Public Discourse The online journal of The Witherspoon Institute Wed, 01 Jul 2015 15:26:13 +0000 en-US hourly 1 Marriage and the Constitution: What the Court Said and Why It Got It Wrong Wed, 01 Jul 2015 10:00:35 +0000

The Supreme Court’s ruling in Obergefell v. Hodges is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of a man and a woman. The ruling is as clear an example of judicial activism as we’ve had in a generation. Nothing in the Constitution justified the redefinition of marriage by judges. The Court simply imposed its judgment about a policy matter that the Constitution left to the American people and their elected representatives. In doing so, it got marriage and the Constitution wrong, just as it had gotten abortion and the Constitution wrong in Roe v. Wade.

The question before the Supreme Court in Obergefell was not whether a male-female marriage policy is the best or whether government-recognized same-sex marriage is better, but only whether anything in the Constitution specifically took away the power of the people to choose their marriage policy. Yet the Court spoke almost exclusively about its “new insights” into marriage, and was virtually silent on the Constitution. That’s because it had no choice. Our Constitution is itself silent on what marriage is; We the People retain the authority to make marriage policy.

The Court claimed to show that the marriage policy that has existed in the United States for all its history is now prohibited by the Constitution. It failed to do that. As I explain in my forthcoming book, Truth Overruled: The Future of Marriage and Religious Freedom, what the Court actually did was to assume that marriage is an essentially genderless institution and then announce that the Constitution requires states to adopt that same vision of marriage in their laws.

This is all the more remarkable, given that during oral arguments on Obergefell Justice Kennedy pointed out that marriage as the union of man and woman “has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.” Kennedy at least pretended to be reluctant to redefine marriage judicially. Redefining marriage to include same-sex relationships has, Kennedy pointed out, only been around for ten years. And, he added, “10 years is—I don’t even know how to count the decimals when we talk about millennia.”

Even Justice Stephen Breyer noted that marriage understood as the union of man and woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change . . . what marriage is.” He asked: “Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?” And yet, he joined Kennedy’s majority opinion overruling the people—overruling the truth—and redefining marriage everywhere.

The first paragraph of the majority opinion highlights the incoherence of the ruling’s logic:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

But as Justice Clarence Thomas pointed out in his dissenting opinion, constitutional protections of liberty can hardly require governmental recognition. The liberty that the Constitution protects is a freedom from government interference. And gays and lesbians already enjoyed full liberty “to define and express their identity” and to exercise their “liberty by marrying someone of the same sex” in the house of worship of their choice. Yet Justice Kennedy writes the majority opinion as if governmental recognition of a relationship is a liberty right.

How did Kennedy support such a conclusion?

Kennedy starts with a paean to “the transcendent importance of marriage.” He notes that the “lifelong union of a man and a woman always has promised nobility and dignity to all persons” and that the “centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations.” He cites a variety of theological, philosophical, literary, and artistic portrayals of marriage and even admits that it “is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.” Indeed, he points out that for the states defending their marriage laws, marriage “is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”

So why, exactly, does the US Constitution require a redefinition of marriage? Kennedy starts by claiming that the due process clause of the Fourteenth Amendment—which says that no state shall “deprive any person of life, liberty, or property, without due process of law”—requires states to recognize same-sex relationships as marriages. How? Because the fundamental liberties that the due process clause protects extend to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” And these choices, Kennedy argues, now require not merely freedom from government coercion, but proactive government recognition. And the Court, apparently, is the one to decide which intimate choices require recognition, and when, and how much recognition each choice is due.

Kennedy is candid about how radical a departure from previous Court cases his ruling is: “It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners.” But that presumption was wrong, according to Kennedy, and he identifies four principles to “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Kennedy’s Four Marriage Principles

First, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” This entails that “two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” We might pause here to inquire whether it is also true for all persons, whatever their number. Why Kennedy writes that “two” but not three or four “persons together can find other freedoms” is anyone’s guess. He never says. We might also wonder how “autonomy” gives rise to a right to government recognition.

Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” (Note again the arbitrary addition of “two-person.”) There it is: “unlike any other” relationship. Your number-one person. Yes, Kennedy follows nearly verbatim the intense-emotional-union view of marriage that Sherif Girgis, Robert P. George, and I criticize in our book What Is Marriage? Man and Woman: A Defense. Nevertheless, Kennedy writes: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Consenting adult romance and care. Kennedy repeats this claim in the closing paragraph of his decision: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

This is among the most harmful assumptions of Kennedy’s opinion—that marriage is the only relationship that ultimately matters, that others are somehow lesser, and that the unmarried are therefore “condemned to live in loneliness.”

Third, marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” So in Kennedy’s view, same-sex couples have “rights of childrearing, procreation, and education,” and these bring a right to marriage in their wake since, as a prior decision held, “the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”

Here Kennedy discusses children reared by same-sex couples without once acknowledging that they might want a mom and a dad. And there is no mention—at all—of children’s right to a mom and a dad, and preferably their biological mom and dad. There’s only discussion of adults’ rights to children. This section of the opinion raises troubling questions about how two people of the same sex have a right to children.

Fourth “and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.” Well, yes, marriage—a union of man and woman, husband and wife, father and mother—is a keystone of our social order, precisely because of its procreative character, which same-sex couples lack. So this is actually a point against Kennedy’s view. In response, he just asserts—without argument—that “there is no difference between same- and opposite-sex couples with respect to this principle.” As he writes, “same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” Unless, of course, those purposes and that meaning have something to do with uniting comprehensively, creating new life, and uniting new human beings with their mother and father. Remarkably, Kennedy never once seriously engages with that argument.

Equal Protection and History

Kennedy concludes his opinion for the Court by adding, almost as an afterthought, that the equal protection clause of the Fourteenth Amendment—not just its due process clause—also gives same-sex couples a right to have the government recognize their relationships as marriages. The reasoning here is even cloudier. Kennedy writes that “The Due Process Clause and the Equal Protection Clause are connected in a profound way” and that in “any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” The conclusion? “This interrelation of the two principles furthers our understanding of what freedom is and must become. The Court’s cases touching upon the right to marry reflect this dynamic.” That’s right, this “dynamic” tells us what freedom “must become.” If ever there was a clearer indication that the Court was legislating from the bench, I haven’t seen it. And if this passage contained an actual legal argument, I haven’t found it.

Along the way, to buttress his opinion, Kennedy cites various ways in which the social practice and legal regulation of marriage historically has changed. He mentions coverture, where “a married man and woman were treated by the State as a single, male-dominated legal entity.” He mentions bans on interracial marriage. He mentions legal regulations that placed hurdles on marriage for potential spouses if they owed child support or were in prison. Never, however, does he acknowledge that none of these practices or regulations redefined what marriage is—a comprehensive union of sexually complementary spouses.

Roberts faults Kennedy precisely for his sloppy use of this history:

In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” . . . Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

The problem with the analogy to interracial marriage is that it assumes exactly what is in dispute: that sex is as irrelevant to marriage as race is. It’s clear that race has nothing to do with marriage. Racist laws kept the races apart and were designed to keep whites at the top. Marriage has everything to do with men and women, husbands and wives, mothers and fathers and their children, and that is why principle-based policy has defined marriage as the union of one man and one woman.

In sum, Chief Justice John Roberts simply observes that “the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position.” Think of a student who can’t find good support for a claim in a term paper and so adds dozens of tangential references—as if many weak arguments somehow combine to yield one strong one. “In any event,” Roberts writes, “the marriage laws at issue here do not violate the Equal Protection Clause, because”—and here he quotes Justice Sandra Day O’Connor—“distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’”

The Role of the Court and Protecting Freedom Now

Justice Kennedy’s most basic error was a complete failure to interpret and apply the Constitution to the case at hand. He simply philosophized about what marriage should be and what freedom “must become.” Chief Justice Roberts opened his dissenting opinion by noting that the Supreme Court “is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” As Roberts notes later in his opinion, “There is, after all, no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution.”

America is in a time of transition. The Court has redefined marriage, and beliefs about human sexuality are changing. Will the right to dissent be protected? Will the rights of Americans to speak and act in accord with what the United States had always believed about marriage—that it’s a union of husband and a wife—be tolerated?

Most Americans say yes, they want to be a tolerant, pluralistic nation. They want peaceful coexistence. I agree with them. It’s only ideologues and activists who want to sow the seeds of disharmony by threatening those with whom they disagree with revoking their tax-exempt status, taking away their government licenses, suing them out of business, or stripping them of their legal protections.

This is why the First Amendment Defense Act is so vitally important. If passed and signed into law, this act would prohibit the federal government from ever discriminating against any citizen, charity, school, or business because they believe and act on the belief that marriage is the union of a man and a woman. Just as the pro-life movement ensured that no pro-life citizen would ever have to pay for an abortion or perform an abortion, so too must we work to ensure no one is coerced on marriage. Rather than forcing people and institutions of faith to go to court for their religious liberty, this bill would prevent the government from ever acting unjustly in the first place.

We need good policy at all levels of government. Governors have an opportunity right now to issue executive orders preventing state agencies from discriminating against or otherwise penalizing citizens and organizations that continue to believe marriage is the union of a man and a woman. State legislatures can pass laws doing the same.

The First Amendment Defense Act and its state analogues would achieve civil peace even amid disagreement by protecting pluralism and the rights of all Americans, whatever faith they may practice. Protecting conscience is good policy, and liberals committed to tolerance should embrace it.

Ryan T. Anderson is the William E. Simon Senior Research Fellow in American Principles and Public Policy at The Heritage Foundation and editor of Public Discourse. He is the author of the forthcoming book, Truth Overruled: The Future of Marriage and Religious Freedom.

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Thanks for Everything, Justice Kennedy Mon, 29 Jun 2015 11:00:24 +0000 Obergefell is an utter failure, relying as it does on a tenuous and historically ungrounded jurisprudence of “dignity.” The debate over same-sex marriage is not over. A constitutional ruling so shoddily reasoned, so completely and easily dismantled by the dissents, must paper over a cause that cannot ultimately win in an open debate.]]>

When the blow finally fell, the Supreme Court’s ruling in Obergefell v. Hodges—holding 5-4 that every state in the Union must license same-sex marriages—seemed somehow less crushing in its impact, less hurtful and wounding, than one might have expected from a decision that is so thoroughly a defeat for the truth about marriage and the truth about the Constitution.

Make no mistake, the harms from the Court’s appallingly illegitimate decision are many, and gravely serious. But the good news for a cockeyed optimist like me is that Justice Anthony Kennedy’s opinion is so incompetent, so gossamer-thin as an exercise in legal or constitutional reasoning, so unpersuasive even in political terms, that it renews my zest for carrying on the battle of persuading my fellow citizens and turning the country around on this issue.

I should have known he would do this for us, as well as to us. For Kennedy began to travel this road nearly twenty years ago in Romer v. Evans (1996), in which a 6-3 Court denied to the people of Colorado the authority to amend their state constitution to prevent their elected state and local legislators from adding “sexual orientation” to the list of “identities” on the grounds of which discrimination by public and private actors alike is forbidden.

Is Anyone "Demeaning" Others' "Dignity"?

Yet at least in Romer, the word “dignity” had not yet appeared in Kennedy’s reasoning. In Lawrence v. Texas (2003), which overturned state laws that criminalized homosexual sodomy, Kennedy turned away from the equal protection clause and to the textually and historically ungrounded jurisprudence of “substantive due process.” This meant, in Kennedy’s hands, the judicial protection of a free-ranging, judicially defined notion of “liberty” invoked to overturn any conduct-regulating statute that trenched on the “dignity” of persons whose wishes and desires tugged at the judges’ heartstrings.

In Romer, at least, Justice Kennedy had labored to produce something that resembled a competent account of the equal protection clause—though his attempt failed. But Lawrence was something else. Lawrence was a moment of real self-liberation for Kennedy. That can be seen in his quotation of what were probably his own words from the joint opinion he co-authored with Justices O’Connor and Souter in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This “mystery passage” was already in 2003, and remains, the most widely lampooned bit of pseudo-reasoning of the last half century, but Kennedy sensed the cultural and political power that it represented, and in Lawrence he set it on course to colonize our constitutional law entirely. His opinion was also liberally salted with references to “dignity” (three times, including another line quoted from Casey), and to the idea that laws resting on negative judgments of homosexual conduct “demean” those who engage in it (four times).

United States v. Windsor, the Defense of Marriage Act case from two years ago, gave us more of Kennedy’s free-floating jurisprudence of “dignity” (ten mentions including “indignity”), condemning laws that “demean” (three mentions). Obergefell rests explicitly on this fragile, groundless rationale, with Kennedy mentioning the connection of marriage to “dignity” nine times, while three times saying that it “demeans” same-sex couples when a state limits marriage to one man and one woman, and twice invoking the matter of “identity.”

But there is something else quite new in Obergefell. Kennedy, somewhat defensively, mentions twice that defenders of conjugal marriage might believe redefining the institution to include same-sex couples “demeans” marriage itself. Since no one opposed to same-sex marriage actually speaks this way, this is a curious characterization, but perhaps an important one. In Kennedy’s mind, the Constitution has been converted into a great Dignity Document. The role of the Supreme Court is to adjudicate whose version of Dignity it embodies, which can be decided by pondering who is made to feel worse by having his strongest convictions “demeaned.” Victory will go to the one who can appeal successfully to strong feelings about his “identity.” As Chief Justice Roberts said in dissent, “The majority’s driving themes are that marriage is desirable and petitioners desire it.”

A Constitutional Crisis

Confronted by such a string of sentiments masquerading as constitutional principles, why then should I feel heartened by the new phase of the struggle into which the Obergefell ruling has just pitched us? The reason is that Kennedy is so terribly bad at his chosen profession of judge that he has now unmasked himself, and his four silent colleagues who joined his opinion for the Court, as imperial rulers with no regard for the Constitution, for the forms of reasoning that give the law its real vitality, or for the rightful authority of the people to govern themselves within the bounds of a Constitution they understand and respect.

Moreover, while noting all the manifold ways in which the marriage debate has been played out over the last two decades—just as he was attempting to shut that debate down—Kennedy evinced no understanding of what the arguments about marriage really are, not even grasping the arguments on the side he favored. In so doing, he showed himself to be, if not one of the least intellectually honest persons ever to come to that debate, then one of the least well-informed. His opinion is an act of the most breathtaking argumentative carelessness in the history of the Supreme Court. Roe v. Wade, Lochner v. New York, and Dred Scott v. Sandford—all rightly invoked by the dissenters in Obergefell as the true models for Kennedy’s reasoning—are closely reasoned works of lawyerly precision by comparison.

As a legal opinion, Obergefell is an utter failure. What the late John Hart Ely, who was politically in favor of abortion, said of Roe v. Wade, we can say of Obergefell: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” But Obergefell is also embarrassingly bad as a contribution to the political and social debate on marriage. From this I take heart that the battle can be rejoined, with the making of better arguments—each side offering its best against the other’s best—in a struggle that will continue for years to come.

But wait. Isn’t the debate over? Isn’t that what a Supreme Court decision on the Constitution means? Well, frankly, no. The movement for rescuing and restoring marriage in our country will not be made to vanish by so transparently political a holding of five justices of the Supreme Court. The movement for defending the sanctity of life in our law, forty-two years after Roe v. Wade, waxes rather than wanes in strength. As the pro-life movement was joined, so the marriage movement will be joined, by defenders of the authentic Constitution so blithely traduced by the Court’s majority. The Roe decision has often made pro-life converts out of people who actually read it—I know, because I was one of them—and the Obergefell ruling, in time, will do similar work in adding strength to the ranks of marriage’s defenders.

A constitutional ruling so shoddily reasoned, so completely and, one may say, easily dismantled by the four justices who dissent from it, must paper over a cause that cannot ultimately win in an open democratic debate, and that therefore seeks the shelter of powerful friends in the judiciary. This is just what many young people will come to see for themselves simply by reading the decision, just as many have done by reading Roe. The twin discoveries, that a great constitutional wrong has been committed to give cover to a great moral wrong, will come together.

We may take heart, then, from Justice Alito’s observation that “even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.” Indeed they should, for the debate is not over; it has only entered a new phase. That phase will necessarily include some sober deliberations regarding what can be done about a Supreme Court with (at least) five members who believe that they can rewrite the Constitution at will in order to transform fundamental institutions of our society. For Alito’s very next sentence is, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of authority have failed.” Indeed, they have, and so it is back to the drawing board. When even the chief justice complains of “the majority’s extravagant conception of judicial supremacy,” it is time to do some hard thinking about meaningful institutional reform of the federal judiciary.

In the Meantime

While we prepare for hard work on many fronts in the battles for marriage and for the Constitution, we should recognize and immediately try to mitigate the great harm the Court has done. Despite Kennedy’s pat denials, marriage has been grievously wounded as an institution, and we must do what we can to bind up its wounds, in our own families, communities, and churches. After all, every future generation is at stake. We must never tire of saying: every child deserves a mother and a father—preferably his or her own biological parents. That, as the dissenting justices recognized, is what marriage has always been about, in every age and culture, and it is why marriage has always been understood as the union of a man and a woman.

And we must do all that we can to institute safeguards for religious freedom in our country, which will now come under attack as never before. It was strangely gratifying to see Chief Justice Roberts and Justice Thomas, in their dissents, give this matter their lengthy and considered attention. Thomas foresees “potentially ruinous consequences for religious liberty” in this invention of a new “right” of same-sex marriage, and Roberts noted how telling was the way in which Kennedy shrugged off such potentials:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. . . . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

The protection of religious freedom may rapidly become our most urgent legislative business, both in Congress and in state legislatures. But win or lose in legislative assemblies, the faithful and their pastoral leaders in the many religious communities devoted to the truth about marriage must prayerfully muster the courage to act, and to live as their faith informs their consciences, as well as to “advocate” and “teach.” As Alito notes, “those who are determined to stamp out every vestige of dissent” on the marriage question will be ready to exploit the Court’s decision. Look at your social media feeds: That is already happening.

In our response to our counterparts in this great constitutional, political, and moral debate that now begins anew, we can start by preaching and practicing a truer, fuller understanding of dignity, in our families and churches, than the one about which Kennedy so vainly prattles. And we can fix our eyes on the prize of restoring, through real democratic debate and persuasion, the great goods of constitutional self-government and justice to individuals and families.

Thank you, Justice Kennedy, for giving us this opportunity. I know you didn’t mean it, but thank you nonetheless.

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

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The Practical Wisdom of Chief Justice Ellsworth: Reconsidering the Separation of Church and State Fri, 26 Jun 2015 11:00:26 +0000

One day in 1802, an elderly gentleman took a copy of a petition to the Connecticut state assembly, threw it to the floor, planted his foot upon it and declared, “This is where it belongs!”

The petition was made by Baptists in the town of Danbury, Connecticut. Connecticut, along with several other states, had an established church, the Congregational. An established church enjoyed a clear and practical arrangement with the state, modeled after that of the Church of England. “Under state law,” writes Michael Toth, “Congregationalist churches received a sum for the salaries of their ministers, and other religious costs, paid for by the state’s residents.”

According to the First Amendment, Congress, meaning the federal entity, is forbidden to pass any laws “respecting an establishment of religion.” In the parlance of the time, this meant that the federal legislature should not have anything to do one way or another with establishments such as that of Connecticut. So the Danbury Baptists did not appeal to the Supreme Court of the United States, which would have pointed to the plain language of the Constitution and declared itself to have no standing in the case. Instead, they petitioned the Connecticut assembly.

They were not claiming persecution. “By the end of the eighteenth century,” writes Toth, “members of three specified religious denominations (Baptists, Quakers, and Anglicans) were permitted to direct their contributions to their own churches.” Assuming that the Danbury Baptists were no less generous to their church than were the Congregationalists to theirs, what they disputed was not the cost but the principle of the thing. For in order to claim the exemption you had to be a member attending the church in question, a stipulation which seems fair enough. But what if you were not a member of any church? Why should you pay to support Congregationalist ministers? Why should you contribute to the quarrying of the limestone and the hewing of the timber to build their houses of prayer?

The Danbury Baptists thus wrote to President Jefferson, to enlist his support. That elicited Jefferson’s famous letter, in which he opined that Americans in their Bill of Rights had erected a “wall of separation between Church and State.” If they had, it must have been a gaseous sort of wall, because the people of Connecticut had been passing through it for fifteen years without noticing. What Jefferson meant by that phrase, too, is disputable. Given the folkways of his fellow citizens, which he took as a matter of course, he could not possibly have meant that the state could drive from its precincts the Christian culture upon which it was based. The sticking point was the financing and the explicit legal relationship between a specific body of government, and a specific religious organization requiring a specific set of duties of its members. Those duties (not books, essays, feelings, opinions, words, allusions, or folk art) went generally by the name “religion.”

Jefferson’s letter, we know, has assumed the status of a supra-constitutional dictum from on high, even though he was not a member of the Constitutional Convention, he did not sign the Constitution, and he never served as a judge. That is one of the ironies of history.

But the irony is richer than most Americans know. Jefferson looms large in our American mythology because he drafted the Declaration of Independence, and he became president. The founder of the University of Virginia would have faded into the crowd of other founders were it not for the election of 1800. His personal opinions on matters of church and state, however we might define them, are worthy of attention and respect, but no more worthy than are the opinions of the other founders who were at least as wise and as patriotic as he, who gave as much as he did for the nascent country, but who happened not to have become president later on.

One of those men was the fellow who trod upon that petition from Danbury. His name was Oliver Ellsworth. It is his splendid biography by Michael Toth that I have cited above. But why should we care about what a long forgotten man believed?

Everyone at the time would have known the name of Ellsworth. Unlike Jefferson, Ellsworth was actually a member of the Constitutional Convention—and a crucial member at that. It was Ellsworth and his ally Roger Sherman who crafted the compromise that settled the dispute between the large states and the small states as to the composition of the United States Congress. James Madison, of the populous Virginia, wanted senators to be apportioned to the states according to their population. Alexander Hamilton, royalist at heart, wanted senators to be appointed by the president for life. Madison was uncharacteristically in the grip of an idea—arithmetical equality—while Hamilton was deeply suspicious of the power of local political bodies.

But Ellsworth, as Toth shows, was the real statesman here. He was a devout Congregationalist, and that taught him to respect local autonomy and local authority. For each town in Connecticut was founded as a parish, self-sufficient and independent. And in colonial times, each town sent the same number of delegates to the assembly, regardless of population. Think of it as a way to represent not persons but associations, ways of life, small polities that might contribute a great deal to the broader colony, while maintaining their own vibrant identities. So Ellsworth and Sherman proposed the Connecticut Compromise. The House of Representatives would be apportioned according to population, but each state, regardless of population, would send two men to the Senate, elected by the state legislatures. That compromise fit well with the character of the Constitution as a whole, which was, as Ellsworth said before Madison did, “partly national and partly federal.”

That was not all that Ellsworth did. He was elected to the Senate, where he was immediately appointed to a committee to determine what had been left undetermined in the Constitution: establishing federal courts and assigning them their areas of competence. Ellsworth deserves more credit than any other man as the founder of our system of appellate courts.

That came also with controversy. Were local juries competent to decide cases involving federal law? Though he was himself a Federalist, Ellsworth was no ideologue. He trusted the common people, in their villages and towns, to exercise some measure of authority in interpreting and executing federal law. For that, he won the admiration even of such deeply suspicious Anti-Federalists as George Mason. It was no surprise to anyone, then, that after the retirement of John Jay, President Washington appointed Ellsworth to the highest judicial office in the land. Thus, he became the second chief justice of the Supreme Court, swearing in John Adams as president in 1797, and retiring for reasons of health in 1800.

The man who denounced the Baptist petition and supported the establishment of a state church in Connecticut had been a drafter of the Constitution, which Jefferson was not, a creator of the federal court system, which Jefferson was not, and the chief justice of the Supreme Court, which Jefferson was not. So we should attend to his point of view.

Ellsworth did not make a theological case for his position. That would have been out of place, because state support for churches must rest upon a state interest as such. So he made the same case for the existing law as has been made for public support for schools. We pay for the instruction of children even if we have no children ourselves, because such instruction is a crucial public good. Since a republican society grants to people a wide latitude of action, it is unusually dependent upon the moral probity of its members. If government exists, as Ellsworth said, to promote the “peace, order, and prosperity of society,” it cannot attain its primary end unless the people are brought up in good morals. For that purpose, religious institutions—meaning, in Connecticut in 1802, Christian churches—are highly desirable, even indispensable. “In the opinion of this committee,” wrote Ellsworth, “the legislature may aid the maintenance of that religion whose benign influence on morals is universally acknowledged.”

Grant that the “wall of separation” is a late fiction of our own, dependent upon a misreading of a letter of the most secular of our founders, and one who had no particular relation to the law in question or to our judicial system. We see then that Ellsworth's defense of friendly relations between the state and religious institutions depends upon a question of fact. If good morals are essential for a free republic to endure, and if in fact a certain group of institutions does indeed promote those morals—especially if no other institution succeeds at promoting them—then it follows as a matter of course that a well-governed state may be friendly to those institutions, as it may be friendly to other associations, financial, educational, mercantile, or fraternal, that promote the common good.

It is time for us to reconsider the practical wisdom of Chief Justice Ellsworth.

Anthony Esolen is professor of English at Providence College in Providence, Rhode Island, and the author of Ten Ways to Destroy the Imagination of Your Child and Ironies of FaithHe has translated Tasso’s Gerusalemme liberata and Dante’s The Divine Comedy.

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The Ambiguous Quest for Marriage Equality Thu, 25 Jun 2015 11:00:56 +0000

As the US Supreme Court appears poised to require all states to extend legal marriage recognition to same-sex couples, it is instructive to note the ways in which marriage and “same-sex marriage” remain distinctly unequal in those states that already have extended recognition to same-sex couples. True “marriage equality” has not been achieved in those states—and it never will be, as long as states maintain an interest in enforcing the duties that parents owe to their children.

Even states that issue marriage licenses to same-sex couples continue to distinguish between marriage and same-sex “marriage” for many purposes. Consider Massachusetts, which began issuing marriage licenses to same-sex couples more than a decade ago, after its high court declared irrational the link between marriage and child-rearing. Massachusetts law continues to presume that “a man” who is married to the biological mother of a child is the child’s “father.”

To a married man and woman, this provision applies rather straightforwardly. The husband is legally presumed to be the child’s father, even if he is not actually the biological father. But to a man-man “marriage,” the provision can have no application at all. If one of the men is unfaithful and impregnates a woman, then a presumption of paternity cannot perform any meaningful function.

Massachusetts courts have ruled that, in a woman-woman “marriage,” the non-biological mother is presumed to be the second parent if both the biological father and the non-biological mother consent, as in the case where the biological mother is artificially inseminated with the second woman’s knowledge. But what if the father or the second woman does not consent? And where consent is obtained, how effective is the fiction in the long term? It cannot survive the child’s attaining the age of understanding.

Other incidents of marriage can be applied to same-sex couples only arbitrarily. New York’s high court recently interpreted New York’s incest prohibition in light of its two rational bases: avoiding genetic defects in potential biological offspring and expressing New York’s moral disapproval of incest. The first basis can have no application to a same-sex couple, and the second flies in the face of the US Supreme Court’s recent insistence that moral disapproval is not a valid justification for laws concerning sexually intimate relations.

So, Massachusetts and New York continue to treat marriage and same-sex coupling differently. Despite eliminating from law the fundamental predicate that every marriage involves a man and a woman and binds the father and the mother of any children that result from the union, the courts and lawmakers of Massachusetts and New York have left in place incidents of marriage that presuppose this predicate. Yet proponents of marriage equality are not flooding the Massachusetts or New York courts with lawsuits to eliminate those incidents.

This raises a question: What do proponents of “marriage equality” want? If they are asking for governments to make marriage and same-sex couples the same in law, then they are asking for governments to eliminate the incidents of marriage that connect children to their natural parents. If same-sex “marriage” proponents are not asking governments to eliminate those legal securities for children, then they are not asking for full marriage equality.

The Fundamental Law of Marriage

It is not difficult to perceive why Massachusetts and New York distinguish between marriage and same-sex “marriage.” Marriage is the only institution known to connect the well-being of children to the natural rights and duties of parents, which exist prior to positive laws. Marriage strengthens the ties between father and mother and between the pair and their children.

The rights and duties of marriage are not created but rather declared and reinforced by our laws. As I argue elsewhere, they precede and are foundational to our positive laws. In Anglo-American jurisprudence, marriage is a fundamental right because the rights and duties of marriage are part of our fundamental law.

Positive laws—constitutions and statutes—cannot create or destroy these rights and duties. They can only affirm and support the natural rights and duties of marriage and parentage—or not. Many people, not just those with same-sex attractions, would prefer that they do not. Legal protections for the natural rights and duties of the biological family are inconvenient for adults who want the law to affirm their sexual attractions and choices, whether those attractions are homosexual or heterosexual. Protections for children in marriage law eroded dramatically in the no-fault divorce revolution.

Yet as others have explained, it is one thing to eliminate legal protections for children that are grounded in marriage. It is quite another to eliminate the predicate that provides the fundamental rationale for marital norms. Only if marriage is the union of a man and a woman does it make any sense to have paternity presumed without consent, incest and polygamy prohibited, and custody bestowed on biological or presumed parents except for cause.

If it is irrational for states to distinguish in law between marriage and same-sex couplings, then it is also irrational for states to treat marriage as an institution designed to secure the rights of children. Consider the equal protection problem now at the heart of the presumption of paternity in a state such as Massachusetts. A man married to a woman is presumed to be the father of her child, even if he did not father the child. Even if he does not consent, that man is held legally responsible for the child’s well-being. The law imposes on him a legal status that it does not impose on a man who is married to a man, and on different terms than the analogous status placed on a woman married to a woman.

So, the logic of “marriage equality” requires states to eliminate those legal securities for children that are grounded in marriage. In inventing the first right to same-sex “marriage,” the high court of Massachusetts recognized this. In its Goodridge decision, the court declared that the law of “the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual.” Among these various ways of begetting and rearing children, Massachusetts law must be indifferent.

On this foundation, the court confidently knocked over a straw man, asserting that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Because marriage has no inherent connection to children, it is irrational for positive law to give a special status to natural marriage as against same-sex relations.

The Costs of Pursuing Marriage Equality

The reality of same-sex “marriage” has not yet caught up with the logic; for now, Massachusetts still distinguishes between real marriage and same-sex “marriage.” But even if some of the incidents securing the rights and duties of parents and their children remain in place, the inchoate effort to achieve marriage equality harms the culture of marriage and thereby harms the children whom marriage is supposed to protect, particularly the least well-off.

These are costs of the as-yet-unsuccessful effort to make marriage and same-sex couplings the same in law. The law teaches, and people are prone to learn from it. The law of same-sex “marriage” is that man and woman, husband and wife, father and mother, are fungible. A marriage can be a marriage without one or the other, according to the desires of the adults involved. Thus, the law of states such as Massachusetts reinforces a culture that devalues fathers and mothers as people with distinct duties toward their children.

If, as several courts and nearly all of the media have concluded, it is not rational to believe that mother and father are each uniquely important, then it should not surprise us if people stop admitting that they believe that mother and father are important, or stop actually believing that mother and father are important, or stop encouraging each other to act as though mother and father are important. When marriage and birth certificates no longer designate “husband” and “wife,” “father” and “mother,” people might well internalize the message that the state does not consider these designations important.

Those who resist this message face other costs. In its ambiguous quest for marriage equality, Massachusetts has forced Catholic Charities to stop placing children in adoptions. A Christian college that distinguishes between marriage and non-marriage has been threatened with loss of accreditation. The Sisters of St. Joseph of Boston, an order of nuns who operate a parochial school, have been subjected to proceedings before the Massachusetts Commission Against Discrimination for acting on their religious conviction that marriage is a man-woman union. Anyone who chooses to speak or act consistently with the reality of marriage is being excluded from public life.

So which will it be?

Some people speculate that a majority of the Supreme Court justices are determined to force this social experiment on all fifty states, whatever the costs. Well, what do they have in mind? Do they plan to be logically consistent and thoroughgoing about this? Will they eliminate the rights of children to have legal connections to their biological parents? Or do they plan to leave in place parallel and distinct marriage institutions, as Massachusetts and other same-sex “marriage” states have done so far, one for real marriages and one for same-sex “marriages,” while nevertheless eliminating the freedom to tell the difference?

Only time will tell.

Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law.

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Lessons from a Life of Hope: Learning from Father Richard John Neuhaus Wed, 24 Jun 2015 11:00:48 +0000

Randy Boyagoda’s fine biography of Fr. Richard John Neuhaus could not have come at a more opportune time. In the past eight years, the Obama administration and various elites have shown unparalleled hostility to those who would seek to live out their faith in the public square. Despite numerous Supreme Court decisions upholding First Amendment rights, the hostility shows no signs of abating. Boyagoda’s account of Neuhaus’s life gives us an opportunity to consider the life of America’s greatest advocate for those rights and the lessons Neuhaus offers us today.

Richard John Neuhaus was born the son of a Lutheran pastor in Canada’s Ottawa River Valley. From an early age, he showed the two character traits that would propel him in life: great hope in God and enormous self-confidence.

Self-Confident from the Start

The latter trait developed before the former. Over the course of his life, Neuhaus would establish and edit many publications. This began, Boyagoda writes, with News of Miller Street, when Neuhaus was only nine: “It was full of his musings, of local gossip that he picked up, and, more scandalously, included select excerpts from his big sister Mim’s diary, which he’d found after she left home for Nebraska.” Neuhaus later noted that for Pembroke, Ontario, the publication was first-rate, and offered a revealing self-assessment: “From early on . . . I assumed people would be, or should be, interested in what I had to say.”

That confidence never abated. Years later, George W. Bush recalled that Fr. Neuhaus was easy to talk to because “he never seemed intimidated.” This was not always a good thing. As Boyagoda summarizes, “Throughout his boyhood, Neuhaus’ personal experiences were consistently exceptional, if not always positively so.” His early teachers declared him ineducable, and “beer parties and panty raids,” as he referred to them, got him into trouble in high school. But he got his act together eventually: after bluffing his way into college—he told an administrator he hoped the school would receive his high school diploma “soon”—and completing seminary, he served as a Lutheran pastor at the parish of St. John the Evangelist in Brooklyn.

Neuhaus thrived in city ministry, as did his congregation. The greatest adventure, as he saw it, was to live among the urban poor and to serve as their pastor and advocate. Soon, Neuhaus came to see that his advocacy should expand beyond Brooklyn, and he became involved in the Civil Rights Movement. He and his predominantly black congregation bused down for the March on Washington. His congregation heard his stirring “I Have a Dream” speech—but not Neuhaus. The story (not recounted by Boyagoda) goes that a fellow pastor assured Neuhaus that King would not speak for hours, so the two of them headed to a bar, unaware that they were missing history as they enjoyed their drinks.

Neuhaus would become an even more significant figure in the antiwar movement, helping to found Clergy and Laity Concerned about Vietnam. He soon found himself as one of the leading clergymen of the American Left, surrounded by the right people who thought the right things. The great Protestant theologian Reinhold Niebuhr reportedly shook his hand and said, with satisfaction, “I’m told you’re the next Reinhold Niebuhr.”

Twenty years later, Neuhaus was America’s most prominent conservative Catholic. What made the man of such brimming confidence change his mind? As he saw it, and as Boyagoda tells it, it was more a matter of holding to core principles while others around him changed. Neuhaus tried to maintain a place for himself on the Left and in the Lutheran Church, but when he could no longer do so in good conscience, he left them both.

A Break with the Left

His break with the left took place around three points. First, in Neuhaus’s mind, “the Movement” existed to defend and empower the weak and the marginalized. After de-segregation and withdrawal from Vietnam, his focus shifted to battles over abortion. Who was more weak and defenseless than the unborn child? He soon discovered that the Left was frequently more interested in furthering private rights and protecting class privileges than taking responsibility for others. In “The Loneliness of the Long-Distance Radical” for the Christian Century, Neuhaus declared the Movement “dead,” Boyagoda writes,

because the majority of its members had abandoned its higher ethical aspirations—to bring peace and justice to the poor and war-trodden at home and abroad—for the intoxications of personal liberation-cum-libertinism. . . . Indeed, [Neuhaus] wondered . . . what were those to do who remained committed to reaching “the Kingdom of God” rather than being now committed to achieving “the perfect orgasm”?

Conversations with liberal elites would only drive this home. One in particular stood out for Neuhaus. A prominent doctor assured him that no one should be born who was not guaranteed “the minimal requirements for a decent existence.” Neuhaus reflected: “When I pointed out that, by his criteria, most of the people I work with in Brooklyn should have been aborted in the womb, he responded with utmost sincerity, ‘But surely many, if not most, of the people who live in our horrible slums would, if they could be objective about it, agree with me that it would have been better for them not to have been born.’” Neuhaus thought his congregants had lives worthy of life.

Second, it became more obvious to Neuhaus that the Left held as a “distinctive dogma” that “evil is inherent in, and not accidental to, the American Way.” Once he shared a stage at an anti-Vietnam rally with Norman Thomas, a Presbyterian minister and repeated Socialist candidate for the presidency. Looking out at their fellow protesters burning the American flag, Thomas said, “Richard, don’t they understand that our purpose is not to burn the flag, but to cleanse the flag?”

Third, the Left became increasingly hostile to religion and to living out religious principles in society. When Carter ran for president, Neuhaus had high hopes that he would build a bridge between secular elites and religious masses. Later, as these hopes failed, Neuhaus’s attempts to “cleanse the flag” and build a bridge between religion and politics migrated rightward. There he found presidents interested in listening to religious voices, none more so than George W. Bush. Bush wanted help craft “policy and ideas” based on “strong theology and moral conviction,” he told Boyagoda. It was Neuhaus who coined the phrase that members of the Bush administration would repeat as their goal: “Every unborn child protected in law and welcomed in life.”

First and Foremost, A Man of God

Boyagoda sums up Neuhaus’s project as having two parts. The first part was made explicit in his speeches and writing: “the political, social, and cultural institutions of American public life should be open to religiously informed positions (and persons).” The second part was implicit, demonstrated by Neuhaus’s unflagging self-confidence: “that Neuhaus himself could offer, in his own positions and person, the very best in religiously informed contributions to American public life.”

This two-part observation illustrates the kind of biographer that Boyagoda is: occasionally critical, always judicious, insightful, clever, and entertaining. Of course, the book is not without faults. Here and there, minor errors crop up—the sequence of events or the title of a former employee—and Neuhaus’s kindness and pastoral side are not always as visible as they might be.

Errors aside, Boyagoda captures who his subject was and how he thought. First and foremost, at the core of his being, Richard John Neuhaus was a priest. He entered into public life, Boyagoda writes, “as a man of God who found in that office and vocation both the means and the imperative that ordered his considerable ambitions and energies into protest-framed activism, controversy-making, and coalition-building.” Living out that vocation was the most important thing he did, and he made it clear to those he taught that the same was true for them. They were to understand what they did as a kind of ministry, whether it be writing, political organizing, or taking care of their children.

Neuhaus was a father in another sense, too: that of creating intellectual families. From the time he was a Brooklyn pastor in 1961, Boyagoda recounts, Neuhaus was a master of “intellectual socializing and social intellectualizing.” He persuaded likeminded people across religious, intellectual, political, and cultural contexts to gather. Once assembled, they would have “projects and meetings that reliably led to more projects and meetings and also forged strategic alliances and rich personal friendships and led to much late-night drink and talk—all of which Neuhaus focused, first and last, on questions of public and religious significance.” The noted scholar of John Paul II, Rocco Buttiglione, observed that this was something the late pope and Neuhaus had in common: “they were both centers of great communities of friends.”

Those who would follow in Neuhaus’s footsteps would do well to note these lessons of his life. Religion and vocation matter more deeply than political wrangling, and we must continue to build intellectual families that combine conviviality with fighting for the greatest causes. But Neuhaus was also a shining example of hope. For all his braggadocio and self-confidence, and through great difficulties, he remained more confident in the triumph of Christ that determines the final outcome of history. Giving an account of the authors who had influenced him, Neuhaus concluded with “Paul, above all Paul, always Paul.” He attributed the style of his own confidence to I Corinthians 4:5: “Judge nothing before the time, until the Lord come, who both will bring to light the hidden things of darkness, and will make manifest the counsels of the hearts.” For the bedrock of that confidence, he offered Romans 14:8: “whether we live, we live unto the Lord; and whether we die, we die unto the Lord: whether we live therefore, or die, we are the Lord’s.”

With his biography, Randy Boyagoda shows what that hope looked like in one remarkable life. In a time of increasing hostility to religious faith lived out, such hope is essential. In his final public lecture, three months before he died, Fr. Neuhaus offered one final assessment of how that hope-filled faith is lived out in public life:

We are not naïve, we are not utopians. We are people filled with hope, we Christian people. . . . [Because of our faith in Christ,] we are vindicated, we know how the story turns out. . . . For us, it is only this, that in our little moment—and all of us have but a little time—we are found faithful in living the truth . . . . No part of the Church has ever gotten it quite right, no, but we just have to keep on working at it, because that’s what it means to respond to the invitation to follow him.

Nathaniel Peters is a doctoral candidate in theology at Boston College. A former assistant editor of First Things, his account of Richard John Neuhaus’s death can be found here.

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Public Debt, Political Paralysis, and the West Tue, 23 Jun 2015 11:00:21 +0000

“There is not a more important and fundamental principle in legislation than that the ways and means ought always to face the public engagements; that our appropriations should ever go hand in hand with our promises." Current Congressman and future President of the United States James Madison spoke these words in a 1790 speech to Congress during contentious debates about whether the US government should assume the states’ considerable debts.

Madison was seeking to remind Americans that balanced budgets are a basic element of sound public finance. Sadly, this is advice that most contemporary Western governments appear unable to embrace, judging from their public debt levels. There are perfectly legitimate debates about the economic benefits and perils associated with different public debt levels. Nonetheless, the very high public debt carried by many developed nations today and their apparent inability to stabilize—let alone reduce—such debts also reflect particular political challenges that contemporary Western democracies are failing to master.

Advanced Economies Awash in Debt

The most recent warnings about excessive public debt were sounded by the International Monetary Fund in its April 2014 World Economic Outlook report. The report identifies wealthy nations as the primary offenders. Public debt in advanced economies now amounts to 105 percent of GDP; that of the G7 amounts to 120 percent. The comparative figures in 2009, in the immediate aftermath of the global financial crisis, were 79 percent and 89 percent. Public debt in the Eurozone nations alone topped 92 percent of GDP at the end of 2014: the highest since the euro’s introduction. Greece was the worst offender, at 177 percent.

Economists have long argued about public debt’s economic effects. Witness, for example, the ferocious arguments that followed publication of the January 2010 National Bureau of Economic Research paper that suggested that once a country’s public debt exceeds 90 percent of annual GDP, it tends to experience lower growth.

On one level, the subsequent debate was about the linearity of the relationship between debt and growth, and the merits of particular economic predictions based on extrapolations from empirical data. The polemics also arose from longstanding divisions among economists and others concerning the efficacy of public borrowing and government intervention more generally.

Often missing from such discussions, however, is attention to the historical dimension. This tells us that public debt has long had major implications for political order, even for nations’ very stability.

The Dangers of Public Debt

The man who provided America with much of the financial architecture it takes for granted today, Alexander Hamilton, famously described the establishment and successful management of a public debt in his 1790 First Report on Public Credit as a “national blessing.” According to Hamilton, creating a national debt was essential if the United States was to attract foreign capital and become a commercial republic. At the same time, Hamilton considered instituting such a debt as key to forging unity among the hitherto disunited former British colonies. He also saw implications for foreign policy. Britain’s rise to world-leader power status in the eighteenth century, Hamilton held, owed much to its ability to manage its public debt, a task that its major rival, France, had conspicuously failed to accomplish.

In the same report, however, Hamilton insisted that he “ardently wishes to see it incorporated as a fundamental maxim in the system of public credit of the United States that the creation of debt should always be accompanied with the means of extinguishing it.” Furthermore, as noted by his most well-known biographer, Ron Chernow, Hamilton’s warnings about excessive public debt “vastly outnumber his paeans to public debt as a source of liquid capital.” In 1795, for instance, Hamilton described the progressive accumulation of debt as “perhaps the natural disease of all governments. And it is not easy to conceive anything more likely than this to lead to great and convulsive revolutions of Empire.”

Hamilton knew that the French Revolution and the subsequent chaos inflicted upon Europe had been precipitated in part by the Bourbon monarchy’s inability to balance its books. Many modern political crises also have been associated with government failure to manage public debt. The financial meltdown that broke the back of Argentina’s economy between 1998 and 2002, for example, owed much to the growth of its public debt throughout the 1990s and successive governments’ failures to illustrate how they were going to pay it down. Across the Atlantic, the chaos that has engulfed Greece since 2009, culminating in the election to power of the radical-left populist Syriza party this year, owes much to Greece’s public debt predicament.

The damage associated with failure to manage public debt, however, can be more subtle. In 1992, signatories to the Maastricht Treaty agreed that countries seeking admission to the then-proposed single European currency had to meet and maintain a public debt limit of 60 percent of GDP. Today, only 4 out of the Eurozone’s 19 countries are below this limit. Nine—including France, Spain, and Italy—are over or hovering close to 90 percent. In other words, freely undertaken treaty obligations are being ignored as European governments use public debt to address more immediate economic quandaries.

No nation is required to immolate itself to fulfill treaty commitments. That said, violating one’s treaty obligations should be a last resort; if done consistently, such violations seriously erode trust among nations.

Public Debt and the Welfare State

So what are some of the economic concerns that persuade these governments to disregard treaty obligations? After all, public debt crises are hardly new. They are, as historian Niall Ferguson writes, as old as bond markets. Yet, Ferguson adds, they are normally associated with war and revolution. This is not the case with today’s debt challenges. Take, for instance, the United States.

Today, America’s public debt amounts to approximately 105 percent of GDP. Since 20 January 2009, America’s total outstanding public debt has grown from $10.626 trillion to $18.152 trillion as of May 8 this year. Such an increase reflects a consistent disparity between government revenues and expenditures that has long plagued America’s public finances.

Yet despite America's involvement in two wars and an ongoing struggle against Islamic terrorism over the past fourteen years, it is not military spending that’s driving government expenditures. The spending is overwhelmingly on welfare. In 2013, 49 percent of federal government expenditures was on major entitlements such as Social Security and Medicare, with another 20 percent on income security and other benefits. Just 18 percent was on national defense. One study projects that 85 percent of increases in federal expenditures over the next ten years will be on entitlement programs and public-debt interest payments. If anything, Western European nations face even more ominous challenges in this area, given their bleak demographic outlooks.

There is a major political problem associated with restraining this expansion. This problem was underlined by the German economist Wilhelm Röpke, the intellectual architect of West Germany’s economic liberalization in 1948 and its subsequent rise to become Europe’s economic powerhouse. In a 1958 essay, Röpke observed that there is nothing in the welfare state’s basic conception to set internal limits on its growth. Moreover, if democracy degenerates into politicians competing for votes on the basis of who’s considered better at delivering the most government-provided economic security for the most people, then the welfare state’s continual increase is guaranteed, while the question of how to pay for it becomes a secondary concern.

Unpalatable Choices

There’s no dearth of people who regard the present size of public debt in the West as economically untenable and politically dangerous. The problem, however, is that there’s no easy way out.

One option is to default. Many countries have done this in the past. However, this can undermine such nations’ future ability to access capital loans. Defaulting also means that a state dishonors the terms of freely undertaken contracts with other governments and bondholders. Such choices are not without their moral and political problems.

Rather than default, many governments seek outright capital transfers from abroad—i.e., bailouts. But such measures encourage the moral-hazard problem: by shielding people from the consequences of their choices, the chances of mistakes being repeated are enhanced.

Yet another possibility is a currency devaluation, which can help make a nation’s exports cheaper and its imports more expensive. It also, however, involves (1) a risk of increased inflation and (2) accepting that everyone with holdings in that currency will suddenly find the value of their assets reduced. The financially literate can often cope with and even profit from such changes. The less financially educated probably won’t. Is that just?

Recognizing the downsides associated with these options, some governments try restructuring their debts by renegotiating interest rates and payment schedules. Any resulting agreement is usually conditioned by governments promising to implement policies purportedly designed to reduce the debt over time. Sometimes this translates into tax increases. Typically, agreements also involve measures to promote growth, since shrinking public debt is difficult without growth. Such reforms range from diminishing subsidies and liberalizing labor markets to reducing trade barriers and government expenditures.

Most of these measures are hard political sells. Leaving aside the considerable evidence that tax increases have a negative impact on economic growth, no one likes paying higher taxes. Likewise, many interest groups will resist general or specific spending cuts, not to mention reductions in corporate welfare or efforts to lower tariff barriers.

Rhetoric and Reality

But beyond the political dilemma of no easy choices, there is a deeper problem. In the United States, for instance, calls for public expenditure cuts to reduce America’s public debt are regularly articulated by politicians, especially on the conservative side. Rhetorically speaking, this resonates with many Americans, particularly those who claim to be skeptical of government intervention.

One cannot help but wonder, however, whether even many self-described fiscal conservatives are actually willing to embrace real spending cuts as part of any effort to reduce public debt. It is not uncommon, for instance, for legislators to stress their efforts to cut the projected rate of increase in government spending. But that, to put it bluntly, is not a reduction in real spending. It’s simply reducing the pace of increases in government expenditures.

Nor is it hard to find examples of American congressmen and senators who denounce out-of-control spending and excessive public debt but don’t hesitate to lobby for subsidies for politically well-connected businesses located in their electorates. This isn’t surprising. If legislators believe their reelection depends upon their ability to deliver taxpayer dollars to their state or district, and if their electorates consider this part of their representatives’ job, we shouldn’t be shocked at people’s aversion to specific measures designed to diminish public debt.

All of this analysis points to an unpalatable political fact. Unless enough citizens in a democracy are willing to support the difficult choices that enable nations to bring public debt under control, the chances that legislators and governments will do so is small.

Politics, it is often said, is the art of the possible. This may be true, but thinking about the possible is not a blank check for governments, legislators, and citizens to ignore long-term problems. Addressing the West’s public-debt challenge will be difficult. Nevertheless, as Hamilton’s greatest political opponent, Thomas Jefferson, insisted, “we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude.”

Such are the stakes in the West’s public-debt challenge.

Samuel Gregg is research director at the Acton Institute.

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Democracy Isn’t the Problem: The Benedict Option Meets the Buckley Option Mon, 22 Jun 2015 12:00:25 +0000

There’s been a lot of online chatter about Rod Dreher’s proposed “Benedict Option.” The fact that this conversation is taking place is encouraging, because it demonstrates that people are engaging in deep and serious reflection about Christianity’s place in a rapidly changing culture. Billing his “Benedict Option” as a strategic withdrawal, Dreher writes:

we need to realize the radical nature of the present moment, which requires a radical response—a kind of deliberate, strategic retreat so that we can tend our own gardens, so to speak, and cultivate the deep roots that our kids and their kids, and their kids’ kids will need to hold on to the faith through the dark times ahead.

To his credit, Dreher writes that all of this is channeled toward seeing the church as “for the life of the world.”

I hesitate to criticize Dreher, since I have benefitted immensely from his writing and his keen insight. And this piece isn’t meant to be critical of all aspects of the Benedict Option, but rather, to serve as a rejoinder that may help sharpen the discussion. For all the good he believes the Benedict Option offers (and indeed, there’s much in it that is attractive), I cannot help but hear echoes of dreamy-eyed monasticism reverberating throughout its explanation. I know that Dreher himself will probably protest such a characterization. Yet, even after reading his many thoughtful articulations and re-articulations of his view, this impression remains.

If the Benedict Option is about developing a “thicker” Christian community that grows more deliberate about sustaining and catechizing itself, count me in. But if the only result of the Benedict Option is a more aesthetic and intellectual homeschooling movement, then I have concerns about its long-term viability. A Christianity that isn’t simultaneously attentive to both its own institutions and its public witness simply cannot fulfill the robust demands of orthodoxy.

So, I’d like to propose an alternate paradigm for how Christians should navigate the days, months, and years ahead as culture coarsens and rejects historic, orthodox Christianity. I call it “the Buckley Option,” named after the famed conservative Catholic William F. Buckley, Jr.

The Buckley Option

The Buckley Option seeks to emulate the style, tenor, and tactics of post-war conservatism that Buckley helped pioneer. Think for a moment about the political environment in which Buckley found himself. It wasn’t totally unlike ours. Before Buckley’s arrival, political liberalism was totalizing and unchecked as the dominant political reality. In the post-Hoover years, to be a Republican was to be, as today’s zany progressives remind us, “on the wrong side of history.” The 1950s might have overseen the zenith of American civil religion and moral puritanism, but the conservative movement was fledgling, if it could be said to exist at all.

Into that void Buckley stepped to unite dissonant political voices into one melody. He brought together traditionalists, libertarians, and free-market economists to forge a coalition with a shared commitment to limiting government and maximizing liberty, all while promoting virtue. Buckley led a coalition that had as its united enemy a growing Leviathan that aimed to ameliorate all aspects of political life under the umbrella of government largesse.

What did Buckley do? He founded organizations and a magazine that helped catechize a young generation of conservatives. He understood that the strength of any movement exists in the matrix of relationships and ideas that comprise it. But if the tactical elements of post-war conservatism are worth mimicking, so too was Buckley’s approach and demeanor. Buckley’s style was equal parts wit, charm, and conviction.  Engaged in heady debates dealing with deep issues, Buckley’s charm offensive was accompanied by both philosophical rigor and gaiety. He was not a firebrand in the classic sense, but he did not hesitate to jar liberal America awake from its political torpor.

A contemporary version of Buckley’s approach will insist on the necessity of broad coalitions where religious conservatives unite together in the belief that small-c “catholic” Christianity has the seeds of civilization in its DNA. Sure, there may be spats about baptismal practices, but Nicene Christianity has enough potency to affirm, for example, that man is man and woman is woman. The Buckley Option will look for alliances at every opportunity without sacrificing its convictions. It will unite against a common foe, which today, as Rod Dreher himself rightly observed, is Equal Freedom Über Alles—a form of administrative liberalism that sacrifices all natural differences in the social order before the altar of the human will and the dictatorship of relativism.

The Buckley Option will put a value on political wins, but its primary goal will be cultural sustainability. Within my own Southern Baptist ranks, I’ve noticed a newfound dedication to parent-child discipleship and catechesis, one that places a huge responsibility for child discipleship in the family, rather than outsourcing it solely to a youth pastor on Wednesday or Sunday nights. On this, Buckley and Benedict might well raise their glasses with one another.

A Thundering, Joyous Defiance

The Buckley Option will be distinguished as much for its disposition and attitude as its philosophy and theology. It will stand athwart liberalism and decadence yelling not only “Stop!” but also “Repent!” It must be resolutely orthodox, thundering a joyous defiance as it scoffs at its cultural persecutors.

Every movement needs a distinguishing attitude. The Buckley Option will be as gregarious as Bill Buckley himself. It will simultaneously laugh at, cry for, predict, and counter the silly, harmful messes caused by progressivism. It will embrace good-natured ridicule and satire as a modus operandi for debunking the silliness and incoherence of progressivism. The Buckley Option will shout that the Emperor has no clothes, conquering the Apostles of Secularism with a good dose of laughter and eye-rolling.

The Buckley Option will cherish the primacy of moral virtue and freedom lived out in the public square. On this, it will look not only to advancing its own interests, but the interests of all persons endowed with a conscience who desire to live in freedom. It will insist on the necessity of religion’s restraining effect on man’s passions that, left unchecked, eventually bend toward authoritarianism.

With roots in Chesterton, Kuyper, and Lewis, the Buckley Option will be sanguine. It will be, in a word, Renaissance. Conversant with the broader culture, it will value the artifacts of man for the sake of advancing the mission of the church. Its robust doctrine of creation and culture will recognize Christ is indeed Lord over every square inch of cosmic real estate.

Among the Ruins

The Buckley Option will never require dominance and cultural preference. Battle-tested and battle-ready, it will freely acknowledge that Christianity does its best work among the ruins of culture. In the ruins of our culture’s accelerating and self-willed suicide, the church can act out its mission as a drama of divine contradiction. The Buckley Option will insist on a Christianity whose ethics are intelligible, life-giving, and at all times applicable to the public square. If the church fails to speak both clearly and rightly in the public square, someone else will speak wrongly. The Buckley Option will sacrifice no space in the social or civil arena. It will believe, as the church always has, that its gospel brings with it good news for society, regardless of whether society believes its message is good or not.

Lastly, the Buckley Option will recognize that in a fallen world marked by self-interest, democracy is the preferred method for government order. While imperfect, it allows self-interest to be dealt with in the sphere of persuasion, not coercion. Eschewing theocracy, a Buckley Option approach will recognize that the moral ecology of any nation is dependent on a public morality, not a government morality. While the Benedict Option implies that democracy sowed the seeds of its own destruction, a Buckley Option approach recognizes that the seeds of destruction are not unique to any one political system. The moral breakdown that ensues when free people act freely is not caused by democracy, but by the besetting effects of sin that taint all human civilizations.

Of course, this is only a preliminary outline. Much more remains to be said. And, it is important to note, not every paradigm for engaging culture requires abandoning all others.

Let Benedict be Benedict—and let Buckley be Buckley.

Andrew T. Walker serves as the director of policy studies for the Ethics and Religious Liberty Commission of the Southern Baptist Convention.

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Riches, Religion, and the New Atheism Fri, 19 Jun 2015 11:00:07 +0000

Writing in The Wall Street Journal, Daniel Dennett argues that the future of religion is bleak. Congregations are losing members at a tremendous rate, and churches everywhere are closing.

There are two reasons for this, Dennett thinks. First, “with hardly any significant exceptions, religion recedes whenever human security and well-being rise,” and the Western world, at least, is enjoying a great run of peace and prosperity. Second, “the rapid growth of mutual knowledge, thanks to the global spread of electronic and digital communication,” means that religious institutions, which in the past have managed “to control what their flocks know about the world,” can no longer do so. A young Mormon in Utah can now share “the ambient knowledge that is shared by the general populace,” including by learning from an episode of South Park that many non-Mormons find his religion “comical, preposterous, ludicrous.”

In other words, religion is basically a set of claims that, if true, would make bearing the hardships of life more palatable, but, as life gets better, there is less and less need for such things. Moreover, religion’s claims are not only false but usually provably false (Dennett mentions a study showing that intercessory prayer is not correlated with better results from heart surgery), and modern social conditions make it impossible for prelates to keep their congregants ignorant.

Dennett doesn’t credit Marx, but this is just Marx’s theory of religion as the opiate of the masses, updated, naturally, to include the internet.

Dennett’s Claims About the Causes of the Decline of Religion Are Untenable

Dennett is obviously correct, of course, that religious belief is declining precipitately in the Western world, but, as a matter of empirical sociology, his account of the causes for this decline seems pretty weak. Religion thrives when people are poor and miserable but goes into decline when living standards rise? Then we should expect China, which since 1980 has experienced the single greatest increase in material well-being in the history of the human race, to be in the vanguard of the atheistic tide. The truth is just the opposite. Christianity is booming in China, even though, incidentally, it’s easier in China to find on the internet (government-sponsored) mockery of religion than any pro-Christian messages.

A Mormon in Utah needs South Park to tell him that many non-Mormons have a low opinion of his religion? Recall that Joseph Smith was persecuted for his beliefs for decades, finally being murdered, and that the United States forced the Mormon church to adjust its teaching on polygamy before permitting Utah to join the Union. It’s not news to Mormons that many other people don’t think highly of their beliefs. On the contrary, it’s an essential part of their religious self-understanding.

In fact, this is true for Christianity generally, whose divine founder was publicly executed in the most shameful manner known to the Roman Empire, whose Emperors then persecuted and martyred Christians for three hundred years, a period during which the church saw immense growth, including during the good economic times of the Pax Romana. At least as regards Christianity, the whole idea that other people don’t think much of one’s religion is pretty much a given. We preach Christ crucified, a stumbling block to Jews and an absurdity to Gentiles, and again, If you find that the world hates you, know that it has hated me before you.

I could go on like this, but so could anyone with a decent familiarity with the history of Western civilization. I don’t deny that increasing material well-being is sometimes associated with declining religious belief or that some religions have sometimes relied on keeping pertinent information from their congregants, but the facts obviously do not support Dennett’s generalizations. As Charles Murray shows in his book Coming Apart, even in the United States today, the affluent, highly educated Americans who live in Belmont are more religious and more likely to attend religious services than are the impoverished, poorly educated Americans who live in Fishtown. Religious belief in the United States is undoubtedly in steep decline, but this point from Murray is quite sufficient to blow up Dennett’s account of the causes of that decline.

Still, Dennett is not entirely wrong to focus on material prosperity and systematic ignorance. These are important, I would suggest, not so much in connection with religion but in connection with the secular humanism Dennett favors, though not in ways he seems to appreciate.

Ultimate Questions About the Human Condition

To understand why, it’s useful to begin by recalling why human beings will always be religious animals. Although we are feeble creatures, here today and gone tomorrow, we are also immensely grand beings who can ask about the origins and purpose of the universe, discover the astonishing order of the cosmos expressed in the absolutely invariant laws of physics, marvel at the set of anthropic coincidences required to allow our existence, and then stand in awe of the elegance and beauty of it all.

The shocking incongruity between our physical weakness as mortal human beings and our intellectual reach, which can span the universe and even imagine things beyond the physical universe in eternity, is itself very significant. If we start thinking seriously about such questions, whether in a self-conscious and disciplined way through contemporary cosmology and the philosophy of religion, or just in the commonsense way human beings always have, we tend naturally to come to theistic, religious answers. This is not because we’re deluding ourselves by falling for comforting myths, but because such answers are more plausible than the alternatives. In the contemporary philosophy of religion, the arguments for the existence of God are getting stronger all the time, and Antony Flew, the dean of the philosophical atheists, finally changed his mind and became a deist. The evidence just favors the theistic side of this debate. (For more on this, see J.J.C. Smart and J.J. Haldane’s Atheism and Theism.)

Regardless of the merits of the arguments for the existence of God (though I am convinced that some of them are sound), the more fundamental point is that human beings have an ineliminable impulse to ask ultimate questions about the origin and end of the universe and the purpose and meaning of human life. A human being who never asks these questions in a serious way doesn’t lead a properly human life. He may be a fine accountant or engineer, an excellent attorney or analytic philosopher, and he may even be a good man in sense of being just and kind, but he is fearfully limited as a human being. Although most people lack the time, training, or ability to think through all the arguments about these issues as professional philosophers would, we are all responsible for confronting them and having some views on these matters. It is a moral failing—and a serious one, in my view—for a man to systematically ignore these questions.

Secular Humanism and the New Atheists

Unfortunately, this is pretty much what secular humanism does. I don’t mean the secular humanism of atheistic philosophers of religion; such people engage these questions at a very high level, even if, in my view, they come to mistaken conclusions. I mean the popular secular humanism of the “New Atheists” such as Richard Dawkins, Sam Harris, the late Christopher Hitchens, and, yes, Daniel Dennett, notwithstanding the outstanding philosophical acumen he brings to many other issues. How so?

Ironically, but perhaps not accidentally, the New Atheists’ method is pretty much the one that Dennett attributes to traditional religion—a systematic exclusion of the relevant knowledge.

They accomplish this in two ways. First, the New Atheists tend to avoid even mentioning the ultimate questions that lead to theistic answers, probably because they know that the theistic answers to these questions have such powerful intuitive appeal. In particular, they most certainly do not acknowledge the undeniable empirical fact that there is a serious debate, pro and con, among analytic philosophers about the arguments for the existence of God. Doing so would be tantamount to admitting that believing in God is reasonable, and that would undercut the New Atheists’ whole project.

Second, the New Atheists constantly misrepresent the beliefs of their religious opponents, turning them into absurd doctrines so silly that virtually no one could believe them. Dennett’s citing the study that shows that prayer doesn’t produce better results from heart surgery is a good example of this latter technique. In referring to this study, Dennett implies that religious believers think that, when they ask for such things, God will perform miracles to grant them. Without denying the existence of the occasional miracle, no serious Christian thinks that this is how prayer works. Nor, as Dennett might say, is this some recent, face-saving reinterpretation of traditional doctrine. On the contrary, from the beginning, Christians have been told, You ask and receive not, because you ask wrongly, with a view to squandering what you receive on your own pleasures.

As Aquinas says, we pray not to receive what we antecedently happen to want but to bend our desires to receive devoutly what God wishes us to have. At this point, Dennett may say that this makes doctrines about prayer unfalsifiable irrelevancies, but this misses the point. The true doctrine about prayer is part of the larger Christian teaching about conforming our will to the divine will, wherein lies our perfection and the meaning of our lives. In Dennett’s hands, what is part of a deep truth about the meaning and nature of human existence becomes an obviously false belief about surgical success rates. The characteristic tactic of the New Atheism is obscurantism.

The Impact of Material Well-Being

As to material well-being, Dennett is right, in a way, that it undermines religious devotion. The truth is that, in the midst of peace and prosperity, it is easy for us to lose sight of the ultimate questions. This is why It is easier for a camel to pass through the eye of a needle than for a rich man to be saved, and why poverty is one of the Evangelical Counsels. Yet such amnesia about the most important issues in life cannot be permanent. Sooner or later, we all have to face the question of the meaning of our lives, if only because our lives inevitably end in death.

The Psalmist says, No man can buy life without end or avoid coming to the grave. In his riches, man lacks wisdom, he is like the beasts that are destroyed. The comparison to beasts is twofold. First, in the midst of material prosperity, human beings can easily blind themselves to essential facts of the human condition that, when confronted, properly set the human mind wondering about ultimate issues. People who blind themselves in this way are thus like irrational beasts, who cannot comprehend such issues. Therefore, it’s not, as Dennett thinks, that in misery and suffering human beings grasp at foolish theories that give them false hope. Rather, amidst prosperity, human beings blind themselves to the reality of the human condition and so never ask the questions that, once asked, cannot be plausibly answered except in theistic terms.

Second, in the midst of material prosperity, it is easy for us to believe that the good life for human beings consists in material well-being. This is what St. Paul calls living according to the flesh, and it is a life appropriate to beasts, not rational beings. In arguing that people buy into silly myths to find comfort among life’s tribulations, Dennett tacitly assumes that, to live a good life, all people should care about is material well-being—which is exactly what religious theists deny. This is another example of Dennett’s obscurantism and, in this case, it is a literally damnable lie.

Robert T. Miller is a professor of law and the F. Arnold Daum Fellow in Corporate Law at the University of Iowa College of Law and a senior scholar at the Classical Liberal Institute at the New York University School of Law.

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The Courage to Be on the Wrong Side of History: Lessons from Burke and Nietzsche Thu, 18 Jun 2015 11:00:58 +0000

It seems that the Supreme Court will probably strike down the conjugal marriage laws of our states. It seems Anthony Kennedy may have finally made up his mind that Aristotle was wrong in the first book of his Politics. Things are beginning to feel like a game of chicken: get out of the way now, or face being on the wrong side of history. For young people who have any proclivity to think the nature of marriage is rooted in sexual complementarity and generational renewal, the inevitable judgment of the ages can sting.

The phrase “the wrong side of history” is, of course, easily discreditable, as the intellectual exaltation and subsequent downfall of communism demonstrate. History is a relatively recent way of providing ourselves a narrative of the past, and this divinization of it—what Jonah Goldberg calls “Hallmark-card Hegelianism”—amounts, in effect, to the threat that “people won’t like you.” If you think same-sex marriage is an oxymoron and no-fault divorce should be reformed, then no New York cocktail parties for you.

Yet there is a deeper threat as well: not only will people not like you, but you will be socially excluded from prestigious jobs, awards, societies, or—like Brendan Eich—perhaps even the very company you helped create. This “arc of history” narrative is used to legitimize the vigilante justice wielded against the bigoted foes of progress. Because the future will inevitably turn toward “equality,” we are told, millennials who stand in the way have no future. They will be history. The majority of the Republican Party can be excused—they are from an older generation. But when you grow up in a time of progress, the revolution will not be merciful.

This is a real fear among my likeminded friends, and it is demoralizing. I want to propose a counter-narrative: assume for the rest of this article that the Supreme Court rules against conjugal civil marriage in the coming months. Assume the “inevitable” happens.

What next?

The Fate of Millennials Who Oppose Same-Sex Marriage

In this future, there will be a new narrative: an opportunity for moral courage that will take its place within the grand tradition of those who stood strong against unjust and unwise revolutions.

In 1790, when Edmund Burke wrote his classic essay, Reflections on the Revolution in France, the reactions were not positive. He was not popular among the London elites, to say the least. As L.G. Mitchell recounts, “Burke was rejected right across the political spectrum.” Not only did radicals such as Thomas Paine and Mary Wollstonecraft “dislike the book,” but the members of his own Whig party disowned it: Charles James Fox considered the Reflections “to be in very bad taste” and the future Prime Minister William Pitt the Younger found only “rhapsodies in which there is much to admire and nothing to agree with.”

Yet Burke, the reform-minded statesman, decided to stand against the proclamations of the French Revolution. Liberty, Equality, and Fraternity—who would want to be against that? Burke, apparently. And he prophesied the coming Terror and the rise of Napoleon, because he refused to give in to the tyrannical dictates of eighteenth-century deified Reason.

Of course, the French Revolution and the current deconstruction of marriage are morally distinct. Yet the point remains: standing against self-anointed makers of progress is not the same as standing against the way of genuine social progress. In fact, it is sometimes just the opposite.

Moral Courage to Oppose the Spirit of the Age

Many movements will come and go, but the real moral crisis stands: as a result of the sexual revolution, the Western moral imagination has broken down to such an extent that it is considered inappropriate to articulate what marriage is. As Michael Hanby writes: “we live in revolutionary times, even if this revolution is the full flower of seeds planted long ago.” The quasi-Nietzschean transvaluation of values has led to the fact that what was once the collective wisdom of the ages concerning the human family, Hanby continues,

is now regarded by many as obsolete and even hopelessly bigoted, as court after court, demonstrating that this revolution has profoundly transformed even the meaning of reason itself, has declared that this bygone wisdom now fails even to pass the minimum legal threshold of rational cogency.

Those are strong words, but they capture the “spirit of the times.” I imagine Burke must have felt the same way: the collective wisdom of the past concerning our duties to the dead and the unborn was laid waste by the Jacobins in their haste to worship Reason deified and redefined. Our current situation is similar, though this revolution is more subtle and potent. The collapse of our marriage culture has been slow and its recession pernicious.

It took just one Anglo-Irish statesman to speak out and wake up Great Britain to the dangers of a revolution that, through its changes in the law, would erode the institutions of civil society. Likewise, it may only take a few from my generation to spark a moral revival. The current redefinitions of the very words we use, as Alice von Hildebrand says, is “a severe moral crisis in which the eternal truths have been exchanged for temporary fads.” The real choice for those feeling demoralized is this: Which will you stand for?

The restoration of eternal truths of human nature requires more than speaking. This opportunity to witness to the human family for the good of all individuals requires virtue. Courage, Aristotle noted, makes all the other virtues possible. But physical courage is not enough. As von Hildebrand explains,

Physical courage—something you find on athletic fields, for example—is very common, but moral courage is not. It is not easy to stand up for what is right when that might mean losing one’s job, one’s family or even one’s life. It is far easier to keep quiet and let things slide.

Moral courage means placing more value upon the integrity of conscience over the stability of external events: being denied tenure, a plum internship, some job, friends who cannot tolerate “bigoted” opinions . . . prudence is necessary, yet those of my generation who stand for what the family is, what marriage is, and what the foundational institutions of civil society rooted in our rational and social natures are, make possible a new counter-revolution.

A New Moral Restoration

I’ve been arguing on the assumption that the Supreme Court rules against Plato, Aristotle, Augustine, Anscombe, and Nietzsche. I mention the unexpected last one because, in his unpublished notes, Frederich Nietzsche cynically noted that a new “bourgeois” meaning of the word marriage had emerged, one that included good will and passion in contrast to the aristocratic sense of marriage as “the maintenance of the family.” In the new sense, marriage is “a question of society’s granting permission to two people to gratify their sexual desires with one another, under certain conditions . . . that keep the interests of society in view.” It becomes a contract between the present individuals and the state—much like marriage laws today.

Yet, in acknowledging this distinction, Nietzsche thereby implies a historical reality that was being forgotten. He would probably credit Christianity for this change, as it subtly overthrew the aristocratic assumptions of natural inequality—what he called “Master Morality.” The institution of marriage understood sacramentally and then later instituted civilly meant equality between the sexes. Indeed, as historian Larry Siedentop demonstrates in his recent book, Inventing the Individual: The Origins of Western Liberalism, Christianity gave rise to the modern assumption of moral equality as a social status in Western Europe. But with the second transvaluation of moral systems in the ’60s and ’70s, the leftover bourgeois values after the recession of Christendom were not sufficient to retain the family as an irreducible category of thought and law.

But for those who stay, those who face the oncoming change, the chance to participate in a new transvaluation of values can take place: a moral restoration similar to the American religious revivals of the Great Awakenings. The bourgeois value system is on its last legs. We must face the reality that the breakdown of marriage culture hurts most those who are the least economically privileged. As sociologist Brad Wilcox writes,

the retreat from marriage in working-class and poor communities across the United States hinders educational and economic op-portunity, helps drive the crime rate higher in these communities, and exacts a serious social and emotional toll on children.

And as political scientists Robert Putnam in Our Kids (2015), and Charles Murray in Coming Apart (2012) both document, a new class and cultural divide exists in America between intact upper-class families and broken lower-class families. The effects Wilcox mentions are real and present dangers for our society—not to mention the immediate violation of a child’s right to be raised by her biological parents or systematic attempts to subvert that right. An American moral and civic revival must be launched, and the marriage movement can help begin it.

The question facing my generation is, “Will you join it? Will you be on the side of truths or fads?”

Pockets of Resistance

How such a civic revival would take place is difficult to predict—just as much as the long-term future of marriage laws in the United States. The reality of human freedom is such that the future lies in how we deliberate and act on our ideas and values.

But consider a previous case: no one predicted the fall of the Soviet Union would happen as fast as it did. And the academy in Western Europe and the United States were sympathetic to, if not outright supporters of, this totalitarian system. And when some, like the British philosopher Roger Scruton, tried in the ’70s and ’80s to help underground universities behind the Iron Curtain in Czechoslovakia and Hungary, the only help they received was from the Cambridge Faculty of Divinity. Yet such efforts by a few lone individuals, when triumph seemed nonexistent and lasting change futile, helped aid the underground universities hiding in attics whose members would become the future leaders in rebuilding law and civil society in their home countries after the Soviet tyranny receded.

How many timid academics in their consciences regret that they did not have the moral courage to help those who needed it? Indeed, Scruton as a conservative activist sacrificed a career in academia for activities like that. “We, the supposed excluders, are therefore under pressure to hide what we are, for fear of being excluded.” Scruton writes in his latest book.

But, he continues, “I have resisted that pressure, and as a result my life has been far more interesting than I intended it to be.” Already pockets of resistance such as Anscombe Societies are sprouting up across college campuses. As Judy Romea once said to me: “Leading the Stanford Anscombe Society has been one of the most positive and rewarding experiences of my college career.” Being conjugal marriage hipsters and subversive to the new bourgeois tastes can have its unforeseen upsides.

Resisting the Inevitable

It was not just communism that elevated history to be on its side. Fascism once seemed insurmountable. When FDR and Churchill met in 1941, as Daniel Hannan recounts, “Across the Eurasian landmass, freedom and democracy had retreated before authoritarianism, then thought to be the coming force.” But someone like the Catholic philosopher Dietrich von Hildebrand chose to stand against this inevitable tide. Moving across Europe, to Brazil, and then to the United States, von Hildebrand showed that opportunities against the inevitable mean a time for moral courage to begin the good fight back.

The movement for marital restoration is beginning, and the chance for moral courage and a life daring to be countercultural is at hand. By continuing to speak up for religious freedom, the restoration of a marriage culture, and dignity of the family in the face of potential set-backs at the Supreme Court, we can become the Nietzscheans who hammer the libertine and atomistic idols of our age.

Ryan Shinkel is currently a senior studying philosophy and literature at the University of Michigan. He has written for Ethika Politika and Values and Capitalism Online.

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Professor Paulsen and Justice Scalia: A Qualified Defense of the Smith Decision Wed, 17 Jun 2015 11:00:04 +0000

The formidable Michael Stokes Paulsen recently argued in this space that Employment Division v. Smith was “Justice Scalia’s Worst Opinion.” Paulsen criticized the 1990 Smith ruling, in which the Supreme Court declined to make an exemption on free exercise of religion grounds from a state criminal law on drug abuse. In Paulsen’s view, the ruling was a “constitutional disaster” with “devastatingly long-term harmful” effects, whose reasoning was “dreadful,” an “embarrassment” that adopted “a dubious and insidious interpretation of the Free Exercise Clause,” representing Justice Scalia’s “worst piece of judicial craftsmanship in a major constitutional opinion in nearly thirty otherwise magnificent years on the Court.”

My friend Mike Paulsen pulls no punches.

No justice of the Supreme Court has a perfect record. And it won’t do to say that there are six or eight Scalia opinions that are worse than Smith, for that wouldn’t be much of an answer to Paulsen. I want instead to make a qualified defense of Scalia’s Smith opinion. There are some problems in its reasoning, one of them quite serious, and I will come to those. But in its holding, and in its rejection of a quarter century of jurisprudence that could not be squared with the First Amendment, Smith was correct. The bipartisan, interfaith coalition that formed to pass the Religious Freedom Restoration Act in 1993, in reaction to Smith, fervently believed the decision was wrong, as Paulsen does. But one can be glad that our elected officials took an interest in strengthening our legal protections of religious freedom while believing that Smith nonetheless got the constitutional question right.

Paulsen’s case against Justice Scalia’s Smith opinion is one part overstatement, one part unexamined assumption, one part question-begging, one part dubious historical assertion, and one part misreading of the opinion.

Professor Paulsen’s Errors about Justice Scalia

Overstatement: Justice Scalia, according to Paulsen, held that the First Amendment’s “right to the free exercise of religion is not a substantive freedom.” That is, it “confers no constitutional immunity from government interference,” and expresses “merely a non-discrimination rule.” He goes on to characterize Scalia’s view this way:

Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.

The second sentence just quoted touches on a very real problem to which we will return—namely, how to grapple with the problem of “neutral” laws that nonetheless have an adverse impact on religious freedom. But let’s first recognize that the principle of “no targeting of religion” is not exactly nothing as a substantive protection.

Anyone can see, in the way Justice Scalia has voted and sometimes written in notable cases since Smith, how strongly he believes in protecting religious liberty. He has opposed unequal treatment of religious claimants in cases such as Good News Club v. Milford Central School (2001) and Locke v. Davey (2004). And he has joined in arguments that go beyond a simple “equal treatment” principle in cases such as Christian Legal Society v. Martinez (2010) and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). But carried away by his outrage over Smith, Paulsen unjustly overstates Justice Scalia’s view, making him out to be hostile to protecting religious freedom in any meaningful way.

Unexamined assumption: Paulsen asserts that the free exercise clause requires a “strict standard favoring religious liberty.” But he does not really elaborate on what this means in practice. The phrase “strict standard” suggests that he accepts the modern approach in constitutional law of applying “strict scrutiny,” demanding that government show a “compelling interest” where “preferred freedoms” are concerned.

What this means is an effective reversal of the traditional presumption of the constitutionality of legislation, shifting the burden of the argument from the party challenging the validity of a law to the government defending it. But from the beginning of our constitutional law in the 1790s, the normal practice of the Supreme Court has been to presume that the actions of other branches of government are constitutionally valid, placing the burden of proof on those who challenge them.

This posture of judicial restraint, expressed in the rebuttable presumption that the elected branches of government know their constitutional business and act in good faith, eroded somewhat at the turn of the previous century in the era associated with Lochner v. New York (a 1905 case that Paulsen calls one of the Court’s “greatest atrocities”). But the open reversal of the traditional norm, frankly acknowledged as new by its liberal activist practitioners, arrived only in the mid-twentieth century. I don’t know why Paulsen should uncritically embrace an activist posture without constitutional or historical warrant that is most closely associated with justices such as William O. Douglas, Earl Warren, and William Brennan.

And if we think the only way to protect religious liberty is by accepting bad theories of constitutional judging, then we’re doing it wrong.

Question-begging: Here is the heart of Paulsen’s misplaced criticism of Justice Scalia’s Smith opinion. He appears to believe that religious freedom can only be protected by a system of exemptions from neutral laws of general applicability. Thus, a statute that regulates people’s conduct must continue to be obeyed by everyone else, but may be disregarded by parties granted an exemption carved out by judges on First Amendment grounds.

There is good reason for this approach being unknown in our constitutional law before 1963. In the Supreme Court’s first religious freedom case, concerning the federal government’s ban on polygamy in the Utah Territory, the justices rejected it unanimously, noting (in language partially quoted by Justice Scalia in Smith) that this theory of the First Amendment would introduce “a new element into criminal law,” one that would “permit every citizen to become a law unto himself” so long as he plausibly claimed his religious belief required him to act in ways the law generally forbade.

The Court continued to resist this approach until Sherbert v. Verner in 1963. This ruling required South Carolina to reinstate the eligibility for unemployment benefits of a Seventh-Day Adventist who had declined available jobs requiring her to work on Saturdays. As Justice John Marshall Harlan remarked in dissent, “it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant.” But Justice Brennan, who wrote for the Court in Sherbert, provided no ground in the text, original understanding, or history of the First Amendment for (in Harlan’s words) “the conclusion that the State is constitutionally compelled to carve out an exception to its general rule.”

It was this ahistorical innovation of the Warren Court that was undone in Smith when Justice Scalia referred to “a private right to ignore generally applicable laws” as “a constitutional anomaly.”

Dubious historical assertion: Paulsen, however, thinks it was Justice Scalia who turned his back on the historic requirements of the free exercise clause. Understandably, in a Public Discourse essay, Paulsen doesn’t have the space to substantiate this claim. So he relies on one authority, writing that “the distinguished religious liberty scholar Michael McConnell has demonstrated” the founding generation’s understanding of the free exercise clause—that it “could, and often would, require exemption from the application of the ordinary laws of the secular state.”

No one can disagree with Paulsen’s description of McConnell as distinguished, but the latter’s well-known 1990 article criticizing Smith, and making an originalist case for exemptions jurisprudence, began rather than concluded the academic debate over the case. Many readers might find McConnell’s case unpersuasive, as I do, after reading the cogent responses published in 1991 and 1992 by Gerard V. Bradley and Philip A. Hamburger. Like Paulsen, I can do little more here than point readers to this debate and invite them to consider the historical sources discussed there. But I can add that it is hard to credit the idea that the founding generation envisioned such an enlarged role for the judiciary as the exemptions approach requires.

What Sherbert inaugurated is not mere “enforcement” of a freedom-of-religion principle, but a “balancing” approach, with “burdens” on religious practice weighed against “interests” of the state. This involves judgments about policy outcomes that judges are no better equipped to make than others. It also suggests that there is no adamantine principle of religious liberty that can resist the government’s authority, if the latter’s “interest” is “compelling” enough. The Congress that passed RFRA in 1993 may have had sound reasons for assigning such responsibilities to judges by statute, but it is not really credible that the founders, with their much more limited view of judicial authority, intended to do so by ratifying the First Amendment.

Misreading: Paulsen claims, finally, that Justice Scalia abandoned his avowed originalism in Smith and adopted a “changed cultural conditions” rationale for foreclosing exemptions. If true, this would be quite a trespass for a judge who has long excoriated the “living Constitution” approach to deciding cases. But it is not true.

Paulsen builds this accusation on one sentence in Scalia’s Smith opinion: “Any society adopting such a system [of constitutionally required exemptions] would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs.” Paulsen reads Scalia’s allusion to our contemporary religious diversity—greater than in the past—as signaling that transient “policy circumstances” trump the fixed meaning of the constitutional text. But this mistakes Scalia’s meaning entirely.

Scalia was wrapping up his explanation of why a “compelling interest” test that carved out occasional exemptions from general laws was a “constitutional anomaly.” In every other field of constitutional law, he noted, the “compelling interest” test resulted in equal treatment under the law. Here it would generate, and had a history of generating, unequal treatment. Even in a less diverse society, that would be unjustified—it “would be courting anarchy” and therefore produce results we ought to suspect could not have been intended. That problem ought to stare us in the face more obviously in a society with the great diversity we see today. Noticing how modern facts illuminate the text’s fixed meaning is not the same thing as embracing a “living Constitution” with an evolving meaning.

Justice Scalia’s Real Errors

There are some real problems with the Smith opinion, but they are not the ones Paulsen alleges. One is that the opinion repudiated a quarter century of jurisprudence on the free exercise clause without overturning any precedents, perhaps because Scalia could not round up the votes to do so. Sherbert itself, and related cases in the unemployment benefits field, survived without any real explanation. And the other most prominent exemptions case, Wisconsin v. Yoder (1972), was left standing on the implausible ground that it involved not just religious freedom but also constitutionally protected parental rights, and was therefore a “hybrid” case. But how two constitutional arguments—one declared wholly inadequate and the other never having been used on its own to obtain an exemption—suffice to relieve someone of the strictures of law that continue to bind everyone else . . . Scalia never explains.

More serious is the one truly egregious gap in Scalia’s analysis, one that Paulsen only views through the exemption lens. For Scalia, direct attacks on religious faith and conduct, whether overt or covert, must be invalidated on free exercise grounds. This the Court went on to do a few years after Smith, in Church of Lukumi Babalu Aye v. City of Hialeah (1993), in a unanimous opinion that Scalia joined. But laws that make no such direct attack, yet in their general terms do some collateral damage to religious faith and conduct, are no violation of the free exercise clause in Scalia’s analysis.

Paulsen sees this and denounces it as the fruit of reading the free exercise clause only as a “non-discrimination” principle. But it is more serious than that. It amounts to saying that, of all the clauses in the Constitution that a legislature can violate and the judiciary can vindicate, only the free exercise of religion is a norm that legislatures are incapable of violating inadvertently—or at least when they do so, there is no recourse in the judiciary. There is no other provision of the Constitution about which Scalia or any other justice would say this.

I am not altogether sure that Scalia meant to say exactly this, but it is the upshot of his reasoning. In Smith he had only to decide the relatively easy case whether a criminal drug statute, by virtue of the First Amendment, could not be enforced against religiously motivated drug users while it remained in force for everyone else. The answer was plainly no. More complicated questions of compulsion to violate one’s religious conscience by some affirmative act generally required by public policy—such as in the Hobby Lobby case, for instance—lay in the future, and did not need to be addressed in Smith.

Elsewhere I have tried to suggest a way of thinking through a religious freedom jurisprudence that gives meaningful constitutional protection even from generally applicable laws, but without “balancing” tests, without “compelling interest” calculations, and without constitutional carve-outs of exemptions from the laws. For those of us interested in plugging the gap left by Justice Scalia, in a case that was correctly decided on the more limited question it addressed, there is a lot of work left to be done. That work is becoming truly urgent in an age growing more impatient with claims for religious exemptions that rest on the recognition of “burdens” many others do not or will not take seriously. Pining for what was lost in Smith and patching it up with RFRA will not, I fear, work for the long haul. What we need to recover is a more principled understanding of the law of religious freedom.

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

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There Is a Fundamental Right to Marriage, and We Must Preserve It Tue, 16 Jun 2015 11:00:47 +0000

Adam Seagrave recently argued that there is no fundamental right to marry. He criticized Supreme Court decisions to the contrary on Lockean grounds. Fundamental rights are rooted in self-ownership, Seagrave argues, and are therefore inherently individual rights. The right to marry is not an individual right, is relatively new, and is inconsistent with America’s political tradition.

Whether or not Locke would approve of it, there is a fundamental marriage right. It is ancient, not recent. And it secures the integrity of the natural family. Seagrave’s resistance to the Court’s expansive substantive due process doctrine, which secures what Justice Brandeis called “conditions favorable to the pursuit of happiness,” is laudable. But his proposal to dispose of the Court’s marriage jurisprudence would throw the baby—and the baby’s mother and father—out with the bathwater.

Like the rights to life, liberty, and property, which Seagrave affirms, the right of marriage is a so-called negative right—a liberty secured against outside interference by a perimeter of claim rights. It correlates with the duty of those outside the natural family, including the state, to abstain from interfering with marital and parental rights and duties, absent an adjudication of divorce, neglect, or abuse.

This liberty is fundamental because it secures a complex of jural relations—rights and duties of the natural family—that are part of our fundamental law. It is truly a right, for it is pre-political, and it imposes upon the state a duty of abstention. In assessing its legitimacy, one should examine its operation as a conclusive reason within law and the lineage of the right within fundamental law—in other words, the legal authority by which it is settled and specified.

The Court’s substantive due process jurisprudence, with its artificial and increasingly arbitrary balancing tests, is not a helpful starting place in thinking about this. The due process clauses are not the source of fundamental rights. They protect some rights that are found in sources of law external to the Fifth and Fourteenth Amendments, plus some others that the Court has invented without any basis in law.

A better starting place is Washington v. Glucksberg, in which the Court explained that a fundamental right is one that is so deeply rooted in our nation’s “history,” “traditions,” and “conscience” that it is “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist” without it. To understand whether a right is fundamental we must look to that part of our law that originates in our history, traditions, and conscience.

Fundamental Rights and Duties

Fundamental rights originate in fundamental sources of authority. In our Anglo-American legal tradition, those sources are primarily divine law, natural law, and customs so ancient that the memory of man runs not to the contrary.

Rights and duties that are part of our fundamental law would be rights and duties—they would have the authority of law—even if no lawmaker ever posited them in statutes or constitutions. To the extent that positive law incorporates those rights and duties it is, in Blackstone’s parlance, merely “declaratory” of those pre-existing norms.

Many (though not all) of our fundamental legal norms are beyond the reach of positive law, and lawmakers are not competent to overrule or disregard them. In his Commentaries on the Laws of England, which exercised an enormous influence on the laws of the American states, Blackstone insisted that:

no human legislature has power to abridge or destroy [natural rights], unless the owner shall himself commit some act that amounts to forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only . . . in subordination to the great law-giver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

What Blackstone called “superior” law emerges as part of our own “fundamental” law in a definite strand of the Supreme Court’s rights jurisprudence. In Glucksberg, for example, the Court rejected a claim that the Constitution contains a fundamental right to assisted suicide, largely because our unbroken common law tradition condemns suicide as malum in se, a crime that is inherently wrong, and thus contains a fundamental duty not to kill.

Fundamental Law

The Court did not invent this doctrine in the twentieth century. The common law’s superior legal norms, along with much of the customary law of England, were brought to the American colonies and formed the basis of our laws at the time of the Founding. Thus, divine and natural rights and duties, ancient customs general and local, and our written Constitution, together formed our fundamental law.

James Stoner has explained:

we think of the Constitution as fundamental because it establishes the rules by which laws are made, as well as rules that limit lawmaking. At the time of the Founding, by contrast, common or unwritten law was the basis of the law in all the colonies, with legislation understood as its supplement or its corrective.

After independence, the states chose to retain, adopt, and adapt the common law. Thus, “Political discontinuity overlay a basic continuity of legal order.”

The Court has followed this conception of fundamental law—law that is older than, and foundational to, our political institutions—when describing the rights of marriage and parentage. “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”  (Moore v. City of East Cleveland) The collective families proposed by Plato and practiced in Sparta are “wholly different from those upon which our institutions rest.” (Meyer v. Nebraska) The natural family’s sanctity is located within the freedom to “marry and reproduce,” which “is older than the Bill of Rights.” Therefore, “the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights.” (Smith v. Organization of Foster Families for Equality and Reform)

For these reasons, it is not “within the competency of the state” to infringe the fundamental rights of marriage and the natural family. (Pierce v. Society of Sisters) It was to this jurisprudence that the Court referred in Loving v. Virginia when it struck down Virginia’s criminal prohibition against inter-racial marriage.

As Stoner observes, what we mean by “fundamental law” has changed since the time of the Founding. Yet as Glucksberg and the marriage cases demonstrate, the older strand of reasoning about fundamental law, firmly grounded in our conscience, traditions, and customs, persists in the Supreme Court’s fundamental rights jurisprudence, somewhat uncomfortably, alongside its better-known cousins, substantive due process doctrine and supremacy clause jurisprudence.

Fundamental Rights, Civil Rights, and Marriage

In Blackstone, rights to life and limb, liberty of movement, and private property ownership are civil rights, protected by law in exchange for the subject’s relinquishing of the analogous rights he would have enjoyed in a state of nature. Blackstone and American jurists, such as James Kent, called these “absolute rights.” This means that no person can be deprived of them except according to the law of the land, and then only after being afforded that process which is due to one whose absolute rights are placed in jeopardy.

The rights and duties of marriage and biological parentage (to which Kent added sanctity of conscience) are even more directly fundamental than civil rights. They are among those divine and natural rights and duties that positive law merely recognizes, does not create, and may not alter.

Civil marriage is a species of contract, Blackstone explained, but the rights and duties of civil marriage do not exhaust the rights and duties of marriage. Most of the rights and duties of marriage are settled and specified by nature and nature’s God. For Blackstone, the “most universal relation in nature” is that between biological parent and child, and it proceeds from the first natural relation, that between husband and wife. Thus, the entire complex of jural relations among husband, wife, and children within the biological family is part of the superior law, which comprises part of our fundamental law. Positive laws that affirm those jural relations did not create marriage, they merely declared what was already true about marriage and the rights and duties comprising it.

The common law has erected secondary securities around those natural rights and duties. In addition to parental rights, the common law has recognized spousal privileges, actions for alienation of affections and for kidnapping, and other legal incidents that stand guard around marital and parental relations. Though the family’s resulting liberty is not itself part of the natural law, it is nevertheless part of our fundamental law, which we inherited from England, and is grounded in that part of the fundamental law that the state is not competent to alter.

In the twentieth century, the most comprehensive threat to the family’s integrity came not from adulterers and kidnappers but from a growing regulatory state, which claimed increasing power to govern family life. So, it is no surprise that the natural family’s right of integrity came to be asserted against governments in cases such as Meyer and Loving. The right was not novel, only the identity of the duty-bearer.

Preserve the Marriage Right

In legal scholarship, the edifice of common law norms is sometimes referred to as a “cathedral.” Perhaps the cathedral needs to be renovated from time to time. But before we start knocking down any walls, we ought to ensure that none of them is weight-bearing.

Nothing is more fundamental to our legal edifice than the ancient liberty of the natural family. The new right of “same-sex marriage” will undermine the rational bases for many of our positive laws governing marriage. But it cannot undermine the fundamental liberty of the biological family, because it cannot eliminate the natural rights and duties in which that liberty is grounded. We should preserve the fundamental marriage right for the sake of our communities and the rule of law.

Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason, recently published by Cambridge University Press.

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Is "Safe-Sex" Education the Reason Behind the Drop in Abortion? Mon, 15 Jun 2015 11:00:33 +0000

Last week’s AP report on changes in state abortion numbers found that nearly all states experienced a drop in abortion since 2010. But what captured headlines was the 30-percent drop in Hawaii, the largest decrease of any state. Laurie Temple Field, a former associate of the ACLU and now a representative for Hawaii Planned Parenthood, lost no time giving significant credit for this dramatic decrease to Hawaii’s change toward Sexual Risk Reduction (SRR)—a contraceptive-focused sex-education approach.

Pro-teen-sex advocates are banking on the sticking power of a new twist in their messaging: “Implement our brand of sex education, and a state can expect to reduce abortion rates.” This messaging is designed to truncate support for Sexual Risk Avoidance (SRA) education among an influential group of supporters: social conservatives and pro-life policymakers. While this might appear to be a compelling messaging campaign, it defies logic and intellectual honesty, especially upon the examination of state data and the myriad variables that affect abortion numbers.

Analysis of the AP’s latest data reveals three main problems with the causal statements made by Planned Parenthood and their partners. First, decreases in abortion are seen in states with liberal abortion laws as well as those with restrictive laws. Second, both red states and blue states saw decreases in abortion rates. Third, abortion rates decreased in states with SRR education and with SRA education. No matter how tempting the pro-SRR sound bites are, there are simply no easy answers.

Sexual Risk Reduction Programs Don’t Decrease Abortion

Dramatic changes in human behavior rarely can be explained by a simple or single explanation. Hawaii’s 30-percent drop in abortion from 2010 to 2014 is no exception. To suggest that a few hours of sex education should be credited for this unprecedented drop is almost laughable.

One needn’t dig too deep to find a gaping hole in the “SRR education = reduced abortion rates” argument. The AP report shows that the decrease in abortions in North Carolina is nearly as high as that in Hawaii. North Carolina’s state requirement for sex education, however, mandates that abstinence must be stressed.

Conversely, the state of California has an even more explicit sex education policy than Hawaii. The AP report did not record abortion numbers for the state, because the state does not aggregate abortion data. However, the most recent Guttmacher analysis found California abortion rates to be more than 20 percent higher than the national average. Ever since President Clinton signed the Title V Abstinence Education program into law as part of the Welfare Reform Act of 1996, California has refused to implement an SRA sex education approach. Since then, state laws have become so hostile to the risk avoidance approach that some argue that SRA education is virtually outlawed in the state.

The SRR approach blankets the state with messages that normalize teen sex. The recent news of a math teacher in California assigning extra credit points to any student who would take a selfie with the sex toys and condoms she or he found in a parent’s bedroom is one example of how radical the sex promotion has become. So, if the logic holds that SRR sex education policy is a significant determinant of reduced abortion numbers, one would expect California to have some of the lowest numbers of abortion in the nation.

Yet, quite the opposite is true. In California, 23 percent of all pregnancies end in induced abortion. This rate is higher than that of Hawaii, higher than the national average, and nearly twice as high as the rate in neighboring Texas. And Texas, incidentally, has one of the strongest sex education laws supporting SRA of any state. Although it is frequently attacked for instituting policies to give youth the information and skills to avoid sexual risk, Texas has one of the lowest abortion rates in the nation.

The Real Reasons for Hawaii’s Drop in Abortions

But eyes are on Hawaii because the decrease in abortion is significant. A 30-percent drop since 2010 suggests that a remarkable collection of factors is responsible for this change. It may be due, in part, to national sentiments that have become increasingly pro-life, particularly among millennials.

But sex education? Let’s look at the data. Hawaii’s teen birth rate has dropped 58 percent since it peaked in 1991, and the teen pregnancy rate (which calculates the percentage of births that ended before birth) has decreased 51 percent since it peaked in 1988. A February 2015 report by the Guttmacher Institute found that Hawaii has nearly the highest unintended pregnancy rate, but the rates are trending downward among teens. In addition, Dr. Donald Hayes, epidemiologist with the Hawaii Department of Health, stated that less than 20 percent of abortions in his state are performed on teens. Teen pregnancy, birth, and abortion rates began falling long before SRR education was adopted for Hawaii in 2009.

Interestingly, most media haven’t mentioned that Hawaii teens are waiting longer to have sex. In 1993, 44.3 percent of high schoolers in the state had ever had sex, but that number dropped to 35.9 percent in 2013. Nationally, 46.8 percent of high school students have had sex, so Hawaii’s figure is significantly lower than average. Also important is the recognition that these percentages have decreased at the same time that the culture has become increasingly sexualized.

Why has no one suggested that the fact that fewer teens are getting pregnant and having abortions might be due, at least in part, to the reality that fewer teens are having sex? The countercultural decision to wait for sex is noteworthy and certainly deserves praise and reinforcement by America’s adults, sex education teachers, and policymakers. Yet last week’s report on America’s falling abortion numbers is being used by teen sex advocates to minimize the healthy choices of millions of teens, while calling for the elimination of SRA programs that reinforce and encourage teens to avoid sexual risk.

Normalizing Sexual Experimentation

Of course, this move is to be expected, since these advocates use every opportunity to normalize teen sexual experimentation at earlier and earlier ages. But the prospect that socially conservative parents and policymakers would be willing to believe that the best way to decrease abortion is to shelve SRA education in favor of SRR education is a chilling possibility.

Honest citizens must resist this issue-triangulation and recognize this campaign for what it is: a deceptive crusade promising an easy solution to a complex problem. In the early 1900s, during the Progressive Era, one person voiced a similar argument. She suggested that easy access to effective birth control was the best way to prevent abortion. She also believed and modeled the sexual freedom she thought was liberating for all women. And while she wasn’t involved in formal sex education for youth, Margaret Sanger argued that once an individual became an adult, sex should be enjoyed without the constraints of marriage or morality. Abstinence causes “nervousness” and mental problems, she suggested, and so health and well-being for women necessitated contraception and a loosening of the social mores regarding sex. This one-hundred-year-old argument is nearly identical to the one made today in defense of SRR education.

Americans should not let themselves be duped. The best way to decrease teen pregnancy and abortion is by normalizing sexual delay among teens, not sexual experimentation, as SRR education does. The best way to normalize sexual delay—preferably until marriage—is by inspiring youth to envision their future, complete with the hopes and dreams to which they aspire. That means helping youth understand that succeeding in life requires self-regulation over things that can derail those future goals. Waiting for sex requires self-control, but this delayed gratification clears the path for a variety of other healthy outcomes in addition to delaying pregnancy.

A False Sense of Security

Teens who are taught that sexual experimentation is fine so long as they use contraception are given a false sense of security. However, they are still at significant risk for becoming another statistic in the STD epidemic. Condoms are the only contraception that offers any protective risk reduction against STDs. Even so, two of the four most prevalent STDs among youth are easily transmissible, even with the correct and consistent use of a condom.

Clearly, teen sex is a risky behavior. Although it has been demonstrated by copious amounts of social science research, this reality is rarely acknowledged. In fact, it is routinely ignored. Youth who wait for sex have fewer lifetime partners and are less likely to experience any of the physical consequences of sex. But the research extends beyond pregnancy and STDs. Teens who wait for sex are also more likely to avoid negative emotional consequences and to abstain from other high-risk behaviors. This increases their likelihood of having more stable and healthy marriages in the future. These are all topics regularly covered in SRA programs, but they are seldom discussed in SRR programs.

Social conservatives and pro-life policymakers must not fall for this contrived link between two separate issues. The agenda is very clear. Simply put, this is a clever ploy to reframe the abortion issue, the contraception issue, and the sex education issue around politically progressive priorities in an attempt to divide pro-life and socially conservative policymakers and citizens.

Don’t fall for it.

Valerie Huber is president of the National Abstinence Education Association. She can be contacted at

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Sustainability’s War on Doubt Fri, 12 Jun 2015 11:00:50 +0000

“Sustainability” is like a religion. Or, sustainability is a religion.

Both claims come up often among critical observers of this powerful and popular social movement. Though secular, sustainability is like a religion in that it offers a view of the Earth as once pristine and pure but now fallen. It recognizes the sinfulness of humanity, offers forms of expiation and absolution, and puts these elements together in a master narrative of an impending catastrophe that will punish mankind for its iniquity.

The stronger claim, that sustainability is a religion, takes its warrant from the adherents to the movement who personify Earth as a deity. This claim also emphasizes the cult-like zealotry of sustainability advocates, who imagine they possess an accurate knowledge of the future that goes beyond what is actually knowable, and who regard any dissent from this orthodoxy as intolerable.

It’s easy to find examples of sustainability advocates who make clear that their doctrine is, in their own eyes, religious. The former chair of the Intergovernmental Panel on Climate Change, Rajendra Pachauri, has said, “For me the protection of Planet Earth, the survival of all species and sustainability of our ecosystems is more than a mission. It is my religion and my dharma.”  When tens of thousands joined in the September 2014 “People’s Climate March,” the festivities included votaries of Mother Earth (presented as a giant grandmotherly puppet) and other neo-pagan worshippers offering obeisance to their gods.

Sustainability as Ideology

In our recent study, Sustainability: Higher Education’s New Fundamentalism, my co-author Rachelle Peterson and I call sustainability an ideology with some religious overtones. Sustainability asks not just for belief but for the believer to conform his life to the doctrine, to recruit others to the belief, and to participate in some larger struggle to bring the world into alignment with the new vision.

I took up the critique of the sustainability movement in 2008 after encountering it at the University of Delaware. At the time, UD had instituted a mandatory program in its dorms that aimed to convince students of the insidious omnipresence of white racism, the need to create gay marriage, the value of sexual exploration, the ugliness of capitalism, and so on. UD called its efforts to indoctrinate students in progressive dogma a “sustainability” program. My colleagues and I, puzzled that we didn’t see much environmentalism in the program, decided to find out why. Sustainability: Higher Education’s New Fundamentalism is our fullest answer.

In brief, we found that “sustainability” is a term that encompasses not only a particularly aggressive form of environmentalism, but also a strong attack on market capitalism and a progressive vision of social justice. The proponents call this the “triple bottom line.”

It’s Not Just about Environmentalism

The green line, environmentalism, is the conspicuous public face of the movement and its emotional center. It is where the sustainability movement links up with the theory of anthropogenic global warming and where the movement gets its eschatology. But the other two lines are just as important.

The anti-capitalist or pro-socialist part provides the “deeper” analysis that informs the tactics of the movement. Naomi Klein’s recent book, This Changes Everything: Capitalism vs. The Climate, is probably the most publicly visible enunciation of this theme. UD’s 2007 manifesto of sustainability said the same thing. For sustainability advocates, private property is inherently suspect, because it can be used in environmentally injudicious ways. Capitalism and free markets necessarily involve short-term thinking about resources and inevitably lead to over-consumption, heedless destruction of resources, and pollution. Moreover, capitalism is inequitable, enriching the few at the expense of the many.

This last concern of the sustainability advocates is crucial, for it lays open the logic of why conservation of resources is not enough. “Sustainability” is not so much a call for wise use of resources as it is a declaration against all forms of “exploitation.” Exploiting the animal, mineral, and vegetable resources of the planet is bad; but so is exploiting economic resources. The sustainability movement thus brings on board a fuzzy version of the Marxist idea that capitalism is essentially about human exploitation, totally ignoring the concepts of wealth creation, comparative advantage, and material progress.

From those two forms of exploitation—environmental and economic—it is a short hop to a third form, social exploitation. The third part of the triple bottom line is the sustainability movement’s ardent stand against invidious differences of race, class, gender, and sexual orientation. The “socially constructed” forms of exploitation must be cured as well.

When “Mountain Justice,” a sustainability activist group at Swarthmore College that wants Swarthmore to divest from fossil fuels, mobbed a board meeting at the college on May 4, 2013, one of the first speakers to whom they gave the commandeered microphone was Watufani M. Poe, from the Swarthmore Queer Union, to complain that an off-campus visitor had urinated near the Intercultural Center’s door. Board members might have been puzzled as to what this had to do with college investments in carbon-based energy stocks, but we who study the logic of the sustainability movement understood pretty well. In their view, such exploitation is all of one piece. And it all has to end.

The Origins, Tactics, and Costs of Sustainability of College Campuses

Our study reaches back to the origins of the sustainability movement, examining how it reached the American college campus, and then how it succeeded in reshaping college curricula. We also deal with the anatomy of the movement—its organizational structure, leaders, key sources of support, and goals.

Advocates of sustainability often complain about the supposed failure of capitalist enterprises to acknowledge the true costs of their products. But when it comes to the costs of pursuing sustainability, colleges and universities are even more opaque. Typically, they announce that sustainability initiatives pay for themselves with energy savings. Until now, it seems that no one has looked behind these declarations.

In our report, we examine the sustainability costs and savings at Middlebury College. We found the gross costs are almost $5 million per year and the net costs are $3.7 million. Much of the cost is the result of the college’s effort to achieve “carbon neutrality.” It pledged to do that by signing the “American College and University Presidents’ Climate Commitment,” as have 696 other colleges and universities. If, on average, all of those schools are spending at the rate of Middlebury, that would add up to a net expense of $3.4 billion per year. The real number is probably much higher. Middlebury is quite small, and there are also many colleges and universities, including Harvard, that haven’t signed the Climate Commitment but are nonetheless spending heavily on their own sustainability initiatives.

I mention these few facts to make clear that our study of the movement is anchored in concrete detail. We have something to say about the character of this movement beyond the collection of facts, but we proceed from finely grained observations of the particular courses, campuses, programs, and events that make up the lived experience of sustainability in higher education.

Unnatural Silence and the Noble Lie

That experience is often characterized by an unnerving and unnatural lack of dissent. One reader brushed aside my worries about the muzzling of dissent by noting the “difference between silencing the opposition and moving on.” In his view, “society,” having settled the key questions about anthropogenic global warming, economics, and social justice, has wisely decided to move on, “while teaching the next generation what we know.”

The leaders of the sustainability movement have adopted the tactic of treating their opponents as a disreputable fringe. In July 2014, the BBC Trust chastised BBC journalists for allowing skeptics of global warming to be interviewed. This, according to the report, was an “over-rigid application of editorial guidelines on impartiality.”

My co-author Rachelle recently attended the première of the documentary, Merchants of Doubt, which treats global warming skeptics as cynical hirelings of the fossil fuel industry. The screening at Columbia University was followed by a panel discussion in which New York Times climate change reporter Justin Gillis agreed with the need to keep the gate closed. “Journalists care about the truth—that’s my only care in life, to find the truth,” Gillis added. “To act as if the evidence is half and half is to tell a lie. I refuse to perpetuate that lie.”

This determination to exclude dissent is a variation of the “noble lie.” The guardians of sustainability orthodoxy see their censorship of opposing views not as an act of self-interest and an effort to protect a doctrine from intellectual challenge, but as an effort to protect the vulnerable public from misinformation and confusion. That rationale can be glimpsed in the famous “Climategate” episode of 2009. When someone disclosed a cache of emails from Climate Research Unit at the University of East Anglia, it became apparent that several prominent climate scientists had orchestrated a campaign to prevent the publication of the work of other scientists whose research contradicted parts of the “climate consensus.” These enforcers of orthodoxy went so far as to force the resignations of journal editors who defied their efforts.

The noble lie in cases like these is that permitting the publication of dissenting views will distract dangerously from the important work at hand. In effect, we need to win the war and not waste time questioning whether it is a war worth fighting. But this rationale sits awkwardly beside the claim that all the basic questions have been settled and that we can “move on” to teach the answers to the next generation.

Faith and Foolishness

Which is it?  Are the dissenters a meaningless fringe? Or are they dangerous heretics?

In my experience, the rationale for exclusion shifts easily between the two. This is good evidence of the bad faith behind it. The champions of sustainability want to claim the authority of settled science and, unhindered by the need to address countervailing evidence, hasten to the political and economic expedients that flow from their unchallenged premises: divestment, cap and trade, carbon taxes, elimination of coal, electric cars, publicly subsidized green energy, no-growth boundaries, regional tax-base sharing, and a host of other proposals.

As closed as the BBC and the New York Times are to expressions of alternative views, the typical college campus is worse. We have spent a year scouring the nation for a college campus willing to hold a public debate on the premises of the sustainability movement. In a few cases, we gained a tentative acceptance only to have it cancelled, usually without explanation. When an explanation has been offered, it has turned out that no one could be found willing to represent the pro-sustainability position because to agree to debate it implied the existence of contrary arguments and evidence worthy of consideration.

The prophets and saints of sustainability seem certain that they know what lies ahead. They know how much carbon dioxide—350 parts per million—the Earth’s atmosphere can hold before catastrophic global warming overtakes us. They know which resources should remain in the ground: four-fifths of all fossil fuels. They know what technologies the future will depend on: solar and wind generation.

None of these views rests on a secure scientific footing, though they are often paraded as backed by solid science. But they have astonishing currency—enough to undermine the ideals of academic and intellectual freedom on campus.

Peter Wood is the president of the National Association of Scholars.

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Don’t Use My Pain as a Weapon: Infertility and Same-Sex Marriage Thu, 11 Jun 2015 11:00:30 +0000

I’m growing weary of being told that I must either support gay marriage or disavow my own marriage. I refer not to anything my wife and I did that would violate the traditional norms of marriage, but to something we had no control over: our ongoing inability to conceive a child.

My wife and I, along with all other childless heterosexual couples, often find ourselves presented as exhibit A in the court of public opinion. Our plight has become a standard response to the main reason for traditional marriage, a reason that until lately was non-controversial: that heterosexual couples’ unique, natural procreative ability gives rise to a state interest in ensuring that their relationships are stable for the sake of the children they potentially will have growing up in their homes.

Put in the form of a question, this is the argument: If children are the state’s primary reason to regulate marriage, then why should it recognize the marriages of infertile couples? Why not follow the proposal of Plato in the Laws that infertile marriages should be invalidated? Or, to redirect the question, why should these be recognized as marriages but not the relationships of homosexual couples? Aren’t homosexual couples effectively interchangeable with infertile heterosexual couples insofar as the state and society should be concerned?

Although this may be an effective debating point, it is grotesquely unreal when considered from the lived experience of infertility—the harsh and unhappy reality of what it is like to be an infertile couple waiting every month for a child that never comes.

The Private Pain of Infertility

For all the sturm und drang of pundits, few infertile couples have weighed in either way. Our silence is understandable, both because there is no unanimity of religious or political outlook among infertile couples and because the pain of infertility is intensely private. The agonizing progression of medical tests and despair is rarely shared publicly, and those who wonder whether a couple’s childlessness is an intentional application of modern medical technology or an example of its limitations are rarely so tactless as to broach the subject uninvited.

And so it is in silence that my wife and I live through our cycles of concern, hope, despair, and acceptance. We had always wanted children and were determined to make child-rearing work regardless of our student debt and work hours. We never used contraception, and we married in our early twenties. After a while, it became clear that something was wrong, so we embarked on batteries of awkward and painful medical tests. Every avenue has failed to produce a diagnosis, and the passing years of marriage have failed to produce a child. Several fertility drugs were to no avail, as was surgery. For ethical reasons, we will not use IVF or surrogacy.

And so we are entering our thirties without a reason why we have no children, yet with no real hope of having a child naturally. I don’t know if a definitive diagnosis would be better or worse than not knowing—whether it would bring some closure or would only inflict more wounds. I do know that these painful experiences illuminate the differences between our marriage and homosexual relationships.

Infertility as Loss

Infertility does not invalidate our marriage, but we constantly experience infertility as an inability to fulfill a basic aspect of marriage. It is a loss for us in a way that it can never be for a same-sex couple, who can never have expected fertility together. Our relationship is ordered toward having children, even if it is frustrated and kept from this fulfillment.

To return to Plato, love desires fecundity. Love wishes to have children with the Beloved. And while Plato’s Symposium gave precedence to the children of the mind, physical procreation has its place even in his system, a place that has been further exalted by the Christian contributions to the Western tradition. Even the Greeks, despite their frequent tolerance (and sometimes even enthusiasm) for some homosexual relations, never conflated such relationships with marriage.

Love, erotic or intellectual, between two men could never be fruitful in the physical way that it could be between men and women. Physical sterility is the natural order for homosexual couples, and is dictated by their sexual proclivities, which are in direct conflict with the possibility of natural procreation.

There is a clear distinction (whether considered in ontological, teleological, or experiential terms) between homosexual couples and infertile heterosexual couples. For the latter, childlessness is not intrinsic to their relationship. Rather, whether due to illness, age, or deliberate action, it is a loss from the fullness of what their marriage should be. For those who are voluntarily sterile, it is an intentional avoidance of that fulfillment—an avoidance that has traditionally been condemned. For same-sex couples, the question does not even arise, because fertility is never a natural fulfillment of their relationship. No matter what medical advances may be made against age, illness, and injury, homosexual relations will remain intrinsically sterile.

The Connection between Marriage and Children

Redefining marriage to include same-sex unions severs the connection between marriage and children in a way that recognizing the marriages of childless heterosexual couples does not. The possibility and even the desire to have children together must be discarded upfront. Instead of being viewed as an important aspect of marital love that some couples will, by mischance or age, be unable to fulfill, bearing children and raising them together becomes entirely optional, even more than in the case of voluntarily sterile couples.

The reality that my wife and I, by some still-unknown mischance, have yet to conceive is an imperfection that we feel keenly and on a daily basis. We will presumably never learn what combining our particular genetics might have produced—what features, traits, and attributes we would have seen passed on to our children. No matter how much we dote on our canine co-evolutionary buddies, they will never say “I love you” to us. The Legos I saved from my childhood will continue to sit in a box.

However, our infertility does not make our relationship interchangeable with one in which childlessness can never be felt as a loss because fertility was never, and could never, be an option within it. As is often noted, it would be absurd and intrusive for the government to try to withhold marriage licenses from infertile heterosexual couples. This absurdity would only be heightened by the fallibility of fertility tests, with which my wife and I are all too familiar. However, it can be confidently predicted that no homosexual couple will ever procreate together naturally.

Adoption is a possibility, of course, but it usually necessitates a great deal of additional expense and trouble on top of the already considerable burdens of parenting. Thus far we have lacked the career and financial stability to spend tens of thousands of dollars in order to adopt a child. Furthermore, while it is often a loving and noble undertaking, adoption always involves trauma, insofar as it requires the death, incapacitation, or unsuitability of both natural parents. We hope that one day the evil of infertility and the evil of orphanhood will be redeemed in the good of adoption, but it is not yet for us.

If and when we do adopt, we will offer a child both a mother and a father, thereby providing the closest restoration available to the natural family that has been lost. Thus, even in adoption, an infertile heterosexual marriage displays essential differences from homosexual ones, which in adoption always deprive a child once again of either a mother or a father.

The case for gay marriage may be constructed on a variety of other supports than the supposed interchangeability of homosexual relationships with those of childless heterosexual couples, and this essay has no pretensions of settling the same-sex marriage debate. However, it should be clear that the casual comparison between homosexual couples and infertile heterosexual marriages is not only facile and foolish—it is hurtful, callously disregarding the lived experience of infertile couples.

Neither a same-sex couple nor an infertile opposite-sex couple is able to conceive naturally. For one couple, this is predictable and intrinsic to the nature of their relationship. For the other, it is a painful, often unexpected injury to the nature of their marriage.

Oliver Olivarez is a character in GK Chesteron’s The Surprise. The author using this pseudonym holds a PhD in political theory and yearns for the day when young academics may speak freely without fear of having their careers destroyed.

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Transgenderism: A Pathogenic Meme Wed, 10 Jun 2015 11:00:53 +0000

For forty years as the University Distinguished Service Professor of Psychiatry at Johns Hopkins Medical School—twenty-six of which were also spent as Psychiatrist in Chief of Johns Hopkins Hospital—I’ve been studying people who claim to be transgender. Over that time, I’ve watched the phenomenon change and expand in remarkable ways.

A rare issue of a few men—both homosexual and heterosexual men, including some who sought sex-change surgery because they were erotically aroused by the thought or image of themselves as women—has spread to include women as well as men. Even young boys and girls have begun to present themselves as of the opposite sex. Over the last ten or fifteen years, this phenomenon has increased in prevalence, seemingly exponentially. Now, almost everyone has heard of or met such a person.

Publicity, especially from early examples such as “Christine” Jorgenson, “Jan” Morris, and “Renee” Richards, has promoted the idea that one’s biological sex is a choice, leading to widespread cultural acceptance of the concept. And, that idea, quickly accepted in the 1980s, has since run through the American public like a revelation or “meme” affecting much of our thought about sex.

The champions of this meme, encouraged by their alliance with the broader LGBT movement, claim that whether you are a man or a woman, a boy or a girl, is more of a disposition or feeling about yourself than a fact of nature. And, much like any other feeling, it can change at any time, and for all sorts of reasons. Therefore, no one could predict who would swap this fact of their makeup, nor could one justifiably criticize such a decision.

At Johns Hopkins, after pioneering sex-change surgery, we demonstrated that the practice brought no important benefits. As a result, we stopped offering that form of treatment in the 1970s. Our efforts, though, had little influence on the emergence of this new idea about sex, or upon the expansion of the number of “transgendered” among young and old.

Olympic Athlete Turned "Pin-Up" Girl

This history may clarify some aspects of the latest high-profile transgender claimant. Bruce Jenner, the 1976 Olympic decathlon champion, is turning away from his titular identity as one of the “world’s greatest male athletes.” Jenner announced recently that he “identifies as a woman” and, with medical and surgical help, is busy reconstructing his physique.

I have not met or examined Jenner, but his behavior resembles that of some of the transgender males we have studied over the years. These men wanted to display themselves in sexy ways, wearing provocative female garb. More often than not, while claiming to be a woman in a man’s body, they declared themselves to be “lesbians” (attracted to other women). The photograph of the posed, corseted, breast-boosted Bruce Jenner (a man in his mid-sixties, but flaunting himself as if a “pin-up” girl in her twenties or thirties) on the cover of Vanity Fair suggests that he may fit the behavioral mold that Ray Blanchard has dubbed an expression of “autogynephilia”—from gynephilia (attracted to women) and auto (in the form of oneself).

The Emperor’s New Clothes

But the meme—that your sex is a feeling, not a biological fact, and can change at any time—marches on through our society. In a way, it’s reminiscent of the Hans Christian Andersen tale, The Emperor’s New Clothes. In that tale, the Emperor, believing that he wore an outfit of special beauty imperceptible to the rude or uncultured, paraded naked through his town to the huzzahs of courtiers and citizens anxious about their reputations. Many onlookers to the contemporary transgender parade, knowing that a disfavored opinion is worse than bad taste today, similarly fear to identify it as a misapprehension.

I am ever trying to be the boy among the bystanders who points to what’s real. I do so not only because truth matters, but also because overlooked amid the hoopla—enhanced now by Bruce Jenner’s celebrity and Annie Leibovitz’s photography—stand many victims. Think, for example, of the parents whom no one—not doctors, schools, nor even churches—will help to rescue their children from these strange notions of being transgendered and the problematic lives these notions herald. These youngsters now far outnumber the Bruce Jenner type of transgender. Although they may be encouraged by his public reception, these children generally come to their ideas about their sex not through erotic interests but through a variety of youthful psychosocial conflicts and concerns.

First, though, let us address the basic assumption of the contemporary parade: the idea that exchange of one’s sex is possible. It, like the storied Emperor, is starkly, nakedly false. Transgendered men do not become women, nor do transgendered women become men. All (including Bruce Jenner) become feminized men or masculinized women, counterfeits or impersonators of the sex with which they “identify.” In that lies their problematic future.

When “the tumult and shouting dies,” it proves not easy nor wise to live in a counterfeit sexual garb. The most thorough follow-up of sex-reassigned people—extending over thirty years and conducted in Sweden, where the culture is strongly supportive of the transgendered—documents their lifelong mental unrest. Ten to fifteen years after surgical reassignment, the suicide rate of those who had undergone sex-reassignment surgery rose to twenty times that of comparable peers.

How to Treat Gender Dysphoria

So how should we make sense of this matter today? As with any mental phenomenon, what’s crucial is noting its fundamental characteristic and then identifying the many ways in which that characteristic can manifest itself.

The central issue with all transgender subjects is one of assumption—the assumption that one’s sexual nature is misaligned with one’s biological sex. This problematic assumption comes about in several different ways, and these distinctions in its generation determine how to manage and treat it.

Based on the photographic evidence one might guess Bruce Jenner falls into the group of men who come to their disordered assumption through being sexually aroused by the image of themselves as women. He could have been treated for this misaligned arousal with psychotherapy and medication. Instead, he found his way to surgeons who worked him over as he wished. Others have already commented on his stereotypic caricature of women as decorative “babes” (“I look forward to wearing nail polish until it chips off,” he said to Diane Sawyer)—a view that understandably infuriates feminists—and his odd sense that only feelings, not facts, matter here.

For his sake, however, I do hope that he receives regular, attentive follow-up care, as his psychological serenity in the future is doubtful. Future men with similar feelings and intentions should be treated for those feelings rather than being encouraged to undergo bodily changes. Group therapies are now available for them.

Most young boys and girls who come seeking sex-reassignment are utterly different from Jenner. They have no erotic interest driving their quest. Rather, they come with psychosocial issues—conflicts over the prospects, expectations, and roles that they sense are attached to their given sex—and presume that sex-reassignment will ease or resolve them.

The grim fact is that most of these youngsters do not find therapists willing to assess and guide them in ways that permit them to work out their conflicts and correct their assumptions. Rather, they and their families find only “gender counselors” who encourage them in their sexual misassumptions.

Those with Gender Dysphoria Need Evidence-Based Care

There are several reasons for this absence of coherence in our mental health system. Important among them is the fact that both the state and federal governments are actively seeking to block any treatments that can be construed as challenging the assumptions and choices of transgendered youngsters. “As part of our dedication to protecting America’s youth, this administration supports efforts to ban the use of conversion therapy for minors,” said Valerie Jarrett, a senior advisor to President Obama.

In two states, a doctor who would look into the psychological history of a transgendered boy or girl in search of a resolvable conflict could lose his or her license to practice medicine. By contrast, such a physician would not be penalized if he or she started such a patient on hormones that would block puberty and might stunt growth.

What is needed now is public clamor for coherent science—biological and therapeutic science—examining the real effects of these efforts to “support” transgendering. Although much is made of a rare “intersex” individual, no evidence supports the claim that people such as Bruce Jenner have a biological source for their transgender assumptions. Plenty of evidence demonstrates that with him and most others, transgendering is a psychological rather than a biological matter.

In fact, gender dysphoria—the official psychiatric term for feeling oneself to be of the opposite sex—belongs in the family of similarly disordered assumptions about the body, such as anorexia nervosa and body dysmorphic disorder. Its treatment should not be directed at the body as with surgery and hormones any more than one treats obesity-fearing anorexic patients with liposuction. The treatment should strive to correct the false, problematic nature of the assumption and to resolve the psychosocial conflicts provoking it. With youngsters, this is best done in family therapy.

The larger issue is the meme itself. The idea that one’s sex is fluid and a matter open to choice runs unquestioned through our culture and is reflected everywhere in the media, the theater, the classroom, and in many medical clinics. It has taken on cult-like features: its own special lingo, internet chat rooms providing slick answers to new recruits, and clubs for easy access to dresses and styles supporting the sex change. It is doing much damage to families, adolescents, and children and should be confronted as an opinion without biological foundation wherever it emerges.

But gird your loins if you would confront this matter. Hell hath no fury like a vested interest masquerading as a moral principle.

Paul McHugh, MD, is University Distinguished Service Professor of Psychiatry at Johns Hopkins Medical School and the former psychiatrist in chief at Johns Hopkins Hospital. He is the author of The Mind Has Mountains: Reflections on Society and Psychiatry.

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The Value of Children: Economics, Faith, and the Problem of Underpopulation Tue, 09 Jun 2015 11:00:11 +0000

In a recent mini-documentary, the New York Times investigates the unrealized horrors of population explosion, especially those predicted by Paul Ehrlich in his 1968 book, The Population Bomb. Despite the failure of his forecast, Ehrlich remains undaunted. “The end is still nigh,” he says according to the Times, and population control ought to be implemented, “preferably through voluntary methods.” But, Ehrlich continues, allowing women to choose to have as many children as they desire is like allowing everyone to “throw as much of their garbage into their neighbor’s backyard as they want.”

In our view, Ehrlich fundamentally misunderstands the value of human life, the actual population threat facing the earth, and what can be done to stop it.

Scrooge, Malthus, and Ehrlich

In the first chapter of Dickens’s classic A Christmas Carol, we are introduced to the unforgettable Ebenezer Scrooge, a dismal miser who loathes Christmas. In one of a series of interactions proving his bitterness, Scrooge is solicited for a charitable donation:

“A few of us are endeavoring to raise a fund to buy the Poor some meat and drink, and means of warmth. We choose this time, because it is a time, of all others, when Want is keenly felt, and Abundance rejoices. What shall I put you down for?’”

“Nothing!’” Scrooge replied.

“You wish to be anonymous?’”

“I wish to be left alone,” said Scrooge. “Since you ask me what I wish, gentlemen, that is my answer. I don’t make merry myself at Christmas and I can’t afford to make idle people merry. I help to support the establishments I have mentioned: they cost enough: and those who are badly off must go there.”

“Many can’t go there; and many would rather die.”

“If they would rather die,” said Scrooge, “they had better do it, and decrease the surplus population.”

With one cold economic term, Scrooge evaluates the worth of an entire class of humanity: “the surplus population.” When writing these lines it is likely Dickens had in mind the scholarship of Thomas Robert Malthus, whose Essay on the Principle of Population (1798) remains among the most influential books on the supposed problem of population growth. Malthus predicted catastrophe because the population was growing faster than the food supply. Though Malthus himself was reasonably humane about what could and should be done about this, his book inspired generations of neo-Malthusians to view humanity as a scourge and to advocate creative solutions to the problem of our existence.

Paul Ehrlich is simply a contemporary example of this school of thought. His 1968 book sold millions and caused a national sensation, thanks to its alarmist tone. The first page poses the question: “Population control—or race to oblivion?” Faced with that choice, Ehrlich matter-of-factly prescribes a number of Scrooge-like solutions to the problem of surplus population:

Will we be willing to slaughter our dogs and cats in order to divert pet food protein to the starving masses in Asia? . . .

Many of my colleagues feel that some sort of compulsory birth regulation would be necessary to achieve such control. One plan often mentioned involves the addition of temporary sterilants to water supplies or staple food. Doses of the antidote would be carefully rationed by the government to produce the desired population size. . . .

Another possibility might be to reverse the government’s present system of encouraging reproduction and replace it with a series of financial rewards and penalties designed to discourage reproduction . . . In short, the plush life would be difficult to attain for those with large families—which is as it should be, since they are getting their pleasure from their children, who are being supported in part by more responsible members of society.

Ehrlich is just getting warmed up. He writes,

Obviously, such measures should be coordinated by a powerful government agency. A federal Bureau of Population and Environment should be set up to determine the optimum population size for the United States and devise measures to establish it.

Among his other ideas are “ample funds” to research human sex determination, government investment in new forms of contraceptives, abortion right guarantees, and sex education for children “de-emphasizing the reproductive role of sex.”

Overpopulation Meets Human Innovation

Ehrlich’s solutions to the problem of overpopulation are obviously deplorable. Ultimately, they are based on a false choice between these policies and mass starvation leading to eventual extinction. Given those options, his solutions might seem understandable.

But here’s the thing about trend lines: they’re only true until they aren’t anymore. History is full of game-changing achievements in science, engineering, and technology. The mistake of the Malthusians is to underestimate the human capacity for innovation.

Take the problem of food production, for example. This was an area of intense concern for scientists and politicians in the early twentieth century, especially in densely populated poor nations such as Mexico and India. An American scientist named Norman Borlaug dedicated his life to the problem, and in the 1950s developed a strain of wheat capable of producing a much higher yield than previously possible. Over the next two decades, Borlaug introduced varieties of his wheat suited to the climate and conditions of nations around the world. He is credited with saving a billion lives from starvation. While Paul Ehrlich was on tour promoting The Population Bomb, Norman Borlaug was accepting the Nobel Peace Prize.

The fear-mongering population controllers have been proven wrong. Since 1970, the world population has doubled to over 7 billion. Though starvation is a problem in many places, it is a man-made one resulting from government corruption, mismanagement, and war. So long as societies inculcate the entrepreneurial mindset, we can expect innovations in natural gas, electric cars, and renewable technologies to overcome the diminishing supplies of oil, too, and whatever fear may come after that.

The Real Population Problem

Yet there is one issue of critical importance that should concern us, one for which there does not appear to be a viable or acceptable technological solution. It is a population problem, but the opposite of the one feared: the world is running out of people.

In the 1980s, the Communist party in China implemented a series of Malthusian measures to restrict the size of the country’s population, including the infamous “one-child policy” that resulted in forced abortions and involuntary sterilizations. It worked, and now China is faced with the consequences of an aging population it can’t replace. Because of the importance Chinese culture places on having a male heir, there are now forty million more young men than women.

In his remarkable book, What to Expect When No One’s Expecting, Jonathan Last compares the effect of China’s one-child policy to the birthrate among middle-class Americans: “As a result of One-Child, the fertility rate in China is roughly 1.54. In America, the fertility rate for white, college-educated women . . . is 1.6.” Last continues, “In other words, America has created its very own One-Child Policy. It’s soft and unintentional, the result of accidents of history and thousands of little choices. But it has been just as effective.”

When discussing sociological metrics such as the fertility rate, it is easy to become lost in the weeds. To keep it simple, remember that in order simply to maintain its population, a nation needs a total fertility rate (TFR) of 2.1. According to data from the CIA, few industrialized nations surpassed the 2.1 threshold of sustainability in 2014: Israel (2.62) and Mexico (2.29) were among the exceptions. Almost all others fell below the line, including Ireland (2.0), Australia (1.8), Canada (1.6), China (1.54), Spain (1.5), Germany (1.4), Poland (1.3), and South Korea (1.2).

What happens when we extrapolate these numbers into the future? Assuming the TFRs of Japan and Italy remain steady at 1.56 and 1.3 until the year 2100, their populations will plummet. This chart lays out their current and projected populations:           

Screenshot 2015-06-08 21.34.24

Based on these data, in January 2014 The Economist described the potential calamity facing “the vanishing Japanese.” Among the areas affected are state and corporate welfare and pension systems in which current workers pay for retirees. Without a sufficient base of workers contributing to these systems, the math doesn’t work. Housing prices, wages, and debt are some of the other macroeconomic issues countries like Japan (which is to say, almost every industrialized nation) are likely to face.

Although the numbers in the chart above look bleak, expecting the current TFR to remain constant is actually generous. Historically, as nations have become wealthier and better educated, their TFRs have declined. Consider the history of the TFR in the United States, broken down by race:

Screenshot 2015-06-08 21.34.30

Notice that the TFR among black Americans is historically higher than that of white Americans, but also that the trends are remarkably similar for each group. As the Industrial Revolution took hold and Americans became wealthier, the TFR declined. The famous “Baby Boom” following World War II affected both groups, but soon gave way to a gradual decline.

It would be a mistake to look at these data and the long-term catastrophic effects of population decline and begin to develop our own Malthusian solutions. The fact that increasing wealth has led to greater education and opportunities for Americans, regardless of sex or race, is a tremendous blessing for which we should be thankful. The fix for the problem of under-population is not reverting to the days of poverty and oppression in some dystopian future reminiscent of The Hunger Games.

So what is it?

The Value of Children

To solve the problem of decreasing populations, our cultures must rediscover the importance of children.

Although this sounds like a simple solution, it will not be an easy one. For years, modern societies have signaled their lack of interest in large families. Christians might pray for a great spiritual awakening. Widespread spiritual revival has occurred twice in America’s past, and might again. Such a movement might be powerful and pervasive enough to disentangle the web of factors depressing the choice to create sizable families.

The period of the “Baby Boom” was also one of religious resurgence. The 1940s and 1950s saw the rise of Billy Graham and the establishment of influential Christian organizations, including Christianity Today, Campus Crusade for Christ, Youth for Christ, and the National Association of Evangelicals. In 1939, just 37 percent of Americans said they attended church, synagogue, or mosque each week. According to Gallup, by 1959 that number had risen to 49 percent, the high-water mark in modern American history.

The most religious era of the past seventy-four years—at least based on this measure of weekly church attendance—was from the mid-to-late 1950s into the early 1960s, when, at some points, almost half of American adults said they had attended religious services in the past seven days. During this era, marked by the high fertility rates and family formation that were the foundation of the baby boomer generation, the percentage who reported that religion was important also reached high points, and almost all Americans identified with a religion.

Belief reshapes what we care about and how we live. Faith bestows a different perspective on life, often in ways that seem bizarre and imprudent to outsiders.

In a culture of consumption, it is easy to analyze the value of children in purely economic terms. And while the economic case for children is solid on the macro level, it is less so for a man and a woman sitting at the kitchen table, surrounded by bills, looking at the costs of college and the cars in their neighbors’ driveways. The decision to have children is an act of faith. It will come with costs and sacrifice, especially fiscally and emotionally. But God’s mandate to “fill the earth” starts with those willing to believe that, just as the Lord is faithful to those who develop innovations to feed millions, he is faithful to families trying to feed their children. Not only does he provide all that we need, he shows us that not all that is good can be measured in dollars and cents.

Eric Teetsel is executive director of the Manhattan Declaration. Andrew T. Walker is the Director of Policy Studies at the Ethics & Religious Liberty Commission of the Southern Baptist Convention. This essay is adapted from their new book, Marriage Is: How Marriage Transforms Society and Cultivates Human Flourishing.

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Public School LGBT Programs Don't Just Trample Parental Rights. They Also Put Kids at Risk. Mon, 08 Jun 2015 11:00:06 +0000

Through his executive appointments, President Obama has helped expose American schoolchildren to activism that places them at risk.

On May 19, 2009, a few short months after his inauguration, Obama gave the green light to Secretary of Education Arne Duncan to appoint Kevin Jennings to a top position to influence school policy: the post of Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools, also known as the “safe schools czar.” Jennings, a powerful LGBT rights activist who is himself a gay man, was the founder of the Gay, Lesbian, and Straight Education Network (GLSEN). GLSEN is one of the largest LGBT activist organizations in the nation and is devoted to promoting homosexuality in K-12 schools. Jennings served as “safe schools czar” from 2009-2011.

Given his connection with the organization, we should not be shocked to discover that GLSEN received a grant from the Centers for Disease Control in 2011 for $1.425 million over five years to promote the LGBT agenda in public schools at taxpayers’ expense. Through these publicly funded in-school programs, kids are being bombarded with the message that same-sex attraction and gender-identity confusion are innate and therefore not changeable.

Those who design these programs probably believe that they are offering hope to children who may feel different, flawed, or unlovable. They believe that if they affirm children’s LGBT identities as something positive, something that makes up the core of who they are, the children will fare better.

This is not the case. No matter what well-intentioned teachers and administrators believe, these programs ultimately entail an agenda that hurts kids. The messages these programs send do nothing to combat the tragically high suicide rates among the LGBT community. Data indicate that kids are actually put at risk when schools encourage them to identify themselves as gay or transgender at an early age. For each year children delay labeling themselves as LGBT, their suicide risk is reduced by 20 percent.

I’m passionate about this issue because I was a trans-kid myself. I know how easy it was for my grandma to manipulate me into thinking I should change genders. Young trans-kids need to know they were not born that way, and that most will no longer have a desire to change genders once they grow into adulthood. Parents need to know that up to 94 percent of school-age kids who identify as transgender will grow out of their desire to change genders as adults—if parents and schools stop encouraging them to internalize and publicize their LGBT identities.

The Power of Childhood Influences

I’m not sure we truly understand how easily young people’s thinking about gender identity can be influenced by parents, television shows, and teachers who encourage them to explore new genders. During early childhood development, kids learn gender roles from observation within the family setting, peers, television, and school. They use their imagination, actions, and language to play-act what they see.

GLSEN capitalizes on the impressionable, imaginative nature of young children by designing and implementing programs for children as young as kindergarten. Consider their toolkit for elementary educations, Ready, Set, Respect! GLSEN knows that the elementary years are a prime opportunity to encourage kids to reject the values of their parents. The handbook outlines a variety of activities that gradually introduce and reinforce the messages that gender is a social construct, that moms and dads are interchangeable, and that anyone who says otherwise is hateful and prejudiced.

Along with lessons designed to help kindergarten through fifth-graders to “explore the definition of a family and to understand that there are a variety of family structures” and to “challenge their own and other’s [sic] assumptions about gender and gender roles,” the guide recommends a variety of books and videos to help cement the lessons. Asha’s Mums, for example, teaches third- through fifth-graders that “having two mums is no big deal.” An additional discussion guide goes into greater detail about books such as And Tango Makes Three, which is recommended for pre-kindergarten through third-graders:

This book talk is designed to help students realize that there are different family structures including families led by LGBT parents. This is the true story of Roy and Silo, two male penguins who share a nest like other penguin couples, and who are given an egg in need of nurturing. . . .

Conclude by telling students that Tango’s family is just one kind of family. Ask them if they think there is a certain number of kinds of families and how they know that. Let students know that through your life you have discovered and met and continue to meet different kinds of families and that you’re not sure there is a certain number of possibilities.

Other books, such as 10,000 Dresses and My Princess Boy, are listed as resources to help children who are “Exploring Non-Traditional Gender Roles.” While parts of the lesson plans are correct and even healthy (yes, girls can climb trees and boys can play with dolls), encouraging cross-gender identification at such a young age can have painful, long-lasting consequences. Inadvertently manipulating the minds of young people by suggesting that their “real” gender might not match their body can shape how they think, feel, and behave for years to come.

As someone whose grandmother lavished me with affirmations as she cross-dressed me as a girl, I am concerned by the growing trend in schools of encouraging kids to change genders. The activists have convinced the parents this will do no harm. I have traveled this path, and I can tell you: childhood influences matter.

Events and “Research”

GLSEN website provides an LGBT inclusive curriculum to help educators develop lessons that include “positive representations of lesbian, gay, bisexual and transgender (LGBT) people, history, and events.”

The GLSEN student calendar for grades six through twelve is full of events and suggestions for how to celebrate them: LGBT History Month, LGBT Pride Month, National Coming Out Day, and Ally Week, which is touted as “a week where we can have vital conversations to move the movement forward toward our collective queer liberation!”

What other external organizations are granted access to shaping school curricula and activities? I would venture to say that GLSEN is one of the most provocative. Parents take note: the organization aided by taxpayer funds and influencing schools is the one devoted to the LGBT cause.

In order to justify the need for LGBT curricula, clubs, and programs to be included in the classroom, GLSEN often cites the National School Climate Survey, which they conduct every two years. References to the survey are peppered throughout their educator’s guides, student programs and campaigns, and press releases, with such phrases as “Research shows . . . ” The problem is: the sampling is flawed.

Basic principles of statistics and probability state that generalizations about a population from a sample are valid only if the sample is representative of that population. Random sampling is the best way to do that. Read the survey and it’s obvious that the sampling is not random and not representative of US students. In fact, it is a “self-selected” sample, which means that anyone can elect to take the survey, which is freely available on their website. For example, a transgender man in his seventies can fill out the survey posing as a student, which I did to illustrate how flawed the selection process is. The problem of self-selection is that such polls are biased toward people with strong opinions.

Politics, Bullying, and the Science of Sexual Orientation

These problematic school programs are both a symptom and a cause of our culture’s continuing confusion about gender and sexuality. When it comes to the nature of sexual identity and orientation, scientific studies with findings that run contrary to the party line are squelched or dismissed out of hand. Researchers who dare to follow where the data lead and to question existing premises are lambasted and risk being professionally marginalized.

One example of this is the bullying of Dr. Robert Spitzer, a leading figure in the study of homosexuality. Spitzer’s work was embraced and celebrated by LGBT rights activists until he authored a study in 2003 called Can Some Gay Men and Lesbians Change Their Sexual Orientation? 200 Participants Reporting a Change from Homosexual to Heterosexual Orientation. The study abstract finishes with the line: “Thus, there is evidence that change in sexual orientation following some form of reparative therapy does occur in some gay men and lesbians.”

Here was a case of a prominent scientist following his curiosity, challenging position statements about reparative therapy (also known disparagingly as “conversion therapy”) made by major mental health organizations in the United States, and publishing the objective results of what he found. For this, he was attacked mercilessly. After nearly a decade of public, personal, and professional assault, eighty-year-old Spitzer recanted his views in May 2012 and issued a letter of apology to the gay community.

Now, President Obama is advocating a ban on psychotherapy that suggests sexual orientation and the desire to change genders are themselves changeable. His administration has issued this statement: “As part of our dedication to protecting America’s youth, this Administration supports efforts to ban the use of conversion therapy for minors.”

More research needs to be done into the nature of sexual orientation and sexual identity. However, current research suggests that by intervention and encouragement, school programs designed by LGBT rights activists are encouraging children to self-identify in ways that are harmful to their psychological well-being. Rather than allowing the scientific community the space to objectively study these issues, and giving members of the psychiatric profession room to respond to the freely stated needs of the children who come to them, politicians who are hungry for public approval are zealously working to outlaw appropriate and effective psychotherapies for kids who want them.

It’s Time to Protect Our Kids

I understand the impulse that probably motivates many people to encourage young children to embrace an LGBT identity. After a lifetime of feeling like “a woman trapped in a man’s body,” I underwent gender reassignment surgery and lived as a woman for years. I was convinced that this was the right decision, and that this was an option that everyone should have for the sake of their happiness and psychological well-being.

I was wrong. My gender change only brought temporary relief; it did nothing to combat my underlying psychological disorder. My suffering brought me close to suicide. Years after my gender change, I underwent traditional therapy and successfully restored my masculinity and my sanity. Effective psychotherapy and my faith proved to me that changing genders is not a medical necessity.

I have written extensively about the lack of evidence that changing genders is medically necessary. What I didn’t expect was for the State of California to agree with me. On May 5, California officials asked a federal court to block a judge’s order that the state provide sex-reassignment surgery for a prisoner. The state officials argued that “no treating physician has ever determined that reassignment surgery is medically necessary [for the prisoner in question].”

The State of California is willing to argue for protecting a prisoner from unnecessary surgery, but the same state is unwilling to step in and protect the personal privacy of non-transgender school children in restrooms and locker rooms. With Assembly Bill 1266, California became the first state in the nation to require public schools to allow transgender students to use restrooms and participate on sports teams matching the gender with which they identify, rather than their biological sex.

Homosexuals and transgendered people, like all other citizens, should be protected by law from violence and abuse. But that doesn’t change the principle that parents should have access to public education for their children that does not push an ideological sexual and political agenda based on a vision of the human person that many parents deeply disagree with, especially when significant evidence suggests that the messages embedded in these school programs can be harmful to children.

Control of schools should belong to parents, not to the federal government and activist organizations such as GLSEN.

Walt Heyer is an author and public speaker with a passion to help others who regret gender change. Through his website,, and his blog,, Heyer raises public awareness about the incidence of regret and the tragic consequences suffered as a result. Heyer’s story can be read in novel form in Kid Dakota and The Secret at Grandma’s House and in his autobiography, A Transgender’s Faith. Heyer’s other books include Paper Genders and Gender, Lies and Suicide.

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There Is No Fundamental Right to Marry Fri, 05 Jun 2015 11:00:12 +0000

Few commentators on either side of the ongoing marriage debate would deny that individuals possess a fundamental right to marry. To do so seems ridiculous today. Marital relationships are, as the Supreme Court first affirmed in Meyer v. Nebraska (1923)—albeit in obiter dictum, an aside unnecessary to the decision of the case—an important part of the happiness that individuals have a natural right to pursue.

It may be a surprise to modern Americans to realize that the Meyer case represents the first notable appearance of the “right to marry” language in the American political tradition or its antecedents in liberal political philosophy. It played almost no role in the Civil Rights Movement beyond its invocation by Chief Justice Earl Warren in the 1967 case of Loving v. Virginia (neither King nor Malcolm X made mention of such a right to my knowledge), it was entirely absent from the anti-slavery movement (Lincoln’s Republican Party was formed, in fact, with the twin policy goals of ending slavery and outlawing polygamy), and it was similarly absent from the revolutionary conflict with Great Britain.

The idea of a fundamental right to marry—not just someone of the same sex, but anyone at all—is a relatively new one. Among those who didn’t think anyone—not just homosexuals, but heterosexuals as well—possessed such a right are John Locke, Thomas Jefferson, James Madison, and Abraham Lincoln, to name only a prominent few. Why not? Didn’t they see the enormous importance of marriage to individuals and society? And if this is the case, don’t people have a right to it?

Invoking Rights in Public Discourse

There is a momentous difference between affirming something as a good for an individual or a community and claiming possession of this good as a fundamental, natural, or human right. Such rights follow from the fact of individuals’ self-ownership or human dignity and not from their desires, however legitimate these might be. I want to stay alive, and I also want a million dollars. These are both legitimate desires, but only the former involves a fundamental right.

There are innumerable good things to which no one has a fundamental right: world peace, tropical beaches, lollipops, and so on. To claim a fundamental right is to attach a special moral urgency to a particular good thing that is in danger of being taken away. Locke’s famous triad of “life, liberty, and property” provides the best example of such things. And the moral urgency that is attached to these good things does not derive merely from our desire for them—otherwise, why doesn’t our desire for other good things include a similar urgency?

We possess fundamental rights to things such as life, liberty, and property because these things are intimately connected with our self-ownership. As Locke helpfully explains, we own property in external objects because we own our free actions of appropriating them, and we own our free actions because we own ourselves. For Locke—as well as for the American founders and Lincoln—this was as far as our fundamental rights went.

It was from this philosophical lineage that the language of fundamental, natural, or human rights derived its enormous power in political discourse. People have always had intense desires for their lives, liberties, and property—but now these bare desires put on the robes of natural justice and eternal decree. Because of this, fundamental rights are inalienable and non-negotiable; they don’t enter into political discussions, they dictate public policy. According to Locke, their protection is not just one of many important considerations for government—it is the very purpose of any legitimate government. Governments don’t create these rights, they find them already there. Fundamental rights are the “trump cards” of moral and political discourse, foreclosing further debate and discussion.

Locke, along with the American political tradition, is correct to affirm the existence and importance of these fundamental rights. Because these rights are not only due to individuals as a matter of justice but also desired by individuals as important goods, however, it has always been easy for people to confuse fundamental rights with intensely desired goods—and thus wrongly to invest the latter with the moral urgency and primacy of the former. This is a serious mistake, and it is one that clearly has been made in the case of the “fundamental right to marry.”

The Idea of a Right to Marry

Marriage is a good thing; both sides of current debates seem to agree on this. But does anyone have a fundamental right to it? To understand why no one—heterosexual, homosexual, or otherwise—has a right to marriage, let’s look again at the list I provided above of good things no one has a right to.

The last two—tropical beaches and lollipops—might in fact be the objects of someone’s fundamental right if one happens to have a legitimate property claim to them. The first, however—world peace—is not the sort of thing any individual can have a fundamental right to, simply because it doesn’t pertain to any individual at all. Peace is something that exists between individuals, not within or attached to any of them. Claiming a right to peace is a straightforward category mistake, like stating that the color blue is five feet long.

Marriage is exactly like peace in this regard: it pertains to a relationship between individuals rather than to any individual in particular. Dennis Rodman’s famous attempt notwithstanding, I simply can’t get married; only we can. Even if you want to marry me and I want to marry you, not only does neither of us have a fundamental right to marry the other, but neither of us even can do so by himself. This ability lies only in both of us, because marriage attaches to our relationship, which occurs between the parties to it rather than within either of them.

This is not to say that marriage (or peace, for that matter) doesn’t significantly affect individuals. Obviously, it does. But “fundamental” rights—unlike constitutional rights or legal rights—derive from the self-ownership or human dignity of individuals and therefore can only pertain to individuals. One may argue that couples, or groups of individuals, possess such fundamental rights, but this would necessarily entail the construction of an entirely different line of argument than the one running through the American political tradition and extending ultimately to John Locke’s political philosophy. This would be a truly momentous—and, to my mind, impossible—task.

The Court and the Right to Marry

The Supreme Court has been gravely mistaken in affirming the existence of a fundamental right to marry since Meyer. No such right exists for anyone—straight or gay. From a constitutional perspective, the Court has located this right within the Fourteenth Amendment’s due process clause, which attributes to “persons” the rights to “life,” “liberty,” and “property.” In this clause, the Fourteenth Amendment intriguingly bypasses Jefferson’s elaboration (“life, liberty, and the pursuit of happiness”) and harks all the way back to Locke’s initial formulation.

As I’ve argued, attributing a fundamental right to marry to any “person”—such as those mentioned in the Fourteenth Amendment—is the result of a simple category mistake. Marriage cannot be included within the Fourteenth Amendment’s idea of liberty, because it is not a possible object of individual action at all, only of joint action with another. Luckily for the Court, the fundamental right to marry is of fairly recent origin in precedent and the American political tradition. Disavowing the existence of such a right will not bring back anti-miscegenation laws; it will only assist in aligning the Court’s interpretation of the Constitution more fully with the important truths from which constitutional rights derive.

Adam Seagrave is an assistant professor of political science at Northern Illinois University. He is the author of The Foundations of Natural Morality: On the Compatibility of Natural Rights and the Natural Law and editor of Liberty and Equality: The American Conversation (forthcoming in July 2015).

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An African-American Woman Reflects on the Transgender Movement Thu, 04 Jun 2015 11:00:59 +0000

My parents never bought Cinderella, The Little Mermaid, or Snow White. They weren’t stories told in our house or movies played on our TV. There was no Princess Tiana then, but my parents only showed us films with “colored” princesses: Mulan (Asian), Pocahontas (Native American), and Jasmine (Arab). We also loved the African animals of The Lion King. We never idealized whiteness in our house. None of this was done overtly, though it may have been intentional. Only in retrospect did I realize the kind of tacit self-love my parents were embedding in us.

Still, it wasn’t enough. Around the age of thirteen, I realized that the world was telling me that light skin and “good hair” were better, skinny was better, and whiteness was better. In fleeting moments, I wished I could be white. I begged my mom to straighten my hair, and she did. I went through sometimes unreasonable means to lose weight, and I tried to keep my somewhat light skin out of the sun.

If I had gone to my parents begging them to be white, I think they might have laughed, cried, comforted me, and worried what they did wrong as parents. But what if I had told them not only that I wanted to be white but that I actually was white? What if I had declared that the race of my body simply didn’t match that of my mind? I think they would’ve been deeply troubled.

The Bluest Eye

The famous Toni Morrison book, The Bluest Eye, parallels this idea. The main character, Pecola, is a dark-skinned girl who desperately wants blue eyes. By the end of the story, she has blue eyes—or at least, she believes that she does. We, as the readers, don’t applaud this. In fact, by the end of the novel, we think Pecola has lost her mind. We know that it’s not really blue eyes she wants, she wants something much deeper—love, acceptance, respect, honor . . . the intangible human desires we all crave but are not equally given. We know that she has not received this, but instead is a victim of perpetual abuse, and there is no easy solution to her problems.

But what if it were really possible for me to become white or for Pecola to acquire blue eyes? Would that be the end of the story—the happily ever after? Would changing our physical appearance magically erase all our issues of self-esteem and self-worth?

No, of course not. The eyes and the skin color were never the problem: racism and abuse were. We would only be putting a Band-Aid on the real issue. The many men and women who “passed” as white during America’s shameful Jim Crow era may have gained the social privileges bestowed by being white, but they also lost their heritage, their family ties, and their integrity, thanks to the lie they were forced to tell every single day.

Race, Sex, and Gender

But what if, instead of wanting to be white, I wanted to be a man? What if, instead of crying to my parents that I was really a white person, I told them that I was really a man and that I desperately wanted to change my body to match my mind? If, in this scenario, you think that my parents should applaud my courage, accept my new gender identity, and run to the nearest surgeon, please ask yourself: “Why?”

There’s no doubt that race and sex are two very different issues. Race is a social construct invented during the era of slavery. Before the European enslavement of Africans, there were no united “black people” in Africa, and there were no united “white people” in Europe. Thanks to slavery, the labels of black and white became a convenient way to continue oppression, but they are a relatively new way of identifying one’s self.

But sex is not a human invention. Yes, gender roles are culturally created. Still, that does not erase the fact that every human being (except intersex individuals, who represent a tiny percentage) is born with a distinctive set of physical and biological attributes that constitute them as male or female. That is a truth that cannot be erased with time.

Self-Love as a Virtue

When we want to be something other than our true authentic selves, that is self-hate. A black person who wants to be white is practicing self-hate, and so is a man who wants to be a woman or a woman who wants to be a man. We live in a climate of incredible self-absorption, but we won’t encourage people to love the body they’re in? We tell women to love their curves and love their age and love the skin they’re in but we won’t tell them (and men) to love the sex of their bodies?

We cry out about the horrors of female genital mutilation, yet we allow the practice in our backyard. We ignore the cries of patients who wake up from surgery full of remorse. We ignore their suffering and delude them with the promise of quick fixes and instant happiness. At The Federalist, Stella Morabito quotes a man who, upon waking up from his surgery thought, “What have I done? What on earth have I done?”

Eerily, in his Vanity Fair interview, Jenner echoes this man as he recalls his own thoughts after his ten-hour face feminization surgery: “What did I just do? What did I just do to myself?” Another post-op patient says in an online forum, “I am grieving at how I have mutilated my body.” Here at Public Discourse, Walt Heyer has written about the regret he experienced after his sex-change surgery.

We are playing a dangerous game. A man or a boy whose penis has been surgically removed can’t go back in time and return to his God-given nature. What if we spent the money we spend on surgery and drugs on therapy and learning self-love? We should be teaching a message of self-acceptance instead of buying into the latest surgeries or believing we’re born in the wrong body.

The Slavery of Freedom

Paradoxically, the more our society tries to free itself from gender stereotypes, the more it becomes enslaved to them. By saying that people can be born in a body of the wrong gender, transgender activists are saying there is a set of feelings that are only allocated to women and another set for men. Therefore, they believe, those who feel things that do not conform to their sex’s acceptable set of feelings must outwardly change their gender to match their mind.

Why are we colluding with narrow ideas of femininity or masculinity? What does it mean to “feel” like a woman? Should we question that idea as much as we have questioned ideas of a “woman’s place” or a “man’s role”? When did we come to accept the idea of “gendered thoughts” or “gendered feelings”?

As a linguistic student of Arabic, I recently learned that women and men are not opposite so much as they are complementary. The idea that one could feel opposite from one’s biological gender is actually nonsensical, linguistically and in reality. Men and women are different, but not so categorically that one can feel as though he or she were the other. We are full human beings, free to think as we wish without questioning our authenticity as men or as women.

“Bruce lives a lie. She is not a lie,” says Bruce Jenner in his interview with Diane Sawyer. Bruce, now Caitlyn, Jenner, told Sawyer that he has a “soul of a woman,” that he spent his life “running away from who I was.” At the time of that interview, Jenner’s voice and appearance are strikingly different from what they have been in the past, but not drastically enough to give the illusion of being female. Admittedly, Jenner looks much more feminine on the cover of Vanity Fair. Still, if he chooses to go through gender “reassignment” surgery, he will not become a woman but merely an illusion of one. As Dr. Paul McHugh, former psychiatrist-in-chief for Johns Hopkins Hospital, has written, “‘Sex change’ is biologically impossible. People who undergo sex-reassignment surgery do not change from men to women or vice versa. Rather, they become feminized men or masculinized women.”

People opposed to the transgender movement are often accused of being bigots. In truth, I—like many others—harbor no hate for people who suffer from gender identity disorder. Rather, I feel deep compassion and concern for them in their suffering. As someone in the field of psychology, I hope we can one day find a more holistic, less invasive means to treat this disorder. However, I will concede that I find something quite insulting about the entire phenomenon. It is an insult to the other sex to think that by “dressing like them,” “talking like them,” or claiming to “feel like them,” you can therefore be them. Being a man is about more than wearing a suit, and being a woman is about more than putting on makeup. If we feel confined in our bodies, perhaps it is not our bodies we should try to correct but our spirits we should reconnect with.

Nuriddeen Knight is an alumna of Teachers College, Columbia University, where she earned an MA in psychology with a focus on the child and the family.

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Liberalism Can’t Understand Sex Wed, 03 Jun 2015 11:00:55 +0000

For the past several decades, campus authorities from deans and chancellors all the way down to lowly RAs have been reiterating the talking points of “safe sex” to college-age teenagers. For the vast majority of incoming freshmen, these messages of consent and the prevention of sexual assault have been a staple of their educational culture since junior high, if not earlier. But despite this constant campaigning for consent, sexual assault on campus remains a perennial problem. The more we insist on viewing sex in the context of consent, the more insecure we are about our ability to prevent rape. What explains this troubling trend?

Other essays at Public Discourse have focused on various aspects of the scourge of sexual assaults on campuses. Robert Carle and Greg Forster, for example, have argued for moving investigations of such assaults out of the hands of compromised university bureaucrats and into the jurisdiction of the legal system. Adelaide Mena and Caitlin Seery La Ruffa have lamented the crassness with which campus administrators confront the hook-up culture, while Jeffrey A. Hart has expanded on Mena and La Ruffa’s proposals by arguing for an “Augustinian philosophical anthropology” that explains why the hook-up culture has left so much misery in its wake. All of these are excellent investigations of the problem of campus rape.

But we must understand that the liberalism that undergirds consent- and rights-based discourse on sex is utterly incapable of understanding human sexuality. Because it reduces the human person to a mere vehicle of abstract rights, liberalism has no language to express the transcendence and sacrifice of human sexuality. As long as we are talking about sex in terms of mere liberty and consent, we will continue to face the specter of rape hanging over every sexual encounter. This is because the “Yes” given in consent-based epistemologies—i.e., a yes to a physical interaction premised on radical individual autonomy—is fundamentally different from the “Yes” in which human sexuality is designed to operate: a “Yes” to the other in his or her spiritual, intellectual, emotional, and physical entirety.

Sex functions precisely to break down autonomy and overcome the overweening sovereignty of the self upon which consent is ultimately based. In a liberal framework, our freedom to engage in activities assumes that all activities are equal, as long as we have obtained consent when those activities involve others. But sex is not like other activities. Sex, unlike anything else we might do with another person, transcends the self while radically reorienting it within a new, shared context with our sexual partner. Consent assumes that sex will not do this, that sex will leave two people as fully autonomous after sex as they were before. But this is precisely the one thing that sex was designed not to do. Sex, even if entered into based on a free agreement between two autonomous people, by its very nature dismantles the autonomy upon which the consensual understanding of sex had been based.

In the wake of this compromised autonomy, sexual partners, confronted with a transcended self but still working within the conceptual confines of leveling liberalism, may very rightly view this transcendence as a violation of their sexual integrity. This holds true even when the sexual encounter was freely and consensually entered into, and especially when the myriad other expectations attendant upon sex are left unfulfilled. These expectations of emotional and spiritual intimacy, including the promise of future growth as a couple and openness to new life through sex, have no place in the liberal understanding of sex. Thus, when these hopes are dashed, women, especially, see “consensual sex” as a misleading proposition. Their subsequent sense of violation feels very similar to the devastating effects of non-consensual sex. To be clear, sex without consent is rape. But the wasteland of the hook-up culture shows that merely granting and receiving consent do not safeguard against the manifold consequences of casual sex.

If we want to talk seriously about ending campus rape, we must get to the bottom of the liberalism that underpins consent discourse on campuses. By rescuing sex from liberalism, we can restore sex to its rightful place—not as bargained recreation between Lockean rights-bearers, but as the complete gift of mind, body, and soul to another person, and the reception of the complete gift of the other.

What Is Liberalism?

A good working definition of liberalism can be found in the February 2013 issue of Chronicles. Chilton Williamson, Jr. writes:

From Hobbes forward, but after Locke particularly, liberalism has taken for granted . . . a social contract between individuals for the purpose of securing them and their property and for promoting their personal freedom. For classical liberals, the theoretical aim of society is not society realized as a commonwealth but society as a collection of discrete individuals, each, so to speak, composing his own society of one, whose security the association guarantees.

This view is almost completely incompatible with human sexuality. Liberalism posits radical autonomy and then attempts to mediate those individual autonomies through contracts (“consent”). By contrast, sex draws two people into the most intimate form of community, forming a new relationship based on a shared totality of existence. Where liberalism deals in a world of unjoinable, antagonistic atoms, human sexuality strives to bring two atoms together in order to make an entirely different molecule.

Liberalism is unable to understand sexuality in part because liberalism sees a steady-state interaction of discrete rights-bearing units, while sexuality is distinguished from other activities in being existentially unstable. It is unfashionable in many circles to assert that sexual intercourse makes men and women “one flesh.” One needn’t appeal to the Bible, though, to demonstrate that this fusing and repurposing of natures is literally true. Vicki Thorn, for instance, has shown that intercourse profoundly alters the bodily chemistry of men and women, leaving them chemically joined to one another. This reality gravely complicates the personal autonomy upon which consensual sex is based. Even on the physical level, human sexuality challenges liberalism’s narrow worldview with a much more intricate and dynamic understanding of personhood.

Men, Women, and Children

This existential instability cuts across the liberalism of rights- and consent-framed discourse about sex in another way as well. To engage in sexual intercourse is to open oneself to the very real possibility that a new person could be created.

Many liberals now argue that unborn children are subject to extermination precisely because they infringe the rights of the expectant mother. Nevertheless, the deeper fact is that these new rights-holders are entirely new creatures whose sudden presence poses a serious challenge to the structures of liberal personhood. Hostile labels such as “illegal occupiers” and “parasites” reveal that liberalism is well aware of the threat that the radical disruption of new human life poses to its scheme of Lockean bargaining and consent.

Nor does liberalism make sufficient allowances for the sexual differences between men and women. The vast majority of sexual assaults involve men violating women. This imbalance is intuitively obvious to us, because we all understand that men tend to be the more libidinous—and aggressive—sexual partner. Liberalism works only when interactions are seen as taking place between autonomous and functionally identical individuals, but sex refuses to be hemmed in by our modernist democratic assumptions. The horrifying reality of rape and sexual aggression, wherein men prey upon women’s relative weakness, is the twisted inversion of sex’s much, much greater potential for good, by which men and women go beyond their own inherent differences and are elevated to an entirely higher state of mutual complementarity and self-giving. Sexuality is the sharing of one’s entire self with another person—not just physically, or even chemico-biologically, but spiritually, emotionally, intellectually, and at every other level of the human personality. Women, especially—that is to say, unequally—realize this truth much more readily than do men.

What is missing from liberalism is a true view of the complexities of the human person. And the key to understanding the human person in all of his or her complexity is dignity. Where liberalism insists on absolute formal equality, dignity explodes the narrow boundaries of this formal equality, understanding the bigger truth that human value is not restricted by difference, but actually comes into full flourishing in the complementarity of difference. Exactly alike in dignity, men and women are nevertheless created unalike.

Sex Challenges and Transcends Autonomy

This likeness in dignity and unlikeness in personality finds perhaps no greater expression than in sex, in which men and women give of themselves for the sake of each other. In this mutual honoring—a sacrifice of the very self that liberalism cordons off as autonomous and inviolable—the dignity of man and woman achieves a new fullness that goes beyond them both.

Because sex necessarily violates the narrow, rigid autonomy upon which liberalism is predicated, sex presents a fundamental challenge to this liberal autonomy. Within the liberal framework of negotiated rights, this fundamental challenge to autonomy—the very nature of sex—works continuously to frustrate the utopian impulse to “tame” sex by means of consent. Sex fills in the moat around the Lockean self and leaves that self vulnerable to another in a radically new way. Consent breaks down where the self has thus been opened and reoriented.

In short, liberalism sees sex as, at best, contractually bargained-out autonomy. But this scheme denies the much fuller truth about sex and elides the real differences in sexual intercourse as engaged in by women and men. Liberalism falsely posits that men and women are exactly alike, and so, with no context in which to situate the differences inherent in the mutual sexual self-gift, liberalism has a skewed view of this higher-order exchange. Rights and autonomy—the staples of the liberal discourse of consent—simply cannot contain the higher meaning of sex.

The Irony of the Sexual Revolution

There is no small irony in the inability of liberalism to understand sex. Unfettered sex, along with free access to abortions and the freedom to define one’s gender as one sees fit, is one of the so-called “sacraments of the cult of liberalism.” Indeed, the sexual revolution was premised on unrestricted autonomy as the ticket to a pleasurable, consequence-free paradise.

Sex overwhelmed this liberal conceit, too. The consequences of denying the nature of sex plague college campuses more now than ever. For example, according to the CDC, 15-to-24-year-olds contract about half of the twenty million new STD infections each year. University administrations, locked in the amber of liberalism, cannot understand the scope of the problem they unwittingly helped to create. If we truly wish to fight the scourge of campus rapes, we must admit that consent, more narrowly, and liberalism, more generally, have failed.

To be sure, “No” means “No,” every single time. But sex is a subject poorly encapsulated by consent, which whittles the question of whether or not to have sex down to a simple (and simplistic) choice between “Yes” or “No” to physical intercourse. The real question posed by sex, though, is one of “Yes” or “No,” not just to the bodily interaction of two material creatures, but to the intermingling of lives and souls that is the true context of sexual intercourse.

If university administrators are serious about ending campus rape, then administrators must turn to curricula that emphasize the importance of abstinence before marriage and sacrificial self-gift within marriage—the only two methods ever devised for bringing inherent human dignity into alignment with the awesomely transformative power of human sexuality. Liberalism can never see these bigger truths, and so must remain at the shallow level of legalistic parsing of rights, autonomy, and consent-language that cannot possibly contain the entirety of sex’s meaning and transcendent goodness.

Jason Morgan is a PhD-candidate in the history department at the University of Wisconsin-Madison.

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Catholicism, Capitalism, and Caritas: The Continuing Legacy of Michael Novak Tue, 02 Jun 2015 11:00:19 +0000

The current issue of First Things captures the paradox of contemporary capitalism. In “The Power Elite,” Patrick Deneen describes how the fight over Indiana’s Religious Freedom Restoration Act was won by corporate activism and interests. This is so, he argues, because

Today’s corporate ideology has a strong affinity with the lifestyles of those who are defined by mobility, ethical flexibility, liberalism (whether economic or social), a consumerist mentality in which choice is paramount, and a “progressive” outlook in which rapid change and “creative destruction” are the only certainties.

Corporations use their power to effect the changes they want, which all too frequently benefit elites at the expense of working-class Americans, socially and economically.

A few pages later in the same issue, Michael Novak describes free markets as engines of creativity, solidarity, and poverty reduction. “Free markets are dynamic and creative,” he explains, “because they are open to the dynamism and creativity intrinsic to our humanity.” Competition among corporations leads to better products, available to more people. Aiding entrepreneurship and making it easier to enter the market are essential for allowing the “bottom billion” to improve their lot. Novak argues, as he has for thirty years, that the best solution for poverty is still democratic capitalism: “a system of natural liberty, incorporating both political liberty and economic liberty” and founded on a prior “moral and cultural system, constituted by civic institutions and well-ordered personal habits.” Today, however, that system is changing fast, endangering the families and social organizations that help society flourish.

In Deneen’s mind, capitalism undermines society. In Novak’s, the right kind of capitalism is an important component of a free society, but by no means the only one. Those who seek to maintain the benefits of free markets without undermining the moral foundation on which society rests should review the basics of Michael Novak’s work. An American and Catholic Life: Essays Dedicated to Michael Novak is a good place to start. The essays in this recent festschrift capture the important moments of Novak’s life and touch on many of the themes of his work, which ranges from philosophy to sports to religion and the American founders. Novak’s most significant intellectual contributions examine the way in which theology shows us what makes a society free and virtuous. In particular, they offer insight into three main topics: economics, civil society, and charity.

Catholicism and Capitalism

Novak’s economic positions are some of his most controversial, perhaps because they touch on an unfortunate division within American Catholicism. It’s common to argue that both sides of this divide pick and choose what teachings to accept: progressive Catholics dissent from the teachings about sexuality and the human person, while conservative Catholics dissent from teachings about the economy. In this vein, some criticize Michael Novak as a shill for capitalism, accusing him of distorting Catholic social teaching to baptize big business.

But this argument betrays a deep ignorance of Novak’s writing. At the heart of his thought on economics lies one question: What gets people out of poverty? Or, in a more academic articulation, what economic systems are most conducive to allowing people to exercise their human dignity, realize their God-given capacities, and provide for themselves and their families? When many people think of capitalism, they imagine factory owners exploiting workers. Novak sees a woman with a micro-loan who can now start a business to support her family, or a community of immigrants who have arrived in America—like Novak’s own Slovak ancestors—who through hard work in their local community can build better lives for themselves and those around them.

What leads to the flourishing of such communities? A planned economy restricted by regulation, or a more open economy that permits failure and rewards success? Novak’s conclusion, developed at great length in The Spirit of Democratic Capitalism and other works, is that free economies are best equipped to do so. Novak’s vision inspired those working for liberation from communism, in particular. It explained why the ideology of their government ran contrary to human nature and proposed what a more humane social structure might be.

But that was thirty years ago. What of today? Certainly, we must remember that business can be a real calling; offering good products to customers and providing jobs for workers in a manner consonant with Christian principles are important tasks. But where Novak argued against forms of socialism, we must argue against corrosive forms of capitalism. In particular, we must fight the crony capitalism that ties those who police the market closely to its most powerful actors. A free market helps small businesses and micro-loans, but also allows for large and exploitative corporations. We should help the former and limit the latter. Advocating a free economy does not mean being mindlessly pro-business or anti-regulation. Rather, it means returning to core truths about the nature of the human spirit and the dignity of work and thinking about how these can best be promoted for the least among us.

As part of that, Samuel Gregg reminds us, we must remember Novak’s admonition that a free economy and constitutional democracy require “a culture that underscored the reality of moral truth and that held up, as the founders did, virtue and human flourishing as the goal of freedom.” Liberty allows economic actors to exercise and cultivate virtue.

Family and Civil Society

For Novak, economic liberty is not an absolute goal, but an important component in a society that allows its members to grow and flourish. As Samuel Gregg puts it, Novak argues that a free and virtuous society has “three legs: a free economy, a virtuous citizenry, and a political system grounded in accountability and responsibility.” By that standard, Gregg points out, the US is not looking good:

We have not so much a free economy as we have managerial, in some cases crony, capitalism; we have a citizenry that largely does not see or want to know about the happiness found in freely choosing to live in the truth; and we have a political system in which accountability and responsibility are increasingly voided and avoided.

Where are we to look for a solution? One possibility is to focus on large-scale solutions: government programs implemented at a distance to bring about greater material welfare. Historically, the results of those efforts have been a great lesson in unintended consequences. Instead of raising the American underclass out of its plight, they further entrenched it there. Figures such as Novak recognize that this was because poverty is not only about material wealth but about moral and social wealth. Communities don’t just need economic assistance. They need to cultivate values that will allow them to flourish. Any economic assistance that hurts the cultivation and transmission of such values will do much more harm than good.

This leads Novak and other figures to focus on civil society or the “mediating structures” that exist between the person and the state. These include churches, businesses, charities, unions or guilds, and non-profits such as the Boy Scouts. But the mediating structure in which values are first cultivated and transmitted is the family. Brian Anderson captures the core of Novak’s argument:

As Novak argues, it is in the families and communities of civil society that the moral life takes form and people learn about duties and personal responsibility, not just rights and self-interest and entitlement. . . . it is primarily in the family that we become self-governing—self-policing—citizens.

In other words, the family is the fundamental unit of society. It must be protected and strengthened by other parts of society so that it can help individuals and society as a whole to flourish.

Civil society has an enormous potential to build networks of growth from the ground up. It does not exist to serve the state; on the contrary, Novak argues, the state exists to serve it. Furthermore, the family is not only a place where moral capital is accrued, but also where financial capital begins. Many get their first jobs from parents, uncles and aunts, and members of their churches. Those who are serious about helping the poor need to take account of the moral ecology required for human flourishing and the structures that maintain it.

Divine, Cosmic, and Personal Charity

One other theme stands out in An American and Catholic Life: charity. In her essay, Elizabeth Shaw describes charity as not only the “pure and perfectly gratuitous love of God” but also, in Novak’s words, our “partial, fitful, hesitant, and imperfect” participation in that love.

The application of charity to the social order is what Novak calls the caritopolis, the civilization of love. A civilization of love recognizes that material things, the state, civil society, and the free market can be good in their own rights, but not absolute goods. Rather, they should be ordered to help members of society attain their highest good: union with God, who is love itself and the source of all that exists.

The caritopolis is not sentimental but realistic, especially about the failings of the human beings who comprise it. As Shaw puts it, “the Civilization of Love takes the best, most proactive approach to the fallen human condition, and indeed it exists precisely to confront and correct these shortcomings.” It also recognizes that human beings are social creatures. Respect for the dignity of the human person and the indispensability of human solidarity help form the foundation of a just and loving society.

Although the characteristics of caritopolis are universal, each society will manifest them in its own ways. Novak emphasizes “the right of societies to maintain their own unique character, the integrity of their own culture, and the historical source of their own spiritual unity.” This right must be balanced by a “cultural humility,” which recognizes that no culture possesses the truth completely but all stand under the judgment of truth. That in turn requires an understanding that the truth exists, that it can be attained, and that it can make demands on those who find it.

Where We Go from Here

In a sense, Novak and his vision of the caritopolis won their first big argument. Liberal democracy and the free economy triumphed in the Cold War. But the ground for the debates in which Novak engaged has shifted. We now wonder how to maintain a free economy, robust civil society, and the subjectivity of society in the face of the consumerism and cronyism that plague global capitalism. Samuel Gregg and others have sought to address these questions by building on Novak’s arguments. But Patrick Deneen, David Schindler, and others have argued that there are deeper problems with Novak’s thought, in particular his argument that the liberal philosophy undergirding the American founding can be reconciled with Catholicism.

In the afterward to An American and Catholic Life, Novak offers a rejoinder to these critics. He argues that certain liberal institutions are among the goods of the American founding, including “trial by jury; religious freedom; the separation of governmental powers; the division as well as the interdependence of the three great systems of a free society, the political system, the economic system, and the moral-cultural system; freedom of the press . . . .” But, he continues, “liberalism as a philosophy is unable to account for these institutions, is peculiarly vulnerable to relativism and authoritarianism, and is chiefly responsible for undermining the liberal institutions that we cherish.” Schindler and Deneen join many secular liberals when they think that liberal philosophy can explain the American founding. Instead, Novak thinks that “our philosophy lags behind our living.” Instead of condemning America to its root, we should conserve its best institutions by joining them to the non-liberal theological and philosophical principles by which we have lived.

However, our philosophy is conquering our living. The task now facing those who follow Novak is how to conserve and ground the goods of democratic capitalism in the face of undemocratic corporations, political parties, and slanderous internet commentators. The solution is not to blame free markets tout court. Rather, we should fight what undermines the moral ecology required for free societies, and free markets.

This will not be easy work. But the example of Novak’s life and the tenor in which he has engaged so many controversies provide another important lesson. Novak treats his intellectual opponents with a rare—and regularly unreciprocated—amount of charity, respect, and good humor. Throughout his debates in the public square, Michael Novak has lived out the charity, breadth of knowledge, and openness rooted in the truth that he preaches. We should do no less.

Nathaniel Peters is a doctoral candidate in historical theology at Boston College.

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Are We Ready for an Honest Conversation about Abortion? Mon, 01 Jun 2015 11:00:37 +0000

As you may have heard, HBO Girls actress Jemima Kirke recently made a public statement about her past abortion. In a solemn video published by the Center for Reproductive Rights as a part of their “Draw the Line” campaign, Kirke explains that when she was in college, she got pregnant with her boyfriend, scrounged up money to afford an abortion, but was unable to afford the anesthesia. Sounds like a painful experience. But that’s not all that Kirke found painful. “I still see shame and embarrassment around terminating pregnancies,” she said. “So I have always been open about my stories, especially with other women.”

Kirke, who is now thirty, married, and mother of two daughters, says that she is motivated to speak out by the hope that, if women talk openly about it now, the cultural conversation will resolve the issue by the time her daughters are grown. She hopes that putting a human face on stories like hers will keep people from misunderstanding how normal abortion is and from limiting women’s access to it.

By and large, I would say it’s a good thing Kirke is talking about her abortion publicly—but not for the reasons she thinks.

Putting a Human Face on Abortion

Kirke means well, but the abortion debate is one where putting a “human face” on the issue, far from solving things, is exactly what perpetuates the crux of the debate—that is, the question about whether the human face of the baby counts. I don’t know anyone serious on the pro-life side who denies the “humanness” of the woman; it’s just a question about whether she has the right to decide if the girl or boy growing inside her deserves to live. That the woman facing an unplanned pregnancy is deserving of respect and gentleness is an unquestionable reality.

Kirke’s hope that the issue will just talk itself away is naive. The abortion debate continues to divide our country, and the opposition continues to draw record numbers for its march on Washington every year. In large part, that’s because the issue was forced into American law without a cultural conversation. Overnight, thanks to the votes of a few judges, the concept of a right to abortion went from a radical view to the law of the land. Not only was abortion not voted for by the people, it wasn’t voted for by their representatives in government. Perhaps if it had been legislated into law, as it was in Britain, we wouldn’t still be in such culture shock. Instead, in America, abortion was shoehorned into the books with a court ruling that literally invented a right that has no basis in the Constitution. In terms of America’s cultural conversation, no one saw this coming.

Still, better late than never, right? Kirke has brought up an important topic for many Americans. So let’s talk about it.

Abortion, Rape, and Stigma

Jemima Kirke is a lovely woman. She’s like a cross between Fiona Apple and Botticelli’s Venus walking out of a Waterhouse painting. I do not know Kirke personally, but she seems, in some ways, like a kindred spirit. She went to Rhode Island School of Design while I went to Providence College, just across town. Our time in Providence probably overlapped, since we’re only a year apart in age. While edgy and independent, she also carries an approachable, friendly vibe. She seems like someone I easily could have crossed paths with on Thayer Street or shared a clove cigarette with a decade ago.

So, woman to woman, here are my thoughts toward a conversation about abortion. What I’m about to say may seem intense, but Kirke is a gutsy woman herself, so I trust she’d understand I’m just being frank and honest about my opinion, not trying to shame her.

My view is this: I'm against abortion for the same reason I'm against rape: I believe it shouldn’t be lawful for me to do whatever I want with another person's body—whether they’re conscious of it or not.

Comparing abortion to rape may seem strange, especially given that rape is often brought up as a way to make abortion seem more compassionate. “Why should a rape victim have to carry her rapist’s child?” the argument goes. But for me, the wrongness of rape actually highlights the wrongness of abortion—and vice versa.

As undeniable as it is that the body of a fetus is inside a woman's body, it is equally undeniable to me that his or her body is a separate body from the mother's. When I was pregnant and could feel the baby kick and move around inside of  me, it wasn’t one of my organs moving around; it was another person—and an active one at that. I remember one of those pregnant-epiphany days when I realized that not only do I feel him, but he feels me. I feel his pokes, but he feels something different—the confines of my womb, the bopping of my walk, my hand when I’d nudge him back through my belly.

Similarly, I realized, if for some reason my little baby experienced some pain unrelated to my health, he would feel it, not me—despite the fact that he's inside my body. Yes, I know the science is already in about the two separate heartbeats and brains and everything else that proves a fetus is a separate human body from my own—but somehow, when I realized his body feels everything completely separate from mine? Mind. Blown.

Now I can’t see it any other way. I can’t do whatever I want to someone else's body.

Abortion and rape are both highly charged issues, and they are often surrounded with great division and judgment. Recently, I’ve been hearing the same message about both rape and abortion: “the only way to reduce stigma is to talk about it more openly.” For rape, this message and movement go back for decades; many of us will recognize the phrase “take back the night” as the longstanding cry of those seeking to remove the cultural stigma attached to sexual assault.

The “let’s talk more openly about abortion” conversation is only just starting. For a long time, Planned Parenthood failed to popularize their “I had an abortion” T-shirts, perhaps because they tried to force the conversation a bit too early. But Planned Parenthood's CEO Cecile Richards is still at it, as she recently wrote in Time Magazine, “We need to talk—really talk—about abortion. American has an urgent need for authentic public dialogue on abortion.”

Scripts and Censorship in the Abortion Conversation

Since the abortion conversation has such high political (and, for Planned Parenthood, financial) stakes, interested parties often try to supply the script for women. Rarely do we hear women just talking about their own experiences with abortion, on their own, away from the confines imposed by an interested party. We need more of those real, unscripted, uncensored conversations.

Conversations like the one that unexpectedly came up over a recent dinner I had with girlfriends, when one shared how she feels hurt that her father looks down on her for having had an abortion in her teens, especially given that her mother “made me do it,” and her father was absent. “Where were you for all of this?” she exclaimed with a pained look, as if speaking to her dad.

Or conversations like the one I had years ago with a male friend who broke down when the song “Brick” by Ben Folds Five came on the radio—a song that unearthed the deeply buried pain of the time when, despite his reservations about abortion, he escorted his then-girlfriend to the clinic to abort their child before she later broke up with him.

Both of these conversations were about abortions that took place over a decade before; still, for both, the emotions expressed were demonstrably fresh. The events may have taken place years ago, but there were clearly unresolved feelings that could use some airing out.

If there's anything these conversations taught me, it’s that we should stop sugar-coating the abortion issue with films such as last year’s Obvious Child (the screening I attended was sponsored, not coincidentally, by the aggressively pro-abortion National Organization for Women). And we should stop the bandwagon campaigns forcing women to accept a narrow party line in order to start a conversation on the subject.

Is this possible today? Is it possible for women like Jemima Kirke to talk about their abortions without wearing Planned Parenthood T-shirts? The “Draw the Line” website, where Kirke’s video appears does not bode well for open discourse. The site gives tips on what to say, asking loaded questions such as, “What message would you like to tell politicians who attack reproductive freedom?” while noting that they will “review your submission for inclusion on our site.”

A Pro-Woman Message

Still, Kirke’s video message says something important. She suggests part of her reason for talking about abortion publicly is that she wants women to know they are not alone. They went through a hard experience, but they’re not alone, and they can speak up. The Center for Reproductive Rights, like many other organizations and activists, immediately jumps to championing unrestricted abortion rights as the way to help women. Instead, I’d like to pause for a second before rushing into the political catfights.

Underlying Kirke’s remarks is a pro-woman message that’s hard to argue with—abortion is hard, and you’re not alone. Maybe you even had a traumatic experience tied up with your abortion. Maybe you felt pressured or had few other options. Maybe it’s still on your mind after many years, and you have no one you feel comfortable talking with about it. There are countless reasons women might be silent about abortion, but such silence is rarely a healthy path. You don’t have to make a public statement, as Kirke did; you could talk confidentially to a therapist or a support group about it. You could tell a trusted friend. If we really are pro-women, and if we really want a cultural conversation with women on abortion, we owe it to these women to say loudly, “You are not alone, and you deserve healing.”

Do I need to support abortion rights to say that? No, as I cannot in good conscience support abortion when I know that it harms both women and children. Maybe that makes me someone abortion-supporters would prefer to shut out of the conversation. No doubt my views would not be published on the “Draw the Line” website. But if Kirke, the Center for Reproductive Rights, and others calling for a cultural conversation about abortion are genuine in their intentions, then they’re going to have to answer some tough questions, namely: Are you ready to hear women’s voices who disagree that abortion was a good choice? Or are you telling those women to remain silent?

Mary Rose Somarriba is executive editor and culture editor of Verily Magazine.

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Persecution, Past and Present: Candida Moss’s Unintentional Gift to Christians Fri, 29 May 2015 11:00:20 +0000

The recent passing of Cardinal Francis George brings to mind his warning about the consequences of an increasingly secular culture. He said: “I expect to die in bed, my successor will die in prison, and his successor will die a martyr in the public square.”

How does such a trajectory toward persecution begin? Though spring is here, readers might recall blogger Rachel Held Evans’s cheeky Christmastime flowchart published in response to the Christian backlash against the ubiquitous winter greeting, “Happy Holidays.” Evans was needling Christians who implied that our growing national aversion to “Merry Christmas” was a prelude to persecution. In an updated posting of the flowchart this past December, Evans told her readers to shut up, share the public square, and abandon their nostalgia for public manger scenes or Christmastime school programs mentioning Christmas. Persecution means suffering, and no one is suffering yet.

Indeed. How can one compare “Happy Holidays” to the fighting in Nigeria, the recent deliberate murder of Christians by Boko Haram, or the execution of Ethiopian Christians by the Islamic State?

While Evans’s flowchart may be a well-deserved and gentle barb, the ire surrounding the Indiana RFRA or the Burwell v. Hobby Lobby decision has been less charitable. One meme shows a victim being tortured, evidently by clerical figures, as background to the sarcastic text: “Government won’t legislate your religious beliefs? Must be so painful.” How snappy! In this new version of history, even availing oneself of the rule of law is equivalent to brutal persecution of others. Who has the martyr complex now?

Revisiting Christian Persecution

Clearly, persecution is part of the current rhetorical landscape, so it’s a good time to revisit its history. Candida Moss, Professor of New Testament and Early Christianity at the University of Notre Dame, raises important questions about persecution in her provocatively titled book The Myth of Persecution: How Early Christians Invented a Story of Martyrdom. Unfortunately, Moss uses her expertise in early martyrology to fashion a polemic against contemporary Christianity for its alleged psychological dysfunction. This dysfunction, Moss argues, stems from the belief that Christians are perpetual victims—a belief that extends back to the first centuries of the Church. It is these first centuries of Christianity on which Moss is qualified to comment; much of Myth is recycled from her much better 2012 title, Ancient Christian Martyrdom.

Whereas Ancient Christian Martyrdom and her dissertation-turned-book, The Other Christs, were bold-but-measured and well-received monographs, Myth is anything but measured.  Essentially, the book argues that Christians have enabled a pack of ancient lies to justify a strident, defensive, and violent martyr’s complex that poisons all contemporary social discourse. Moss goes so far as to assert that while the concept of martyrdom—a noble death establishing norms of behavior and belief—is not unique to Christianity, the claim of “persecution” is. She calls persecution as means to the high moral ground a “fundamentally Christian idea.”

This all depends on what you mean by persecution, of course. Moss even questions whether there were any real martyrs, as Christians have been wont to define them. She conflates all pre-modern stories of noble and sacrificial death (i.e., Jesus = Socrates), arguing implicitly that if there is nothing unique about Christian martyrdom stories, then there is nothing unique about Christian martyrdom. If there was any real persecution at all, Moss confines it only to those civil actions launched by imperial edict and selectively enforced. To dodge the conclusion that local or provincial action against Christians was inconsequential, Moss is forced to concede that “if a governor chose to persecute Christians in his province,” it probably felt “serious for the people concerned.” Serious, but not persecution. And just in case you thought of martyrs as helpless victims, Moss equivocates by turning the reader’s attention to violent Christians (e.g., Circumcellions) and voluntary or suicidal martyrs. But violent or suicidal martyrdom was controversial at the time, as she well knows.

From Scholarship to Ham-Handed Polemic

Moss’s inquisition into the veracity of historical accounts is repackaged from her previous books with remarkably imprudent ham-handedness. Publishing bold claims about early martyrdom with academic presses for an academic audience is one thing; the process of review, research, and rejoinder needs to start somewhere, and scholars are qualified to judge whether she has attempted a bridge too far. A general reader, by contrast, lacks these tools. The slow and thankless pace of scholarship can be frustrating, but that hardly justifies removing all hint of nuance, caution, prudence, or accountability so that you can make a point about Glenn Beck.

What accounts for all of this reckless recycling for a general audience? Moss’s Myth is a case study in how scholarship gives way to politicized polemic.

Step One: Mischaracterize your opponent and create a straw man. In this case, Moss’s whole book is predicated on the presumption that almost every Christian sees the Church as the target of unrelenting, merciless persecution and uses this belief to justify everything from uncharitable remarks to avenging violence. Really? We are offered little to support this assertion apart from tales about politicians, radio talk-show hosts, and Moss’s campus life at Notre Dame. Why can’t a respected scholar marshal even some minimal survey data to give some weight to her puerile anecdotes?

Step Two: Respond to your presumed crisis with an equally ridiculous alternative. Moss’s remedy for the mistaken belief that everything is persecution is to propose an equally hyperbolic and suspect claim: nothing is persecution. Such an immoderate and imprudent response turns a potentially valuable book into a wasted opportunity at best and an embarrassment at worst.

Step Three: Poison the well. If Christian martyrdom stories resemble pagan narratives, they are probably just efforts at mimicry. If they are distinctive and enable a lesson in orthodox faith or practice, however, they were probably invented to manipulate the hoi polloi. Moss calls these latter efforts “a deliberate and strategic attempt to improve the image of Christians, to bolster the position of the church hierarchy, and to provide security for orthodoxy.” In other words, martyrdom’s earthly value for the Church discounts its credibility. The same is true if martyrs expect heavenly rewards. Moss channels Dr. Johnson here. True martyrs are apparently defined by their disinterestedness.

Step Four: Move the goalposts. Moss emphasizes many times that hostility is not persecution. Neither is violence. What we must have to claim “persecution,” Moss argues, is a clearly articulated attempt—explicitly stated by the attackers, not presumed by their victims—to eliminate all Christians, as Christians, for their Christian beliefs and not on the basis of any standing legal or cultural norms that might also be directed at non-Christians as well.

As you might expect, Roman prosecution under mos maiorum, by this definition, was not persecution. Moss has knowingly and anachronistically stacked the deck. Roman civil action against Christians had a variety of motives, all of them more evidently social and political than theological. At the time, of course, the precise definition of a “Christian” to a Roman or a Jew was still very much in play, and the actual beliefs and practices of Christians were not well-understood. Did Romans even really distinguish the political from the religious such that we could tease out of our few ancient sources a purely religious reason for violence against Christians? Such distinction of Caesar from God sounds very . . . Christian, doesn’t it?

Moss’s desire to debunk the “myth” of persecution therefore forces the reader to endure a constant shifting of the definition of persecution to the point of undermining the argument entirely. Just when you think you’ve found a martyr, Moss moves the goalposts. Even modern mass murders of Christians while worshipping are not persecution unless we know the precise motivations of the attackers from their own mouths. It could simply be “injustice and violence” against Christians. Moss excels at such distinctions without a difference.

Finally: Distract. This book is really not about ancient martyrdom as much as it is about modern Christian attitudes and Moss’s attempt to discredit claims of persecution in both directions. Christians were not really persecuted then, so they aren’t really persecuted now. And if they really aren’t persecuted now, it is doubtful that they were persecuted then.

As you might expect, there is no comparable effort to acknowledge where martyrdom has inspired salutary self-sacrifice. Did Dietrich Bonhoeffer have martyrs as his inspiration? Was his participation in the Confessing Church driven by a “martyr complex?” Are we now forbidden to call Bonhoeffer a martyr? He was not executed just because of his Christian faith, after all. And what about those who have martyrs in mind each day as they strive to feed, educate, mend, and defend broken lives—those whose sacrifice will never be known by us in this life? Don’t such cases demonstrate the real value of martyrdom?

Moss’s Unintentional Gift

Not surprisingly, Moss’s Myth has some impressive endorsements; it also has been roundly criticized. Michael Bird rightly points to contemporary persecution and asks if this is indeed a myth. N. Clayton Croy pointedly challenges Moss’s scholarship. Robert Royal decries Moss’s “liberalism” and her characterization of American Christians. Westminster Seminary professor Carl Trueman greets Moss’s history with a yawn and replies that her straw man thesis “left me wondering whether her target audience was not, after all, benighted Bible-thumping Christians but rather the fan base of Jersey Shore.” In Culture Wars, E. Michael Jones had good fun with some of Moss’s arguments and then asserts that the book is really about Notre Dame.

In his review at First Things, Ephraim Radner dismisses Moss’s main thesis as a recycling of Gibbon’s Decline and Fall of the Roman Empire. Perceptively, he notes that the book’s primary purpose is to trivialize Christians who claim legal protection for their convictions. But, as Radner retorts,

Christian worries over court-mandated curricula on reframed patterns of sexual life, the targeting of churches with charges of ‘hate speech’ due to their moral convictions, the civil redefinitions of marriage, and the range of matters dealing with contraception and abortion are hardly stoked by ignorant pondering over fraudulent martyr stories. To argue this is to try to change the subject.

Moss is right to encourage reexamination of Church history. If Christians have disgraced their Lord’s name with unjust violence or uncharitable slander and claimed “persecution” as their defense, we have every reason to be ashamed and pray for correction.

But Moss’s unintentional gift is to remind us that persecution never announces itself as such. Politically motivated, persecution always aims not simply to destroy something offensive but to make room for something else. If and when Cardinal George’s successor dies in the public square, his killer will probably not be trying to stamp out Christianity. His persecutor will presume neither to know nor to care what the Cardinal believes or why he believes it. But he will know what the Cardinal does not believe, and that all such resistance must be eliminated to make way for something better.

By God’s grace, the witness of the faithful—even in death—must convince our neighbors that nothing could be better. And should we fail, we recall the ray of hope in Cardinal George’s warning: the successor to the martyred Cardinal “will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.”

Glenn Moots is professor of political science and philosophy at Northwood University and author of Politics Reformed. He published a much briefer review of The Myth of Persecution together with The English Martyr from Reformation to Revolution by Alice Dailey in Anglican and Episcopal History in 2014.

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Science-Gilding the Marriage Debate Thu, 28 May 2015 11:00:07 +0000

“Marriage equality is a civil rights issue—but it is a public health issue, too. And a growing body of research links bans on same-sex marriage with adverse health effects on lesbian, gay, and bisexual (LGB) individuals.” So begins the amicus brief filed by the American Public Health Association (APHA) in support of same-sex marriage. The APHA says that its brief offers “another compelling reason” for the Supreme Court to overturn state laws that define marriage as the union of a man and a woman.

The brief is one of several that cite scientific backing for a movement that was once about subjective notions of fairness and equality. The motivation is understandable: deep-seated ideological differences seem much easier to overcome when one side can claim the authority of Science (with a capital “S”). After all, who could be against Science?

Not me. As someone who deals with numbers for a living, I want to see public policy informed by data to the greatest extent possible. When empirical evidence helps policymakers better understand an issue, that’s terrific.

But misusing science for political ends is just as bad as ignoring it altogether. Sometimes the misuse comes from portraying weak evidence as conclusive. (“A tiny demonstration project from the 1960s proves that universal preschool would be a great investment.”) Other times, it involves lumping objective findings with a subjective policy prescription. (“To fight global warming, Science demands that we pass the president’s cap-and-trade plan.”)

The APHA’s brief for same-sex marriage offers both weak evidence and an unjustified policy recommendation. It is therefore an excellent illustration of how advocates gild their political positions with the veneer of science. Call it the “science-gilding” of public policy.

The Weakness of the Evidence

Let’s first consider the weakness of the evidence. The APHA’s brief cites only two studies that directly test the claim that marriage laws affect the health of LGB individuals. Here’s how the APHA summarizes the first one:

LGB individuals experienced markedly increased rates of psychiatric disorders in states that erected constitutional amendments banning same-sex marriage during the 2004–2005 elections. Among LGB individuals living in states enacting such bans, the prevalence of general anxiety disorder increased by more than 248%, psychiatric comorbidity by over 36%, and alcohol abuse by 42%. LGB individuals living in states without such bans did not experience any of these spikes in adverse health outcomes.

Those numbers are misleading for several reasons. First, the whole exercise of comparing outcomes in two different groups of states is fraught with imprecision. Because no state-level controls are employed, the study effectively assumes that the only relevant change between 2000 and 2005 is that sixteen states passed amendments defining marriage as the union of husband and wife, while the other thirty-four did not.

And there is considerable ambiguity in the findings. Many health disorders among LGBs seemed to increase in both groups of states, but they seemed to go up more in the states that passed amendments. I say “seemed to” because the sample size of LGBs who had certain disorders is small, leading to estimates with wide confidence intervals. For example, the 42-percent increase in LGB alcohol abuse in states with marriage amendments is statistically significant (meaning greater than zero with 95-percent confidence), but there was also a 29-percent increase, which does not reach significance, in LGB alcohol abuse in states without amendments. The key test is whether the 42-percent increase is significantly greater than the 29-percent increase, but the authors do not appear to have performed that test.

Notice the APHA’s misleading approach to summarizing the study’s results. The responsible way to describe the alcohol-abuse comparison would be to give both the 42 percent and 29 percent point estimates along with significance levels. Failing that, it would be acceptable to omit the point estimates but report the direction (positive or negative) and the significance of each. But the APHA first gives us the exact 42-percent estimate, then rhetorically reduces 29 percent to 0 percent (“states without such bans did not experience any of these spikes”).

The APHA’s description of the results is selective as well as misleading. Although alcohol abuse among LGBs seemed to increase more in amendment states than in non-amendment states, the reverse is true for drug abuse. Combining substance-abuse disorders together produces a statistical wash—a 26-percent increase in LGB substance abuse in states that passed amendments, and a 24-percent increase in states that did not pass them. In fact, when the authors considered all disorders, LGBs saw an increase of 13 percent in amendment states and 11 percent in non-amendment states. This is a negligible difference.

Once unpacked, the study’s results are far less convincing than the APHA portrays. This is not to say that the health impact of marriage laws is definitively null. The authors may be on to something regarding particular disorders such as generalized anxiety, but it will take a lot more research to make their case. Certainly no Supreme Court decision should be influenced by a study that is so preliminary.

Preliminary Results, Speculative Studies, and No Control Groups

The second study cited in the brief is no less preliminary, but the APHA summarizes it with unqualified confidence:

In the year after Massachusetts became the first state to legalize same-sex marriage, health outcomes for LGB individuals within the state improved markedly. During that time, the 1,211 gay and bisexual men surveyed experienced a 13% reduction in health care visits and a 10% reduction in health care costs. In contrast, the health care costs of the overall Massachusetts populace increased during this same time period.

The authors of this study refer to it as a “quasi-natural experiment.” Emphasis on quasi. Unlike a real experiment, this study has no control group. It focuses on a single urban clinic dedicated to serving gay and bisexual men, two thirds of whom have a college degree and almost all of whom are under sixty-five. The authors include a one-sentence reference to overall health costs in Massachusetts going up over the same time period, but that is obviously inadequate. A proper control group must resemble the treatment group.

Whether the observed changes are the product of same-sex marriage laws or unrelated factors affecting this clinic and its customers remains unknown. Are the observed effects significantly different from the way patients typically change their visitation rates over time? Are the effects significantly different from the way individual clinics tend to see natural variation in business? The fact that the clinic also saw fewer cases of sexually transmitted infections and other problems not directly related to mental health suggests that there are confounding factors here. It is therefore a sweeping overreach for the APHA to claim that “health outcomes for LGB individuals within the state improved markedly.”

The APHA proceeds to review the strong evidence that married couples are healthier than cohabiting couples and singles. But then it argues that these health benefits are denied to same-sex couples when the government does not recognize their relationships as marriages:

It is unlikely that same-sex couples who are simply cohabiting, or who have some lesser level of legal recognition than married couples (such as domestic partnerships or civil unions), can fully enjoy the health benefits of marriage, as cohabitation is not associated with the health benefits of marriage.

That is a naïve interpretation of the literature. The reason that cohabiting opposite-sex couples are less healthy than married couples is probably that their relationship is not as strong. After all, they have declined to marry. The APHA is assuming here that the health benefits of marriage are caused primarily by the legal issuance of a marriage license rather than the commitment and mutual support provided by a long-term relationship. Remember, even without government-issued marriage licenses, same-sex couples are free to pledge a lifelong commitment, hold a ceremony, wear rings, refer to each other as spouses, and even (in some states) have their relationship legally recognized as a civil union. What additional health benefits come from legal recognition of the union as a marriage? The APHA does not actually know.

In short, the public health case for same-sex marriage relies on weak and speculative evidence. It is not implausible that marriage policy could have an impact on public health, but to cite that theory as fact is to science-gild the debate.

It’s Not Just about Science

The APHA is science-gilding in another way as well. Its argument about public health—even if the evidence backing it were strong—is not “another compelling reason” to support same-sex marriage. In fact, the argument trivializes the philosophical differences that are in play. Political conflict by its very nature produces winners and losers, and sometimes, regrettably, the losing side will be demoralized. That fact alone cannot resolve any disputes.

Fortunately, a lot of social conflict can be avoided when the government takes a hands-off approach, leaving individuals free to live their lives in accordance with their personal identities and values. The definition of marriage, however, inevitably impinges on the deeply-held beliefs of one side or the other. It’s not clear why the mental health of one side should take precedence. One can imagine an alternative study showing that conservative Christians suffer psychiatric disorders when marriage is legally redefined, or when they are publicly shamed and boycotted for refusing to cater a same-sex wedding. Most supporters of same-sex marriage would be unmoved by this “public health” concern, and for good reason. They are not being insensitive—just realistic about the zero-sum nature of the issue.

In the end, the APHA brief is of limited value to the debate. Citing tenuous social science that should not (and probably does not) change anyone’s mind merely obscures what people are actually divided over—namely, the purpose of marriage as a social institution.

Science-gilding has occurred on both sides of the same-sex marriage debate, but it is generally the side favoring redefinition of marriage that gets away with it. One reason is that most of the mainstream media are sympathetic to same-sex marriage. The more important reason, though, is that reporters are easily swayed by statements from respected organizations like the APHA. They usually have neither the time nor the expertise to dig into the research and discover that the emperor has no clothes.

As the debate over same-sex marriage proceeds, let’s drop the pretense of scientific disinterest and focus on the competing values that are really at stake.

Jason Richwine is a public policy analyst in Washington, DC.

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The Legacy of John Nash and His Challenge to Homo Economicus: Why Now Is a Good Time to Study Economics Wed, 27 May 2015 11:00:04 +0000

On Saturday, May 23, John Nash died in a tragic car crash, which also killed his wife, Alicia. John Nash completed his doctorate in mathematics at Princeton University in 1950, and worked there as a senior researcher from 1995 until his death. Nash’s profound contribution to game theory should be seen as part of a broader evolution of the discipline of economics into a more holistic social science, something for which he should be commended.

Anyone holding an economics degree has undergone the strange experience of sitting in a beginner’s class and being told to assume that we are all completely self-interested. I suffered this fate studying economics at Queen Mary, University of London, and then I suffered it all over again taking a class in formal modeling at the University of Oxford. If there is ever such a thing as brainwashing, this ritual is a good example.

Like many students, I questioned the assumption that man is simply homo economicus. Surely, I protested, people are sometimes capable of seeking the good of others. As any economics student will be able to tell you, the reply I got was not that I was wrong, exactly. Instead, I was told, “we just have to make this assumption before going further.” Teaching economics this way is like ushering students into Plato’s cave and then telling them that if they don’t assume the shadows on the wall are real, they will have nothing else to go by. Homo economicus is the only robust, repeatable model of human behavior, it is explained—the only consistent measuring tool for the social sciences and its best starting point.

The assumption that we all act in our self-interest is normative, making it the most consistently taught ethical theory in the three to five years of an undergraduate economics degree. This has had its effects. In a 1993 article in The Journal of Economic Perspectives, Frank, Gilovich, and Regan review numerous studies of economics students and conclude that over the course of their studies they become less-generous individuals. Economics students are, for example, more likely to free-ride when it is time to make a group contribution to something that will benefit all. As their studies proceed, economics students are progressively less likely to return a wrongly sent envelope with $100 inside to the sender (a test of honesty). And it is not only students who seem to have been negatively affected: economics professors also have been found to give less money to charity than professors of other disciplines. They’re as much as twice as likely to give nothing at all.

So, not only has economics been guilty of brainwashing students into viewing the human person as self-interested, that brainwashing seems to work.

Imagine my unease, then, at finding myself seated for an interview in front of four Oxford economics professors after writing a funding application to study the connections between virtue theory and economics. And then imagine my dizziness at receiving the award.

Something has shifted in the discipline of economics, and this is due to the work of Nash and others. Now the best response to those worried about homo economicus assumptions is: yes, the assumptions are backward, and that is why they are being thrown overboard.

A Changing Set of Assumptions

The strength of homo economicus premises lay in their ability to provide simple models that distilled economic forces and gave policymakers an easy picture of what effects would result from what choices. However, the over-confidence that resulted led to some brutal applications that failed to appreciate the complexities of real life. The Chicago School, for example, famously promoted free market principles, partly by means of the ideologized Washington Consensus, attempting to transform the economies of Latin America and Africa by opening doors to trade, removing subsidy programs, and privatizing state industries. Unfortunately, this set of policy proposals was ultimately only a rushed and insensitive affirmation of individual greed as a solution to economic inefficiencies, and it contributed to decades of political turmoil and economic destitution.

Many economists believe that the free market ideals of the 1970s and the 1980s have become deeply misrepresented by those outside their discipline, and that most people forget the communist theories against which neoclassicist economists were making a defense. That may be true, but the enemy’s vice does not guarantee the soldier’s virtue; there is much the neoclassicists overindulged in.

Whether or not the normative basis of neoclassical economics was necessary then, it is certainly not necessary now. Indeed, homo economicus assumptions are incompatible, over the long term, with the vocation of a social science, because they over-commit to the purity of “the model,” which is ultimately only a mathematical demonstration that finds perfection through internal consistency. As such, the assumptions of homo economicus are unswayed by what is actually happening in society.

Because economists have instead largely remained committed to the mission of better understanding society, curiosity about reality is—for all the stubbornness of homo economicus—slowly winning out over the quest for simplicity.

Behavioral Economics, Game Theory, and the Break with Utilitarianism

Burgeoning fascination with behavioral economics, which complements sociology and psychology by deferring to empirical results on how humans act, testifies to this newfound curiosity. A good example is the work of another Nobel Prize laureate, Daniel Kahneman, who looks at the complex ways humans reason about different economic goods, frequently confounding what economic models previously suggested.

Even before this resurgence in behavioralism, research from the 1920s onwards by Von Neumann and Morgenstern first inspired what is now known as game theory, which Nash then developed to such devastating effect. Von Neumann and Morgenstern coined the concept of “expected utility” to work alongside the more common understanding of individual utility. Nash then built on this through investigation into mutually understood, self-reinforcing expectations. The “Nash equilibrium”—a concept now relied on throughout economics—refers to a stable set of mutual expectations where each individual operates on the basis of what he or she thinks others are most likely to do.

This mode of thinking amounts to a fundamental break with the utilitarian roots of modern economics. By including expected utility in their theories, Von Neumann, Morgenstern, and Nash made allowance for how we think others see any given economic situation. This is not a disavowal of principles of self-interest, but a deepening of them for understanding strategic interaction. The irony is that, philosophically speaking, as soon as one admits we are able to see how others see a situation, we are implicitly admitting a capacity of humans to think in terms of common solutions interpretable to all.

Three Recent Economists Refuting Homo Economicus

Now is an exciting time to study economics, because some of the most impressive research being done today is exploring this very area, building on the work of Nash and others. Economists are connecting behavioral observation of how humans actually go about making decisions to theoretical appreciation of our ability to think beyond immediate self-interest.

Such crossovers are pervasive in the work of three other recent economics Nobel Prize laureates. Elinor Ostrom, the first woman ever to receive the prize, wrote extensively on human cooperation and how it is that people come together in pursuit of common goals, even when it is not in their immediate self-interest. Crucially, Ostrom did not take a position that people are fundamentally altruistic; instead, she side-stepped simplistic human nature debates through appeal to the social and habitual ways in which humans interact and coordinate.

The well-known economist of the developing world, Amartya Sen, has made even more explicit what philosophers will immediately recognize as an appeal to Aristotelian ideas of the person governed by habits, not strict self-interest. His most widely read book, Development as Freedom, repeatedly references Aristotle and argues in favor of a theory of development that identifies community-based functions of the person as the best way to guarantee human fulfillment. This is a far cry from maximizing greedy instincts. After winning his Nobel Prize, Sen went on to write a book exposing the illogical economic modeling at play in his late friend John Rawls’s Theory of Justice. Rawls’s theory depends on homo economicus individuals organizing relations through contract, which for the discipline of economics is like trying to bring an elderly football player out of retirement to win you the Super Bowl. Rawls’s position depends on a fundamental incommunicability of goods, which Nash’s appeal to strategic interaction bypasses.

The third laureate to have helped encourage this evolution in contemporary economics is Kenneth J. Arrow, famous for demonstrating the fallacy of allocating social welfare by means of having citizens declare what benefits they want. Arrow also made explicit appeal to the role human virtues play in all economic activity. Significantly, his lecture series and subsequent book The Limits of Organization showed that all institutions depend to some degree on trust among participants which cannot, ultimately, be explained by a theory of self-interest.

As I explain in a recent paper, the work of these three Nobel laureates depends on Aristotelian conceptions of habit and virtue, which they articulate more or less openly at different points in their research careers.

It may still be mandatory for economics undergraduates to pass through the archaic initiation ceremony of assuming we are all self-interested. But insofar as economics departments are committed to the findings of Nash and others who have built on his way of thinking, researchers are being forced to break from the utilitarian principles that originally set the discipline in motion. This makes it a surprisingly good time to study economics.

Dominic Burbidge is a postdoctoral research associate of the James Madison Program in American Ideals and Institutions at Princeton University. He completed his doctorate at Oriel College, Oxford University.

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