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October 08, 2013

Law, Cultural Consensus, and the Bent Twig Problem

'Tis education forms the common mind, Just as the twig is bent, the tree's inclined.

- Alexander Pope, Epistles to Several Persons 1732

For the past few weeks, the Blog Princess has been pondering the moral legitimacy of laws. Most discussions of this issue begin with bold assertions of how things are (or ought to be). While I would have loved to begin with the answer, I'm having a tough time understanding how one gets to the assertion stage without first asking a few questions.

What does it mean for law to have moral legitimacy?

Should such legitimacy be grounded in shifting cultural consensus or time tested moral principles the current culture may no longer endorse? How does practicality factor into the equation?

Cultures vary widely, but they all recognize law to some extent. Is there some sort of cultural baseline, below which the rule of law cannot establish itself? How does a law come to be viewed as settled? No law is universally accepted, and it's not difficult to think of laws that have been "settled" for decades, yet are still vigorously challenged and debated.

What's the right test for each of these criteria?

Then there's the question of enforcement. What are the acceptable (democratic vs. anti-democratic) ways to challenge a law? What means can governments use to enforce the law?

Finally, is current public morality really the right foundation? A wicked and lawless society will never view any law as legitimate or settled. Neither will a society that views unfettered individual freedom as the chief benefit or goal of civil society. Civilization, by its very nature, absolutely requires both external and internal curbs on individual freedoms and desires. Without the reciprocal willingness of individuals to negotiate a balance between competing individual interests and rights, civilization cannot survive.

Civilization also requires willingness to submit to some higher authority than one's own will. The other day, we stumbled across a discussion about "effective discipline" methods for parents of teens that brought that last point home forcefully. Here's a short summary of the Q and A:

How do I respond appropriately to a 14 year old boy's fresh mouth without overreacting and having things end in an argument?
Look for a pattern. Does he need more responsibility and power? Is the sassiness a cry for respect? Know that when we pay attention to the rudeness, we get MORE of it!

My daughter is 11 (will be 12 in Jan). The one thing she does that drives me crazy is not complying when I ask her to do something...How do I communicate with her that she needs to comply the FIRST time I ask without it developing into me having to lose my temper with her.

Call a meeting and decide what needs to be done. Allow your daughter to decide when and how it will be done, and make her accountable.

Everyone signs the contract, and she can decide the consequence of not having it done...Avoid the "It needs to get done NOW" fights. It hurts everyone.

What do you do with a young teen when threats, or consequences, don't work?

...you need to rebuild your relationship. Let go of the rules and the threats and all that.

Find a way back into his life. You have to aggressively love him, collect him, rejoin him. A teen will take the bullet before he takes the knee, so you have to be the loving force. Start spending time with him that shows you LOVE him and that he is THE MOST IMPORTANT PERSON TO YOU. Laugh. Have joy. HUG HUG, SMILE SMILE SMILE.

With your kids, what are the most effective consequences?

My best consequences are NONE. Meaning, I do the best when I use proactive measures to create cooperation, love, and compassion.

Consequences are ususally [sic] code for PUNISHMENT, and that creates separation and anger.

Whenever possible, I use Special Time, Family Meetings, Family Meals, SNUGGLING, long walks, listening, HUGGING HUGGING HUGGING, and note-writing to find a way into my child's heart.

When we finished PUNCH PUNCH PUNCHING THE DRYWALL HUG HUG HUGGING our inner child and telling it that IT IS THE MOST IMPORTANT THING IN THE UNIVERSE, we found ourselves imagining how her techniques would play out in the workplace:

BOSS: "Last week I tasked you with preparing the firm's quarterly tax return. I told you to submit it to me for review by Friday to allow time for possible revisions to be completed before the quarterly filing deadline this Wednesday."

"Friday has come and gone, and the report is not on my desk. Now it's Monday, and there are only two days left to review and file the report. Where are you on this?"

EMPLOYEE: "I didn't feel like working on this last week. And frankly, this week isn't looking good either - I'm just not in the mood."

EMPLOYER: [HUG HUG HUG SMILE SMILE SMILE!!!] "Uh oh! I can see that my failure to proactively create feelings of love, cooperation, and compassion is causing problems AGAIN! Let's call a meeting, and you can decide when and how the tax return will be completed and what the consequences will be if your goals are not met."

Whatever you decide, I want you to know that you are still THE MOST IMPORTANT PERSON TO ME! More important than the IRS. More important than avoiding late filing fines or legal sanctions that could destroy the business I've built and cause me to fire you! More important than.... well, pretty much ANYTHING! [SNUGGLE SNUGGLE, SMILE SMILE!!!]

As a young parent of two sons, there was absolutely no question in my mind that my primary task as a mother was to train my sons to live in the world as it is, not as I wanted it to be. And the real world is full of consequences - often harsh ones like being fired or going bankrupt - for breaking rules none of us has much control over. The best case scenario for thumbing our nose at the rules is that we don't get caught. The worst case scenario can be imprisonment or even death.

There was also absolutely no question in my mind about who was going to be in charge in our household (and the answer didn't involve holding meetings or signing contracts).

I can still remember the first car pool we formed to ferry my oldest boy and other neighborhood children to school. My neighbor, who had three children, almost invariably got into a tussle with whichever one of her three kids had decided that day that he or she didn't want to go to school, or that he was feeling sad, or sick or... whatever.

It drove me insane. Going to school wasn't a decision when I was growing up, and it wasn't something I negotiated with my sons. I told them to do it, and they did it.

That's pretty much how the outside world works - no one wants to enter protracted negotiations every time their current inclinations conflict with what needs to be done in a particular situation. I always thought that the central idea behind the socialization of children was instilling in them the notion that they aren't the center of the universe. Rather, they live in a world where literally every other person they encounter has his or her own desires and opinions and goals - all of which have to be balanced. We are each part of several overlapping groups: family, neighborhood, class, school, community, country. Each group has its own tasks and goals, and every group membership confers benefits to and levies costs upon the individual.

What this woman is teaching her children is a form of tribalism, in which only the [weak and force-fed] bonds of affection between family members can induce individuals to show respect to others, do what they're told to do ... now, or restrain themselves. There is no real authority - no one with the acknowledged right to direct the actions of others.

So here's the question: if we can't dismiss the way this woman's raising her children as some kind of outlier, and there's virtually no overlap between her view of how the world should work and how the world actually does work, what is the basis for the legitimacy of laws (which are, in the end, only another set of rules)?

Posted by Cassandra at October 8, 2013 06:22 AM

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Comments

Well, to be somewhat flippant, the answer somewhat depends on if you are asking the question in the frame of reference of what should be, or what is.

If we are to deal in the world as it is, then the law is what the people who control the guns say it is. No more, no less. It's not pretty, but there it is.

The entire point of democracy is to determine who *should* control the guns.

Posted by: Yu-Ain Gonnano at October 8, 2013 01:54 PM

If we are to deal in the world as it is, then the law is what the people who control the guns say it is. No more, no less.

I think it's actually pretty remarkable that we have the number of privately owned guns we have in America, and yet the vast majority of people don't use them to flout the law.

It's not hard to understand why individuals wouldn't expect to win an armed run-in with law enforcement, but I don't see armed groups dedicated to resisting the law forming, either.

So there has to be a recognition by most people that they are better off going along with local/state/national laws than not. I suppose that's a third possibility: that people don't necessarily agree with the majority of laws or trust government, but they trust their armed neighbors even less.

I certainly fall into that category.

Posted by: Cass at October 8, 2013 02:13 PM

"but I don't see armed groups dedicated to resisting the law forming, either."

Well, I would say that the drug gangs qualify. In some places they have much more control than the police do.

The law abiding citizens, on the other hand, even if they lose elections, generally agree that elected leaders ought to control the guns.

Posted by: Yu-Ain Gonnano at October 8, 2013 02:40 PM

"What does it mean for law to have moral legitimacy?"

1. It must not oppose nature.

2. It most comport with natural law.

3. It must hold to a legitimately established compact that does not abrogate 1 & 2.

4. It must, in its execution, be applicable to all members recognized by the compact.

5. It must, in its execution, be executed by a legitimate government, i.e., one in harmony with 1, 2, 3, & 4.

The law is not made on the basis of outliers. The driver who speeds to get his desperately pregnant wife to the hospital has broken a law. His offense is mitigated immediately by the policeman who knows naturally, the law, in the situation, no longer has primacy – or later by the judge who berates the policeman for being a fool.

Neither problem, that of the indulgent woman or the authoritarian policeman (second instance) engages with the law. Both are left to the indulgences (or not) of society. If society’s externally imposed value system will not attend to the matter then nothing can. At one time society made demands of its members and imposed social strictures on failure. The dynamic still works, though now it more likely excuses the culprit and admonishes ensuing judgments. In cases such as this, depending on the source and evolution of social insouciance, the law either is moot or complicit, i.e. illegitimate which extends to the inevitable conclusion.

Posted by: George Pal at October 8, 2013 02:54 PM

The law abiding citizens, on the other hand, even if they lose elections, generally agree that elected leaders ought to control the guns.

It's a good thing Grim is otherwise occupied :)

He might not agree with that statement (but I suspect it's true nonetheless!)

Posted by: Cass at October 8, 2013 03:35 PM

2. It most comport with natural law.

Says who? Your idea of what is "natural law" might be completely at odds with someone else's. Religion used to fill this role. "God says" doesn't get trumped within a homogenouse religious group. In a heterogenous group, "God Says" doesn't work anymore. Not unless you are willing to use those guns against the heathens.


"that people don't necessarily agree with the majority of laws or trust government, but they trust their armed neighbors even less."

Actually, I think it has very little to do with trust. Most people, in this culture, simply don't care enough to force other people to do something. They just want to be left alone. Hell, a sizable fraction can't be bothered to get off the couch to push a button come election time. And millions upon millions more can't be bothered to do anything more than that.

Posted by: Yu-Ain Gonnano at October 8, 2013 03:41 PM

George:

I am glad you distinguish mitigating circumstances from the question of whether an act is illegal/punishable or not, and I agree with you on that one.

But I have some questions about your conditions:

1. It must not oppose nature.

OK, I'm going to be a big pain in the patootie, but what does that mean? I would argue, for instance, that most laws "oppose nature" in the sense that they require us to exercise considerably more restraint than nature requires of us.

Here's a good example: we have laws against grown men having sex with little girls because we have this quaint notion that sex should be voluntary and between adults. Girls aren't old enough to fully understand what they're consenting to and the possibly life-changing consequences thereuntoappurtaining.

In Saudi Arabia, you can marry a 10 year old and have sex with her until she dies from internal injuries, but you're not guilty of anything illegal. And that's "nature" for you - there's absolutely nothing in nature to say that men aren't going to be attracted to young girls (they are) or that they can't do pretty much whatever they feel like to any female, young or not.

If they rape a woman, it's her fault for tempting them. And that comports pretty well with the way women would have to behave in a state of nature to avoid being attacked - not do or say anything to tempt a man.

2. It most comport with natural law.

Whose natural law? There are several schools of thought on that one. Islamist see natural law very differently from the way the Western canon typically sees it.

The reason I bring this up is that we have to accept a common set of "natural laws" for this to be a useful condition.

4. It must, in its execution, be applicable to all members recognized by the compact.

So no exceptions except those expressly written into the law? Or no exceptions, period?

Posted by: Cass at October 8, 2013 03:50 PM

He might not agree with that statement (but I suspect it's true nonetheless!)

He might disagree with the statement that they should control *all* the guns. And so would I. I'm not so convinced he would say they shouldn't have majority control. But monopolistic control is right out.

I don't agree with everything in this post, but this is part is right:

If you ban all guns, except for those in the hands of the 708,000 police officers, some of the 1.5 million members of the armed forces, the security guards at armored cars and banks, the bodyguards of celebrities who call for gun control, and any of the other people who need a gun to do their job, then you're sure to stop all shootings.
So long as none of those millions of people, or their tens of millions of kids, spouses, parents, grandchildren, girlfriends, boyfriends, roommates and anyone else who has access to them and their living spaces, carries out one of those shootings. But this isn't really about stopping shootings; it's about the belief that the problem isn't evil, but agency, that if we make sure that everyone who has guns is following government orders, then control will be asserted and the problem will stop.
It's the central planning solution to evil. [snip]
Historically though it's millions of people with guns who follow orders who have been more of a problem than millions of people with guns who do not.

Posted by: Yu-Ain Gonnano at October 8, 2013 03:57 PM

"He might not agree with that statement."

I'll disagree in his stead. Although I don't have his eloquence in arguement. Mine is more based upon the distinct distrust of a government that has clearly gotten too big for it's britches. (How's that for a nice tie in to the woman who doesn't want to be a "Mom"?) The results being Barry Stompypants dictating from the Spite House to make this as painful for the populace as possible. One need only look at the actions of the NPS to see that elected leaders controlling the guns is not such a good idea. When park rangers are throwing people out of their houses simply because they sit upon national park property (never mind the hefty sums of money they pay for the privilage of being thrown out on their asses whenever the government decides they want to), when they are threatening foreign visitors and elderly citizens in Yellowstone with arrest for "recreating" (didn't know there was law against that) and forcing them to stay inside a hotel instead of being able to go outside in a National (as in owned by We The People) Park during their paid for, scheduled tour and all the so-called rangers can say for themselves is, "I'm just following orders." All that's needed now is for some brown shirts and jackboots.
Question: How much futher from kicking people out of their parks, memorials and houses is it until they're taking guns?
Sound ridiculous? So does everything I just spoke of....until now.

Posted by: DL Sly at October 8, 2013 04:07 PM

And while we are on trust, I trust my unarmed neighbors much less. They are the ones who elected a man who is willing to use the violence of the state to throw Gramps and Granny out of their own home because people didn't and won't vote the way he wants: King Barack the Petulant.

Posted by: Yu-Ain Gonnano at October 8, 2013 04:14 PM

Question: How much futher from kicking people out of their parks, memorials and houses is it until they're taking guns?

Still quite a bit, honestly. Given 80mm gun owners, rounding up 10,000/day (a Hurculean task)to take their guns would still take 22 *years*. And that's if you banned all new sales first. Which would kinda telegraph the move.

It's not happening anytime soon.

Posted by: Yu-Ain Gonnano at October 8, 2013 04:25 PM

I wasn't specualting about how soon or even speaking to the logistics of such. My point was more to the fact that these so-called rangers are following orders with the same jackbooted idiocy of Nazi Germany. These are simpletons in park ranger costumes acting like gestapo. It speaks of a mindset that I, for one, am quite disgusted with and distinctly leary of. I have heard rumors of Xerxes replacing military officers with those that vocalize their indifference to taking action against American citizens. Until now, I placed little credence in those rumors. But this makes me think twice. If park rangers are willing to "make it hurt" on command....I hesitate to consider what those in the government who do control the guns and have had their minds poisoned by Xerxes ideological hemlock will do when their orders to "make it hurt" come through.

Posted by: DL Sly at October 8, 2013 05:00 PM

I've always preferred the simplistic view that the idea of the law (because that's all "the law" is) is if people can agree to some basic rules, and trust that the King will enforce those rules fairly, then maybe people will kill each other less frequently and kumbaya.

And... that's all I got.


Posted by: spd rdr at October 8, 2013 05:13 PM

I was actually talking to a co-worker about this. He is rather optimistic that King Barack the Petulent has overplayed his hand with the NPS. Me? Not so much.

There are several ways this could go.

1) King Barack is careful to only go after seniors and others likely to go quietly and stay in a hotel or at worst, quietly go to jail. Rs continue to take the blame as they do now and will take slim losses on election day.

2) King Barack chooses poorly and tries to evict someone who might just shoot the NPS ranger for "Gestapo like behavior". This person will be near universally condemned as a "violent right wing extremist terrorist" taking Godwin's law to the extreme by murdering a guy who was supporting his family paycheck to paycheck and was basically following orders under duress.

There will be some minor skirmishes by the "3%" (which in reality is much closer to the 0.03%) which are put down extremely harshly and quickly.

Republicans essentially cease to exist as a political force for generations.

The more paranoid think Option 2 would not be due to Obama "choosing poorly", but may actually be the plan.

Posted by: Yu-Ain Gonnano at October 8, 2013 05:50 PM

Cass,

In the first place, natural law is not what God says – that would be religion. Natural law is more human instinct but above animal instincts, i.e., it has is imbued with 'reasoning'.

I would set as example of natural law the following:
Who doesn't see that life is good, and innocence a most propitious commencement of it? Who is it that is not certain of it - without recourse to religion, sermon, catechism or commandments, but deep down, in the marrow - that innocent life should never be deliberately destroyed? If it escapes the human being then he is not human, for with no other guide to influence him than mere humanity, he can know and feel that it is wrong. If not, then the soul is lost. The absence distinguishes the human from the animal. The absence makes the animal well beyond the reach of religion, law, philosophy, reason, and wonder. We are not animals, so we can know it is wrong. Therefore a law which did not sustain natural law but would allow the killing of innocents is illegitimate.

Such a law is in accordance with natural law, as it is natural law (the higher instinct) that first speaks to us on this subject and tells us our lower instincts (nature) are not permissible. Islamic laws allowing it are illegitimate.

"Whose natural law?"

Human natural law, once again, the higher instinct. Whatever school of thought of any other culture or individual he is first subject to his humanity – Consider it Natural Law 101 – An Introduction. Before we are anything more we are human. Before we give consideration to anything we consider first does it apply to all humans – if so we proceed. The Islamic contention of the supremacy of its tenets abrogates the human higher instinct that we are, all of us, made with a free will. As Islam will not condescend to such a thing, Islam itself is illegitimate and warrants no consideration.

"Or no exceptions, period?"

It's difficult for me to say. I am open to contention on the point. Have you something in mind? On this point I would offer as an example a law that had in mind everyone but the lawmakers, who are citizens, after all – and of no higher standing or import. Of this example, I would say ObamaCare is, ipso facto, illegitimate.

Posted by: George Pal at October 8, 2013 06:09 PM

I'm a little confused as to why anyone should be giving Barack Obama so much credit?

From what I've seen, the man couldn't plan his way out of a wet paper bag. What has he ever done (other than get elected) that demonstrates the ability to think strategically and maintain focus until a goal has been achieved?

He's good at stirring up hate and discontent. And he's good at manipulating emotions. But I'm just not seeing a lot of complex thought on any subject.

I haven't even seen any evidence that this guy has ANY strong beliefs (other than believing that he is the smartest guy in the room).

Posted by: Cass at October 8, 2013 06:11 PM

The paragraph beginning:

Such a law is in accordance with natural law

refers to grown men and sex with young girls

Posted by: George Pal at October 8, 2013 06:15 PM

That is part of the problem. I don't he has any understanding of the forces he's playing with. He's too busy smashing the other kid's toys in a hissy fit.


But I don't think he's so stupid as to cross the big lines.

Posted by: Yu-Ain Gonnano at October 8, 2013 06:27 PM

About the actual topic, I confess I have nothing useful to add. But my husband and I often debate a somewhat related topic, which is what can or should be done about some outrage or other perpetrated by the Executive Branch that we feel is clearly illegal. I'm inclined to think that the complaint soon ceases to have meaning if the other branches and/or the citizenry don't take effective action to stop the "illegal" action. The experience lately has been that the other branches can't or won't do anything. To my way of thinking, if we voters don't step up, we'll find that the idea of the President "breaking the law" doesn't mean anything any more. The only real discipline being exerted on his actions right now is the fear of losing the Senate in 2014. If voters don't show him he can expect a different group of Senators in 2014, he's going to continue doing any darn thing he wants. He knows he doesn't face any realistic threat of impeachment.

It's a dangerous place to go, as other countries have found out to their sorrow.

Posted by: Texan99 at October 8, 2013 06:32 PM

"...but may actually be the plan."

That, too, is part of my concern.
Although, I bristle at the implication that I'm paranoid.
After this many years of observing this POS and his arrogance, his pettiness, the thinness of his skin, he references "MY military" and yet cuts off the death benefits for the families of the fallen at Camp Bastion due to the *SHUTDOWN*, his willingness to use drones on American citizens in other countries, the speed with which he has jumped into every incident with which he thinks he can foment skin-color animosity -- I honestly think he was hoping for a war in the streets when GZ was found not guilty. What other purpose does it serve to say, "If I had a son, he'd look like Trayvon." (Granted, this was probably the first taste of honesty to ever pass his lips as TM was a drug-addicted thug, too.) if not to incite "his people" to action? Need I run down the IRS, NSA, DoJ, lmnop scandals as indicators regarding those who follow him and their willingness to abort the law in "HIS cause"?

Posted by: DL Sly at October 8, 2013 06:54 PM

The difference being that I don't think it intentional. I think he assumes that there is no consequences for his rhetoric. In Chicago people just took it. They had to. The mafia, which are on the Dem's side' has all the guns. The idea that there could be real push back doesn't even occur to him.

Posted by: Yu-Ain Gonnano at October 8, 2013 07:25 PM

I'm inclined to think that the complaint soon ceases to have meaning if the other branches and/or the citizenry don't take effective action to stop the "illegal" action.

What should we do? According to a great many Democrats, the wars in Iraq and Afghanistan were "illegal" wars.

Who gets to decide what's illegal? Does that require a license, or merely an opinion? Are random people as well qualified to decide that weighty question as people who spend their whole lives studying such matters (and who still don't agree)?

I will openly admit that I'm in a foul and argumentative mood tonight, so please don't take my asperity personally. But when we start defining rules that we only wish to see applied when doing so favors our side, that's a problem.

I though the Left was full of crap with their 'illegal' war shtick. And though I really, really detest Obama, I'm not entirely convinced that many of his actions are as clearly "illegal" as they are made out to be. Bush was widely criticized for his view of the President as a unitary executive. Now Obama is expanding upon that interpretation (which we defended, or at least most of us did during the Bushitler years).

During the Bush years, the Left criminalized political disagreement. Differing interpretations of broad Constitutional principles with less than clear meanings were suddenly "war crimes".

While I have extremely strong feelings about Obama and the direction he's taking this country in (every time he opens his mouth, I feel like punching someone or something), I think any standard we apply to him needs to be one that we would have been perfectly content to have applied when a Republican was in the White House.

And if Sly doesn't enjoy the suggestion that she's paranoid, I have to say that I am no more receptive to the idea that if I disagree about what's just, or right, or Constitutional, or criminal, I'm naive or insufficiently outraged.

Trust me - I'm plenty angry. My loathing and contempt for Obama colors every issue I look at these days.

So I don't *feel* any differently than some of you. But I do come down in a different place, and yet I am fairly intelligent, fairly well informed, and I would like to think I am a good person.

I hope I am. I have spend my life trying to be that person.

Posted by: Cass at October 8, 2013 07:59 PM

"I will openly admit that I'm in a foul and argumentative mood tonight..."

Well, fine then!
heh
0>:~}

Posted by: DL Sly at October 8, 2013 08:21 PM

Remember back when Bush was President, and the Democrats were complaining that he was a king? 0 believed that he would be one when elected, and now acts like a very bad one.


To me, laws that violate nature are those that require or forbid actions that are not possible. My pet example is the contract that requires the existence of a second even prime number, but those that require testimony that is perjury are similar.


Natural law ... Do not harm others or other's property without their permission. Do as you have agreed to, and accept the agreed consequences if you do not. Testify truthfully as you understand what has happened (knowing that others will have other understandings and that your account not matching theirs does not mean anyone is lying, only that you have different understandings -- all of which may be incorrect.)


Cass, it sounds like you are a great Mom.

Posted by: htom at October 8, 2013 10:58 PM

I'll take issue with the presentation of 'Natural Law' as a universally held concept. That term works kinda OK in Western Anglo civilized norm societies, but as others have pointed out these ideas are *not* universal. If you substitute American constitutional law (whatever it's flaws), then the concept works pretty well.

As much as I despise Arabic / Muslim (based on Arabic society) values (misogynistic, violent, ignorant*, intolerant, ect), they are not the only society that does not honor values important to us. Until quite recently child (young teen) prostitution was not only legal in Japan, it was widely accepted. So much so that many schoolgirls were renting themselves out to what we would call perverts so they could buy the latest fashion 'toys,' Go on, google it.

and in most of Africa the very idea of 'natural law' is simply wasted breath; whoever is most powerful takes/screws what they want and the remainder suffer or die. The 'Lord of the Flies' has ruled most parts of Africa for millennia.

*many (most?) education sponsored by Islamists in Madrasa's (K-12 equivalent, mostly boys only) is primarily focused on teaching Arabic, then memorizing the Koran (which sorta formalizes Arabic societal rules).

Best Regards,

Posted by: CAPT Mike at October 9, 2013 05:51 AM

Who gets to decide what's illegal? Does that require a license, or merely an opinion? Are random people as well qualified to decide that weighty question as people who spend their whole lives studying such matters (and who still don't agree)?

As T99 points out, it's supposed to be, first, the other branches of government - the whole checks and balances thing. Power of the purse, veto, Supreme Court rulings, impeachment, etc.

If the other branches don't act, then the citizenry as a whole decides via elections or, theoretically, amendments to the Constitution. This, to me, is the meaning of, "A Republic, madam, if you can keep it."

So for some actions in response to "illegality", one may need a license or a lifetime of study: the Supreme Court reviewing a Presidential action, for example, needs to know the law; anyone seeking to impeach a President or any other government official needs to know the grounds for doing so; a President refusing to enforce a law on the books should have a reasoned legal rationale for doing so.

For other actions in response to "illegality", one needs only an opinion: the House deciding not to appropriate money to fund an action they believe is illegal; the President vetoing bills passed by the Congress; citizens voting out someone they believe has acted illegally.

And, of course, the House can also refuse to fund money for actions they simply don't like; the President can veto a bill just because he disagrees with it; and citizens can vote out whoever they darn well please. Illegality need not enter into it and that muddies the waters, I suppose.

So, in the end, the legitimacy of laws rests upon what one can get away with, with what one is permitted to do by those who could force one to do otherwise. I think this rather disheartening fact can be softened by a general agreement about what is and is not going to be permitted so no one of consequence is pushing the boundaries; thus external control becomes internalized.

A child initially goes to school because his parents require him to; eventually there becomes no question in the child's mind about going to school - it never occurs to him he has a choice. Similarly, we can have a general understanding of what Presidents (bureaucrats, Congressmen) can do and it never occurs to those individuals to do otherwise - they've internalized the controls.

I think part of the problem now is that we have no generally agreed upon set of controls. If we like the results, we don't care about the process. I believe this is more of a problem among those on the Left than those on the Right but it is not exclusive to the Left.

I think another part of the problem is that a significant chunk of the population doesn't consider "the other side" an alternative. Many Democrats would never, ever vote Republican and vice versa. This means that the citizenry will not - cannot - restrain politicians' behavior by voting them out. I believe it also means those who would never, ever vote for the other party must, to avoid cognitive dissonance, excuse, rationalize, and justify whatever behavior their side engages in. This worsens the problem of having no generally agreed upon set of controls.

What's the solution? Beats me. I gave up on the hope of a solution back in March, because of the lack of a firestorm of outrage over the birth control provisions in Obamacare. It seems to me that the country is now made up of "two groups of people who want to make inconsistent kinds of worlds" and I pray fervently that Justice Holmes was wrong about the inevitability of his remedy.

Posted by: Elise at October 9, 2013 08:39 AM

Well, fine then!

Oh yeah! Well I DEMAND THAT YOU SHOOT ME NOW!

Posted by: Cassandra at October 9, 2013 08:43 AM

I think another part of the problem is that a significant chunk of the population doesn't consider "the other side" an alternative. Many Democrats would never, ever vote Republican and vice versa. This means that the citizenry will not - cannot - restrain politicians' behavior by voting them out. I believe it also means those who would never, ever vote for the other party must, to avoid cognitive dissonance, excuse, rationalize, and justify whatever behavior their side engages in. This worsens the problem of having no generally agreed upon set of controls.

Amen, Elise.

I gave up on the hope of a solution back in March, because of the lack of a firestorm of outrage over the birth control provisions in Obamacare.

I know this was a very important issue to you, Elise. I didn't write about it much because unfortunately, I came down on the other side of the issue.

While I really, really, REALLY don't think the government should require *any* employer to offer health insurance that covers *only* female birth control (but inexplicably, not condoms; which last time I checked are the only viable way to mitigate the risk of a whole host of life threatening and just merely horrible STDs for both men AND women), I also cannot bring myself to the conclusion that being required by the federal government to offer health insurance that covers birth control amounts to a violation of individual conscience.

The moral responsibility for using or refraining from using birth control rests with the employee, not the employer. I just cannot see any way an employer is required by conscience to affirmatively take steps to make it difficult for employees to use birth control.

So I think the requirement to cover birth control can be opposed on far more valid grounds than the notion that a religious employer who is required to offer bc coverage by law has personally sinned if his or her employee then decides to use birth control. I'm sympathetic to the argument, but to me it seems the weaker of the two cases against mandated coverage.

Just an aside on ObamaCare's refusal to cover male birth control: Why does this administration hate gay men??? :p

Posted by: Cassandra at October 9, 2013 09:46 AM

I'm very unlikely to vote for a Democrat, but I'm willing and eager to vote out an incumbent in favor of someone who challenges him in a primary.

Kevin D. Williamson quotes Hobbes this morning:

"Nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice or injury; because every subject is author of every act the sovereign doth. . . . And therefore it may and doth often happen in Commonwealths that a subject may be put to death by the command of the sovereign power, and yet neither do the other wrong. . . . And the same holdeth also in a sovereign prince that putteth to death an innocent subject. For though the action be against the law of nature, as being contrary to equity (as was the killing of Uriah by David); yet it was not an injury to Uriah, but to God. Not to Uriah, because the right to do what he pleased was given him by Uriah himself."

That's a view of Natural Law I reject in its entirety.

Posted by: Texan99 at October 9, 2013 09:57 AM

The argument is that by requiring them to fund it, you have involved them in the act they want no part of.

I have a hard time seeing a parent telling their child that pre-marital sex is sinful and then buying that child condoms while comforting themselves with "Well, it's not *my* sin". I don't really see why that same thought process wouldn't also extend to their unmarried neighbors.

There is precedence for this. Vegans still pay taxes to fund the FDA's meat inspections. At the same time, religious moral beliefs have always be treated differently that non-religious moral beliefs.

Posted by: Yu-Ain Gonnano at October 9, 2013 10:11 AM

The employee/employer relationship is not the same as the parent/child relationship, and insurance that covers birth control does not actually provide birth control to any employee unless they first go to a doctor and ask for birth control.

There's a huge difference between going to a store, buying birth control with your own money, and handing it directly to a person and allowing a person access to a store that carries birth control that could be paid for with an allowance you provided to that person for nonspecific health expenses (not birth control in particular).

The first is a direct provision of birth control.

The second is extremely indirect.

Posted by: Cass at October 9, 2013 10:32 AM

The employee/employer relationship is not the same as the parent/child relationship,

True, which is why I included the generalization to the neighbors, whose health care and choices one is, like and employer, not responsible for.

Don't get me wrong, I'm a big fan of BC: chemical, physical, and surgical. The LG and I, by the end of the year will have been consumers of all three. And if I were an employer, my insurance packages would cover it.

But he who pays the piper calls the tune. If I give someone (anyone) money and I don't like how they've spent it, even if it wasn't with the exact paper bills I gave them, I do reserve the right to stop giving them money as I become an enabler to behavior I don't like. No matter how indirect. That doesn't sound improper to me.

Posted by: Yu-Ain Gonnano at October 9, 2013 11:07 AM

Your kind emails of this morning, Cass, prompted me to stop in and see what you were doing here. This is a very interesting question, and an old one. Plato shows us Socrates debating the question with Protagoras and Euthyphro.

It's been debated at great length since. George P. has done an excellent job of formalizing the Founders' view of the right solution. (Your point 1 and 2 are Medieval, George; your points 3 and 4 are characteristically modern. Point 5 would be medieval except that you've formulated it to require 3 and 4, but it's a point that Thomas Aquinas makes a lot of in its medieval form. I have come to believe, by the way, that 3 and 4 directly contradict 1 and 2, and therefore ought to be disposed of the next time we undertake to craft a basic law. But that requires a lot more explanation and time than I have, just now.)

One thing that hasn't changed since Socrates is this: your basic question, Cass, can really only be answered in two ways. All solutions fall into one of these categories.

1) Humans determine what is right and/or legitimate (Protagoras: "Man is the measure of all things.")

2) Some kind of god does.

The problem with answers of type (1) is that it means there is no actual grounding for morality at all -- not laws, not rules, none of it. "Right" disappears, and there is only naked force by groups who agree to require groups who disagree to submit.

The problem with answers of type (2) is not so much getting people to agree to the existence of a divine (most people do), but discerning exactly what the divine will is. Natural law arguments fall here, by the way, either because God is the author of nature, or because nature itself is set up in the position of the divine.

(Some modern philosophers end up putting Reason in the position of 'some god,' especially Kant and Hegel. Marx combines the approach of saying that Economics sets a kind of natural law, but that Reason should help us navigate the logical dialectic to find our way toward a final socialism.)

I like type 2 answers better, as did Plato, in part because answers of type 1 run directly against our intuitions about good and evil. But there are well-known problems for both sides.

Posted by: Grim at October 9, 2013 11:08 AM

the notion that a religious employer who is required to offer bc coverage by law has personally sinned if his or her employee then decides to use birth control

To me, this issue has nothing to do with sin and everything to do with religious freedom.

Posted by: Elise at October 9, 2013 11:53 AM

Elise:

Maybe you can explain this so I can understand it - I usually find your reasoning to be very sound, even if I don't agree with it :p

I'm not seeing the religious freedom issue here. No one's saying, "You can't practice your faith". And I don't see anything in the Bible about Christians having any sort of affirmative duty to involve themselves in the health care decisions of third parties.

Believe me, I've tried! I think Christians can fairly be held accountable for their *own* decisions wrt to birth control. I even think Christians could be held responsible for not consorting with the sort of low-life people who use birth control :p

It's a stretch, but I can see that viewpoint even if it doesn't make much sense to me. It aligns with the Biblical injunction (Old Testament though it may be) not to consort with wicked folk.

What I can't see is how being forced to either subsidize (b/c that's really what we're talking about here - my firm pays 100% of our health insurance premiums, but they're in the minority) a policy that may or may not - depending on the private medical decisions of various employees - possibly be used to pay for birth control in any way prevents Catholics from the free expression of their faith?

For me to believe this, I would have to believe (and I don't) that Catholics have some affirmative duty to actively do everything within their power to discourage non-Catholics from using birth control. And I don't believe that, though I'll freely admit it if I'm wrong on that score.

Catholics can still go to church. They can still make private decisions to obey or defy the church's doctrine on birth control (but what makes this especially problematic is that the vast majority of Catholics don't actually *do* that!). But still, they remain free to obey the Church in their private lives.

Here is what the Constitution has to say about freedom of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress hasn't:

1. Established a religion
2. Prohibited Catholics from practicing their religion (unless by "practice their religion" we mean "actively discourage non-Catholics from using birth control")

I think we need to be careful here, because whatever interpretation we endorse for Catholics applies to Muslims and devil worshippers and Wiccan and Mormons. Yet the law doesn't allow unrestricted right to any and all practices of various religions.

Polygamy is illegal. Human sacrifice is illegal. Deflowering virgins against their will is illegal. And yet these things have all formed part of worship practices endorsed by various faiths.

If the govt said to Catholics, "You must use birth control", I would be right with you. But if government says, "You must provide health insurance or pay a fine (and that insurance must offer free contraception among a whole slew of other benefits that may or may not - according to the dictates of employee's consciences - be used)", I am not seeing the free exercise of religion violation.

Posted by: Cass at October 9, 2013 12:39 PM

Just an aside - as a moral sentiment, I'm actually quite sympathetic to the desire of Catholic hospitals to avoid giving even the appearance of endorsing or providing birth control.

I just can't get from there to that desire being a Constitutionally protected right. But then I don't want the Constitution protecting a whole lot of Muslim religious practices, either.

Emotionally, I'm with you. Mentally, I can't get there.

Posted by: Cass at October 9, 2013 12:43 PM

Here's an interesting case study on this issue.

Years ago we lived in Beaufort, SC. This was at the time when the Beaufort street preachers were haranging and yelling at and following passersby on public streets whilst preaching at them at the top of their lungs.

Now there is no doubt in my mind - whatsoever - that those preachers thought they were "practicing their faith". But their right to practice their faith ends where it conflicts with the right of other people not to be screamed at, called "whores", and intimidated as they walk down public streets.

I don't expect you to agree with me, but can you see the point I'm trying to make?

Posted by: Cass at October 9, 2013 12:47 PM

Grim:

Nice to see you!

re: The problem with answers of type (1) is that it means there is no actual grounding for morality at all -- not laws, not rules, none of it. "Right" disappears, and there is only naked force by groups who agree to require groups who disagree to submit.

Well, I'm not sure that I agree with this. Naked force isn't the only option here. There is also persuasion leading to consensus. Enlightenment writers were able to make all sorts of moral arguments without the ultimate appeal to authority.

And there's philosophy!

The problem with answers of type (2) is not so much getting people to agree to the existence of a divine (most people do), but discerning exactly what the divine will is. Natural law arguments fall here, by the way, either because God is the author of nature, or because nature itself is set up in the position of the divine.

I agree with this :) Even if we accept that "God" makes the rules, what about other Gods? Even the Christian faiths don't agree about what God wants, so it doesn't seem that this resolves anything, really.

Monks in the middle ages were arguing about divine will and we're still arguing about it today :p

That's a good thing, by the way, but it doesn't solve our "what/who's the controlling authority" problem!

Posted by: Cass at October 9, 2013 12:54 PM

The argument is that by making them financially responsible you involve them in the act. By providing the funds for the sin they become an accomplice to sin.

It's not much different than your objection to being made subsidize other people's poor choices. They object to being made to subsidize other people's sin.

Posted by: Yu-Ain Gonnano at October 9, 2013 01:00 PM

But then I don't want the Constitution protecting a whole lot of Muslim religious practices, either.

Generally, most of the laws on religion require one to abstain from doing things. One must abstain from honor killings, one must abstain from raping little girls, one must abstain from burning goats in the yard and such.

Catholics are quite happy to abstain from spending money on someone else's birth control.


There is also persuasion leading to consensus.

And what about those that don't consent? Most societies in history consented to slavery. For *other* people naturally.

Posted by: Yu-Ain Gonnano at October 9, 2013 01:09 PM

Generally, most of the laws on religion require one to abstain from doing things.

The Koran has a lot of passages that require the faithful to wage war upon unbelievers, though. That's my point.

You're assuming all religions are forces for good. And ironically, I"m not necessarily convinced that Islam can't be a force for good. Devil worship, on the other hand....

Catholics are quite happy to abstain from spending money on someone else's birth control.

Not the be argumentative, but as I pointed out this isn't a direct requirement. They are spending money on health insurance that may or may not be used to subsidize birth control.

The better argument, IMO, is that the government shouldn't be telling ANY employer that they have to subsidize health insurance for another person. That pretty much solves the problem of being "forced" (at the risk of incurring a fine) to subsidize birth control.

Posted by: Cass at October 9, 2013 01:30 PM

The argument is that by making them financially responsible you involve them in the act. By providing the funds for the sin they become an accomplice to sin.

So if they give $100 to someone and that person chooses to spend the money on birth control, the donor is an accomplice to sin?

This is too indirect for me. I get your point, Yu-Ain (I really do). I'm just saying that the causal connection is too indirect to be persuasive to me.

Posted by: Cass at October 9, 2013 01:32 PM

The Koran has a lot of passages that require the faithful to wage war upon unbelievers, though.

Sorry, I wasn't clear. Most of the secular laws, US Federal and State, regarding religion are those that require abstaining from an action. Such as our current laws which require people to abstain from waging war upon unbelievers.

I didn't mean to imply religious laws like "Thou shalt not worship idols".

So if they give $100 to someone and that person chooses to spend the money on birth control, the donor is an accomplice to sin?

Yes, that seems to be the argument. And your threat of sending them to jail if they don't pony up the $100 is the infringement of their religious liberty.

You'll also notice I've been careful to say that this is not *my* argument. I'm sympathetic to this line, but can see both sides and remain unconvinced.

Not much charity could happen if you required the other person to be sin free afterwards.

On the otter heiney, if someone approached a Catholic and said "I need $5 to buy condoms" I don't really forsee many reaching into their wallets. I'm not sure the beggar saying "I need $5 so I can buy lunch cause the $5 bill already in my pocket is going to buy condoms" would make the Catholic thing "Oh, well, in that case, OK."

Posted by: Yu-Ain Gonnano at October 9, 2013 02:02 PM

"Oh yeah! Well I DEMAND THAT YOU SHOOT ME NOW!"

Well, I *shot* ya an email. That should count for sumpin, yanno.
heh
0>;~}

Posted by: DL Sly at October 9, 2013 02:08 PM

I think you're conflating two different points, Cass. Yes, there are other perhaps better arguments against Obamacare, the mandates, the government directing what insurance must cover. That's one issue.

The religious freedom is another issue. My understanding is that the government is not supposed to infringe on religious freedom unless there is a compelling interest *and* that interest cannot be achieved by another means. If one believes there is a compelling interest in providing free or subsidized birth control, the government can do so directly; there is no need to infringe on religious practices to achieve the desired end. If there is a compelling interest in outlawing polygamy, the government cannot do so without infringing on religious practices. Ditto for human sacrifice, honor killings, raping little girls. There is simply no way to achieve those compelling interests without infringing upon religious freedom.

Also, to echo what I think YAG's point was: Most laws that infringe on religion require the cessation of certain religious practices: polygamy, ritual sacrifice, marriage to/sex with children under the age of consent. Now we have a law which requires not refraining from an activity but performing an activity. That's a big distinction to me.

I'm not a theologian; I'm not a member of any religious congregation; the religion I was raised in does not forbid the use of birth control. So the following is just my take on the matter.

So if they give $100 to someone and that person chooses to spend the money on birth control, the donor is an accomplice to sin?

Again, I think it's unhelpful to drag sin into this. If I am a communicant in a religion which teaches that birth control is wrong and I give $100 to someone and tell the recipient that it's fine with me if they spend that $100 on birth control, I believe I would be violating the teachings of my religion. I further believe the First Amendment protects me from being forced by the government to violate the teachings of my religion.

This is not about private conscience or differences of opinion about whether birth control is a sin. This is not about me sinning or thinking something is a sin. This is about the government interfering with my adherence to my religion.

Posted by: Elise at October 9, 2013 02:11 PM

If one believes there is a compelling interest in providing free or subsidized birth control, the government can do so directly; there is no need to infringe on religious practices to achieve the desired end

Except for the whole issue of income taxes. How do you say that requiring one to give money to Cigna to provide BC is materially different than requiring one to give money to Uncle Sam to provide same?

This is where most of these analogies break down. Nearly everyone is required to fund some portion of the .gov doing something they object to on religious grounds. This is why, as a necessary evil, taxes and the scope of government should be kept as small as possible.

Posted by: Yu-Ain Gonnano at October 9, 2013 02:31 PM

Taking that further, what is the difference between employer directly giving the employee their wages and that employee buying BC and the employer giving the money to Cigna and doing the same? Why is the direct compensation OK, but not the indirect?

I think it is that in the latter there is a marginal cost expressly for the purposes of providing BC and that this express purpose is what causes a failure of "plausible deniability".

Posted by: Yu-Ain Gonnano at October 9, 2013 02:52 PM

In any case, to get to the original topic, we know that there will not be consensus on this issue. Perhaps a majority believes it is proper, but by what right, power, authority, etc. does the 60% impose it's will on the 40% who often vehemently disagree?

Does the 40%'s capitulation really derive from the trust of the other side? Or the lack of trust of their own? Or that the other side is legitimate simply because there are more of them? Or is it because they fear the threat of jail?

That's the problem of the parent/child analogy in the original post. It assumes the presence of a natural authority. Democracy is premised on the "have the child set the contract and terms" that was being dismissed as implausible. It puts those subject to the laws in charge of writing them.

Posted by: Yu-Ain Gonnano at October 9, 2013 03:15 PM

Cass,
@12:54

"Naked force isn't the only option here. There is also persuasion leading to consensus."

Naked force is the only option, if not of whim, then convenience, then of last resort. Persuasion rarely leads to consensus, and the consensus may not have been persuaded to the good. Persuasion more likely leads to the persuasion of a few and the insouciance of many.

Enlightenment writers had wrestled on paper with moral arguments – and won – on paper. What the world had made of the undertaking was, first, the French Revolution, bathed in rights, Liberté, égalité, fraternité – and drenched with blood. They had the vocabulary and the vernacular down pat. What they didn't have, which the American revolutionists had, was a source, a Divine source - not that execrable goddess of reason.

"...what about other Gods?"

Christians may argue amongst themselves as to the nature of God about which the conclusions are academic. They do not argue about God's creation which is, in many respects, self-evident. The authority that does not deny the evidence of nature, and the detail of it from which we derive purpose, is worthy of a hearing. The authority that denies such should be dismissed out of hand. That leads, really, little to choose from.

Posted by: George Pal at October 9, 2013 03:47 PM

The religious freedom is another issue. My understanding is that the government is not supposed to infringe on religious freedom unless there is a compelling interest *and* that interest cannot be achieved by another means. If one believes there is a compelling interest in providing free or subsidized birth control, the government can do so directly; there is no need to infringe on religious practices to achieve the desired end. If there is a compelling interest in outlawing polygamy, the government cannot do so without infringing on religious practices. Ditto for human sacrifice, honor killings, raping little girls. There is simply no way to achieve those compelling interests without infringing upon religious freedom.

The bolded part of your comment is the Supreme Court's reasoning and test (and I agree that as such, it now supercedes what the Constitution actually has to say on the matter :p

I say this with no small amount of amusement, as that's precisely the kind of judicial interpretation/expansion upon the original text that most conservatives object to vigorously when it leads to an outcome they don't care for.

It's not a bad argument, though :)

Posted by: Cass at October 9, 2013 03:58 PM

Cass:

Thank you. It's arguing with you folks I miss most about the internet. I may have to drop in at times, even if I am doing little more online.

Well, I'm not sure that I agree with this. Naked force isn't the only option here. There is also persuasion leading to consensus. Enlightenment writers were able to make all sorts of moral arguments without the ultimate appeal to authority.

This is Protagoras' position too (in the dialogue that bears his name). He's arguing that man is the measure of all things (i.e., a type-(1) argument about the grounding of morality), and that thus the political art is the art of persuasion. What enables civilization, and all the good things that are only possible among people living together in peace, is the ability of wise rhetoricians to craft agreement among the many.

Socrates thoroughly destroys the argument, not so much by his questioning (which questions are interesting in themselves) as by example. It turns out that Protagoras can't sustain agreement via rhetoric unless he's the only one allowed to speak. Socrates' questions draw him into positions which others in the audience can then be invited to consider. And of course they have their own opinions, such that the persuasive agreement begins to fray as soon as you begin to examine its foundations. By the end of the dialogue, no one in the audience agrees on anything, and the company dissolves.

The questions themselves suggest why. If I (or anyone else) is going to persuade you to follow a course of action because it will produce good things, then there's a kind of hidden assumption about what "good things" are. What is the good? Well, it can't be a course of action we are persuaded is good, because in order to be persuaded of a course we have already to know what "good things" are.

This is why the last winning election slogan was "Hope." It was very persuasive rhetoric, rhetoric on just Protagoras' model. As soon as you ask, "What should we hope for?" you found that every one of his voters had a different answer. He was careful not to ask because it would have all fallen apart if he had tried.

The problem is as big for the Enlightenment thinkers. Kant sets up what reads to me as a type-2 argument with Reason as the divine ground; but if you want to read it as a type-1 argument, you get the same problems as Protagoras. Read Kant's "Doctrine of Right." Allegedly these things are things you have a right to appeal to violence to enforce on others, because you have a right determined by Reason to them.

What, though, if you disagree? It turns out "Reason" is a very poor god. It is supposed to speak to all of us in the same voice -- Kant talks often of 'laws for all rational beings' -- but it never does. So if Reason is not a god, but merely a form of persuasion, it offers us no real ground for rules. We don't agree about what Reason suggests or requires.

Posted by: Grim at October 9, 2013 04:19 PM

How do you say that requiring one to give money to Cigna to provide BC is materially different than requiring one to give money to Uncle Sam to provide same? This is where most of these analogies break down. Nearly everyone is required to fund some portion of the .gov doing something they object to on religious grounds.

Bull's eye!

Again, I think it's unhelpful to drag sin into this.

Unhelpful how? I don't see how one can talk about religious prohibitions on birth control without talking about sin. That's the exact dimension religion adds to the debate. There's already a freedom issue as soon as ANY employer is ordered to provide health care insurance. Religious employers are no more "unfree" in this regard than atheists.

And quite frankly, Christian Scientist or Jehovah's Witness employers have a far greater beef with being punished for not providing health insurance because those churches oppose medical treatment of any kind.

If I am a communicant in a religion which teaches that birth control is wrong and I give $100 to someone and tell the recipient that it's fine with me if they spend that $100 on birth control, I believe I would be violating the teachings of my religion.

That's not a good analogy here because the employer never actually says to the employee, "It's fine with me if you use this benefit (which is part of your total compensation package) to obtain birth control." The employee could just as easily spend their salary (which is part of their total compensation package) on birth control without the employer having violated anything.

I further believe the First Amendment protects me from being forced by the government to violate the teachings of my religion.

Sin IS the transgression of a religious or moral law that prohibits the use of birth control. But the employer isn't using it, so he's neither sinning nor violating the teachings of his religion. The employee, who may or may not share the employer's religious convictions, is the one using birth control.

If we accept this logic, then we must also accept the logic that the EMPLOYER, not the employee, gets to selectively decide which health care services an employee may consume. So an employee gets pregnant out of wedlock. If the employer doesn't affirmatively step in and say, "STOP RIGHT NOW - I WILL NOT ENABLE FORNICATION AND LICENTIOUSNESS!!!", somehow he has violated the teachings of his religion?

Or let's say a single employee contracts an STD. By this logic, antibiotics should not be covered because that would be forcing the employer (who really shouldn't know anything about any of this) to somehow endorse out of wedlock sex?

There are religions that view smoking and drinking as sinful. So no medical conditions related to smoking or drinking can be covered without "forcing" the employer to enable conduct that violates the tenets of his religion?

Sorry. I just don't buy it.

This is not about private conscience or differences of opinion about whether birth control is a sin. This is not about me sinning or thinking something is a sin.

Sure it is, because religions get the authority to tell you that birth control is wrong (in other words, sinful) from God.

This is about the government interfering with my adherence to my religion.

No, you can adhere to your religion's rules all you want. You just don't get to push them onto third parties who don't share your faith.

Posted by: Cass at October 9, 2013 04:22 PM

We don't agree about what Reason suggests or requires.

I could not agree more, Grim. But then we don't agree about what God suggests or requires, either. We don't even agree about whether there IS a God!

Or if we agree that God exists, we don't all agree on which God to worship.

So there's really no appeal to authority that will carry the day unless you're living in a closed society of like-minded (or like-worshipping) people.

Posted by: Cass at October 9, 2013 04:27 PM

It's arguing with you folks I miss most about the internet. I may have to drop in at times, even if I am doing little more online.

I hope you will, when time and circumstances permit :)

Posted by: Cass at October 9, 2013 04:33 PM

"I could not agree more, Grim."

*THUD!*
Mental note: must get more firewood in soon...hell is certainly about to freeze over.
0>;~}

Posted by: DL Sly at October 9, 2013 04:54 PM

I disagree with pretty much everything you say about sin being the linchpin here, Cass. You are arguing the basis for a religion's teaching; I am arguing that the basis is irrelevant to this discussion.

If we accept this logic, then we must also accept the logic that the EMPLOYER, not the employee, gets to selectively decide which health care services an employee may consume.

Um, no. I am arguing that the employer, not the employee, gets to selectively decide which health care services an employer will pay for. And, yeah, I think an employer should be able to say he won't pay for health care that provides maternity benefits to unwed women or that provides treatment for STDs. I think an employer should be able to refuse to pay for health insurance that covers conditions related to smoking and drinking. Heck, I think an employer should be able to refuse to pay for health insurance that covers Viagra and conditions related to playing backgammon if those are important to him for some reason. I might think he's cruel or stupid or likely to not find anyone to work for him but it's his money so it's his choice.

"If I am a communicant in a religion which teaches that birth control is wrong and I give $100 to someone and tell the recipient that it's fine with me if they spend that $100 on birth control, I believe I would be violating the teachings of my religion."

That's not a good analogy here because the employer never actually says to the employee, "It's fine with me if you use this benefit (which is part of your total compensation package) to obtain birth control." The employee could just as easily spend their salary (which is part of their total compensation package) on birth control without the employer having violated anything.

That was your analogy to start with. And it is a good one at least as I understood it: the $100 being given is not representative of the salary; it's representative of the health insurance being paid for which includes coverage for birth control.

"This is about the government interfering with my adherence to my religion."

No, you can adhere to your religion's rules all you want. You just don't get to push them onto third parties who don't share your faith.

First, I can't adhere to my religion's rules if my religion's rules require me to not aid people in the use of birth control.

Second, then Catholic/Baptist/whatever churches have to marry gay couples when gay marriage becomes legal.

I say this with no small amount of amusement, as that's precisely the kind of judicial interpretation/expansion upon the original text that most conservatives object to vigorously when it leads to an outcome they don't care for.

I don't think of this as an expansion but as a clarification. It is not possible to let religion serve as a bar to all government activity so we need to figure out where the line is. The Court balanced the guarantee of the First Amendment with the government's need to act. To me, that is the Supreme Court's job. Where the Court crosses the line from figuring out (interpreting) to expanding to just making stuff up is in the eye of the beholder.

Posted by: Elise at October 9, 2013 05:00 PM

Bull's eye!

Kinda, but not really.

We both agree that this does happen. The conclusions one can draw from that may be different.

One could conclude that because it does happen, it is no big deal and the next occurance may also happen.

One could also conclude that because this does happen, it is a big deal and the next occurance should not happen if at all possible.

Which is, of course, completely independent of something being Constitutional. The C gave congress unlimited spending power. And the power to tax, so long as it was done as instructed, is definitionally not an infringement of any rights.

Whether it is morally an infringement of any rights, the Constitution doesn't care.

Thus the use of one's tax money for providing BC may morally infringe on one's religious liberty (if one holds to that belief) and therefor should not be done as a matter of policy is different than whether is can be done as a matter of law.

Posted by: Yu-Ain Gonnano at October 9, 2013 05:04 PM

I disagree with pretty much everything you say about sin being the linchpin here, Cass. You are arguing the basis for a religion's teaching; I am arguing that the basis is irrelevant to this discussion.

It's not really, though, I don't think. I take it a LOT more seriously when someone tells me that they can't do X because it's a sin (which may send them to Hell in the afterlife) than I take a casual statement that gays make me feel all icky and therefore I don't wish to sell them cupcakes :p

I'm not saying anyone should be forced to sell anyone cupcakes, by the way. I despise cupcakes, with their swirl-y frosting of death and their twee little sprinkles. But if someone *were* to be forced to sell the odious things, I would take the argument that selling cupcakes to gays would endanger someone's immortal soul far more seriously than I would take the argument that gays made someone feel icky. And I hope the law would, too.

Sin is a serious business. We're talking immortal souls and the damning and sulfurous hellfire thereunto appertaining. It's really a fundamentally more serious argument than, say, personal preferences or aesthetics. At least I think it should be :)

Posted by: Cass at October 9, 2013 05:09 PM

I am arguing that the employer, not the employee, gets to selectively decide which health care services an employer will pay for. And, yeah, I think an employer should be able to say he won't pay for health care that provides maternity benefits to unwed women or that provides treatment for STDs. I think an employer should be able to refuse to pay for health insurance that covers conditions related to smoking and drinking. Heck, I think an employer should be able to refuse to pay for health insurance that covers Viagra and conditions related to playing backgammon if those are important to him for some reason. I might think he's cruel or stupid or likely to not find anyone to work for him but it's his money so it's his choice.

But Elise, now we're back to the larger argument - that the federal government really has no business telling employers that they HAVE to offer HC benefits.

I don't see religion as a special case, that's all. And I thought you were arguing that religion IS a special case b/c somehow, exercising the exact.same.right to refuse to offer certain services as the dirty, smelly hippy Atheist employer around the corner somehow violates the First Amendment because it's keeping him from not using birth control, or something.

That's just far too tenuous an argument for me to get excited about when the larger argument is more effective.

Posted by: Cass at October 9, 2013 05:20 PM

Well, there's really nothing that says that a law that infringes on non-religious liberties can't also infringe on religious liberties at the same time.

They aren't mutually exclusive.

And just because people dismiss the non-religious infringment as "not really an infringment" doesn't make the other infringement disappear. Not in the minds of devout Catholics, anyway.

Posted by: Yu-Ain Gonnano at October 9, 2013 05:37 PM

Well, there's really nothing that says that a law that infringes on non-religious liberties can't also infringe on religious liberties at the same time. They aren't mutually exclusive.

Who is arguing that they are? Certainly not me. In fact, I've been saying exactly the opposite: that there's a larger argument that is more universal and more compelling, and I don't buy the narrow, tenuous religious liberties case despite being inclined to take religious liberty very seriously.

And just because people dismiss the non-religious infringment as "not really an infringment" doesn't make the other infringement disappear. Not in the minds of devout Catholics, anyway.

Again, who said it disappears? I just said I don't find it convincing, and convincing your fellow Americans of the merits of your case is how political battles are won or lost.

In order to claim there has been an infringement of a legal right, one must first establish the existence (basis for) that legal right.

The argument was made that the 1st Amendment prohibits Congress from making laws that Congress shall make no law that establishes a religion or prohibits the free exercise of religion. That was explicitly cited as the basis of the infringed right, so I addressed the narrow ground presented.

I pointed out that it's not really obvious that a legal requirement to provide insurance that covers birth control rises to the level where it prohibits the free exercise of religion.

That's a very high bar, and it probably ought to be set high.

Posted by: Cassandra at October 9, 2013 05:56 PM

Well, let's put it this way.

In my scenario, the atheist holds position because his jackwagon based views and thus has his "jackwagon" based liberty infringed.

The Catholic holds the exact some position because of his religious views. How is his "religious" based liberty *not* infringed?

Posted by: Yu-Ain Gonnano at October 9, 2013 06:09 PM

I think we're talking about different things here.

Obviously any law that commands you to do something infringes your liberty. Saying you can't jaywalk infringes your liberty, but it's not so severe an infringement as saying you can't cross the road at all.

Saying you have to provide health insurance or pay a fine, and that that health insurance must cover birth control is not the same thing as preventing you from exercising your religion.

You may not be able to exercise it in precisely the way you wish to, but you're not prevented from exercising it entirely. One is a bar, the other a limitation.

They're related concepts, but not identical ones.

Posted by: Cassandra at October 9, 2013 06:54 PM

Question for the ages: "Is Jackwaggonry Constitutionally protected?"

Answer: it depends....

*running away*

Posted by: Cassandra at October 9, 2013 06:56 PM

The First, ahh, the First.


Congress shall make no law respecting an establishment of religion ...


Not make no law establishing a religion (although I think that's included.) Whatever a religion may establish (priests, bishops, popes, laws, requirements, forbidments, ...) Congress shall make no law respecting that establishment.


Religion forbids you paying taxes? Tough.
Religion requires the death of adulterous person? Tough.
Forbids abortion? Tough.
Requires birth control? Tough.
...


The law is the same for everyone, regardless of their religion's requirements. If such there are, you must obey both.

Posted by: htom at October 9, 2013 07:17 PM

I take sharp issue with your unjust and ungenerous view of cupcakes. I would like a cupcake right now. Indeed, I demand that you enable my free access to cupcakes.

Posted by: Texan99 at October 9, 2013 08:05 PM

But Elise, now we're back to the larger argument - that the federal government really has no business telling employers that they HAVE to offer HC benefits.

I don't see religion as a special case, that's all. And I thought you were arguing that religion IS a special case b/c somehow, exercising the exact.same.right to refuse to offer certain services as the dirty, smelly hippy Atheist employer around the corner somehow violates the First Amendment because it's keeping him from not using birth control, or something.

Yes, I lost the thread there and Real Life kept me from getting back to fix that before you saw it. So, two different things. First thing is the larger argument which is that the government shouldn't be telling employers that they have to offer healthcare benefits. On that we agree.

Second thing is that I believe religion is a special case and that government should bend over backward not to interfere with people's religious beliefs. Not because we shouldn't make people worry about their immortal souls but because religion is, in and of itself, a good thing which is protected by the Constitution.

Begin with the fact that HHS is mandating that employers offer HC benefits and what kind. I don't like it, you don't like it but there it is. I believe that if an employer's religion says that sex before marriage is wrong, that employer should get a religious exemption from an HHS requirement that he buy health insurance that pays for sex partners for unmarried employees. He should not get a religious exemption from buying health insurance with maternity coverage for unmarried employees unless his religion also says that providing help to someone who has done wrong is also wrong.

If an employer's religion says that drinking alcohol is wrong, the employer should get a religious exemption from an HHS mandate that he purchase health insurance that supplies alcohol to his employees. He should not get a religious exemption from buying health insurance that pays for alcohol-induced cirrhosis of the liver unless his religion also says that helping someone who has done wrong is also wrong.

If an employer's religion says that using birth control is wrong, the employer should get a religious exemption from buying health insurance that provides birth control to his employees. He should not get a religious exemption from buying health insurance that pays for a stroke induced by birth control pills or a perforated uterus from an IUD unless etc.

If, however, we begin with me believing religion is a special case and you believing it is not then we have no real argument here. We just have irreconcilable views of the matter. I'm not going to convince you and you're not going to convince me. To quote a wonderful line from an Agatha Christie novel, we face each other over this issue as Agamemnon and Clytemnestra must have faced each other over Iphegenia.

Posted by: Elise at October 9, 2013 08:19 PM

"I take sharp issue with your unjust and ungenerous view of cupcakes. I would like a cupcake right now. Indeed, I demand that you enable my free access to cupcakes."

I second that emotion!! Cuz, someone stole my cookies!
0>;~}

Posted by: DL Sly at October 9, 2013 10:02 PM

Howdy YAG,
and thank you for one of the simplest arguments in favor of 'libertarianism' (aka classical liberalism).
'Nearly everyone is required to fund some portion of the .gov doing something they object to on religious grounds. This is why, as a necessary evil, taxes and the scope of government should be kept as small as possible.'
>>> in nearly all cases, less gov't is better.

Howdy Cass,
There are few (mostly) homogeneous societies, and as an American guy I don't care much for how that tends to play out. Examples:
- (most of) Japan
- (some) Arabic/Muslim societies (Saudi,Pakistan, Iran, etc)
for the record, some homogeneous societies have at least superficial appeal to Americans, including Iceland (very strange place).

Hi Sly, and thanks for 'Thud!'

Special BZ to Tex & cupcakes.


to all, please note that the 1st amendment text prohibits the establishment of (an official state) religion; it does *not* guaranty the free exercise of anyone's individual religion. While the supreme court (emphasis on lower case) has generally interpreted that to include a prohibition against the interference with an individuals personal religion, that was *not* the original intent. The purpose of the anti-establishment clause was to prevent an 'official' (mandatory) religion prescribed by Gov't, as this practice in Europe was still fresh in the minds of colonists.
> if you can require people to declare their obedience to a(ny) religion, then they lose all secular freedoms.

Best Regards,

Posted by: CAPT Mike at October 10, 2013 04:36 AM

NO CUPCAKES FOR YOU! :)

Posted by: The Cupcake Nazi at October 10, 2013 09:44 AM

but it's not so severe an infringement as saying you can't cross the road at all.

So your take is that anything short of a 100% ban is OK?

And if not, is it 99%, or 98%, or ...

I think it should be kept as close to 0% as is possible. Some level is unavoidable, that's just reality. Other people have rights too, so if laws saying no murdering your neighbors for their unbelief conflicts with your religion, then tough. But a person's religious belief that they should not be buying birth control for someone else does not infringe on the employees rights. Not even a little bit.

Now I do agree that a non-religious argument works here as well because, in this case, motives shouldn't matter.

That said, the non-religious "be a jerk" liberty may cover a numerically larger population, people do seem to care much less about "be a jerk" liberties than they do religious liberties. So when it comes to persuasion, I'm don't think that it's at all clear that a large number of "meh" is greater than a smaller number of "Rightious Indignation!!!111!!!!11eleventy". It might be, but it might not, too.

Posted by: Yu-Ain Gonnano at October 10, 2013 11:07 AM

NO CUPCAKES FOR YOU! :) - The Cupcake Nazi

Fraud! You're no Nazi, if you were truly evil you'd give her this cupcake!

Why, yes, I do have trust issues. Why do you ask?

Posted by: Yu-Ain Gonnano at October 10, 2013 12:03 PM

YAG, that's a crime against humanity.
These, however, would be more like it.

Capt, you are most welcome.
0>;~}

Posted by: DL Sly at October 10, 2013 01:28 PM

Umm......

hmmm....

yeah....

Ok....

Uh....

Beer = :-)
Bacon = :-)
Cupcake = :-)

Beer+Bacon+Cupcake = WTF?!?!?!?!?

You broke my math.

Posted by: Yu-Ain Gonnano at October 10, 2013 04:46 PM

"Why not bake a little vegetable surprise into a cake?"

If you even have to ask . . . .

Posted by: Texan99 at October 10, 2013 05:23 PM

Is there going to be a Cliff Notes version of this thread?

Posted by: spd rdr at October 10, 2013 06:26 PM

"Beer+Bacon+Cupcake = WTF?!?!?!?!?"

Seriously! You shirley don't mean that, as a dad, you don't appreciate having all four food groups and dessert all wrapped up in a nifty throw-away package?
0>:~}

Posted by: DL Sly at October 10, 2013 07:46 PM

to all, please note that the 1st amendment text prohibits the establishment of (an official state) religion; it does *not* guaranty the free exercise of anyone's individual religion. While the supreme court (emphasis on lower case) has generally interpreted that to include a prohibition against the interference with an individuals personal religion, that was *not* the original intent. The purpose of the anti-establishment clause was to prevent an 'official' (mandatory) religion prescribed by Gov't, as this practice in Europe was still fresh in the minds of colonists.

I found this essay very helpful in understanding the various views the Supreme Court and, with the 1993 RFRA, the Congress/Executive have taken on the meaning of the free-expression clause:

http://www.firstamendmentcenter.org/free-exercise-clause

Posted by: Elise at October 10, 2013 07:50 PM

So your take is that anything short of a 100% ban is OK?

No. I merely pointed out that there's a big difference between a limit and a total bar :p

There's a difference between Congress passing a law that bans Catholic worship entirely (merely going to church will get you arrested) and Congress passing a law that requires some minority of Catholics who are employers to offer health insurance that includes birth control.

What I'm saying is, "treat different things, differently". View a limitation as being less drastic than a total bar. Don't pretend that any law that puts a limit - be it slight or more substantial - on the exercise of religion prohibits the free exercise of religion.

Telling a street preacher he can yell at or harangue his congregation in church, but he cannot yell at/harangue passersby on a city street absolutely LIMITS his exercise of religion. But it on no way BARS his exercise of religion entirely. It is a time/place/context limit, not an across-the-board one. Being willing to admit that crucial distinction in no way says that all limits are OK. It just recognizes that A is not B.

This is where I get rather frustrated with conservative rhetoric. We are fond of saying that the original meaning of the Constitution is "plain" and obvious and should not be expanded upon. But when we can't torture the plain meaning into the delivering the desired result, we are fine with interpretation - it's just that "our" interpretation somehow becomes the "plain meaning". A limit - any limit - somehow becomes synonymous with an outright, across the board prohibition.

Except it's not. It's really still our interpretation, and when we start talking about what percentages we're willing to accept that becomes very plain.

I like Elise's link because it makes it very plain that there's no consensus on where the line should be drawn and there really never has been. This isn't a simple, obvious bright line type of issue, so to my way of thinking it makes perfect sense that people aren't going to become outraged over it because they don't see that a bright line has been crossed. Voters aren't sure where the line should be drawn because even people whose profession it is to study law and the Constitution don't agree on where the line should be drawn.

Posted by: Cass at October 11, 2013 07:13 AM

Is there going to be a Cliff Notes version of this thread?

Short answer: no :p

Posted by: Cass at October 11, 2013 07:15 AM

"Telling a street preacher he can yell at or harangue his congregation in church, but he cannot yell at/harangue passersby on a city street absolutely LIMITS his exercise of religion. But it on no way BARS his exercise of religion entirely. It is a time/place/context limit, not an across-the-board one. Being willing to admit that crucial distinction in no way says that all limits are OK. It just recognizes that A is not B."

Actually, IMNSHO, all that is being curtailed by telling the street preacher he can't harangue passers by on the street is the that he can't harangue people on the street....for any reason. Were he simply speaking, not yelling and disparaging those who passed him, I doubt anyone would stop him from his personally appointed task. This is a good arguement for not yelling "Fire" in a theatre, but I think you may be missing the main gist of the arguement that is being presented (as I understand it, anyway). By forcing them to provide bc, they believe that they are providing for sin. Just as those who argued that the Piss Jesus *art* display was their free speech right because they believed in it as art (or so they said). This, I think, is where people are making the distinction. Since religion is a belief in something larger than themselves in the first place, then the belief that they are being forced to accomodate sin is a reasonable arguement to them.
At least, that's the way I've seen it as it's played out.

spd,
I would think that Evelyn Wood's greatest student already condenses down all text to Cliff's Notes in the first place, but if you really wanna, I s'pose you could just remove all the consonants as well as the vowels as you skim through.
heh
0>;~}

Posted by: DL Sly at October 11, 2013 02:13 PM

Voters aren't sure where the line should be drawn because even people whose profession it is to study law and the Constitution don't agree on where the line should be drawn.

That’s my point. In 1993, after the Supreme Court decided to revert back to an older, weaker interpretation of the free-expression clause, the voters knew where the line should be drawn, regardless of what those most accomplished students of law and the Constitution said - at least if we assume the President, both houses of Congress, and an armful of civil liberties organizations accurately represented the voters when they passed the Religious Freedom Restoration Act. Twenty years later, voters have no clue where the line should be drawn - and I suspect many of them do not even think there’s a line to be considered. To me, that is a very large change in how this country thinks about religion and its position vis-a-vis the government.

I’m not arguing for or against my take on the free-expression clause being the original meaning. This seems to me to be a clause where interpretation is necessary as soon as government and religion start bumping up against each other. I threw up my hands not because the Supreme Court can’t make up its mind but because I am living in a country where people are indifferent to an issue I consider supremely important.

As an aside, while I was poking around, I found something about an issue raised earlier in this thread:

Except for the whole issue of income taxes. How do you say that requiring one to give money to Cigna to provide BC is materially different than requiring one to give money to Uncle Sam to provide same?

This is where most of these analogies break down. Nearly everyone is required to fund some portion of the .gov doing something they object to on religious grounds.

That issue seems to have been handled in a way that makes sense to me in Adams v Commissioner:

It stated that “the uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest” and “as a result, requiring petitioner’s participation in the Federal income tax system is the only, and thus least restrictive means of furthering the Government’s interest.”

Note that the “compelling interest” here is not the government activity being contested; it is “the uniform, mandatory participation in the Federal income tax system”.

It will be interesting to see if the “uniform, mandatory” aspect informs the decisions on the Obamacare religious exemption cases wending their way to the Supreme Court.

Posted by: Elise at October 12, 2013 02:33 PM

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