Tag Archives: Discrimination

#49: Duchovny, Anderson, Sexism, and the Free Market

January 30, 2016 M.J. 2 Comments

This is mark Joseph “young” blog entry #49, on the subject of Duchovny, Anderson, Sexism, and the Free Market.

The scuttlebutt in the entertainment industry at the moment is that for the new X-Files revival, actress Gillian Anderson, who plays scientist/agent Dana Scully, was offered half the pay that was offered to actor David Duchovny, who plays agent Fox Mulder. The outrage arises, that an actress (I’m sorry–“female actor”) would be paid only half as much as an actor (that is, a male actor) for the same work. It screams that the wage gap is still a real issue, even in mostly liberal Hollywood.

No one can argue that Anderson isn’t every bit as good an actor as Duchovny. She has more awards and more nominations, even in the “big” ones–Duchovny has two Golden Globes (the second in 2008 for Californication) to Anderson’s one, but she also has a Prime Time Emmy and a Screen Actors Guild (SAG) award. Even supposing that the competition is stiffer for the male awards than the female ones, her credentials are impressive.

Yet in all the hullaballoo a few points are being overlooked. So, what’s the real issue?

First, let’s be clear: In the new revival X-Files miniseries Gillian Anderson is being paid the same amount as David Duchovny. The complaint is that when they contacted her initially they offered her considerably less than they had agreed to pay him. Of course, they did not contact her, and they did not contact him–they contacted her agent and his agent, and made offers, which the agents then negotiated to an agreed salary. Further, we are not privy to any of this negotiation. We do not know any of the numbers. It might be that they offered Duchovny a half a million per episode and then settled for a million per episode, and then made the same half million per episode offer to Anderson and negotiated to the same million dollar mark. The numbers might be much smaller than that; they might be larger. No one is talking numbers, and no one is talking about the negotiation process. However, clearly there was a negotiation process, because Anderson’s complaint was that they offered her half of what they were paying Duchovny, but she does not know what they initially offered Duchovny and she does know that her agent negotiated her the same pay before any filming was done. Maybe that’s not the case; maybe they really did offer Duchovny twice what they offered Anderson. Neither we nor she know that.

There is, though, a more fundamental issue here.

Star Trek: The Next Generation was one of the great “ensemble dramas” of the eighties. Hill Street Blues, L. A. Law, Dallas, and a number of others dotted primetime. One of the things that distinguished this type of show from those of the sixties was that there was not really a “star”–that is, the original Star Trek was a vehicle starring William Shatner as Captain Jim Kirk, with Leonard Nimoy’s Spock and the other characters all in supporting roles. Even when a particular episode was primarily about Spock, such as Amok Time, Kirk was the hero. By contrast, in Next Generation there were entire episodes in which Patrick Stewart’s Captain Jean-Luc Picard was not on screen at all. Yet when the first film was made, it was reported that Patrick Stewart was paid twelve million dollars to appear, and Brent Spiner (Commander Data) eight million, the two together making near as much as the other major members of the cast combined. Sure, they had big roles in that film–but we don’t know to what degree they got paid more for the bigger roles versus were given the bigger roles because they were costing the studio more. The latter is the more likely. Studios negotiate with actors (through their agents) individually, and from the studio’s side the question is whether having this actor is worth the money in the sense that more people are likely to buy tickets if he is in the show than if he is not. Presumably Paramount concluded that Michael Dorn (Lieutenant Worf) could be written out of the script if he wanted more than whatever they paid him, and Dorn agreed that he would rather work for that lesser amount than be dropped from the movie. Picard and Data were vital characters; Riker, Crusher, Troi, La Forge, and others not so much.

So if we assume that 20th Century Fox actually did initially offer Duchovny more than they offered Anderson, the obvious conclusion is that they thought Duchovny was worth more to the show, or would demand more to be on it. Further, there is evidence to support such a conclusion. Duchovny had a starring role in the popular pay-cable series Californication for seven years, and since then has the lead in the police drama Aquarius. Anderson has had a number of critically acclaimed roles–the National Theatre’s A Streetcar Named Desire, Great Expectations, Bleak House–but no leading roles in something primarily popular. As important as she is to the X-Files franchise and as highly praised for her other work, her name does not sell as many tickets as his does. The producers do not have the financial incentive to pay her as much, because they would not necessarily expect–or get–the same return on their investment.

Arguably, Duchovny has gotten popular leading roles and Anderson has been working in less prominent jobs because Hollywood favors leading roles for men. Yes, it does–but not because Hollywood producers prefer men in leading roles. It’s because of audience preferences.

Geena Davis played a powerfully compelling action hero in The Long Kiss Goodnight, and Samuel Jackson as the sidekick was every bit as entertaining in it as he was in Die Hard 3 alongside Bruce Willis. Willis was the actor who made yet another sequel, because men prefer to see men in the action hero roles. Meanwhile, women prefer hearthrob men in their romantic leads, from Rudolph Valentino to Matthew McConaughey. The prejudices are not with the producers–they will attempt anything they believe will make money, without regard for names or quality or race or gender. The track record, though, says that male leads draw bigger audiences, and so make more money, than female leads. There are some women who buck the trend, get good roles and make them work, but most big roles go to men because that’s what audiences pay to see.

So there is indeed sexism in the video entertainment industry, but it’s not in the producers, not in the people who make the movies and television shows. They pay for what they perceive themselves to be getting. What they are getting is viewers, ticket purchasers, and what they are selling is what those viewers want to see. If most of the world wants V-Neck sweaters, most clothing manufacturers are going to invest in V-Necks and avoid Turtlenecks. When fast food purchasers move more toward healthy food, McDonalds shifts its emphasis away from burgers into chicken, salads, wraps, and yogurt. Male actors get more money, in the main, because more viewers are more willing to spend more money to see them. The sexism Gillian Anderson faces is not that of the people making The X-Files. It’s the sexism of the people watching, who would pay more money to see David Duchovny than to see her.

Sure, there are people who will scream to high heaven that Gillian Anderson is the important person in the show. Never mind that she was originally hired to be the sidekick to Duchovny’s starring role, instructed to stand slightly behind him so he would be prominent in most shots in the first season, she became the indispensible equal, for some even superior, partner. Yet the numbers say that you, the viewers aggregately, pay more to see Duchovny than to see Anderson, even if some of you consider her the real star. The producers are only trying to provide the product that will draw the most customers, the biggest audience, at the lowest total outlay. As far as they are concerned, the fact that they might be paying a man more than a woman has nothing to do with gender and everything to do with spreadsheets. It is, ultimately, what viewers are willing to buy that pays those salaries. That’s where the prejudice is found.

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Law and Politics

#48: Inequities in the Justice System

January 28, 2016 M.J. Leave a comment

This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it. It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced. I shall attempt to keep them clear. It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.

The story begins with a young man in his early twenties out for a walk on a late summer afternoon. He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him. The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything. They asked him to identify himself, and he gave his name but was reluctant to tell more. After some discussion he gave his address, and was told he was not permitted to leave until they had identified him. They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here. The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here. The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police. It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”. At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars. The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions. The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner. He was told he was under arrest for possession of marijuana. The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here. I did immediately, but then, I hit these problems in law school. Still, I cannot believe that the police procedure here was so incredibly bad. One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification. You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers. If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers. In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability. Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution. The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese. Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other. That’s the problem of cross-cultural identification: our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another. The identification is already suspect.

However, even if that were not so, there is a much more significant problem. You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread. They don’t usually present the suspect to the witness and say, “Is this the guy?” That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so. We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population. Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.” The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory. The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there. By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene. They have no idea who they are seeking. Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw. He made no claim of having seen him up close, or having recognized him from previous acquaintance. He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street. About the only information the witness gave the police was young white male, went that direction. They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting. That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause. A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious. Being a young white male is not suspicious. Nothing was found on the suspect to connect him to this or any other crime. The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion: the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt. The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect. Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him. They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there. They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him. They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender. His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney. He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these. It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges. The public defender application fee is not refundable.

No one apologized for the wrongful arrest. In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again. It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances. After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime. If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned. The defendant was not a young black male; he was a young white male. It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male. It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately. Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened. Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism. If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests. If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

Bible and Theology, Law and Politics

#36: Ligation Litigation

January 3, 2016 M.J. Leave a comment

This is mark Joseph “young” blog entry #36, on the subject of Ligation Litigation.

Let me begin with ideas that might not seem immediately on-topic.

You are certainly welcome to stay for supper. You’re in luck–we do not often have a roast, but someone gave us this boneless pork loin, and it’s almost finished roasting…what’s that, you don’t eat pork? Well, I’m very sorry. Unfortunately, I roasted the carrots and potatoes and onions in the same pan, so if that’s a problem, I’m not sure what to say.

Maybe I could scrounge something up for my unexpected guest, but really, my extended hospitality is to share what I have, not what I don’t have.

Just relax, we’ll reach the hospital in a few minutes. What? Yes, I have morphine. No, I can’t give you morphine; it would be illegal, for one thing. A doctor has to say that you should have it. Of course I care that you’re in pain, but I’m not going to risk my job to give you something that quite possibly you shouldn’t have.

Of course, I could give the morphine–I am certainly physically able to do so–but there are good reasons for me not to do so.

No, I’m not going to go deer hunting with you. I know it’s legal; I know it’s even considered necessary: in a world in which we have decimated the predator population we must also kill the prey animals or they will overpopulate and starve themselves. Kill them if you wish, but please don’t ask me to be part of it. I don’t really enjoy killing animals, and I do not want to become the kind of person who does.

I’ll have to think about whether I’ll eat your venison, and obviously I know that someone kills the meat I do eat, but it doesn’t have to be me.

Rebecca Chamorro, mother of a third child, is suing Mercy Medical Center in Redding, California, a two hundred sixty-seven bed hospital sponsored by the Sisters of Mercy of Auburn. She claims that the hospital violated her rights by refusing to permit her doctor to perform a tubal ligation while delivering her third child by caesarean section.

The hospital claims that such an operation violates the “ERDs”, that is, the Ethical and Religious Directives for Catholic Health Care Services, a document of health care directives established by the United States Conference of Catholic Bishops. The document bans abortions; I presume it also bans euthanasia, although I have not read it (being neither Catholic nor employed in a medical facility). It lists these things as “intrinsically immoral”, and includes on that list direct sterilizations, certain prenatal genetic tests, and most forms of contraception. The Catholic Church maintains that children are a gift from God, and participation in sexual relations is an open invitation to God to give that gift; therefore refusing the gift or misusing sex for something other than reproduction is an affront to God.

Obviously, you may disagree with the Roman Catholic Church. Even many Christians of other denominations, including many (but not all) conservative Christians among the Evangelicals, the conservative Lutherans, and the Eastern Orthodox churches, allow many forms of birth control while remaining adamantly opposed to abortions and abortofacients. That, though, is not the point. The point is whether a Roman Catholic hospital should be forced to permit the use of its facilities and equipment for procedures it regards immoral.

The plaintiff’s primary argument is that the refusal to perform legal medical procedures is discriminatory. There is a sense in which it is not–the same restrictions against tubal ligation also apply to vasectomies–but the argument is that pregnancies are unevenly discriminatory (much more of a burden on women than on men) and thus the refusal to assist in their prevention is unevenly discriminatory. This, though, is founded on the premise that the hospital is a public institution offering a commercial service–and that’s not exactly true.

At one time all, or nearly all, hospitals were run by religious orders, most of them Roman Catholic. The nursing staff of such hospitals were nuns–volunteers who devoted their lives to the service of others through the church, tending the sick, compensated essentially with room, board, and basic necessities. Priests served as doctors, in a time when only a few went to university and those who did were doctors, lawyers, or priests, with some overlap. People supported the hospitals with their gifts; patients were treated based on need.

Certainly the world has changed. Hospital staff now includes many employees, most of them paid and not all of them Catholic, although many Catholic hospitals are still staffed in part by nuns and other volunteers. Medicine is overseen by licensed physicians, because laws forbid the practice by those who do not have such licenses. However, the mission has not changed, nor the motivation: to help sick people heal. These are non-profit hospitals, and the church runs them voluntarily to help the sick.

If you complained that I did not make something special for you as an unexpected dinner guest when you did not want to eat my roast pork, I would politely suggest you find somewhere else to eat. If you complained that I did not give you morphine on the way to the hospital, I would tell you to talk to my lawyer. If you complained that I was unwilling to go deer hunting with you, I would tell you to go–well, I wouldn’t, because I’m not like that, but it would put a serious damper on our friendship.

The Roman Catholic Church, of its own volition, offers medical care to persons in need. They offer more charity care than most hospitals, although they welcome paying patients and insurance programs. However, they are specific about what care they do–and do not–offer. If you don’t like it, there are other hospitals. If it is inconvenient for you to travel to a hospital that is willing to provide the services you desire–and note that this is in no sense an emergency situation here, it is not as if the hospital is refusing life-saving treatment to a patient brought in to the emergency room–then it is apparently inconvenient for you to get the elective procedure you desire. That seems fairly straightforward to me.

I am concerned that any other answer ultimately becomes an imposition on the faith of the Roman Catholic Church, and indeed on other religiously-affiliated medical facilities (and many churches support these). It is a small step from asserting that the hospital must permit sterilization procedures it find immoral to asserting the same about abortions; and if (or more likely when) it becomes legal, it is a small step beyond that to requiring hospitals to permit euthanasia in their facilities.

If that happens, I am fairly certain the Roman Catholic Church will close its many hospitals and look for some other way to help needy people. A two hundred sixty-seven bed homeless shelter might be a great help.

Bible and Theology, Law and Politics

#24: Religious Liberty and Gay Rights: A Definitive Problem

December 6, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #24, on the subject of Religious Liberty and Gay Rights: A Definitive Problem.

Christians today are being forced to recognize the marital unions of homosexual (and lesbian) couples as just as valid as those of heterosexuals, and even to participate in the celebration of those unions by providing services, from signing marriage licenses to baking wedding cakes and taking photographs. Many Christians hold the view that homosexuals cannot legitimately be “married”, that homosexual relationships are an affront to God and to nature, and that it is an affront to our faith to be forced to participate–akin perhaps to insisting that Muslims and Jews participate in a feast at which a pig will be roasted and served to all the guests. We ought to be excused from such offensive events. Yet time and again the courts rule against us, despite the First Amendment to the Constitution which protects Americans from government intrusion into religious faith and practice. It is confusing, at the least. Why is this happening?

The answer is that over the past century or so the meanings of several critical words have changed just enough that our objections have been voided. Three words in particular have taken altered definitions, and left Christians behind.

Of course the word marriage has changed meaning over time. It comes into English through French from Latin, the Latin referring to a sexual relationship and thus, for the Romans at least, to an ongoing sexual relationship between a man and a woman. The Romans were rather specific about this, and that definition came with the word into English thanks largely to the Roman Catholic Church. A marriage, well into the early twentieth century, was a permanent commitment between a man and a woman with a view to producing and raising children; it was definitively a procreative relationship.

It was also primarily regulated by the church in most of the western world, even in the United States. Marriage “licenses” were created originally to bypass “the banns” (we’ve discussed this before), the rule that required an intended marriage be announced publicly several weeks in advance of the wedding in the home region of the couple so that objections could be known in advance; the parties could in effect post a cash bond guaranteeing that there were no impediments to the marriage, and so marry more quickly or in a place where one or the other was a stranger. They were optional, even through the early twentieth century–but they had become required first for interracial marriages, gradually for all marriages, and for the very telling purpose that the government wanted to regulate the number of mixed-race children and then additionally prevent incestuous marriages. Marriage licenses were about regulating sex, and guaranteeing that a couple who had sex would thereafter be jointly responsible for the children produced by their act.

Several things happened in the twentieth century. One had to do with the Federal Income Tax system, because someone decided that if a couple had children, or was trying to have children, that probably meant one of them (usually the woman) would not be working, and the income of the other would have to support both–and since the government wanted to encourage procreative relationships, such couples, identified by a legal “marriage”, were given a lower tax rate.

The second thing that happened was really many things. Divorce law changed such that gradually it became easier for couples to separate. Divorces being very messy cases, courts and legislatures tried to disentangle themselves from the mess by moving toward a system by which what had been presumptively permanent commitments now became readily dissolved. Further, attitudes toward sex changed, and the judiciary took the view that it was inappropriate for government to regulate sexual activities outside those special cases in which it was likely that someone was being compromised (rape, incest, possibly prostitution). That meant it did not matter whether someone’s sexual preferences were “aberrant”, as long as they were not abusive. Any adult could have sex with any other adult, and the government would mind its own business if no one was being harmed. There is still an issue as to whether anyone is being harmed in these relationships, but the government has decided that in most cases they aren’t even if they are, or at least that they assumed the risk that they would be harmed when they entered the relationship.

The upshot is that marriage is no longer defined as a permanent procreative relationship, but rather as a disolvable partnership between friends. A critical element has been changed.

The word homosexual did not not exist in the nineteenth century. Such men were called “sodomites”, and it had a very negative connotation. Early in the twentieth century someone in the psychology field coined the new word to identify what was then regarded a psychological aberration for study and treatment. The word itself was criticized as a nasty hybridization of a Greek prefix (homo, “same”) with a Latin root (sexual, “pertaining to gender”).

As attitudes about sex changed in the mid twentieth century, part of that was the notion that two persons engaging in sex were not hurting anyone and ought to be permitted to enjoy themselves. This justified what had previously been called fornication but was now called free love, what had previously been called adultery but was now called having an affair, and, eventually, what had been called sodomy but was now called same-sex love. What had been an unspeakable perversion in the nineteenth century by the dawn of the twenty-first was simply a different lifestyle.

However, the definitional change goes deeper than this. This is not so simple as a different lifestyle. It’s not like choosing whether or not to be a vegetarian, or deciding to join a convent, or moving to a farm. Although science has produced not a shred of evidence that homosexuality is genetic, homosexuals have insisted that they are born that way, and that therefore they cannot really be classed as “men” and “women”, but instead are two more, different, sexes, that homosexual male is no more heterosexual male than heterosexual female. The assertion is that they are a separate group, another sex, very much like a race. With the most recent Supreme Court decisions, it seems that the law has agreed.

Therein lies the key problem, the reason our bakers and photographers and caterers and honeymoon hotels are all being told that they cannot refuse service to homosexual couples. Under the law, it would be the same as excludng service to Blacks or Chinese because of their race. We went through this in the sixties, as Whites–not just southern Whites, it happened also in Chicago–tried to segregate Blacks by legislation and private practice, when restaurants would not serve persons of color and school boards sent black students to their own schools. It was an ugly time in that regard, and while we can argue to what degree racial discrimination has been ended (we’ve addressed that before, too) we can probably agree that things have improved from then, and that we do not want to go back to that. However, the problem is that under law homosexuals are in essence the new Blacks, the group we are not permitted to segregate or exclude, not permitted to refuse to serve, because they are not ordinary men and women engaged in a disgusting sexual perversion, but newly-recognized genders whose different proclivities are ordinary for them and protected by law.

The upshot is that homosexuality is no longer defined as an aberrant sexual practice, but rather as a third (and fourth, and maybe fifth and we do not know how many more) sex, to be protected as women are protected, and any expression of a different attitude on the subject has legally been defined as discrimination.

One more word has changed its meaning significantly over the past century. The word is wrong.

To say that the word wrong has changed its meaning is, well, wrong; it still retains most of the meanings it ever had. The problem is that in jurisprudence the acceptable meaning of the word has shifted, and things which were once almost universally understood as “wrong” are not. Not that this is news, nor even different–society has always been in flux concerning what it regards as wrong in the details. However, there has been something of a fundamental shift, not a problem with what specific things are wrong but a problem with what constitutes “wrongness” itself.

Jonathan Haidt has studied morality, and has written rather persuasively that the kind of morality we have in “Western Educated Industrialized Rich Democratic” (acronym WEIRD) societies is based primarily on one of six fundamental moral values that the rest of the world, now and from time immemorial, shares. For progressive liberals, the moral value that matters is dubbed “care/harm” (making the lives of others better, not worse), although they also recognize a “liberty/oppression” value (the primary value recognized by libertarians, individual autonomy). There is a third value, “fairness/cheating”, recognized, to which we will return.

Conservatives recognize these values, but also recognize three others that are embraced by most of the rest of the world (outside WEIRD areas). These are “loyalty/betrayal” (what makes it wrong to be a “traitor”), “authority/subversion” (respect and obedience within a hierarchy), and “sanctity/degradation” (the notion that some things, whether churches or flags or sports teams, deserve respect, and others are perversions deserving disgust). Thus for most of the world, yes, it is wrong to hurt others, wrong to oppress, wrong to cheat, but it is also wrong to betray your own family, to disobey your leaders, and to disrespect your flag or other culturally identified artifacts of identity. These meanings are not completely lost on people–when someone says, “That’s just wrong,” he is probably tapping into this notion of sanctity/degradation. However, progressives are so far from these understandings of morality that many of them consider them the enemy, obstacles to what genuinely matters.

I said we would return to the “fairness/cheating” value, because it is universally held but at the same time it is expressed in two distinct ways. For progressive liberals, “fairness” is about equality of outcome; the ideal for them is the socialist model, in which everyone gets everything he needs regardless of how much he is able to contribute. For everyone else, “fairness” is about proportionality, that you reap as you sow, that people who work harder should earn more, people who contribute more to society should get more from it. Thus for most of the world, it is “fair” for potentially procreative heterosexual couples who commit to long-term child-raising relationships to receive benefits which enable that which are not available to others (e.g., tax breaks), but for progressive liberals–and for the current United States legal system and that of other WEIRD countries–it is unfair for such couples to receive such benefits merely because they are giving society a future population.

Christians are thus stymied in finding an appropriate legitimately legal response to what a century ago would have been universally recognized as a complete perversion of the legal system, because over time the meanings of these three words have changed. To have said then that recognition of a procreative union between two members of the same sex engaging in sexual relationships is a perversion of that which is inherently sacred would have made perfect sense. Today the words “homosexual marriage is wrong” no longer mean that. They mean something like, “It is unkind to allow members of one sex to have the same rights available to those of other sexes regarding temporary relational partnerships,” which is not something anyone believes. To Christians, the old meaning is still the meaning; to the progressive liberals and their legal system in western countries, it is akin to saying that blacks cannot function as free people and need to be slaves. The world has changed, and expects us to keep up.

Yet as we have also previously said, keeping up with the world is not always the right thing to do.

Law and Politics

#21: Genetic Counseling and Eugenics

December 1, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #21, on the subject of Genetic Counseling and Eugenics.

Quite a few years ago now I knew a girl, a childhood friend of my wife, who married a man with Crohn’s Disease. Not long after the wedding she had a tubal ligation, and they bought a dog to pamper. The explanation was that Crohn’s is genetic, and her husband did not want to bring a child into the world who would suffer what he had suffered.

This kind of decision is made all the time. It is called genetic counseling, when medical professionals evaluate the probability that a couple will pass a genetic disease to their children. Sickle cell anemia is one of the most common of such maladies, and many black families forego having children to stem its transmission.

People want babies. It’s part of being human. However, it is also part of being human that people want healthy babies. Obstetricians have the highest malpractice insurance rates of all doctors, because imperfect babies are born and horrified parents want to blame someone with a lawsuit. Modern technology has made it easier to have perfect babies. The parents who might be carriers of sickle cell can have their unborn child tested in utero, and if the child has the disease, it can be aborted, never forced to live with the pain of this crippling disease. The same can be done for Crohn’s Disease, Spina Bifida, Down Syndrome…or can it?

North Dakota has made it illegal to perform an abortion based on detected fetal abnormalities. Ohio is likely to pass a similar law banning abortions performed because the unborn child has Down Syndrome. To those who support abortion, these laws, described as acts to protect the handicapped, are outrageous impositions on a woman’s rights. Yet there is something to the argument.

Although statistics are difficult to determine with any accuracy, everyone agrees that the majority–anywhere from sixty to ninety percent–of unborn children diagnosed prenatally with Down Syndrome are aborted in the United States, and that the estimated rate is higher in Europe where it might reach ninety-five percent. Some parts of the world applaud this as a reasonable means of wiping out a genetic disease. To some, the termination of pregnancy because the unborn child has a serious genetic defect is considered one of the best reasons for such a decision.

What, though, can be more discriminatory against the handicapped than killing them because of their handicap?

Oh, but wait: an unborn child is not, under the law, a handicapped person; he is only a growth that has the potential to become a person. He has no rights, and therefore killing him is not an act of discrimination against a handicapped child, but the excision of a deformed growth. The rights of the handicapped, and the fact that they are killed almost routinely, are irrelevant.

This, though, might not be a position anyone wants to take. After all, seven states–Arizona, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota–ban sex selective abortions as acts of gender discrimination. It is against the law in those states to terminate an unborn female child because you wanted a son (or presumably to terminate a male because you wanted a daughter). Arizona also bans abortions based on the race of the unborn child as being racially discriminatory. To say that the unborn Down Syndrome child has no rights that can be protected from discriminatory abortion (that is, abortion based on the fact that the child will be born handicapped) is to say that the unborn daughter or son, or the unborn mixed race baby, has no rights and can be killed solely for being the wrong sex or the wrong race.

There is a degree to which the laws are irrelevant, like restrictions on job terminations: you cannot fire an employee for attending a union organization meeting, or for being homosexual, or for reasons of race or religion–but you can fire an at-will employee for no reason at all, so you simply have to avoid saying that any of these factors led to the decision. In the same way, a woman can terminate a pregnancy without giving a reason for doing so; she just cannot say that the reason is because of the gender, the race, or the genetic disability of the child. In practical terms the only thing they limit is our ability to be frank about our motivations.

Even so, these laws force us to face a fundamental aspect of our attitude toward abortion. Should a mother be able to decide that she wants to abort a child because the child’s medical condition will result in the child having a less than fully normal life? Does that reflect a reasonable desire to protect the child from its own illness, or is it making a discriminatory value judgment that it would be better not to live than to live with such a handicap? (How many handicapped-from-birth adults would rather never have been born than have been born handicapped?) Is it reasonable to say that the health of the mother would be threatened by the birth of a handicapped child in a greater way than it would be by the birth of a normal child, or by an abortion? If so, is it also reasonable to say that the health of the mother would be threatened by the birth of a daughter when she wanted a son, or a son when she wanted a daughter, or by a mixed-race child instead of a pure-race child?

We have stretched the concept of “health of the mother” far enough that it amounts to “I don’t want a child, and therefore it would be unhealthy for me to have one.” How much further does it have to stretch to be, “I don’t want a handicapped child,” “a mixed-race child,” “a daughter”? It seems to me that that is not a very far stretch at all–which means either we have already stretched it too far, or we have to accept that sex-selective abortions, abortions of the genetically handicapped, and race-based abortions are all as good a reason as any other, and do not constitute discrimination against a person, because there is no person here and the mother has been given the power to decide whether there will ever be one.

Law and Politics

#9: Abolition

October 23, 2015 M.J. 1 Comment

This is mark Joseph “young” blog entry #9, on the subject of Abolition.

In the abortion debate, the argument against restrictions and regulations of this medical procedure is that they rob women of autonomous control over their own bodies, that they are, in a word, a form of slavery. Anti-abortionists are portrayed as oppressing women, stripping them of their rights to make decisions about their own bodies, forcing them to bear children and then to be responsible for those children, whether raising them or surrendering them to be raised by someone else. In the words of Shakespeare’s Benedick (Much Ado About Nothing), “The world must be peopled.” That, though, does not mean we can enslave women to do the job, whatever Japan’s Liberal Democrats think.

The second statement made is that conservatives claim to care about such children up to the moment they are born, and then all such concern ceases. Indeed, conservatives are portrayed as callous haters who would prevent a woman from receiving the medical attention she needs to remove a parasite but then do nothing to aid her in the pregnancy or thereafter.

The second answer to this is that this is not actually true. I have worked with a “Crisis Pregnancy Center”, in the efforts to found and launch it both by lending such meager labor assistance as I could to making the offices functional and in training the first batch of staff and counselors. Everyone with whom I worked was there to make it possible for women and girls with unexpected pregnancies to carry their babies to term and see to their subsequent care. That included obstetrical exams and services, teaching in infant and child care, the provision of furniture and clothing and formula and diapers, help with social services, contacts with adoption agencies, counseling concerning the benefits and disadvantages of raising a child versus releasing it for adoption, and more. There are conservatives on the ground doing exactly what it is charged they are not doing.

However, there is a first answer, and this mention of slavery brought it to my attention. In the nineteenth century, abolitionists, mostly in the north, wanted to free the slaves.

In retrospect, we know that this emancipation was expensive on every level, with economic and social costs we perhaps are still paying. In my mind’s ear I can hear the slavery party arguing that northerners want to free the slaves, but don’t want to commit to taking care of them once they are free. I do not know whether that was true; none of us were there. What I do know is that the fact (if it was a fact) that abolitionists made no commitment to caring for the freed blacks was a very poor argument against freeing them. They needed to be helped in rising from poverty, at least in having obstacles removed, but whether or not that was going to happen they first needed to be freed. So, too, children need to be helped, fed and clothed and of course loved and taught, and mothers need the support of fathers, family, community, nation, and churches, to see that their “unwanted” children are provided with that care. First, though, they need to be protected from the oppression of having life stripped from them before their breathing has shifted from amniotic fluid to air. Even if it were true that the people who want to protect their lives before they emerge into the world make no commitment to assisting those lives beyond that moment, to kill them before that emergence on that basis would still be as wrong as, more wrong than, to refuse to free the slaves because no one would help them once they were freed. Our obligation to help the born is a problem, but it is a separate problem from whether to protect the lives of the unborn. That freeing the slaves proved to mean economic and social costs thrust upon society for generations to follow was never and would not have been a good argument against freeing the slaves.

Yes, just as it was necessary for those who favored ending the enslavement of the black people also to commit to helping those people integrate into American society, it is necessary for those who favor ending the slaughter of the unborn to commit to helping the born rise to share the prosperity of the nation. However, just as an unwillingness to make that commitment was not a good excuse not to free the slaves, neither is the uncertainty of our commitment to helping children a valid excuse for continuing to kill them unborn.

In addition to the above-linked piece Liberal Democrats Offend Women Again in the page Discrimination, there are also several related points raised in Miscellaneous Marriage Law Issues, particularly in the sections Births and On Negative Population Growth. A connection between slavery and abortion was also suggested in Was John Brown a Hero or a Villain? See also mark Joseph “young” web log entries with the same “tags” by following the links.

Law and Politics

#7: The Most Persecuted Minority

October 21, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #7, on the subject of The Most Persecuted Minority.

Around the world, many groups of people are being deprived of basic human rights–

Persecuted, driven from safe homes, their lives counted as worth less than animals, less than livestock.

One group in particular faces death,

daily, at the hands of those who ought to be there to defend and help them.

Our hands.

Yet these helpless, homeless, defenseless people are deprived of rights,

put to death without a trial.

Routinely. Uncaringly.

Even in America.

As if they were not human at all. As if they were livestock, or pests, or parasites.

They are the unborn. They are being exterminated.

Defend the rights of the most helpless minority. You were once one of them.

This article is perhaps a response to my own article, The Republican Dilemma, in which I suggest that Republicans need to create ads which explain and defend Republican/conservative positions that will make sense to people not already holding those views. This is a suggested model for one such ad, a sixty-second television spot.

Earlier M. J. Young Net articles addressing abortion include Was John Brown a Hero or a Villain? and Professor Robert Lipkin, the Concert Violinist, and Abortion. Also see Miscellaneous Marriage Law Issues: Births and Miscellaneous Marriage Law Issues: On Negative Population Growth, incidentally related topics.

mark Joseph "young"

Tag Archives: Discrimination

#49: Duchovny, Anderson, Sexism, and the Free Market

#48: Inequities in the Justice System

#36: Ligation Litigation

#24: Religious Liberty and Gay Rights: A Definitive Problem

#21: Genetic Counseling and Eugenics

#9: Abolition

#7: The Most Persecuted Minority

A generalist: learning less and less about more and more, one day to know nothing about everything.