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Monday, September 12, 2011
Friday, September 10, 2010
Pesky Freedom
The Qur'an-Burning firestorm, if you will, of late provides a striking contrast to the ongoing Ground Zero Mosque controversy against the backdrop of things people arguably "legally can but politically should not" do. In a twist of irony, many of those firmly contending that freedom of religion and expression would allow for the Mosque to be built, but it would be in poor taste, are now defending an action that many find to be in poor taste by pointing out its First Amendment justifications.
This being the case, the interplay of the two issues provide a rare and fortuitous opportunity to experience the difficulty of true tolerance. Politics and human nature being as they are, each person is likely to find him or herself more closely aligning with opposing outcomes on these two issues: either that the Mosque should be built and the Qur'ans should not be burned, or that the Mosque should be stopped and the burning go forward. You have already been briefed on my feelings on the former of these issues, and so can likely guess my feelings on the latter, but, feelings aside, I must recognize that freedom need be a two-way street. Niether can the soft sensibilities nor the wayward beleifs of our fellow citizens sway allowance of public discourse and expression. Rather, those are precisely what must encourage further exploration of ideas and, perhaps someday, convergence.
The reality is that the juxtaposition of these two issues can make everyone angry. And in our shared anger at different things, we can all acknowlege our widely differing preferences and inner feelings that move interaction, society, and politics. The hope is that, through that shared experience of gut reactions and outrage, we can understand what drives those whose views we do not understand precisely because it drives us, as well. And, through that understanding, acknowlege the importance of an enemy's right to speak.
"I disapprove of what you say, but I will defend to the death your right to say it." (attributed to Voltaire)
This being the case, the interplay of the two issues provide a rare and fortuitous opportunity to experience the difficulty of true tolerance. Politics and human nature being as they are, each person is likely to find him or herself more closely aligning with opposing outcomes on these two issues: either that the Mosque should be built and the Qur'ans should not be burned, or that the Mosque should be stopped and the burning go forward. You have already been briefed on my feelings on the former of these issues, and so can likely guess my feelings on the latter, but, feelings aside, I must recognize that freedom need be a two-way street. Niether can the soft sensibilities nor the wayward beleifs of our fellow citizens sway allowance of public discourse and expression. Rather, those are precisely what must encourage further exploration of ideas and, perhaps someday, convergence.
The reality is that the juxtaposition of these two issues can make everyone angry. And in our shared anger at different things, we can all acknowlege our widely differing preferences and inner feelings that move interaction, society, and politics. The hope is that, through that shared experience of gut reactions and outrage, we can understand what drives those whose views we do not understand precisely because it drives us, as well. And, through that understanding, acknowlege the importance of an enemy's right to speak.
"I disapprove of what you say, but I will defend to the death your right to say it." (attributed to Voltaire)
Thursday, August 26, 2010
In Defense of (Legal) Marriage
Because our legal system has developed a recognition of “marriage,” and established it as a fundamental right, the logical question then becomes why this legal system would validate one prescribed method of marriage just because it is the method approved by many religions. Two persons of the same sex wanting to enter into such a union should be, legally, equal to two persons of the opposite sex wanting to enter into such a union. If the right exists in a legal sense, religious caveats to it should not enter consideration. Religions themselves remain fully free to offer that recognition/sacrament/etc. to only those they deem fitting their idea of “marriage,” but that is wholly separate from a personal legal right.
The driving force making this issue so charged for people lies, really, in semantics. When the law adopted the notion of “marriage,” it also adopted the term, thus inextricably linking the concepts of marriage in a cultural religious sense and marriage in a legal civil union sense. Indeed, when two people get married by clergy or whoever their religion might have marry them, they often trust that person with signing their marriage certificate and in taking care of the legal details of the marriage. Such actions blur the line as to what portions of the act of marriage are legal and what portions are rooted in religion. This has led to the frustration people experience when what they deem to be “marriage”--a sacrament or an act blessed by God under their system of beliefs--is carried out in a way they view as unacceptable within that system of beliefs. Thus, it seems our legal system has adopted the concept of marriage with some vestiges of religion attached to it. This creates the mistaken view that extending that legal right into a broader, equal, concept is likewise somehow broadening a person’s religious “marriage” to include unions he or she rejects. It’s as though people reason that:
The simple answer to this semantic problem would seemingly be to change all “marriage” laws to “civil union” laws and grant the right to a civil union to any one consenting, of age adult wanting to legally “marry” any one other consenting, of age adult. But there’s that word again. The word “marry” has become such an ingrained concept that there is no other word that could even describe the legal act. “Will you unite with me?” just doesn’t cut it as a proposal when on one knee. And if “marriage” has really adopted such a dual meaning that it means marriage within the religious sense and in the legal right sense (which it has), then the solution is not to give it up in the secular and legal sense. The true solution is to keep the word as it is in the laws and let those who are offended because of their version of the above equation agree to live and let live.
Proper Scrutiny for Prop 8
Under current jurisprudence, sexual orientation is not considered a “suspect classification.” While there is a “fundamental right” for one man and one woman to marry under the Fourteenth Amendment, it has thus far remained unclear whether that fundamental right extends to same-sex couples. Indeed, the indication has been that it must not extend that far because, if it did, laws currently banning same-sex marriage would be facially invalid. Thus, the District Judge in the Prop 8 case proceeded on the basis that there was neither a suspect classification nor a fundamental right involved. This means that only a rational basis standard of scrutiny is to be used. While the Court is extremely deferential to the government when applying the rational basis test, laws have been struck down on this basis for lack of either prong: (1) a legitimate government purpose for the law, or (2) the classification drawn bearing a reasonable relationship to that purpose. A conclusion that there was no legitimate state interest to prop 8, or that the law was not reasonably related to that supposed purpose, strikes it down.
While laws have been struck down under the rational basis test (albeit rarely), courts have given the test more “bite” or “teeth” in cases involved a “quasi-suspect” classification and the interests involved are strong (sometimes called “rational basis with teeth”). The key difference lies in whether the “legitimate government purpose” is one that the court will speculate on or that must be stated on the law prior to the ruling. Here, the District Court reasoned that a quasi-suspect classification was involved (homosexuality) and the interest involved was strong (the right to marry being one that is, after all, fundamental). Thus, the so-called “rational basis with teeth” standard was correctly used and the law, having no stated legitimate government purpose, was correctly struck down.
Ultimately, the broadness of the legal definition of “marriage” has no effect on the narrowness of any religious definition of “marriage.” The key is that the reverse must also be true.
The driving force making this issue so charged for people lies, really, in semantics. When the law adopted the notion of “marriage,” it also adopted the term, thus inextricably linking the concepts of marriage in a cultural religious sense and marriage in a legal civil union sense. Indeed, when two people get married by clergy or whoever their religion might have marry them, they often trust that person with signing their marriage certificate and in taking care of the legal details of the marriage. Such actions blur the line as to what portions of the act of marriage are legal and what portions are rooted in religion. This has led to the frustration people experience when what they deem to be “marriage”--a sacrament or an act blessed by God under their system of beliefs--is carried out in a way they view as unacceptable within that system of beliefs. Thus, it seems our legal system has adopted the concept of marriage with some vestiges of religion attached to it. This creates the mistaken view that extending that legal right into a broader, equal, concept is likewise somehow broadening a person’s religious “marriage” to include unions he or she rejects. It’s as though people reason that:
- my religious definition of marriage = “marriage”
- the legal definition of a legal civil union = “marriage”
- therefore, a change to “the legal definition of marriage” = a change to “my religious definition of marriage”
The simple answer to this semantic problem would seemingly be to change all “marriage” laws to “civil union” laws and grant the right to a civil union to any one consenting, of age adult wanting to legally “marry” any one other consenting, of age adult. But there’s that word again. The word “marry” has become such an ingrained concept that there is no other word that could even describe the legal act. “Will you unite with me?” just doesn’t cut it as a proposal when on one knee. And if “marriage” has really adopted such a dual meaning that it means marriage within the religious sense and in the legal right sense (which it has), then the solution is not to give it up in the secular and legal sense. The true solution is to keep the word as it is in the laws and let those who are offended because of their version of the above equation agree to live and let live.
Proper Scrutiny for Prop 8
Under current jurisprudence, sexual orientation is not considered a “suspect classification.” While there is a “fundamental right” for one man and one woman to marry under the Fourteenth Amendment, it has thus far remained unclear whether that fundamental right extends to same-sex couples. Indeed, the indication has been that it must not extend that far because, if it did, laws currently banning same-sex marriage would be facially invalid. Thus, the District Judge in the Prop 8 case proceeded on the basis that there was neither a suspect classification nor a fundamental right involved. This means that only a rational basis standard of scrutiny is to be used. While the Court is extremely deferential to the government when applying the rational basis test, laws have been struck down on this basis for lack of either prong: (1) a legitimate government purpose for the law, or (2) the classification drawn bearing a reasonable relationship to that purpose. A conclusion that there was no legitimate state interest to prop 8, or that the law was not reasonably related to that supposed purpose, strikes it down.
While laws have been struck down under the rational basis test (albeit rarely), courts have given the test more “bite” or “teeth” in cases involved a “quasi-suspect” classification and the interests involved are strong (sometimes called “rational basis with teeth”). The key difference lies in whether the “legitimate government purpose” is one that the court will speculate on or that must be stated on the law prior to the ruling. Here, the District Court reasoned that a quasi-suspect classification was involved (homosexuality) and the interest involved was strong (the right to marry being one that is, after all, fundamental). Thus, the so-called “rational basis with teeth” standard was correctly used and the law, having no stated legitimate government purpose, was correctly struck down.
Ultimately, the broadness of the legal definition of “marriage” has no effect on the narrowness of any religious definition of “marriage.” The key is that the reverse must also be true.
A Modern Brand of Bigotry
It is usually the case that when an issue rises to the level of prime-time contentious debate, there are at least some articulable rationales to support both sides of the debate. The concept of whether a Mosque can, or should, be built near Ground Zero in New York, however, seems to lack clearly reasoned, or, certainly, legal, justifications supporting those in opposition. It is precisely that lack of an articulable rationale that makes the entire controversy so compelling.
Our society in the United States has made great strides forward in chipping away at tolerance of racism and religious and cultural bigotry. If, today, a neighborhood tried to rally support to keep an African American family from moving in based on their belief that crime would increase, our mechanisms of law and societal non-acceptance would, thankfully, quash such a movement. Public outcry would label the neighbors racist and they would have great trouble finding any mainstream support for their “cause.”
Opposition to a Mosque being built at Ground Zero is no less than a modern-day reenactment of the above anecdote. People are projecting their prejudicial beliefs onto a group in an effort to keep them separate. If an incorrect belief that African Americans are directly related to crime is an unacceptable justification for trying to keep them out of one’s neighborhood, so too is an incorrect belief that Muslims are directly related to terrorism an unacceptable justification for trying to keep them away from Ground Zero. Even if the notion were stated another way–not that people believed these Muslims in this Mosque would actually cause terrorism, but rather that the idea of a Muslim Mosque near a place where terrorism occurred is somehow insulting or insensitive–the analogy stands. An argument that a great deal of crime was committed in a neighborhood by specifically African American persons would still be no better received to justify that African Americans moving in would be somehow insulting or insensitive.
Ultimately, the root of the argument that a Mosque should not be built at Ground Zero must begin with some belief that Muslims and terrorism are inextricably related. There is no route from point A (terrorists attacked the World Trade Center) to point B (a Mosque should not be built at Ground Zero) without some degree of that connection. It is a noteworthy indication that, despite great movements forward toward tolerance and against racial, cultural, and religious prejudice, ideas and actions that, at their core, involve negative, incorrect assumptions based on entire classifications of people can still gain broad public support. And it is a poignant reminder of why “majority rules” is necessarily subject to pragmatic law.
Wednesday, August 25, 2010
Here we go...
After a year of frequent eruptions of political debate in my office–preceded by a lifetime of similar sought-out discussion–I have decided to supplement my passionate political banter with an outlet allowing for more reasoned, uninterrupted editorial prose.
Interpersonal debate about policy, legal issues, and even movie and book tastes, so often devolves into a competition over who can speak loudest and fastest or who can best use tools of argumentative deflection (my personal favorites being (1) accusing your opponent of racism, (2) carrying your opponent’s point to exaggerated ends ultimately ending in world destruction, a la the slippery slope, (3) semantic arguments that redefine your opponent’s words, and (4) using aggressive catchphrases like “you’re comparing apples and oranges” or “you smell”). People turn to these tactics because the elevation of a discussion into a debate–or, worse, to an argument–creates the incentive to win, less you create the appearance that you’ve been bested or, worst of all, you are wrong.
The mission of this blog is, thus, not to be “right” (as much as I do love being right. Seriously. Love.). The mission is to thoughtfully flesh out, using common sense and logic, reasonable solutions to society’s legal and policy challenges.
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