Tag Archives: morality

Scalia’s Morality

As has been widely reported, Justice Antonin Scalia made a controversial–albeit illuminating–remark on Monday, during a speech at Princeton. In response to a student who asked him about previous anti-gay writings in which he had compared laws criminalizing homosexuality to those banning bestiality and murder, Scalia defended the comparison, saying that–while he wasn’t equating homosexuality with murder–it illustrated his belief that legislative bodies should be able to enact laws against “immoral” behaviors.

I am deathly tired of legislators and judges who define “morality” exclusively by what happens below the waist, and who confuse “tradition” with a moral compass.

Throughout his career, Scalia has devoted his undeniable brilliance not to an exploration of the human condition, the nature of morality or even the role of law in society, but rather to the creation of an elaborate intellectual defense of his prejudices.

Anyone who would equate sexual orientation–an identity–with murder–a behavior–fails Classification 101. It can never be immoral simply to be something: gay, female, black, whatever. Morality by definition is right behavior. And most moral philosophers begin that examination by asking a fairly simple question: does this behavior harm another?

Now, I know there are endless (legitimate) arguments about the nature of “harm,” but–Micah Clark and Eric Miller to the contrary–the mere fact that gay people exist and may be granted equal civil rights cannot be rationally considered harmful.

How moral we are depends upon how we treat each other. Sexual molestation is wrong whether the molester is gay or straight. Theft is wrong irrespective of the color, religion or sexual orientation of the thief.

And as many others have noted, tradition is hardly a reliable guide to moral behavior. Quite the opposite, really. War has been a human tradition. Slavery was traditional for generations. The submission of women lasted eons. The loss of these “traditions” is hardly a victory for immorality–although for old white guys like Scalia, I’m sure the loss of privileged status is cause for regret.

The job of legislatures is to pass measures needed by governing bodies–rules for civic order, taxation, service delivery, and the myriad other matters that may properly be decided communally. Allowing legislators to decide whose lives are moral is not only improper, not only an abuse of power, it is itself immoral.


Do You See What I See?

A couple of days ago, an email from the Human Rights Campaign began with the following paragraph:

“Just yesterday, one of Mitt Romney’s highest profile supporters, and a member of the GOP platform committee, said same-sex marriage is something the government should condemn – along with drug use and polygamy.”

The rest of the message teemed with righteous indignation, and ended with a predictable plea for money.

Now, I fully understand how demeaning that statement feels. But I also understand where it comes from. A few years ago, during my sabbatical, I did research that later became my book God and Country. I was curious about the ways in which religious cultures and beliefs shaped people’s positions on various policies–not just hot-button social issues, but also policies we think of as wholly secular, like welfare, the environment, criminal justice.

The research was fascinating–and enlightening. It turns out that our religious socialization affects the way in which we categorize issues. So–when it comes to sexual orientation, for example–research suggests that Christians and Jews tend to classify the issue differently. Jews are more likely to classify sexual orientation as one aspect of identity, like eye color or intellectual capacity; for most Christians, on the other hand, sex is classified as a behavior–like drug use or polygamy. This initial classification doesn’t necessarily prevent Christians from drawing moral distinctions between different behaviors, and many Christians do not consider homosexuality to be immoral. But the evaluation process proceeds from different starting points.

Cultural assumptions can be changed over time, of course, and changing the way people classify sexual orientation initially is one of the great triumphs of the gay civil rights movement.

We can see it in the language: the term “sexual preference” is rarely used these days (except by the likes of a Micah Clark or Sarah Palin); it has been replaced by “sexual orientation.” The first term suggests a behavioral choice; the second, an immutable characteristic. It is an incredibly important distinction; immutable characteristics–like gender or eye color or skin color–are by definition morally neutral.

You can choose to use drugs, you can choose to be a polygamist. But science has exploded the myth that people choose to be gay, and most Americans–whatever their religious socialization–have come to understand and accept the fact that sexual orientation is not chosen.

It’s not a fluke that the people who compare homosexuality to drug use are also anti-science.

There are many ways to slice and dice the American electorate, but I am increasingly convinced that the fundamental (no pun intended) fault line is between those who accept science and modernity and can live with the resulting ambiguities, and those who don’t and can’t–those who find change threatening and ambiguity terrifying, and who cling more and more tightly to the comforting categories and certainties of the (re-imagined) past.

An Idea Whose Time Has Gone

The Indiana General Assembly is once again debating whether to amend the state constitution to ban same-sex marriage. That debate has been criticized as a distraction from the State’s pressing fiscal problems, and it is. But the proposal, HR6, is also bad public policy—whether or not one approves of same-sex marriage.

In my law and policy class, I employ a standard framework for analyzing proposed laws. The threshold question—required by the Constitution’s limitation on the powers of government—is whether the subject-matter falls within the proper scope and authority of the state. If it does, we investigate further, testing whether there is broad consensus on the existence and nature of the problem to be solved, whether the proposed law will solve the problem, and whether there are likely to be unintended negative consequences if the measure becomes law.

Applying that framework to HR6 is illuminating.

The regulation of marriage, in our system, is a state responsibility, so HR6 arguably meets that threshold. It’s all downhill from there.

Broad social agreement about the need for a law is an element of legitimacy. (That’s why people debating new policies point to polls showing support for their position.) In this case, whatever consensus there may once have been against same-sex marriage is demonstrably past-tense.

Same-sex marriages are legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.  New York, Rhode Island and Maryland recognize same-sex marriages conducted elsewhere. Several other states recognize civil unions. Religious doctrine is equally fragmented and increasing numbers of churches and synagogues bless same-sex unions. Surveys of public opinion show a public that is almost equally divided on the subject.

Will passage of HR6 solve the problem? No.

Even if one believes that same-sex marriages are a “problem,” enacting HR6 will change nothing. Indiana law currently prohibits recognition of such marriages and that prohibition has been upheld by our courts. The only way we’ll get same-sex marriage in Indiana is if the U.S. Supreme Court rules that the Equal Protection doctrine requires it—and if that happens, a state constitutional ban would be unenforceable.

And what about those unintended consequences?

Several of Indiana’s largest employers have warned that enactment of HR6 will hobble them as they compete for the best employees. Economic development professionals warn that passage will make it more difficult to attract new businesses to the state.

Public employers—universities and municipalities with policies or ordinances granting health insurance and other benefits to employees—fear that HR6 will invalidate those benefits. (At IU, that would make us considerably less competitive for faculty, whether straight or gay.)

Corporate lawyers warn that the language of HR6 could be read to prohibit even private companies from providing benefits to unmarried partners. (HR6 by its terms applies to all unmarried couples, not just gay couples.) Proponents deny that possibility, but ultimately, it is an issue that will be litigated, and lawsuits are time-consuming and expensive.

Of course, there are also the uncertain consequences of creating a precedent by writing discrimination into the Constitution. If we can marginalize one disfavored group, why not others? Immigrants? Muslims? Atheists?

At the end of the day, this is an argument between two very different versions of morality and beliefs about the role of government.

A dwindling number of Americans believe that homosexuality is a chosen, immoral behavior, and despite growing scientific consensus that sexual orientation is immutable—that people are born homosexual or heterosexual—they want to use the power of government to stigmatize gay people.

Others of us believe that denying people equal treatment under the law because of who they are—whether that second-class status is based upon race, gender or sexual orientation—is not only unconstitutional, but deeply immoral.

Moral Deficit

There are plenty of issues that people of good will see differently.

For example, most Americans—at least the ones I know—consider themselves fiscal conservatives, but that doesn’t mean they necessarily agree about which policies are fiscally responsible. Depending upon their understanding of economics, some people will argue that now is the time to cut back spending to concentrate on deficit reduction; others insist that cuts now will delay economic recovery and reduce tax receipts–that we should spend to stimulate the economy and create jobs, because more jobs will both reduce government expenditures and generate more tax revenues with which to pay down the deficit. Both groups want to reduce the deficit; it’s an honest disagreement over the best way to do so.

Other disagreements are harder to understand.

The Zadroga 9/11 Health and Compensation Act would pay health care costs for 9/11 first responders who were sickened by toxic fumes and debris when the Twin Towers fell.  I don’t use the word “hero” very often, but that’s what these firefighters, police officers and medics were. They braved the inferno in order to rescue those inside, and they are now suffering from injuries and illnesses caused by that desperate effort. It passed the House with 90% of Republicans opposed. Then Senate Republicans refused to allow a vote on it, because “it would add to the deficit.”

Concern for the deficit would have been more believable had GOP Senators not been holding this and other measures hostage to their insistence that the richest 2% of Americans retain the favorable tax rates they received from George W. Bush.

Extending those rates would cost many billions more than providing much-needed medical care for first responders. Marginal rates are at historic lows: in 1945, the rate was 91% of every dollar earned over 200,000; in 1982, 50% of everything over 106,000; in 1993, 39.6% of earnings over 250,000.  It is now 35% of everything over 357,700. If the Bush tax cuts expire, rates will revert to 1993 levels. Those levels would remain very low by historical standards, but even so, expiration would generate billions to reduce the deficit.

Republicans argue that low taxes on the wealthy spur job creation. The evidence for that assertion is mixed, to put it mildly. If we really want to encourage job creation, we’d be better served giving businesses tax credits for new jobs.

The income gap between rich and poor in this country is wider than it has been since the gilded age. Joblessness is at its highest point since the Depression. These indicators are warning signs, not just for our economic health, but for our civic well-being.

Denying first responders desperately needed medical treatment so that millionaires won’t have to endure a 4.6% marginal tax rate increase cannot be excused as a good-faith policy dispute. It is, quite simply, disgraceful.

Americans are facing two kinds of deficits right now: monetary and moral. Ultimately, our fiscal problems—difficult as they seem—may be easier to resolve.