Monthly Archives: March 2015

religious liberty and discrimination

If we set aside the invidious motivations for–and the details of–the Indiana Religious Freedom Restoration Act, it does raise some fairly complex constitutional questions. Here are five theories that one might adopt in response:

1. The law should ban private discrimination on the basis of sexual orientation. To deny a regular service to a citizen because she or he is gay is hurtful and cruel and reinforces a whole system or culture of domination that also has serious economic and civic consequences. Therefore, such discrimination can and should be banned.

I endorse the whole premise. The questions are (a) whether the state and law are the appropriate instruments for remedying this problem, and (b) whether a conflicting interest (religious freedom) should be given any weight. We must allow individuals to do some things that we are certain are bad and wrong in order to limit government in the interest of liberty. It is not a free society that permits only good actions. Not any liberty counts, but the establishment and free exercise of religion are two explicit freedoms named in the First Amendment. To deny their relevance not only ignores the constitutional text but suggests that other forms of religious discrimination should also be illegal–for instance, that the Catholic Church should be required to ordain women. This seems a problematic implication.

2. The law should ban private discrimination on the basis of sexual orientation, with a special exception for religious freedom. The defendant in a discrimination suit would be required to demonstrate that her or his religion was clearly and stably committed to such discrimination. The defendant’s denomination would then be revealed to hold discriminatory views, with a potential cost to its reputation. If other members of the denomination were moved to contest its position on gay rights, that would be a benefit. Yet the religious liberty of the defendant would be honored.

I endorse some of this argument, but a lot rests on the definition of religion. It seems unjust to give special rights to people who believe in the existence of one or more deities. Just yesterday, the First Church of Cannabis declared its interest in selling marijuana in Indiana under the protection of the Religious Freedom Restoration Act. Why not? Also, this approach will involve the state in inquiries into religious doctrines and traditions. Is it really wise to ask a secular court to decide whether, for example, discrimination against gays is rooted in the Talmud or in some specific Protestant tract?

3. Jacob Levy’s suggestion: “private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race.”

This is a more libertarian view, more protective of individuals’ rights to choose their own contracts and relationships. It carves out a special exemption for racial discrimination in the US. (Levy teaches in Canada and is thinking about these issues globally.) I am not hostile to his position, because liberty is a very high principle and because the state is not our only instrument for changing private behavior. I would also agree that race is a unique case in the US. But a lot hangs here on the seriousness of discrimination based on sexual orientation. It’s easy for me–a straight man–to write as if religious freedom can simply be balanced against equality. If I were gay and denied a service on that basis, I would probably feel that my very personhood had been assaulted, not merely as an individual act but as part of a system or culture of oppression that also costs lives. Homophobia is a deadly problem, and perhaps the state should intervene even in private contracts to address it.

4. Forbid discrimination in certain kinds of business. Levy hints at this kind of solution when he mentions “public accommodations,” about which there is a large body of case law, legislation, and scholarship. The basic idea is that McDonald’s should be forbidden from discriminating on the basis of sexual orientation (both in hiring and in service), because it operates a mass, transactional enterprise. You pay your money; you get your burger and fries. But Elane Photography (a small New Mexico business) is not running a public accommodation. A more-or-less solo photographer may choose whom to photograph. If she chooses only to photograph opposite-sex weddings, that is allowable under the First Amendment.

I find this distinction somewhat helpful, but there is no bright line between Elane’s and McDonald’s. Furthermore, the mere fact that Elane is a small business does not make its discrimination any less hurtful.

5. Honor the small-r republican principle that the people should govern themselves by deliberating and making law. Let the people decide whether or not to ban discrimination.

I am a small-r republican and believe that collective political freedom is too often overlooked. But who is “the people?” You will get very different laws if Bloomington can decide, if Indiana decides, or if Washington takes up the issue (and probably deadlocks, leaving the status quo in place). Also, the most important reason to restrain the rights of the people to govern themselves is to protect individuals’ rights. But then again, both non-discrimination and free exercise are individual rights. The republican principle doesn’t say which one should trump popular rule.

bad does not imply worse

Christopher Jencks makes a characteristically wise point (after displaying a graph that shows that real poverty has declined a lot since 1959, and a bit since 2009):

The equation of “bad” with “worse” is so tight in American political discourse that when I tell my friends or my students that “there is still a lot of poverty, but less than there used to be,” they have trouble remembering both halves of the sentence. Some remember that there is still a lot of poverty. Others remember that there is less than there used to be. Few remember both.

I observe the same phenomenon constantly. The problem, for example, with our students’ civic knowledge is not that it has declined. Scores on civics tests have been remarkably stable over a long period. It’s just that civic knowledge is (and used to be) too low. The same is true of voter turnout: quite flat since the 1970s, but at a problematically low level. I offer additional examples from social policy in “why do we feel compelled to argue from decline?” It seems that you cannot get attention for a problem unless you pose it as a recent and alarming deterioration from a previously superior state. That is an obstacle to taking our most stubborn problems seriously.

on giving content to Fox News

The Fox News website has published four op-eds of mine over the years (“Federal citizenship test: What should a good citizen really know about America?“; “ObamaCare and Millennials: Why lessons of 2014 will last a lifetime“; “What bipartisan budget agreement suggests for future of American democracy“; and “GOP’s future could depend on Romney and your kids“). I believe I also appeared on the Fox TV network once in 2012. When people see these stories on my Facebook page or posted on other people’s pages, the venue–Fox News–draws the most attention. Some assume that the author is a right-winger and attack my position without reading it. Some are perplexed–or pleased–that Fox would run these stories.

I’ve had entirely positive feelings about appearing on Fox. (I also go on conservative talk radio for similar reasons.) But this isn’t a simple matter, and I understand where the critical reactions are coming from.

I would be the first to decry the impact of Fox on our national political culture and on public opinion about specific topics (such as climate change). Some critics may overestimate the political impact of the network; to a significant extent, a media business is a manifestation, not a cause, of public opinion. It mostly serves a market; it doesn’t create one. DellaVigna and Kaplan find that the rise of Fox News affected political outcomes, but not by much: the GOP gained up to 0.7 percent of the vote as a result of its growth.

But a case can be made that Fox has expanded the market for what my colleagues Sarah Sobieraj and Jeff Berry call “outrage,” which, in turn, has debased our political culture and made it harder for us to govern ourselves as a republic. Sobieraj and Berry define outrage as “efforts to provoke emotional responses (e.g., anger, fear moral indignation) from the audience through the use of overgeneralization, sensationalism, misleading or patently inaccurate information, ad hominem attacks, and belittling ridicule of opponents.” Outrage as a genre also has other notable characteristics: a celebrity voice, a purely editorial stance (no original reporting), ideological narrowness, skill at engaging viewers, and lots of mutual references among like-minded commentators. (See Jeffrey M. Berry  and Sarah Sobieraj, The Outrage Industry: Political Opinion Media and the New Incivility.) Outrage sells, and Fox News has pioneered and expanded that market.

Fox does not pay its editorialists or guests who appear on the air. Thus I am not guilty of taking money from the network. On the other hand, I am giving them free content. If they are a malevolent force, one could ask whether that is the right thing to do.

I believe the answer is yes, for these reasons:

  1. It’s not a one-way relationship, with me giving them content. They are giving me and my organization a platform. It is an especially valuable platform for engaging people I might not otherwise reach.
  2. One of our problems as a nation is “outrage,” which is practiced on both the right and the left. Another national problem is the kind of right-wing politics exemplified by at least some of Fox’s hosts. But a third problem is polarization. If we stop trying to reach across the partisan divide, we are giving up on that third problem, which I am not willing to do.
  3. I endorse Archon Fung’s argument in “Deliberation Before the Revolution: Toward an Ethics of Deliberative Democracy in an Unjust World?” (Political Theory, Vol. 33, No. 3, Spring 2005). I’ve written at greater length about this piece before, but the basic idea is that you should presume that a powerful entity will deliberate with you until it specifically demonstrates that it won’t, at which point you are free to be strictly adversarial. You shouldn’t write them off because of their overall record or structure, but try to engage them until they fail to reciprocate. In game-theory terms, this is not a losing strategy, because you are free to disengage. It is rather a strategy for spreading deliberative norms as far as they will go.

talk at the Vermont League of Women Voters

Last Friday, I gave a talk on We Are the Ones We Have Been Waiting For at a Vermont League of Women Voters meeting. The talk itself was the latest iteration of my effort to summarize my book. The conversation that followed was rich and interesting, thanks entirely to the League members and others who had turned out. The whole event was covered on local public-access TV, and the video is below.

how public opinion on social spending has changed: a generational approach

Education spending is pretty popular. In 2012, three quarters of American adults told the General Social Survey that our nation spends too little on education. If you look at that question over time, you’ll find an interesting generational pattern. The three generations born (respectively) before 1926, before 1946, and before 1966 have each held successively more favorable views of education spending. I’d understand that as a story of economic growth and development. Young people have needed increasing amounts of education to flourish in our increasingly complex society. That need became increasingly evident to adults who came of age later in the 20th century. Generation-X, however, has held the same opinion as the Baby Boomers; and the limited data on Millennials suggests they are also in the same camp. The upshot: support for education spending is stable at a high level, buoyed by the majority opinion of everyone born since 1926, and not subject to much short-term change.


Welfare is different story. In 2012, almost half of adults (47.6%) told the GSS that we spend too much on it; one third thought welfare spending was about right, and just 19.1% said we should spend more. I have run a graph showing the “liberal” opinion (we should spend more), but I find the opposite graph more illuminating: see below.

Here we observe the oldest generation only toward the end of their lives, when they (alone) disagree with the conservative argument that we are spending too much on welfare. All the subsequent generations have moved pretty closely together. There have been spikes of concern about excessive welfare spending in the 1970s and the early 1990s. In those upticks, one can see the political opportunity for Ronald Reagan and Newt Gingrich. But there really hasn’t been a significant generational pattern to beliefs about welfare. The changes seem more correlated with short-term economic circumstances and/or government policy. For instance, when Reagan began cutting social spending and when Clinton declared the end of “welfare as we know it,” concern about over-spending fell. The implication: welfare spending is a constant political debate, and who wins at a given moment depends on policy and circumstances.


Finally, Social Security. One might expect that people nearing or in retirement would be the strongest supporters of spending money on this program, whereas younger people would be more reluctant. But the pattern of change over time for each generation is quite subtle, if one can detect it at all. Members of the “Greatest Generation,” for example, have held the same view of Social Security expenditures for the past 30 years. Likewise, Generation X has felt the same since they were young, even though they are now in middle age. The key pattern is a general increase in felt need to spend money on Social Security during the 1970s and 1980s, followed by a plateau. But if anything, the strongest supporters since 1990 have been relatively young adults.


The implication is that Social Security remains very popular (no surprise there), but also that it’s not an old-person’s issue. X-ers and Millennials are actually more supportive than members of the Greatest Generation today.

The education and Social Security graphs look very similar. That is interesting because education is presumed to benefit the young. whereas Social Security focuses on the aged. Yet opinions about spending money for these two purposes track closely.  It would appear that the driving force is one’s general view of the role of government, not a calculation of one’s own needs and interests.