Wednesday, February 26, 2014

That word, it does not mean what you think it means

In US states such as Kansas, Idaho and Arizona a new legislative push is on to create a religious entitlement to treat (a specific group of) fellow American citizens like crap. What's more, it is being paraded as a defence of religious liberty.

The process kicked off in Kansas, where the lower House passed House Bill No 2453 (pdf), whose short title is AN ACT concerning religious freedoms with respect to marriage. The bill would establish the legal right of any individual or religious organisation to refuse to provide any service to a same-sex couple, even if legally married in another US state provided, it is done on the basis of "sincerely held religious beliefs". It would also ban any anti-discrimination suits by or on behalf of same-sex couples. The Bill passed the Kansas House of Representatives on 12 February 2014 72 votes to 49. (The Kansas Senate leadership appears, however, to have killed the bill; at least in its present form.)

Looking at this legislative push, this is religious "freedom" as entitlement: specifically, the right to outcast (i.e. my freedom means the right to punish you by denying you ordinary amenities of social life). If left wing folk attempt to engage in any form of outcasting, it is "political correctness" and wrong and evil. If religious folk do it in the name of God, however, it is righteous and should be legally protected. Religious "freedom" as entitlement.  Conservatives who buy into this are not against moral bullying, they just want the right to be the moral bullies.

Of course, it is even more hypocritical than that. If Muslim countries seek to engage in various forms of outcasting of Christians, that is also wrong and evil. So, it is not even outcasting in the name of God which is OK, it is such outcasting as {insert specific believers here}  want that is righteous and proper.

At which point, basic classical liberal principles about the indivisibility of freedom come into play.

Consider the basic provision of the Kansas bill:
Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;
How easy it is to shift the focus:
Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held beliefs of the individual or religious entity regarding compassion towards others:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to any form of political or religious activism that opposes equal protection of the law;
That is the political correctness version. Let us try another version:
Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding submission to the will of God:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any religious belief not involving submission to the will of God according to the Quran and the teachings of the Prophet;
The outcasting game, it is one anyone can play. This without changing the profound privileging involved in giving religious belief and religious entities special status. Let us just consider the profound privileging involved in permitting government employees ("any individuals") to refuse government services to residents and citizens based on their religious belief. And to deny any possibility of legal remedy to do so -- since the bill also bans anti-discrimination suits by or on behalf of same-sex couples. This is stripping one set of people of legal standing while creating a massive legal entitlement for others based on a huge sense of religious entitlement.

What makes it all even more blatantly an exercise in entitlement are comments by the Kansas Bill's sponsor, one Representative Charles Macheers, who calls his Bill The Religious Liberties Protection Act:
Discrimination is horrible. It's hurtful ... It has no place in civilized society, and that's precisely why we're moving this bill. There have been times throughout history where people have been persecuted for their religious beliefs because they were unpopular. This bill provides a shield of protection for that.
But, apparently, refusing services to a same-sex couple is not discrimination. Presumably because queer folk are not real people within the conception of Charles Macheers, and so their aspirations and experiences therefore do not count. By banning anti-discrimination suits, the bill blocks courts from declaring such actions discrimination: a truly Orwellian touch.

Which is exactly how such moral exclusion is based on, and creates, an impoverished epistemology: it excludes a whole raft of experiences and facts from counting.

Been here, done that
Since moral exclusion has recurring dynamics, those knowledgeable in the patterns of Jew-hatred should be completely unsurprised to see that queer-hatred generates the same patterns. Just as Jews were castigated as this powerful threat to the Christian/national majority, so queers are a threat to the heterosexual majority. Folk such as Rush Limbaugh say so explicitly and this bill implicitly constructs a Christian majority has having to have its religious freedoms (which turn out to be religious entitlements) defended from a queer minority.

The smaller the minority, the more they have to be constructed as a profound threat in order to justify targeting them. Otherwise, it is blatantly a large majority bullying a small and vulnerable minority and the more utterly arbitrary the God who requires such appears to be. Where Jews were the maleficent minority with huge corrupting powers, now it is the queers. (Who will, for example, corrupt marriage, families and the social order if same-sex couples are permitted into the institution of marriage.)

With the sense of entitlement comes a sense of status: a sense of entitlement and status available to anyone who buys into it. Simply by being not a member of the outcast category, you become effortlessly virtuous, effortlessly entitled, effortlessly of higher status. You may be overweight, not pretty, poorly paid with few prospects, but you are still entitled and virtuous; superior to those God-denying and defying queers (or Jews, or whoever). You are entitled to your contempt and rage at the successful queer couple down the street or the pretty boy who is no doubt getting lots of sex.

The wonder is not that Jew-hatred and queer-hatred have been such easy sells: the wonder is, so may folk fail to buy into it.

Legal entitlement to target the vulnerable
The notion that specific outcasting of homosexual folk is something that the law is entitled to not merely allow people to do, but actually embody itself, has support in the US all the way up to the US Supreme Court and Mr Justice Scalia, as he has stated in public and in his written decisions. Scalia J talks in terms of disapproval of "homosexual conduct" because that is chosen, something people can refrain from doing. Attention is diverted away from the outcasts as people and to them as transgressors.

The fight is very much over defining who is, and who is not, "properly" human. As philosopher Kwame Anthony Appiah puts it:
In much of Europe and North America, in places where a generation ago homosexuals were social outcasts and homosexual acts were illegal, lesbian and gay couples are increasingly being recognized by their families, by society and by the law. This is true despite the continued opposition of major religious groups and a significant and persisting undercurrent of social disapproval. Both sides make arguments, some good, most bad. But if you ask the social scientists what has produced this change, they will rightly not start with a story about reasons. They will give you a historical account that concludes with a sort of perspectival shift. The increasing presence of "openly gay" people in social life and in the media has changed our habits. And over the last 30 years or so, instead of thinking about the private activity of gay sex, many Americans and Europeans started thinking about the public category of gay people.
People are increasingly resisting the epistemological impoverishment of not seeing people as people, with experiences that matter and aspirations that are legitimate.

Denying protection
The distinctive thing about about bigotry is that it does not extend moral protections, it narrows, restricts and denies them. In particular, where it extends the ambit and intensity of moral concern about things and acts it does so in a way that narrows the moral coverage of actual people. It is why outcasting and moral exclusion are so much tied to priests and clerics and to those who aspire to secular equivalent status. Because the role of gatekeeper of righteous, of having the status and authority to say what status people do or do not have in the moral community--who is, or is not, within the moral community--is such a powerful one.

Creating taboos not only creates a sense of community, and a way of signalling belonging to said community, it also reinforces the special knowledge and insight of said gatekeepers by making things one would not otherwise consider morally significant or morally important, desperately so. Bigotry is always based on a theory, often a theory of the human or a theory of social order, and it is theory that excludes--giving authority to the alleged moral knowledge and understanding of the excluders and the status of righteousness to those who buy into the exclusion. So bigotry is also always a moral claim; a claim about who does, or does not, belong the moral community and with what standing.

And what greater sense of entitlement is there than to be able to say who is, or is not, properly human, to decide the standing of as full citizens or not? To declare that not everyone with a human face is human, or that some act defies God or forfeits one's humanity or standing as a member of human society. There is a great sense of social power in having the law justify, exemplify and enforce one's notion of who is outside the community. Doing so on a religious basis is very much about religious entitlement, not religious liberty. But their notion of liberty is to be so entitled.
And entitled in a way which restricts and blights the lives of others.

Scalia J
Scalia J
It may seem too strong a claim, that the standing as human of homosexuals is being denied or traduced. But it is not. For if homosexual desire and love are included as simply variations of the human, then the argument for equal protection of the law follows. It is precisely that such is defined as being outside the "properly" human that there is any argument for entitlement to animus, any entitlement to exclude. As Kwame Anthony Appiah points out, the key is seeing queers as just people. (Or not.)

Which is why those who wish to defend the entitlement to exclude and outcast, such as Scalia J, tend to want to focus on conduct, since that is the alleged wrongness but also is a way in to deny standing as "just folks". With great attention being paid to "burdens" placed on the religious, none at all to those placed on queer citizens.

Sanctity games
In moral psychologist Jonathan Haidt's terms, such outcasting on the basis of sexual acts is an appeal to the sanctity/degradation moral foundation, which he defines as:
This foundation was shaped by the psychology of disgust and contamination. It underlies religious notions of striving to live in an elevated, less carnal, more noble way. It underlies the widespread idea that the body is a temple which can be desecrated by immoral activities and contaminants (an idea not unique to religious traditions).
But the notion that homosexual acts degrade the body only works if homosexual desire is defined out of the range of the properly human. After all, however powerful a tendency within monotheism--with its very strong propensity to sex-and-gender taboos--it is very far indeed from a universal feature of human societies to define homosexual acts as disgusting, degrading or morally contaminating.

It turns out to be classic examples of letting conclusions ("homosexual acts are immoral") set the ambit of premises ("homosexual desire is outside the properly human/the natural"). Rationalisations of bigotry are rife which this rhetorical technique since they are based on letting a theory of the human, or of the social, or both, set the ambit of evidence, set the ambit of what aspirations and experiences count. Bigotry is not only always a moral claim; it is also always based on an impoverished epistemology which denies inconvenient human experience and aspirations.

In the case of the Jews, seeing them enemies of Christ and Deicides led naturally to seeing them as "the people of the Devil" which then fed into secularised demonisations. In the case of queers, natural law notions were adapted to Judaic taboos (notably by Philo of Alexandria) to generate the notion that homosexual acts, and thus homosexuals, were "unnatural"--i.e. outside the properly human. (Indeed, outside nature and in rebellion against God's order.) The secularised conception was incorporated into the religious denunciation.

The same but different
In looking at this push for legal protection (indeed, establishment) of a religious entitlement to outcast, it is perhaps natural in the American context to see an analogy to segregation. But it is not as if queer folk can have a whole separate infrastructure of services: their vulnerability arises in very large part from that they grow up as isolated individuals in overwhelmingly "straight" families and social milieus. Though that also makes them better targets than Jews. It is possible to have a Judenfrei society, one can kill or drive out all the local Jews. (The Muslim Middle East is largely Judenfrei and appears to be doing its best to be also Christianfrei: monotheism tends to be very serious in its outcasting and Islam tends to be the most serious of all.) It is not possible to have a queerfrei society, as even if somehow they are all identified and driven out or killed, more will just starting being born.
Dred Scott: someone of African descent and declared by a majority of the US Supreme Court not able to be a citizen
Dred Scott: someone of African descent and so declared by a majority of the US Supreme Court not able to be a citizen.
Nor is it possible for public policy to stop people being homosexual: all it can do is make their lives miserable. To pander to the effortless virtue and sense of entitlement that such outcasting feeds off.

Scalia J thinks American citizens (which turns out to be only some American citizens) should have the right to use the law to show their disapproval of "homosexual conduct". Besides noting the sense of entitlement built into some citizens counting much more than others, there is a simple test for when the "moral animus" Scalia J believes (some) American citizens are entitled to display in action and law is not permitted. When it denies equal protection of the law, when it denies the commonality of citizenship. The very element that Scalia J finds so repugnant about the Korematsu and Dred Scott decisions of the US Supreme Court. Calling it "moral" animus does not solve the problem, because bigotry is always a moral claim, it is always a claim about the limits of the moral community. Who is, and is not, covered by it and what degree.

Valorised fetishes
I have previously pointed out that conservatives keep getting wrong-footed by history as society moves along the Emancipation Sequence. This comes from the conservative tendency to create fetishes of order and to valorise the past. The notion that Catholics/Jews/women/blacks/queers have to be denied equality before the law (including the right to fully participate in the political order) in order to protect social order is a classic series of fetishes of order. (So, btw, was the gold standard and is narrow inflation targeting.) As each fetish has fallen, it turns out that social order managed just fine, that giving legal effect to moral exclusion was not a necessary support of social order at all, just of a particular set of privileging.

As for the tendency to valorise the past, that comes from denying or glossing over that exploitation, power-imbalances, oppression are also part of the heritage of all societies, including our own. (We are, after all, talking of very traditional forms of entitlement.) A denial that is a lot easier if the experiences of the exploited, excluded and oppressed are suppressed, not recognised or an epistemological void. Due to being outside nature, against God or not part of the "properly" human or similar claims. From, in other words, having an impoverished epistemology.

The upside of monotheism is that envisions a moral order that encompasses everyone. The downside of monotheism is that it envisions a moral order that encompasses everyone, so that the burden of exclusion is that much more profound. One is literally thrown outside the ambit of the moral community, with one's very humanity being belittled or denied.

The One Truth of the One God can provide a powerful sense of entitlement. To the extent of believing in an entitlement to outcast and passing that off as religious liberty and protection from discrimination. The belief that one sees so much more of morality than non-believers ends up blinding one to what one does not see--a common and shared humanity.

Or, as a certain US Supreme Court Justice wrote in other contexts:
The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

[Cross-posted at Skepticlawyer.] 

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