopular quest for what seems to be forbidden knowledge. But instead to think harder about its merits and how to express them, or to acknowledge perhaps there are few enough merits to discount the idea more or less entirely and to move on into other inquiries more worth our time. Or at least better forms of expression to get across our ideas. A key value of free inquiry and free speech is the process of ideas having to do some amount of rigorous battle with each other. Rather than simply being able to express something freely without complaint, we should expect that people might marshal their energy to oppose us. And that should lead us to make or seek out the very best and most rigorous arguments for not only what we believe we have learned and discovered to be true about the world around us, but what others believe as well. Such a process should humble us about our own level of certainty. And will also provide some outlets for controversy and debate. Even basic fundamental premises like "major political candidates should not say racist things and be able to get elected" will be tested from time to time, giving us the space to re-evaluate ourselves alongside our fellow citizens, classmates, teachers, friends, family members, and so on. To recognize whether we seem to be progressing or not with difficult ideas like how to deal with issues of racism or sexism. Or crime. Or punishment. Or education.

Even the premises of speech themselves are challenged from time to time. Very strong advocates for its utility should be willing to re-examine the value of speech and understand how robust it is, or how weak it has become as institutional practice if that is indeed the case. As well as understanding the varieties of expression will include shocking and distasteful methods or topics that can be approached more cautiously and perhaps more productively as a result.

A note on bathrooms

Much fussiness has arisen over who gets to use which bathroom. This seems incredibly paranoid and silly at best, but mainly doesn't seem like something that requires laws. Which is to say: transgendered persons have been using bathrooms of their choice and intention for years without much in the way of public complaint or incident. Nobody really noticed or cared. Why this arises now? Most probably because anti-gay bigotry is less popular to express, but some version of it still demands expression. This is as close as some people can get. Laws restricting the behavior of homosexuality are unenforceable and unlikely to pass muster in courts. Trans persons are a relative unknown, very few people know much about the biology involved (and people's eyes will glaze over when you try to explain the available neuroscience to them), and they represent an even smaller minority that is thus easier to pick on. Any legal fight is still perceived as uncertain.

What we are seeing is that there is a strong cultural fight ongoing, where businesses and liberals and progressives are (generally) allies, social conservatives are off on a strange island, and there is some number of people in the middle who don't yet know what to think of any of this and perhaps harbor vaguely creepy and uninformed notions about who or what transgender means in society and as a set of behaviors. As with abortion, this physical and moral uncertainty (and even fear) can sometimes privilege very restrictive legal actions that are inappropriate or unnecessary, even as an intention to alleviate some alleged social or health related problem. To be clear, I feel I know very little about this subject myself. I've written about it before with some circumspection. What I do know suggests very little of the public debate has had anything to do with the behavior of transgendered persons, the reasons for it, the norms enforcing that behavior, or really much of anything with respect to the actual fears of people involved.

There are pretty strong norms about bathroom use; that someone going into the women's restroom should look like they belong in that space for example. But even these allow for some things like a parent taking small children into the "wrong" bathroom, or women using the men's room stalls at large events (sports or concerts), and so on. Creating laws which might rigidly define who can use what bathroom seems typically unnecessary. Social conventions are quite capable of handling this question in a "common sense" way without messily involving the law and its blunt instruments of gender assignments. And the implication of law is that somehow we must be enforcing these restrictions. Using what methods? This is a question generally left unexamined. Would we punish women who look insufficiently feminine for using the "wrong bathroom"? How would we even tell someone who has had sex reassignment therapy or surgery is in the "wrong space"? Is someone going to be assigned to check IDs? Or check people's bits? Again, social norms will tend to enforce these conventional situations more than adequately without these mixed up scenarios.

The creepy "men will get dressed up as women to watch women peeing" or some such narrative pushed by many men on this point makes no sense in relation to this subject. Men can already do this. They generally don't. In large part because social norms and (yes) laws will punish such behavior. And in any case, there's plenty of this rather odd sexual fetish available relatively freely on the internet (presumably including varieties where men have dressed up as women). Mostly this suggests something is wrong with the person making this argument, that they think this is something people would suddenly start to do that they somehow cannot right now. It has little to do with what makes someone transgendered that someone "decides" to use a "different" bathroom, much less for the purpose of creepily staring at women or children. Such a conversation is like speaking a different language with an alien species and rarely amounts to productive conclusions.

There isn't in fact very much danger in public restrooms for sexual abuse. Upon women or children. Think about what this argument suggests for a moment. A random stranger, someone totally unknown to a woman or child, will sneak into an inappropriate bathroom where there may be an unknown quantity of persons within, often doing so in full view of store security or video surveillance, and most likely with a guardian, friend, or parent nearby to the person they wished to target for abuse, who then will have ample opportunity to resist and to call for help in a public location where other human beings might hear them and assist. There are many reasons that sexual abuse is nearly always perpetrated by someone known to the victim (for children, the percentage of known abusers approaches 95%. Random assaults or even kidnappings are vanishingly rare). But these are all pretty strong arguments against the fear of random strangers in public bathrooms, not arguments in favor of laws relating to who can use what restroom. We are imagining a fear that doesn't actually exist, and not creating a new scenario that didn't already exist by allowing people to use the bathroom in which they are personally most comfortable. More to the point, rates of sexual assault itself have been declining. The actual danger being identified, a risk of something untoward happening while someone is in the vulnerable position of relieving their body of physical waste, is already unlikely, and is in a category of crime that is itself less and less likely.

One problem I have been seeing is that comparisons are being made to demand laws or stronger social efforts to punish sexual offenders (instead of these kinds of silly laws regarding restrictions on transgendered bathroom selection). We already have a vast infrastructure of laws punishing all manner of lewd and inappropriate behaviors, sometimes severely, in addition to laws punishing sexual assault and rape and other more morally reprehensible crimes. Thousands of people are required in most US states to register as sex offenders, to be restricted on where they may live, contact with family members is often heavily restrained (assuming their offense was not involving such, family is often a key method of reintegration to society as it provides a basis of support), to have social stigma attached to them from neighbours who often wrongly infer their actions make them a threat to their children, job restrictions on where they can work or what kind of work they can do, and so on. The vast majority of these people did not go around molesting children, raping women, or other heinous actions of sexual predators. Therefore I would submit that the idea that we should punish sexual offenses more severely or more readily is already an idea we have taken to heart and practiced as a society. We already do it at a prodigious rate.

To be sure, there are still problems in how many people, including some police and prosecutors and judges, perceive rape and sexual assault, and the methods of adjudicating claims thereof are still often fraught with he-said-she-said difficulties, and problems in how swiftly and readily evidence is processed for criminal convictions (or as proof of innocence). And there are serious questions of sexual consent (and communication regarding sexuality in general) that are still awkwardly worked out for many young people in a way that disadvantages them from the healthy and consensual enjoyment of the human form. But our eagerness to punish sexual misbehavior reaches far beyond these questions and often ends up vigorously criminalizing (generally natural) sexual exploration by teens, drunken stupidity like public urination, and on down the list. This is where we go when we want to punish sexual misconduct as a society. And not toward more violent and non-consensual criminal actions. We should be careful to look at an imaginary danger, some vast looming threat posed uniquely by transgendered persons using the "wrong" bathrooms in public, and not replace it with other imaginary dangers in the effort to dismiss the former.

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.

Another annoyance

There's a story floating around about a police shooting that supposedly went ignored because the victim was white and that this implicates the "alllivesmatter" movement.

First of all. It wasn't ignored. It crossed my news feed in at least three different sources that typically cover police shootings and violence/oppressive police strategies. Police misconduct might be an unusual beat relative to mainstream coverage, but it doesn't focus only on minorities being killed or wrongfully treated. The reason it appears that way might be because minorities are more commonly assaulted or killed (or at least disproportionately so).

But ultimately this framing is sort of like "why don't Muslims/atheists/etc disavow some action". When they almost always already have, and that this was ignored in order to complain that somehow, someway, white people are being discriminated against.

Meanwhile various shootings (both by police or by ordinary citizens) that did occur did go ignored in the general public. Possibly because the victims were not white.

A second and perhaps more important point. "alllivesmatter" isn't a movement. It is a bullshit twitter response to an actual movement (blacklivesmatter) and actual problem specifically targeted by an original movement because we would rather pretend we are not still a racist society populated by largely racist people and thus who are demanding a fairly racist policing strategy. Indeed, some of the criticism of the lack of response by this "movement" focuses explicitly on the silly assumptions people have been using about the nature of policing in the country that it is in some way fair and useful when it oppresses people for particular things (like making drug arrests as in this case).

The problem of police reforms has often focused specifically on particular forms of oppressive policing used primarily on minorities (and in particular African-Americans, or in some parts of the countries, Latinos). That movement didn't use the alllives nomenclature for a very good reason. It was targeting a specific set of policy problems related to race and police and the way in which shootings and deaths, to say nothing of wrongful arrests or harassment and general abuse, are washed away as procedure or appropriate protocol and training. There are more systemic problems related to race and policing that do not apply in the same ways to everyone else (stop and frisk, racial profiling, etc). They apply in some intersecting issues, such as through poverty or the enforcement of drug laws, but these are often tangential effects rather than intentional policy or arbitrary use of force. This is distinguished from the manner in which police are armed, trained, instructed, or otherwise prepared on the appropriate use of force and the methods available to avoid it. It is a more general problem in the way it allows for the arbitrary and casual enforcement and interference by police of whole communities beyond the application of lethal violence, it's most devastating and visible effect. Ferguson didn't erupt into demonstrations and violence because a young black man was shot under what were deemed suspect circumstances. It erupted because the police as a whole had been undertaking oppressive strategies of policing and policy enforcement and where young man was killed, and the manner the police undertook to respond to both that death and the resulting demonstrations, this was seen as a natural extension of those oppressive policies. This was a last straw and the only one which became visible. Even today the broad and condemning DoJ reports on the conduct and policies of Ferguson and other related communities is typically ignored in the way these issues are discussed in the popular imagination.

The case of violence against anyone in particular is certainly equally offensive in all cases where it is not justified, but the frivolity of legal arbitrary penalties and procedures falls in a very unequal and distinctive way. That this then results in a distinctive pattern of death or abuse at the hands of police should hardly be surprising either, but it has as its roots differences in cause. It is true in the blandest sense that police violence, brutality, or the arbitrary nature of many authoritarian policies could impact anyone and many of the victims of these assaults are what we might optimistically think of as ordinary people. But these aggressive escalation tactics used commonly by police are a means of policing much more likely to be tolerated and even endorsed when they are applied to "other people", people not like ourselves (immigrants/Latinos, as in Maricopa county, blacks in NYC or Chicago or really anywhere, and likewise people who are mentally ill, or generally people who sell or possess illegal drugs). We see that this is so when one examines where, on a map, aggressive SWAT raids are deployed to drug interdiction missions and related activities, or where stop and frisk was typically used in NYC, and so on. It is helpful as a philosophical exercise that some people imagine the problem could be roughly equal and impact themselves too in as far as it influences the support for overall police reforms that are badly needed to correct for systematic injustice inflicted by police and criminal justice, but it won't or doesn't actually apply in the same way and for the same reasons.

Consider the petty nature of the initial infractions that led to these deaths (legally open carrying an airsoft gun, busted taillight, not using a turn signal, selling loose cigarettes, running away, no front license plate) versus this one (someone shot in the middle of a drug bust under admittedly highly suspicious circumstances). None of these cases should be cause for violence of police to enforce these, and none seems to be a case where said violence was justified from popular description, but the rapid escalation of violence for minor and trivial crimes is far more likely in the former set of cases and poses a different form of disturbance in how we must think of our society and what it seeks to enforce by applying the force of law. The solutions that reduce the problem of the former issues, the general problem of police aggression and abuses (to say nothing of prosecutorial discretion or the rubber stamping of search warrants and deference to police by judges), where the problems could in theory impact everyone, are different from solutions to the problems of implicit and explicit bias on the part of police and popular support for police policies and how we could limit or provide outlets for dealing with this. It is natural that there should need to be different causes and distinct movements for dealing with them and that these causes and movements would have distinct concerns that they focus their attention upon. The ACLU is going to respond very differently than people involved in the blacklivesmatter protest group.

I've written about this in various forms. So it should not be surprising that this annoys me that it persists as a thing.

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.

Charity to rivals

Some nice things to say about people I will tend to disagree with.

1) Conservatives
 - Abortion- Many ardent pro-life persons actually do seem motivated by a genuine belief and desire to protect the lives of the unborn as a basis for argument, rather than some innate hatred of women. Indeed I don't begrudge those few who seem willing to state that they oppose exemptions even for rape and incest, simply because their priority is on the as yet unborn life in a consistent moral argument. While those making carve-outs are effectively ceding the battleground on which they are fighting to the "I don't like your reasons for an abortion, while mine are perfectly fine" position on which most people are contending with this issue.

My disagreement is whether these prospective lives of the unborn tend to justify the variety of policies put in place to police the activities of women and doctors, whether these are from a moral or ethical standard actual lives or not (in many cases, I would argue not, at least in the legal sense that we could design any practical policy to enforce and protect them that would not also punish or provide investigatory powers for common natural events like miscarriages). And then in many cases, either the tactics or laws pursued are either trivially annoying and ineffective or outright counterproductive to their purported goals. I don't not believe their motives as real in many cases (some perhaps are opportunistic or patriarchal) despite the inability to match up policies they would support with actual results.

- Drug Warriors - Are in fact motivated to combat a potential social problem, drug addiction (or general irresponsible drug use as a secondary issue). They have chosen the worst possible methods I can imagine (police and force instead of doctors and social work). But there is at least the existence of a problem they are choosing to fight using the social tools available to them.

- Police more broadly - I'm sympathetic to the problem of having to enforce a myriad of laws and social mores and directives, with a changing set of political agendas hovering over all of this. I feel the easier solution is less to provide more tools and weapons and aggression for the command of authority to rule the day but for fewer things to be resolved by police and laws, and to allow police to do things on which they are more suited to enforce and investigate (eg, not worrying about vice laws or drug crimes, and more of a focus on preventing murder or theft). Police are not social workers in the broad sense on which we have often deployed them to deal with parenting questions, mental ailments and issues, endemic poverty, race relations and so on. To expect all of that to go swimmingly by using force through the police is to expect something that isn't possible.

- Religious conservatives generally - While I have all manner of theological and atomistic reasons to think religion (any religion) is silly, a great many people seem to extract a sensible set of value from participating in their religious traditions. Tradition in and of itself isn't interesting to me, but it often can contain kernels of wise council about our actions. A broader sense of community isn't interesting to me, but for many people provides purpose and a camaraderie that they enjoy. Metaphysics generally isn't interesting to me at all, but for many people, answering "life's big questions" with a set of prepared answers (whether or not those answers make any sense) is a satisfying practice. Occasionally religious entities even do useful and good things; helping the poor or indigent or providing aid and shelter after a disaster.

There are downsides to the "community" aspects of religion, namely the in-group/out-group dynamics are extremely strong (perhaps rivaled only by nationalist fervor in the modern context), such that outsiders can easily be viewed with suspicion or hatred. And bothering people who don't have much interest in being part of these communities gets really annoying.

- Neoconservatives - Do at least seem to be trying to pay attention to the international community by observing the rise and fall of potential threats. They've often overblown how dramatic the threats are, or have no idea what methods would best resolve the threat before it becomes a real danger. But it's a starting point relative to many who utterly ignore the affairs of other countries, governments, and the people and associations they form, complete with their own interests and goals, in other lands.

This bleeds into security state defenders (strong/invasive NSA policies), where I would agree these are people generally motivated by an interest in protecting people from harm, but who have crafted policies that either fail to do so, fail to do so at the cost, or which are more harmful than beneficial (because others have less noble ends in mind, such as prosecuting the drug war).

- Nationalism - Does form originally from ardent patriotism in most cases. Which would be productive. I don't have anything else good to say about it though so I should probably stop talking. (this is probably one of the worst modern "sins" I can conceive of people having endorsed is to place nationalism ahead of patriotism, or humanism, or their faith, or basically any value set whatsoever would be superior).

2) Libertarians

- Ayn Rand fans - I appreciate that these are people who are starting to grapple with a wide set of public policy questions and issues. The lens used for examination is problematic, but it's a start and people need to start somewhere. Most people rarely study public policy questions with any degree of seriousness, with no eye for coherent ideologies or practical effects. Political philosophy is probably an even rarer source of investigation for most people. Her's isn't much of a philosophy as it is a guideline, but again, baby steps.

- Ron Paul fans - paleo-conservativism has its uses in moderating many of neoconservatism's worst impulses (IR aggression or the security state as examples). I still question the motivations pushing for much of any anti-globalism or anti-trade or anti-immigration notions that sometimes arise in these far fields of political conservatism. But tamping down the worst excesses of another political structure's intentions by offering an alternative interpretation (even if often straying way out into paranoia), is a vital enterprise for public policy.

- Gold bugs/end the Fed types - The average person spends almost zero time observing monetary policy, seeing it as opaque and insignificant. These are people who seem to focus on almost nothing else. I'd hope for a more happy medium from both the public and government officials in the amount of attention and less fussing over precious metals as though that would somehow resolve our financial position ("strong" currencies, of the type usually favored by gold specie demands are meaningless because they can be potentially damaging or self-correcting to economic prospects and provide no additional stability that isn't created by moderately competent central banking).

3) Liberals/Progressives

- Economic views - Seem to be largely concerned about concentrations of wealth or the condition of the poor. I'm ambivalent about the first being a huge problem in and of itself, but the latter certainly is a powerful and concerning issue. Often don't seem to grasp effective solutions and causes very easily. This isn't a critique of progressives or liberals specifically however as most people do not (conservatives are often just as bad on economic policies that they want to put forward).

- Environmentalism - Most people seem to accept a genuine concern for the natural world as a sensible motivation. Activities or positions taken on some issues (nuclear power or fracking for example) are alarmist and counterproductive. There's a real danger in environmentalist positions and movements of the same variety of closed-minded-closed ranks behavior that conservatives have tended toward, where adherence to a set of positions on issues supersedes evidence of actual risks involved in those issues, or adherence to rigid policy outcomes while disregarding any path to them (that isn't an absolute drop/change).

A way to summarize most of these disagreements would be as follows:
"I believe you are well-motivated and have identified what you feel is a problem. But your actual positions and motions to do something about it are misguided, ineffective, or totally symbolic rather than meaningful and productive. Stop being symbolic and do some real work to think carefully about what you want to achieve and whether what you are asking can be done, or can be done in this way."

Random sex scandal stories mentally intersected

Probably shouldn't be, but I don't know enough about either story on its own to fully address either.

The Duggar scandal. - I tend to break these kinds of stories (and there are lots of them) into a couple standard elements

The presumption that "godly" or "god-fearing" or otherwise ardently religious people are good, decent people and thus incapable of heinous abusive actions clouds the reaction with a lot of "but he seemed like such a kind, decent person" reflexes. My operating assumption isn't just that ardently religious people are assholes, but that most people are. Even, or perhaps sometimes especially, the "kind, decent" people that I barely know. I don't assume they're incapable of anything unless there's a lot of evidence to the contrary. Most of us do not know this family and its various members, just as we do not know many other 15 minute TV celebrities or politicians and so on. So the inflection of these characters with special decency, or special hatred (as is often the case) is bizarre. As I said back during Tiger Woods' story some years back, we don't know them just because we watch them play golf and let them sell us Buicks on TV commercials. So the idea that we should just assume they are all wholesome goodness is absurd. This is particularly rich for someone like me when it is suffused with a lot of religion as in this case (as though this automatically removes the prospect of guilt and destructive actions against fellow human beings), but the argument holds across virtually any sector.

I think that interacts with the Cosby rape allegations over the last many years in a disturbing way. Namely that we are slower to see it when we have established this person as a social role model. We should be able to separate out the social role model, the character that a person has crafted and presented to the world, from the actions of the human being and hold them accountable. Many of America's founding political philosophers/lawyers owned slaves. This does not automatically invalidate their political views. It means they are flawed in a nearly fatal to the country way which was partly resolved some decades after their deaths. But the arguments are no less sound simply because they were not at the time applied to all men (much less all women). If we have to do the same now with a musical performer, or a comedian, or a TV star, maybe people can do that and still enjoy their art (or whatever it is that reality TV shows are portraying). But if someone is actually a slime ball of a human being who has abused and assaulted women, that can matter to our calculations of how we appreciate and enjoy their art, and it certainly should mean that we will still want to find them accountable for any actions they've done.

Huckabee has taken a somewhat forgiving stance in his public statements so far. I'm not sure I begrudge this if it existed on its own as it's probably an outgrowth of his general religious faith. But there are problems with it. First, that he wastes little time blaming and socially insulting or assaulting people whose cultural views he does not agree with for their actions (eg, liberals), but then also wastes little time forgiving his cultural allies. That's convenient selectivity for his purported desire for forgiving people (if he's going to waste as much time as he does attacking Beyonce for basically being a good capitalist, it doesn't make much sense to defend this guy in other words. But then, I didn't quite understand where he was going with the Beyonce stuff in the first place). Second, that the problem with the story isn't that he did something awful and could or should not be forgiven for it (some people won't be able to, but some would), but that he did something awful and nobody did anything about it, so far as can be shown, and then is to be forgiven for it now with nothing having been actually adjudicated so far as anyone can tell, either in a court or a psychologist's office or whatever. It seems like he went and did some yard work and it was otherwise swept under the rug for quite some time even before that occurred. This is not the way one deals with a problem like child molestation. It is somewhat understandable that a family might be slow to pull the trigger to turn in a family member for conducting horrifying indignities upon young women, but this all seems like nobody ever took it that seriously. Including Huckabee in his public statements about it after the fact. That should be worrisome both for Christians in how it portrays a continued lack of concern for the well-being of women and in general that we seem to be comfortable according a certain lack of concern for both the victims and the perpetrators of sexual violence (when underage like this story implies, it suggests they may also have been victims too of course, which is a further problem).

At the same time, I've been vaguely following the Columbia mattress art project story. And I can't really make heads or tails of it. I suspect that's why the university didn't do anything either, despite a lower standard of guilt required than a court of law. What that tells me isn't that we don't take women seriously when they make accusations of sexual assaults, though that might be true in many respects, but that we don't always have a very clear means of adjudicating those complaints in a manner that clears it up for all parties in a decisive and satisfying way. Applied to the Duggar case, it isn't obviously clear what we should have preferred we do. Register him as a sex offender for life? We have lots of problems with how that system allows people to re-integrate into society, or seek any necessary treatment and atonement for what they did, in a manner that is disproportionate even in a society that makes such reintegration difficult. Prosecute him for sexual assault? That can be difficult if the victims do not want to cooperate with police and prosecutors, as it may be likely in the case of family members (for example). Nor does a conviction mean that the victims of such assaults like molestation are automatically healed and may go forth without incident or harm to their development as people. There are intermediate steps here to resolve these cases most likely that we could have chosen that may not satisfy every gawking audience but may have worked fine for victims in this or other cases.

But I suspect one of the problems is that we don't do very much as a culture to give people a way to communicate about sex in general, and sexual abuse in particular (and this includes, perhaps especially, evangelical Christians like the Duggars). We do not have a very clear grasp of sexual consent and the language both physical and spoken involved, and that means it is difficult to teach children about it as something they could defend themselves against, or might wish to complain to an adult or parent about if it were to happen (not that we spend much time doing so). It becomes more difficult to navigate and adjudicate complaints between possible couples or one-night stands in a college dorm in a way that feels like justice. And it becomes easier to dismiss dozens of complaints against famous celebrities by generally ignoring the story because we previously enjoyed the celebrity and their performances being held at fault more than we wish to provide a means of justice and resolution for these harms and injustices committed upon them.

Maybe this is because some of us don't really think these are harms or injustices deserving of serious attention, as might be the case with many devoted fans of the Duggars or Bill Cosby, or just some random student at Columbia who we maybe aren't sure did anything that should be considered illegal or not (and so far as the university was concerned, didn't). Maybe this is because some of us think these are people incapable of being improved, for lack of a better term, and by extension reducing the incidence of these types of sexual criminal acts by giving such people (mostly men in these examples and cases) a manner of relating to women as individuals and human beings rather than just objects of sexual desire. Or in the case of child sex abuses, there are treatments and therapies available for that as well. Maybe this is because we just don't like talking about sex, gender politics, sexual communication, and sexual abuse, and we'd prefer someone else handle all of that (if anyone as again evangelicals seem especially prone to ignoring the valence of these as subjects demanding conversation).

Passing the buck isn't really an option here. In part because it doesn't seem like there is a clear expert on which we should trust an opinion on all matters of sexual confusion, much less disturbing sexual abuses. We have to take some responsibility for not wanting to discuss these things with our children, or our friends, or our families. Not all of it needs to be aired out in public for all the world to see, or even our close friends who we might talk about all manner of things instead, but there needs to be somewhere to start. But in large measure this is because these are some of the most intimate forms of abuse one can construct. They often involve very trusted friends or family members or family friends (or other trusted authority figures, like celebrities can often be). Without some architecture for understanding what is even happening, without some method of reporting what has happened, it will go on. And without some one stepping in and saying, "no, that's not appropriate", or even "no, that is wrong", it will go on. In order to do any of that, we will need to be able to talk a little more about what we are not sure about.

Sex is basically a form of physical communication for human beings. Even if it is inappropriate or unwanted it is still a communication. It is at that point saying "I can do whatever I want to your person" and also at some level "your body is what I want, so I will do whatever I want to it", which is a terrifying or horrifying message to want to communicate. It is inherently dehumanizing and stripping another person of agency, desire, and the capacity of communication of anything in response, physically or spoken. One response to this would be to tell people to want to communicate less horrifying, "better" messages instead using their bodies (and by extension communicated with other people's bodies). At some level that shouldn't have to be a message we have to explain to other people but we may have to start at this basic level and build up. It doesn't appear we're making a lot of headway by compiling "yes means yes" policies and trying to explain things like obtaining affirmative consent (using words) or by establishing draconian penalties for sexual abuse and wrapping in a lot of inappropriate nudity (streaking or peeing in public for example or mixed age teenage sexuality, or teens just sending nude photos to one another), or by generally ignoring complaints of sexual abuse and misconduct for years at a time. Start at the beginning and move forward from there.

A further and perhaps more important point might be what should we do about the victims in the meantime. It isn't clear the Duggars did anything (as little as they did with the molester among them, this isn't that surprising). Cosby's various accusers haven't gotten a day in court that I can tell and there doesn't seem to be any hurry to provide one. Columbia let one form a complicated performance art stunt to complain. That may be an option even if all it really tells us is someone is maybe an asshole.

Addendum: TLC or any other network could pull a reality TV show off the air for pretty much any reason and I would not complain. But this seems like a fairly reasonable response is to kick off the air a family that has a lot of offscreen moral and legal trouble going on right now, even if the response wasn't designed as a penalty (it undoubtedly is, but still). For the main reason that it portrays the network (and the family it is airing a TV show about) with a certain aura of hypocrisy for proclaiming some sort of "family values" notions when at least one member of that family has a now admitted history of abusing other members of it. But also because this sort of attention isn't something that needs to come to focus for his victims (if they don't wish to be a part of it). People do not always want to be defined as victims of a sexual crime and that would be difficult to avoid with a TV show in the public forum. They may prefer to be known for other things. I'm inclined for their sake to let them try to do so.

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.

Presumed free

I do not generally subscribe to a natural rights theory of humanity, but the "presumption of liberty" is still a sufficient guideline for most of the examples given that policing powers should be restricted to areas of significant importance because of the actual damage they could maintain. Basic health, safety, fraud, and environmental regulations all can fall into these categories, and likewise we should avoid regulations and laws providing power to governments in areas that are effectively arbitrary, narrowly beneficial/prejudicial (rent seeking or targets of oppression), or, and this is a big objection for me usually, ineffective at achieving the presumed ends.

All of that generally means that if governments want to pass some rule, at any level of governance, it needs to pass two basic tests for me to find it beneficial to have a rule rather than the absence.

1) What goal is this law seeking to achieve, and is that goal a necessary end of the state to police (or can it be done in some other way)? In some cases, I will part from ordinary libertarians on questions of social welfare or social justice because I am not persuaded there are good options available in the society at large for resolving these questions and a large free rider or externality problem. In many cases of legal questions, this differs from the ordinary interpretation (by liberals and conservatives) to say that the idea that we need a law to do X is possibly an illegitimate aim for the state to impose controls over. My guiding assumption is to say that if there isn't a rule saying the government can't do it that isn't a license to say governments can or should do it, and that it needs a very good reason to intercede. This used to be a fairly uncontroversial assumption for how the American government operated from what I could tell that if it wanted to do something limiting individual rights severely, it needed a constitutional amendment (eg, the 18th). Indeed, it seems to have been a basis for passing the 14th amendment in the first place as a fairly radical amendment limiting the scope of government to the protection and guarantee of existing rights such as the freedom of conscience or speech or the protection against unreasonable searches by government agents, and the enforcement of generally applicable laws (eg, murder, theft, fraud, rape, etc). This is no longer the dominant theory governing American politics and the power of the 14th amendment is often much more limited in restraining political (and commercial) authority from doing unreasonable things.

2) Does the proposed rule/law have a good mechanic for achieving that goal? This is typically a big problem. I often see very little evidence that a proposed law will work, or may even be counterproductive, or that it has even much to do with achieving a purported goal and is instead about something else (such as rent seeking behavior in public choice theory).

The danger of Barnett's theory is that courts do not always subscribe to a protection of liberty in the first place and that courts have often expanded radically the scope of government operations to allow things that not only libertarians but many others may find to be illegitimate, ineffective, or inappropriate operations of government. Courts do not have to abide by a limited interpretation of governmental power (at any level) or can choose to defer to legislatures or executives in both the intended premise and the intended execution of a law.

Minor things I've written about before

Daily Show came around to the story about the diner in North Carolina. 

I was unpersuaded by the take of many atheists that this a serious problem, or that the type of problem it presented was in somewhat analogous to much more serious forms of discrimination (such as genocidal practices, or really even hiring and firing decisions of companies based on religious non-belief). One can readily acknowledge that it is discriminatory legally. But given that restaurants practice many types of price discrimination already (for the elderly, for college students, for military or police/fire departments and so on), it is not a particularly egregious outrage that they might effectively overcharge everyone for food and then decide to offer a discount for something religious like praying over the meal. It also appears the diner amended its practices slightly in the wake of criticism to allow for non-religious expressions, whatever that implies.

I do think the Daily Show's piece was unfair in its depiction of FFRF and Barker specifically, but my impression has been that the expressions of the FFRF and Barker aren't always all that flattering anyway. They can do enough work digging the holes without help. What struck me first and foremost about the story when I first was presented with it months ago was that it didn't make sound business sense to offer the discount at all. And not that it demanded a very public and in-your-face response for it to be abolished. There was a cheap and simple and much more private way to handle this, such as a personal phone call or meeting with the owner/manager to determine the contours of the discount, accepted practices for receiving it, training or discretion offered to the crew to provide it, and so on. Such a meeting or call probably would have sufficed to show the owner this was a foolish idea, and at least that it came from a highly privileged Christian majority position and that a more generally inclusive or respectful attitude to the population of potential diners and customers might be wiser. Indeed, my impression and understanding of religious practices was that public displays of religious faith by other Christians might have been frowned upon as discriminatory even before atheists as exclusionary, and that other Christians are commonly allies in pointing out these forms of religious exclusion. The piece and previous reporting did not illuminate if this more subtle and personal approach was tried and failed, and a more public and direct response was then used instead to achieve a more desirable result. The Daily Show piece and previous stories on this issue strongly implies that it was not attempted to mediate and explain, so I would submit this is unlikely.

What seems to have been more important was to attract attention to it as an example of discriminatory practices excluding atheists. Of which there are many and many of which can have considerable impact upon the lives of atheists in this country and others and for which the resources of atheists can be leveled and concentrated upon improving and reducing the barriers and boundaries that a still distrustful modern Western society like that of the United States places upon us. But for something like this, effectively burning the bridge in order to draw attention to it struck me less as a well-calculated solution which educated the local diner operator and more as a Streisand effect, demonstrating to the Christian majority the lengths to which atheists may go to exclude religion from public life and resulting in a portrayal of atheists as "dicks" even by fellow secularists such as the Daily Show writers and correspondents for cheap laughs.

That portrayal, which is sometimes accurate and deserved as it is for any group of humans, is hardly the necessary means to make an approach of acceptance and tolerance in broad society which includes a vast quantity of religious adherents. We atheists don't need to be dicks and neither do we need to be nice and lay down all the time. But we should be pragmatic. We are outnumbered and should pick our fury where it is actually raised and a the thing should not stand without resistance. We should also be willing to say, yes, that behavior on the part of another atheist was inappropriate or ineffective as a means of achieving a general goal of acceptance and promotion of tolerance toward atheists and secularists in society. This happens often with Dawkins and remarks on sexism or feminism as an example. Whether or not he intends them as such, they are often offensive and counterproductive to a cause of atheism and secularism that is too easily and frequently depicted as an all-white-male boys only club which is ill-attuned to the social problems of others owing to race or gender.

As such. It does not offend me deeply as an atheist that I would not receive a modest discount for my breakfast at this location because I could go somewhere else that I might find a more accommodating business practice or better eggs and bacon. It would offend me deeply if I were refused service entirely were I to refuse to pray over my meal. Or if to work at such a location, I were required to adorn myself with some religious symbols of the owner's choice and practice of faith. This distinction of the scale and scope of the offense should be factored into our reply. Discrimination is discrimination, but discrimination of this type, economic discrimination through prices, is not like genocide or racial exclusion laws. It scales. It would be entirely appropriate to boisterously and immediately and publicly complain and to demand restitution if an atheist is not given a raise on that basis of non-religious affiliation, or denied employment or service from a company or public official.

I do not even say it is necessary that we pick our battles and that a scorched earth approach to any and all forms of discrimination by businesses cannot be deployed. And thus that this should have been ignored as a "nice old lady" doing something weird. Rather, I am saying that the way the battle is fought sometimes matters to the outcome of the war. Winning ugly is still winning yes, but it often costs later on. We are in the middle of a very long road still with a large portion of the public expressing views of hate or intolerance, and many more expressing indifference to the problems of atheists in America. Atheists will require allies and compassion from others as a minority status in a Christian dominated society, allies who will help fight on issues of church and state separation and forms of discrimination that afflict atheists, or on science education policy and other matters which interest atheists in particular at times. Potentially alienating such allies is foolish. That should be considered when picking out the weapons of choice and against who they are wielded.