Beneath What Is Seen Is That Which Is Unseen

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Tim Sandefur was not happy with me when, in May 2007, the Chapman Law Review, of which I was editor-in-chief at the time, published an article by Steven W. Trask entitled Evolution, Science, and Ideology: Why the Establishment Clause Requires Neutrality in Science Classes. So upset was Sandefur that he not only wrote a scathing attack on it at Positive Liberty (in which he admonished me and several other named individuals to feel “deeply ashamed” of ourselves for our association with the work), but even submitted a rebuttal to the Chapman Law Review, which was published in its next issue. 11 Chap. L. Rev 129, 135 (2008).

Francis Beckwith has now joined the fray by submitting his own letter to the editors of the Chapman Law Review, which letter was recently published in the Fall 2008 issue. Sandefur’s blog response promptly followed.

In this particular debate, Sandefur continues to fail to come toe to toe with the nature of the problem. That is to say, while Sandefur trumpets the utility of science, he ignores the metaphysical objections at issue, most famously expressed by David Hume when he demonstrated that science’s most essential tools—induction and causation—could not be proven by empirical observation. Metaphysics thus underlies all science, and is precedent thereto. Accordingly, any honest practitioner of science must necessarily admit to certain metaphysical precommitments.

As an example of the superficiality of Sandefur’s arguments, in his response to Trask’s article referenced above, Sandefur cites an anecdote by pop-atheist Richard Dawkins that "there are no postmodernists at 30,000 feet." Again, usefulness is not the same thing as knowledge. The question is not how we test whether things are useful, but how we can justify our claims to knowledge in them. I explained this further in a response to a post by Ed Brayton who also joined in blasting Trask’s article, also without coming toe to toe with the metaphysical crux of the problem.

I have no dog in the fight between Sandefur and Beckwith, or between Sandefur and Trask. Indeed, I am interested less (or not at all) with advancing Intelligent Design theory than I am with the fact that so many folks, even highly intelligent ones like Sandefur, appear entirely unable to grasp the limits of science. But Sandefur’s excessive use of strawmen and misdirection in these discussions has been troubling. Sandefur says that anyone who does not subscribe to science qua epistemology (as Sandefur states, “[s]cience is certainly an epistemology”) “[t]hey want equal time for unscientific appeals to supernaturalism.” I don’t know who is talking about “equal time.” As I suggested in a previous post, the competing metaphysical views underlying natural selection theory ought to be presented “in a confined discussion about metaphysics, or, if that makes the scienceniks too nervous, forget the whole thing.” But I don’t hear anyone advocating the teaching of miracles or otherwise subverting the scientific method. If there are, I will gladly join in the arguments against them. As to “unscientific appeals,” science itself is “unscientific,” in that its parameters are defined by metaphysics, not observable demonstration.

Sandefur also states that “they want their acceptance of magic to receive the same respect that rigorous scientific discourse receives.” Again, I don’t know who wants this. Scientific truth is different than metaphysical truth. Once we accept scientific principles, the truths that are derived by that process systematically follow. But the acceptance of “science” in the first place is not and cannot be justified by scientific method. Science is antecedent to metaphysics. The objections are not to the truths that are yielded by scientific process, but to the suggestion that there is nothing, but nothing, that falls outside the scrutiny of science, all the while subscribing to unstated and invisible metaphysical precommitments. Sandefur’s use of the word “magic” is obviously pejorative and designed to dissuade objectors lest they appear foolish and ignorant.

Intelligent Design (at least in the limited sense in which I would support it at all) deals with the systematic limitations of science. It is a metaphysics that purports to address the necessary network of precommitments needed to engage in scientific inquiry. To attack such a metaphysics on the erroneous assumption that it intrudes on science’s territory is not to think too little of the metaphysics, but to think too much of science.

Objectivists such as George Smith have attempted to explain away science’s metaphysical gaps by suggesting that the job is done by self-verifying truths, such as the law of identity. As Rand and her followers like to express it, “A is A.” But this charitably terse expression makes it quite easy to identify where the unjustified and arbitrary leap occurs: the word “is.” At the risk of sounding like Bill Clinton, let’s ask what is meant by that word. If A is A, then the present A is identical to the present A. But that cannot be all that is meant, else the expression would be quite useless. What is also meant is that A has always been A, and that A will always continue to be A. That is, the simple statement makes profound assumptions about the reliability of memory of the past, the predictability of the future, and the orderly perpetuation of the present state of affairs throughout time. Is all of that self-authenticating? Certainly we need to believe all of that to do science. But is something true simply because it is convenient?

The fact is, science cannot account for the metaphysical ideas that justify and sustain it, as well as those contained in natural selection, i.e., the idea that we were directed not by God but instead by nothing. When scienceists insist that they and they alone should be permitted to fill in the gaps of this metaphysical construct with the ideas that they deem appropriate, they run smack into the very problem they started with: the positing of “truth” by arbitrary fiat. And when a critical mass of such folks, particularly when organized around a set of metaphysical principles handed down by a leader given special reverence (viz., Ayn Rand), get together in an effort to proselytize their views, there is a word for that: religion.

The Secular Right contributor going by the pseudonym “David Hume” suggests that the fact that science has metaphysical underpinnings is “true but trivial.” I cannot believe that he truly thinks that. For the non-philosopher, such a statement may be true—talk among pointy-headed intellectuals usually yields no obvious benefit to things that matter to everyday life. But metaphysical truth—including things like rights and law and political theory—is profoundly important to human flourishing. To suggest that the only kind of truth worth knowing is the kind that can be used to build a better coffee maker is incredibly offensive to those who genuinely care about the human pursuit of knowledge.

Does any of this mean that science itself is a religion? No. Not anymore than language is a religion. But like language, science requires its practitioners to bring a metaphysics to the table. That is because science does not provide its own justification for concepts necessary to make it work, like induction, causation, and order.

The pursuit of truth and knowledge is thwarted, not advanced, by lobotomizing entire areas of thought. Despite Tim Sandefur’s call, no one should feel ashamed for refusing to disavow the possibility of truth that casts no shadow.

Update: Jason Kuznicki has this post at Positive Liberty that offers an example of how closely metaphysical questions relating to epistemology, theology, teleology, and ethics are bound up with Darwinian thought.


Derb's Secular Defense Of Traditional Marriage

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Leave it to John Derbyshire to make the case for traditional marriage go over like Bob’s your uncle. Most notably:

(3) There really is a slippery slope here. Once marriage has been redefined to include homosexual pairings, what grounds will there be to oppose futher redefinition — to encompass people who want to marry their ponies, their sisters, or their soccer team? Are all private contractual relations for cohabitation to be rendered equal, or are some to be privileged over others, as has been customary in all times and places? If the latter, what is wrong with heterosexual pairing as the privileged status, sanctified as it is by custom and popular feeling?
. . . .
(6) There is a thinness in the arguments for gay marriage that leaves one thinking the proponents are not so much for something as against something. How many times have you heard that gay marriage is necessary so that gay people will not be hindered in visiting a hospitalized partner? But if hospitals have such rules — a thing I find hard to believe in this PC-whipped age — the rules can be changed, by legislation if necessary. What need to overturn a millennial institution for such trivial ends?

Though I frequently defend religion (I've been a Johnny-one-note lately, for some reason), religious justifications for laws are of the lowest order, and only hold up when there is no animus or are not otherwise demonstrably stupid. Derbyshire's are the kinds of arguments that conservatives ought to be making.


"Mexican Flu" for me...I don't eat pork

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The Religion Clause blog reports that Israeli Deputy Health Minister Yakov Litzman "is suggesting that the disease be called 'Mexican flu' because of Jewish and Muslim sensitivities over pork products." The suggestion seems to be that Mexicans won't mind, as they are quite used to connotations with disease and pestilence; better to associate the deadly virus with them than discomfort folks who'd rather not hear about icky pigs.


Church Victory Against Hostile Local Political Activists

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The Religion Clause Blog has this news on the Grace Church case I worked on. And here's another piece on it. As a student working with Claremont's Center for Constitutional Jurisprudence at Chapman Law School, I explained to the San Diego Planning Commission what RLUIPA (the Religious Land Use and Institutionalized Persons Act) was, and why denying Grace Church a use permit because "we have enough churches" was an impermissible burden on religious exercise. Local politicians generally don't like being told they can't do whatever they want.


If The President Doesn't Make Decisions On Prosecutions, Who Does?

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Robert Gibbs made this curious statement on Meet the Press, according to Fox News:

"The president doesn't open or close the door on criminal prosecutions of anybody in this country, because the legal determination of who knowingly breaks the law in any instance is one not made by the president of the United States," he said on NBC's "Meet the Press."

What could this statement mean? Taken at face value, it is true that "the legal determination of who knowingly breaks the law" is made by the trier of fact--either a judge or jury. But this is true of any prosecution. It would be nonsensical to say that a district attorney does not make decision on who to prosecute, since he or she does not make the ultimate determination of guilt.

Instead, it seems like Gibbs is doing some buck-passing on behalf of his boss. That is, whatever happens, it's going to be either because Congress, or Holder, or the slimy custard man made the call. But the Constitution does not vest the authority to execute the law in a congressional sub-committee or an appointed executive official. It vests in the president.


Meaningless Jobs Are Not Worth Saving or Creating

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I stumbled upon this February 2007 article by Thomas Sowell describing how taxpayer money was used to pay for golf courses. Not because of rich old white guys in plaid pants. If there were more of them, no subsidies would have been needed. No, it was because the lower class workers at the courses needed to keep their jobs.

If you put San Francisco's golf courses on the open market, in a city with a serious housing shortage and sky high housing prices, chances are good that the land occupied by golf courses would quickly be bid away by those who would build some much-needed housing.

Of course, this would make the city's municipal golf course workers unhappy. And unhappy municipal workers can be a big problem for a politician, especially if these are union workers.

How have San Francisco's golf courses been kept going when they cost more to maintain than they are receiving in fees from the golfers who use them? Recent renovations alone cost more than $23 million.

According to the San Francisco Chronicle, "the city closed the gap with $16.6 million from state bond funds meant for recreation and park projects in underserved and economically disadvantaged areas." In other words, the poor have once again been used as human shields, this time to protect golfers.

From the sounds of things, instead of moving away from this absurd model, we've turned directly at it and stepped on the accelerator. No one seems to care if all the jobs the government is creating or saving are worth anything to anyone beyond the folks who will get a paycheck and something to keep them occupied on the weekdays.


Richard Dawkins On Free Will

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I posted this a couple years ago on one of my past blogs. I always find the topic worth revisiting.

The following is a transcript of a question posed to and answered by preeminent scientist Richard Dawkins about determinism. (I cannot now seem to find the original source -- upon a Google search, the only hit returned is a Czech site that appears no more authoritative than my copy-paste job below.) It is a delicious conundrum, and one that, in my experience, is quite impolite to bring up in friendly conversation. Quite like religion and politics. In fact this was brought up in the context of a discussion on religion, so the door of impropriety had already been flung wide open.

Richard Dawkins at Politics and Prose .. The God Delusion
Question and Answer

Questioner: Dr. Dawkins thank you for your comments. The thing I have appreciated most about your comments is your consistency in the things I've seen you written. One of the areas that I wanted to ask you about and the places where I think there is an inconsistency and I hoped you would clarify it is that in what I've read you seem to take a position of a strong determinist who says that what we see around us is the product of physical laws playing themselves out but on the other hand it would seem that you would do things like taking credit for writing this book and things like that. But it would seem, and this isn't to be funny, that the consistent position would be that necessarily the authoring of this book from the initial condition of the big bang it was set that this would be the product of what we see today. I would take it that that would be the consistent position but I wanted to know what you thought about that.

Dawkins: The philosophical question of determinism is a very difficult question. It's not one I discuss in this book, indeed in any other book that I've ever talked about. Now an extreme determinist, as the questioner says, might say that everything we do, everything we think, everything that we write, has been determined from the beginning of time in which case the very idea of taking credit for anything doesn't seem to make any sense. Now I don't actually know what I actually think about that, I haven't taken up a position about that, it's not part of my remit to talk about the philosophical issue of determinism. What I do know is that what it feels like to me, and I think to all of us, we don't feel determined. We feel like blaming people for what they do or giving people the credit for what they do. We feel like admiring people for what they do. None of us ever actually as a matter of fact says, "Oh well he couldn't help doing it, he was determined by his molecules." Maybe we should.. I sometimes.. Um.. You probably remember many of you would have seen Fawlty Towers. The episode where Basil where his car won't start and he gives it fair warning, counts up to three, and then gets out of the car and picks up a tree branch and thrashes it within an edge of his life. Maybe that's what we all ought to... Maybe the way we laugh at Basil Fawlty, we ought to laugh in the same way at people who blame humans. I mean when we punish people for doing the most horrible murders, maybe the attitude we should take is "Oh they were just determined by their molecules." It's stupid to punish them. What we should do is say "This unit has a faulty motherboard which needs to be replaced." I can't bring myself to do that. I actually do respond in an emotional way and I blame people, I give people credit, or I might be more charitable and say this individual who has committed murders or child abuse of whatever it is was really abused in his own childhood. And so again I might take a ..

Questioner: But do you personally see that as an inconsistency in your views?

Dawkins: I sort of do. Yes. But it is an inconsistency that we sort of have to live with otherwise life would be intolerable.
But it has nothing to do with my views on religion it is an entirely separate issue.

Questioner: Thank you.

I always felt it was a surprisingly honest answer -- Dawkins has faith in free-will. Now, if only we might disabuse him by recounting all the terrible deeds that free-will is responsible for, we can cure him of his Volition Delusion.


Some Thoughts On Yesterday's Debate On The "Torture Memos"

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Chapman Law School (my alma mater) yesterday hosted a debate on the so-called "torture memos" between John Yoo and Chapman Dean John Eastman, on the one hand, and Chapman Professors Rosenthal and Darmer, on the other. (See OC Register story here, video here. I won't rehash all of the arguments made, as many of them were repetitive -- liberty versus security, the definition and application of "torture," etc. But one point stood out, as observed by a colleague of mine. There was a fair amount of talk about the first principles of our constitutional republic, and how those are resolved in the face of the "Take Care" clause of Article II section 2 (the president "shall take Care that the Laws be faithfully executed"). The question was answered by both Yoo and Eastman, and can be briefly summarized in that the U.S. Constitution does not create a parliamentary system in which a statute of Congress can abrogate the executive authority conferred by the Constitution, but instead that the Constitution is above statutory law. Thus, the question is not whether the President's actions were unlawful, but whether Congress's statutes were unlawful. But Professor Rosenthal doggedly repeated the "Take Care" clause from his pocket Constitution, to the crowd's delight.

Why would he do this? my colleague asked. Sure he understands the problem, the nature of Yoo's and Eastman's position? Why would he incessantly repeat the argument without at least seeking to advance it beyond the already covered ground?

As I took two courses from Rosenthal, I will note that I was also disappointed in his presentation, but that this is not indicative of the way he ran his classes, at least when I was there. I took Criminal Procedure and First Amendment from Rosenthal, and he is a tough, persistent oralist. I think the emotional component of the issue got the better of him yesterday, something that never happened in his classrooms.

As for the arguments themselves, Rosenthal has a somewhat narrow view of what qualifies for constitutional/legal discussion, and for that reason is extremely unreceptive to natural law or background principles. His view seems to be, if it does not lend to a result that can be demonstrably justified with current data to a contemporary “we the people,” it doesn’t qualify for legal debate. He loves to remark that many historians are puzzled when jurists cite examples from history, since those historians themselves cannot agree on history’s meaning and lessons. Instead, he prefers to cite social science data to come up with pragmatic justifications of what a “reasonable” search and seizure might be. He does not seem to be troubled that such data can come up against the very same argument as history – it can be used to prove anything. Perhaps social scientists are less willing to admit the limits of their craft than historians are.

Given all that, certainly Rosenthal understands the point that we are not a parliamentary system of government. As he is a participant in a debate, of course, it is in his best interests to just ignore the point – most folks will respond more favorably to the “plain,” unscrutinized meaning of the Take Care clause. The argument from constitutional first principles is even an uphill one in the academic community at large, so, if you’re Rosenthal, better to just leave it alone than to give the other side the opportunity to advertise and explicate the position.

Is it honest? No. If he were a lawyer, there would be no problem with ignoring, as long as possible, a legitimate view that, if accepted, would demolish his own. [Come to think of it, there are problems with that.] As a professor in a debate about the law (i.e., rather than over a particular outcome), however, it was improper and a disappointment.

[Find the full debate podcast here.]

[See Stephen F. Hayes's article, "The CIA interrogation debate is joined," at The Weekly Standard, on the Obama administration's double-talk on the interrogation issues.]


Humanity Without Religion Ceases To Be Humanity

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John Derbyshire suggests that the question "Can humanity survive over the long term without religion?" can be answered in the same way as the question "Can humanity survive over the long term without music?" I disagree. Religion is not "just a feature of the general human personality." On the list of qualities that make up our humanity, I would put religion closer to language. Thus, imagine that all known languages were obliterated. Humans, so long as they remain such, will forge ahead with some new way of communicating, i.e., through language. Similarly, even were we to reject every known systematic method of organizing metaphysical premises in order to make sense of the observable world (i.e., religion), we will forge some new one. This is because, of course, the pursuit of knowing things is essential to being human. That is to say, without music, we might say we would be "less" human. But without language or a method of knowing stuff, it is fair to say we would cease to be human at all. Featherless bipeds, more like.

At its root, religion is really little different from metaphysics. And humans need metaphysics for important things like, well, knowledge and morality and justice and so forth. Every religion takes on a culture of its own, and adopts a fair number of silly and nasty habits. These idiosyncrasies really seem to get atheists and secular humanists and "brights" and what-have-yous all bustling with agitation. But to deny metaphysical truth, which is the kernel of religion, is to yank out the whole foundation of human knowledge.

[Some further discussion on this point at Secular Right.]


Steve Schmidt Thinks Sticks and Stones Will Break Conservative Bones

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Former McCain campaign manager Steve Schmidt says Republicans should drop the anti-gay marriage angle to avoid appearing "sectarian." If the suggestion were purely strategic--i.e., to enlarge the tent--I could understand it (though I would still disagree). But I take issue that there is something wrong with holding "sectarian" views. After all, what else is there? We all hold deeply personal views and seek to demonstrate the rightness of them. Perhaps Schmidt is suggesting a framework that says moral views are irrelevant in the political arena, or that the only appropriate moral limit to one's freedom is that which keeps it from harming another. Either way, Schmidt sounds like he needs directions to libertarian HQ. But everyone gets called a bigot and an elitist sooner or later no matter what views they hold. Even libertarians. It is hard to see any nobility or useful strategy in just conceding the point.


Bruce Ledewitz Says Secularism Needs Religion

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From today's Huffington Post column, "Secular Life in Post-Christian America":

As I have argued on this blog and in my book Hallowed Secularism, the easy assumption that secular culture will be healthy without religion may prove to be false. Secularists have an unwarranted confidence in themselves and in a new cultural formation. In contrast, I think raising children without religion is quite difficult.

Let me take a specific example. Daniel Dennett came to the New School in New York City in March and told an audience that they should all repeat to defenders of religion that "people can be good without religion." Dennett presumably exults in the decline of Christianity.

But religion by and large does not claim that it makes people good. Instead, religion, and especially Christianity, begins with the proclamation that people are not good. We lie, we cheat, we steal, we cheat on our spouses and we allow a billion people in the world to live on a dollar a day.

Which is more realistic about human nature, Dennett or the classic Christian view? And what, and for that matter how, will you teach your children the truth about such matters?

Undoubtedly, the decline of religion is inevitable in a scientific culture. Something, however, must replace religion's wisdom and insight. I assume that whatever that something turns out to be, it will have to borrow from the best of what religion has to offer if it wants to be successful in promoting human flourishing.

I agree, obviously, as I've suggested repeatedly.


No Animus, No Scrutiny—Or, Another Reason Why Iowa's High Court Was Wrong

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After reflecting further on the Iowa Supreme Court’s decision last week in Varnum v. Brien, invalidating that state’s marriage law, it occurred to me that the court’s error was one fundamental to the understanding and structure of equal protection rather than a mere error in application. The court proceeds as one would expect: determine that the law discriminates against a class; determine that that class is a suspect one warranting heightened scrutiny; determine that there is no important state interest; and thus determine the Iowa marriage statute is unconstitutional. What the court fails to analyze, however, is the very touchstone of the equal protection analysis: the existence of animus behind the law, which animus is necessary to strip a law of its presumption of constitutionality.

All laws create classifications. Real estate brokers are subject to a set of regulations separate from mortgage brokers, separate from investment brokers, separate still from doctors, lawyers, and pest exterminators. The equal protection doctrine—whether federal or state—does not make any of these regulations unconstitutional on the basis that they treat groups of professionals differently. Obviously, such would put a quick end to most laws—a happy result for some, but certainly not the objective of equal protection. Instead, its objective is to prevent majorities from enacting laws for some improper purpose other than the health, safety, morals, and welfare of the people.

The 14th Amendment, obviously, sought to rid the states of laws that were premised on wrongheaded notions of race, which had cropped up in part due to an effort to legitimize and prolong the hopelessly illegitimate and doomed institution of slavery. Because of that particular unfortunate history, laws making classifications on the basis of race would have to be carefully and seriously monitored by our counter-majoritarian courts. And, because legislatures could easily hide its true motives, the only way the courts could achieve that purpose was to create a presumption that distinctions based on race were based on animus, and thus put the onus on the states to prove otherwise. This is what became known as strict scrutiny, where the state would be required to show a “compelling” state interest for the discriminatory law, and that it was very narrowly tailored to achieve that interest.

As tends to happen in constitutional law, doctrines that are designed to remedy a particular evil turn into abstract constitutional principles that might be extended to cure all sorts of other social ills, whether real or perceived. And rightly so: words refer to an infinite number of things, and the 14th Amendment is not limited just to “any person” living at the time of its enactment, or “any person” affected by the racial attitudes of the 19th century. Thus, its application to irrational laws discriminating against women was an appropriate extension of the doctrine, to the extent that application established a suitable basis for assuming an improper purpose on the part of the legislature.

This is precisely what is lacking in Varnum v. Brien—any demonstration that Iowa’s marriage law was premised on any animus against homosexuals. The best it can muster are generalizations ("the historical reality . . . of purposeful and invidious discrimination" (Varnum at 37), the U.S. Supreme Court's rebuke of Texas's anti-sodomy laws in Lawrence v. Texas, federal military policy regarding homosexuals, and, most amusingly, the specter of unnamed "[s]chool-yard bullies" who mete out "school-yard prejudice" (Varnum at 37-38). The court does not even guess whether or how much any of these supposedly "purposeful and invidious" acts of discrimination occur within Iowa's state lines.

Curiously, however, the court goes on to describe the huge strides Iowa's legislature has been making to curtail such abuses, making frequent allusions to the various advances in the cause of gay rights, various Iowa civil rights statutes calling an end to all sorts of other forms of discrimination, and noting that civil marriage is the "notable exception to this trend." (Varnum at 47-48.)

The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes include certain offenses committed because of the victim’s sexual orientation, and by prohibiting “harassing or bullying” behavior in schools based on sexual orientation. See Iowa Code §§ 216.2–.18A (Iowa Civil Rights Act) (sexual-orientation-based discrimination); id. § 280.28 (school harassment and bullying); id. § 729A.2 (hate crimes committed because of the victim’s sexual orientation). These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation based discrimination.

(Varnum at 38.) In other words, the Iowa General Assembly is on the case; it does not need its Supreme Court to tell it how to address the needs of that state’s gay community. Whatever ills that community has or is suffering is clearly being considered—and favorably, the court seems to think. Except for the gay marriage issue, of course.

But Iowa is in good company in that regard. Forty other states have banned same-sex marriages, despite the fact that gays have been consistently advancing their civil rights across the nation. The fact that they continue to lose on the issue—just one, single issue—of civil marriage should be telling: it is not due to a general animus or reluctance to give civil rights or dignity to homosexuals. It is merely because there are certain attitudes towards marriage that continue to make it difficult to reconcile a cultural worldview in which gays share that peculiar and almost mystical institution with straights. (After all, some women still torture themselves over whether they can “wear white” on their wedding day—weddings and marriage come with a lot of odd strings from whence we know not.)

One thing is sure from the court’s opinion: there is no animus against gays underlying Iowa's marriage statute, no “unfair and severe prejudice” that would establish a presumption of discrimination based on sexual orientation. (Varnum at 48.) Were it otherwise, how could one explain the great advancements in all other facets of life and dignity that the homosexual community has made, both in Iowa and nationally?

Thus, the “important state interest” requirement (applied in instances of the “intermediate” or “heightened scrutiny” analysis) should not have been imposed in Varnum. This requirement is needed to overcome the presumption that there is animus behind the law, an attempt to irrationally or wrongfully deprive a suspect class of a right. That was not happening in Iowa.

Usually, moral legislation can only withstand the lax rational basis standard, and gets struck down if any higher level of scrutiny is applied. Higher levels of scrutiny requires the law to be justified by an empirical, demonstrable purpose—i.e., not merely a moral one. Even assuming, for the sake of argument, that homosexuals were being deprived of a right, and even assuming, for the sake of argument, they were a suspect class, the specific overrides the general. That is, if there is no improper purpose behind the specific law in question, it matters not whether the suspect group has suffered some generalized historical marginalization. And in this specific instance, no animus can be imputed to the legislature with respect to Iowa's marriage statute, and thus it is immaterial whether such animus perhaps could have been generally applied for other kinds of discrimination against Iowan homosexuals. (Then again, even this would be hard, given the activism on Iowa’s part to eradicate discrimination and ill-treatment of gays. But it is even more difficult to show discrimination in the context of marriage, since this is an institution steeped deeper in religious heritage, and which has exhibited a pattern of resistance all over the country, as the court itself notes.)

Without animus, classifications are fine. The equal protection clause was never meant to prohibit classifications—we require all sorts of different licenses and standards for all sorts of different things and group of people. It only prohibits the kind of irrational and invidious discrimination like the racial discrimination that plagued us for many decades and centuries. I even submit that, were the last trace of that irrational and invidious tendency to discriminate based on race to leave humanity for good, we would be free to discriminate even upon that basis, subject only to a rational basis standard. (This despite Justice Thomas's concurring opinion in Missouri v. Jenkins.) Granted, such a hypothetical involves a utopian ideal of complete racial blindness and is thus probably entirely theoretical. The point remains, however: no animus, no searching scrutiny.

Scrutiny should only diminish over time, never increase. Our society is progressing on its own, adopting more and more inclusive mores and attitudes. While we will never reach utopia, things are getting better, not worse. Unfortunately for some jurists, this means fewer opportunities for courts to invalidate laws on the basis of invidious discrimination. At least, it should. Courts like Iowa’s will still find animus where there is none in order to accelerate social change to their satisfaction.


Which, Not Whether, Religion

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President Obama is on record for disclaiming America as a "Christian nation," claiming that "we do not consider ourselves a Christian nation or a Jewish nation or a Muslim nation." This is nonsense.

Being “bound by ideals and a set of values” untethered to any systematic moral framework is going to involve a very fluid and expedient understanding of those ideals and values. Systematic theology (i.e., religion) provides a framework in which such ideals and values can exist in a non-arbitrary fashion, in which their respective priorities can be assessed, and in which practical application can be worked out. The ideals and values without the originating framework will last only so long as they are expedient to some other end. That ad hoc system of reorienting and reprioritizing the ideals and values forms the basis of a new religion, to the chagrin of contemporary disestablishmentarians. Rinse and repeat.

The question is always what our religion is, not whether we have one.


The Human Need for Religion Hates a Vacuum

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I stumbled across two stories today that provide anecdotal evidence for something I've suspected for some time: that the decline of traditional religion will occur contemporaneously with the rise of a replacement "religion." Compare this post noting the decline of religion in America, with this article noting a contemporary trend of "baptism" among atheists.

That "replacement religion" I have described before as "scienceism."


Support for Professors Yoo and Rotunda and The Right of Free Speech

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Below is my letter to the editors of the Chapman Panther in support of Professor Ronald Rotunda's piece, "The right of free speech, regardless of what is spoken":

Kudos to Ronald Rotunda for his piece, "The Right of Free Speech, Regardless of What Is Spoken," for steering clear of the faux legal argumentation polluting the airspace in the debate on detention and interrogation policy. Many attorneys, even those among our law faculty, cannot withstand the temptation to make a legal-shaped block fit in a moral-shaped opening. These "legal" arguments have taken a couple different forms, including a particularly creative one: that the memos written by Professor Yoo and others were legally inept and thus do not qualify for First Amendment protection. It is a clever position that seeks to paint those authors as unmitigated advocates of torture -- perhaps out of concern for national security, or perhaps just out of sadism. So stripped of legal privilege, as the strategy goes, Yoo and co. are now exposed to endless moral stone-throwing by an indignant populace growing ever colder on our nation's "Overseas Contingency Operation."

But this is not a serious argument -- certainly less, at least, than John Yoo's analysis of the legal merits of the administration's positions. To take just one example, Professor Yoo's March 14, 2003 memo -- a veritable treatise at 81 pages on every imaginable domestic and international source of authority respecting the treatment of detainees -- exemplifies the rigor to which the administration subjected the legal issues at play. Yoo even discusses hypothetical defenses based on necessity and the sovereign right of self-defense, which might be raised in the event the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not).

Recently, at The Volokh Conspiracy (, University of Minnesota professor and former White House ethics attorney Richard Painter, took issue with these defenses as described in Professor Yoo's memo, apparently because they do not answer whether they are likely to be successful or not. Of necessity, any discussion on the defenses available in such unprecedented circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. Thus, attacks from folks like Painter are pure form over function, because, under their view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a court's ruling would be impossible without knowing the politics of the particular judge."

But Professor Yoo took as good a crack at it as can be asked of any lawyer called upon to opine on moral philosophy and political theory -- areas that are "above his payrate" as an attorney giving legal advice. For his efforts, he now receives steady lashings from folks who would modify legal arguments to advance their moral cause. But the real losers are those of us who actually do want real scrutiny on the moral issues at stake: All the noise and chatter from wrong-headed arguments – making legal claims in moral arenas – give the impression that there are no good reasons to be critical of our nation’s interrogation and detention policies. There are. The importance of the moral questions are diminished by blustering legal responses. Lawyers ought to stop offering them.


Iowa Joins in the Destruction of the Rule of Law

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Iowa’s Supreme Court today withdrew from its citizens their civic right to determine their state’s policy regarding marriage, holding that sexual orientation was not an “important respect” of that institution’s makeup. [PDF of the opinion.] Regardless of how you weigh in on the issue of gay marriage, the opinion is an affront to our nation’s tradition of justice. It is a superficial power grab designed merely to advance a moral conclusion through an abuse of legal process. (If you are new to the evaluation of judicial opinions, this is the very characterization we use now when talking about the Dred Scott decision, now haled as one of the worst, if not the worst, opinion in the Supreme Court’s history.)

How superficial is the Court’s reasoning? Iowa Code section 595.2(1) provides “[o]nly a marriage between a male and a female is valid.” According to the Court, “The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage.” (p. 13.) But don’t forget polygamists and kissing cousins. If we were truly using outcome-neutral legal reasoning, we have to recognize that these groups are also excluded. And there is a simple reason for this exclusion: people don’t like it. They think it’s icky. If and when they ever stop thinking it’s icky, and if there’s a critical mass of such folks clamoring for their “right to marry,” they’ll likely get it.

Many people still think gay marriage is icky. The tide is shifting in that area, but the scales haven’t tipped yet. But there is no “equal protection” violation in refusing to recognize a marriage between a couple of men any more than there is in refusing to recognize a marriage between a couple of siblings, a couple of 14-year-olds, or a quartet of what-have-you’s.

Let’s see where Iowa’s precedent would leads, by substituting the aforementioned groups in the following language from the opinion:

Thus, the right of a gay or lesbian person [or a polygamist, or committed cousins] under the marriage statute to enter into a civil marriage only with a person of the opposite sex [or just one other person, or just another unrelated person] is no right at all. Under such a law, gay or lesbian individuals [or a polygamist, or committed cousins] cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute.

Of course, Iowa’s decision is not meant to be read as judicial precedent. It is simply a statement of law – more like a statute. Statutes are fine, when they are passed by a body of representatives duly elected by the people. But not when they are handed down by judges.

The Court concludes that the “plaintiffs are similarly situated in every important respect, but for their sexual orientation.” (p. 28.) Who decides which respects are “important”? Why, the folks in black robes. You can keep your ballots. Put them in a scrapbook to show your grandkids how our nation decided policy matters before judges decided they were better at it.

I would prefer very much that lawyers and anyone else purporting to make legal arguments to advance moral positions just stop it. This is not what legal argumentation is for. As someone who cares very much about the rule of law and the proper exercise of the democratic function in our republic, and markedly less about whether gay marriage is actually sanctioned, I dislike having to rant about the wrong-headedness of gay marriage advocates. I have several gay friends, and my wife and I enjoy visiting with them, particularly at Christmas parties and summer barbecues. I worry that someone would misinterpret my advocacy for the rule of law into a misguided basis of some accusation of "hate-mongering."

The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning.

Please stop destroying the rule of law.

[Update: Some discussion on these points at Dispatches From The Culture Wars.]


Who Cares About the Constitution? Not Eric Holder

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In another Obama administration affront to the rule of law, Attorney General Eric Holder is reportedly rejecting the Office of Legal Counsel's opinion that the controversial D.C. voting-rights bill pending in Congress is unconstitutional. This despite our Constitution's clear prohibition of that bill under Article I, Section 2, which states "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." (Emphasis added.)

As Andy McCarthy points out,

None of this means it is a bad thing to want Americans who live in D.C. to have representation in Congress. There are ways of accomplishing that: amendment of the Constitution, the grant of statehood to D.C., or retrocession to Maryland (part of the District having already been ceded back to Virginia). Aside from being legal, those methods would not create the host of problems that would result from the current legislation (e.g., Why only a member of the House but not two in the senate? Why voting rights for D.C. but not Puerto Rico, American Somoa, Guam, and the U.S. Virgin Islands?).

But pushing through a constitutional amendment or a grant of statehood would be hard, even for Obama. Trampling the rule of law has proven much easier.

[P.S.: If there is any doubt that I am more concerned with constitutional fidelity than politics, what in heavens would I care that D.C. residents get a measly representative in the House? I should probably be ashamed, but I do not even know the representative for my district, or how in blazes he has been voting lately.]

[Update: Volokh has updates here and here.]


America, We Found the Rest of Your Lost Money

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Although AIG execs are coughing up their contractually valid bonuses, it was only a small portion of the ocean of our nation's missing wealth. Thankfully, Obama and the Dems have found the rest -- all our sneaky, greedy, invisible unborn grandchildren have it:

You little munchkins gotta show yourselves sometime. When you do, you're gonna make with the margarita-maker money.


It’s Still OK to Make Moral Arguments

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With my tirade out of the way about finding legal arguments where moral ones should be, I would be remiss if I did not also emphasize the importance of public scrutiny and civil dissent regarding our interrogation and detention practices. To this end, a reader directed me to two good articles, here and here, that should set the alarm bells ringing as good moral citizens.

Again, although I believe there is extremely broad, if not unlimited, discretion regarding what an American president can do as commander-in-chief with respect to foreign affairs in furtherance of national security interests, we should not be so agnostic as to what should be done, and not be done, to secure these ends. After all, we are the Zeitgeist -- our attitudes shape the background limits of cultural and moral acceptability. These attitudes need to be articulated.

So, at the risk of extreme self-deprecation, don’t give the devil (i.e., folks like me) a foothold. All the noise and chatter behind the wrong-headed arguments – making legal claims in moral arenas – gives the impression that there is no good reason to be critical of our nation’s interrogation and detention policies. By conjuring up elegant-sounding legal arguments that fall flat in the end we take attention away from the important (although squishy) moral issues at stake.


In Defense of John Yoo

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After having read through much of Yoo’s 81-page memo, it is even clearer that Painter’s conclusions are premeditated. The memo amounts to a treatise on every imaginable domestic and international source of authority respecting the treatment of detainees, both constitutional and statutory, and even including reviews on maritime, maiming, and interstate stalking laws. In the time I could spare from my day job reviewing the memo, it is sound legal analysis, drawing the conclusion that the text and structure of the law in light of the factual background indicate that the relevant authorities do not extend to alien enemy combatants held at Gitmo.

The paragraph that Painter criticizes comes at page 80, in a section titled “Defenses,” in which Yoo explains what arguments might be made in the event that the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not). Of necessity, any discussion on the defenses available in such unique circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. But Yoo takes as good a crack at is as can be asked of any lawyer called upon to opine on legal and moral philosophy and political theory. For his efforts, he now receives steady lashings from folks like Painter.

As for the self-defense argument about which Painter thinks so little, I have to agree with Yoo. As I said before:

The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process.

The common response to such arguments is that we may win the battle but lose the war by forfeiting our decency. Our leaders are not permitted the luxury of giving moral evils a wide berth and comfortable margins of error. They must skirt the ethical line in carrying out their prime directive of keeping us safe. The continued existence and prosperity of our nation requires both decency and not being blown up. One would be loathe to give up on either, but pressed, only one of those things is given to diminution.