The Debate Link

One of the interesting things about "equality of opportunity", as a concept, is that while it's often used as a conservative talking point ("equality of opportunity, not equality of result"), if one actually takes it seriously, it would require a pretty radical reordering of our social structures from top to bottom. Do you know how hard it is to actually establish equality of opportunity? For example, one would have to either eliminate economic inequalities altogether or (this is no easier) eliminate their impact in terms of how they affect the starting positions of young people. Whatever world that looks like, it's very distant from our own.

In the meantime, though, those of us who do take "equality of opportunity" with a modicum of seriousness try to accommodate the actually extant inequalities with some imaginative guesswork. We see two candidates, one with perhaps slightly lower test scores but who has overcome significant adversity, the other with higher numbers but no such disadvantages, and try to ask ourselves the counterfactual: "How would the first candidate have performed had they started on equal footing with the second?" It's an imprecise art and that leaves a lot of room for subjectivity (and complaints), but it at least tries to answer the question nominally posed by "equality of opportunity" in a realistic manner.

Yet there's another dimension of equality of opportunity that I think sometimes gets overlooked, which is that even where starting points are equal, results may differ depending on what the starting point is. Let me explain:

Imagine we were trying to rank the "merit" of 100 people, and assume for sake of argument it is possible to do this in an objective way (we can rank everyone from 1 to 100). The equality of opportunity issue noted above concerns how we make "adjustments" to the ranking based on differences in starting points -- some faced significant hardships and adversity, others were provided substantial mentoring and support for them to flourish -- and the problem is that this is all counterfactual. 

But suppose we could do the social scientist's dream and send all 100 people to an alternate reality where they start off in exactly the same position -- they all face (the same) significant hardships and adversity which they need to overcome. If they all faced the same hardships, we might say that that the resulting 1 - 100 ranking was an objective determinant of merit.

However, now suppose we send those same 100 to a different alternate reality. Here, too, they all start off in exactly the same position. But this time, instead of all facing (the same) hardships and adversity, here they all are provided the same support and nurturing (they start of equivalently advantaged, rather than disadvantaged). Once again, at the end of the experiment we rank everyone 1 - 100. But my guess is that the rank order in Alternate Reality #1 would be different from that produced in Alternate Reality #2. The skillset that yields high performance under conditions of adversity is not the same as the skillset that yields high performance under conditions of support and nurturing.

All of this is a long-winded way of asking: which do we care about more? Again, note that this isn't the easy in theory/hard in practice question of comparing one candidate who faced adversity against another who was given support. In our hypothetical, all candidates are both equally supported and equally disadvantaged (in the two realities). So the question here is whether our vision for the "best" candidate -- the ideal we are trying to approximate via our guesswork adjustments -- is the person who thrives under conditions of adversity or the person who outperforms in ideal circumstances.

Of course, the actual answer is "it depends". Some jobs or social roles we know demand significant resilience in the face of hardship, and so we want the person who can perform best in those circumstances. More broadly, I think we find intuitively attractive the idea that this sort of scrapper is particularly praise-worthy compared to those who "had it easy". Yet there is another frame where we would want that everyone would get the support, resources, and nurturing that would best position them to thrive. We don't want to haze people for its own sake; we should hope to construct social roles in such a way that their occupants are not having to scrape and scrap for traction but are put in the best position for success. Yet the fact that different people would be (even under a genuine "equality of opportunity" ideal) the "best" performers under these two frames is interesting to me; it underscores how there is an inescapable element of normative choice even in the best case scenarios of what a meritocracy might be.

There's no big moral here, just another meditation on the complexities of equality.

In a meeting, I got a phone call from my bank about potentially fraudulent transactions on my credit card. Had I recently ordered $50 worth of fast food pizza? No, I hadn't -- and so the account is frozen, and presumably the charges will be reversed.

An hour later, upon returning to my desk, I had the bizarre joy of seeing a confirmation from Domino's promising me that my "pizza is on the way [to Houston, Texas]!"

Anyway, long story short: I'm getting pizza for dinner tonight.

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Jenny Singer of the Forward interviews Young Gravy, a Black Jewish rapper (and GW student). It's a really interesting and worth your time (I'm saying that not just because I think I played a role in putting the interview together!).

I think I missed this when it came out, but a Texas court struck down the Indian Child Welfare Act's adoption rules this past fall, saying that act's preferences for Indian children to stay with Indian families was racially discriminatory against non-Indians. The Judge, incidentally, was Reed O'Connor -- the same guy who just struck down Obamacare. He's certainly setting himself up as the go-to-guy for tip-of-the-spear conservative judicial activism.

Alabama was all set to execute a Muslim inmate -- but refused to allow a Muslim chaplain to be present with him during the execution (they did offer a Christian chaplain, which unsurprisingly the inmate did not consider to be a satisfactory substitute). 11th Circuit stays the execution due to the "powerful Establishment Clause claim" (and plausible RLUIPA claim). Alabama is appealing to the Supreme Court.

A new poll finds that over half of Israeli Jews agree that the controversial "nation-state" law must be either abandoned outright or fixed to confirm the state's commitment to democratic equality for all citizens.

A Cameroonian official has apologized for threatening an ethnic minority group by comparing them to Jews in pre-WWII Germany, namely: "In Germany, there was a very rich community who wielded all economic power .... They (the Jews) were so arrogant that the German people were frustrated. Then one day, a certain Hitler came to power and put them in the gas chambers."

I have no takeaways from the Likud primaries except celebrating Oren Hazan's imminent departure from the Knesset. Goooood riddance.

Iraqi Jews commemorate family members who were "disappeared" by state secret police.

At a UN meeting commemorating International Day of Solidarity with the Palestinian People, Temple University Professor Marc Lamont Hill referred to the existence of "more than 60 Israel laws that deny citizenship rights to Palestinians just because they are not Jewish."

It's one of those claims I've heard bandied about, in various formulations, many times, and I thought it was worth digging into a bit.

The basic referent here, as far I can tell, is a list from the Israeli NGO Adalah (The Legal Center for Arab Minority Rights in Israel), which compiles laws which "discriminate directly or indirectly against Palestinian citizens in Israel and/or Palestinian residents of the Occupied Palestinian Territory (OPT) on the basis of their national belonging." The "or indirectly" matters quite a bit -- as Adalah confirms, while some of these laws represent explicit discrimination, "more often, the laws are worded in a seemingly neutral manner, but have or will likely have a disparate impact on Palestinians in their implementation."

Now, one might think that my objection here is to the conflation of "direct" and "indirect" forms of discrimination. And to be sure, there is a very large difference between a law which says directly "Israeli Jews, but not Israeli Palestinians, are entitled to X" and a law which is neutral in form but happens to have a disparate impact on Palestinians. Likewise, not all of the entries on the Adalah list seem like fair play. For example, Adalah includes a 2010 law which offers certain perks to soldiers discharged from the IDF. It contends this discriminates against Palestinian Israelis because, unlike other Israeli citizens, they are not subject to mandatory military service. But they aren't excluded from military service either -- they just (unlike Jewish Israelis) have the option to forgo it (one could argue that this is a law which favors Palestinian Israelis at the expense of their Jewish co-citizens). So to characterize this law as one that denies Palestinians equal citizenship seems like an extraordinarily deep stretch.

Others are likewise shaky calls. For example, the law which increases the threshold for entering parliament is attacked as a means of seeking to squelch Arab political participation. And to be sure, it seems evident that one motive (though not the only one) for that law was the belief that, given deep fragmentation among Arab Israeli parties, it would knock out some of the smaller groupings. But if that was the goal, it backfired: Arab parties instead united under a Joint List and surged to become the third-largest party in the Knesset. In any event, to characterize that law as one which " den[ies] citizenship rights to Palestinians just because they are not Jewish" is more than a bit of a stretch.

Still, it is absolutely fair to observe that "indirect" forms of discrimination nonetheless contribute in a very real way to tangible inequality. That's as true in Israel as it is in America; a focus on formal equality is manifestly insufficient to capture ways in which Palestinian citizens of Israel are disadvantaged in Israeli society. And it'd be unfair to accuse Hill of hypocrisy on this score, at least -- I have no doubt that he would, if asked, also deem American laws which are facially neutral but have a disparate impact on African-Americans as contributors to a racist American system.

Nonetheless, something slick is happening here, and I think it's important to zero in on what it is. The phrase "laws that deny citizenship rights to Palestinians" is vague, intentionally so, but it certainly connotes more explicit forms of identity-based discrimination that mimic something like South African apartheid or American Jim Crow. Hill could rejoin that this isn't what he means by the phrase -- he intends to sweep more broadly, because unjust inequality isn't limited to cases which mimic South African apartheid.

Fine -- but if that's the case, then we have to start asking whether a state having "60 laws" which are facially neutral but have a disparate deleterious impact on certain vulnerable minorities is comparatively abnormal. Put another way: if we adopted Adalah's standard for a law which "den[ies] citizenship rights" to a particular outgroup and applied it to America, how many discriminatory laws would we have? 20? 100? 1000? What about Poland? What about Cameroon? What about China? What about Kuwait? And so on. My strong guess is that, under this metric, having sixty discriminatory laws falls well within the normal range for countries of its size.

To be clear, despite the verbiage above my argument isn't "whataboutism". It is perfectly fair to say that the existence of such laws -- even the existence of more of such laws -- in many other countries wouldn't justify them in Israel's case. And I'd agree with that. But -- and here's the "slick" part -- Hill is not trying to make the argument that Israel is common among nations in having laws which in effect disadvantage certain outgroups. He's trying to assert that Israel is unique in this respect, or at least uncommon. Speaking of "laws that deny citizenship rights" is meant to suggest that Israel stands out and beyond the pale -- so much so that we should support (Hill is explicit on this point) violent resistance efforts against it akin to that which the ANC employed against apartheid South Africa.

What we have, in short, is a bait-and-switch. On the one hand, the rhetoric Hill employs is designed to give the impression of a narrower and more virulent set of wrongful conduct that is similar in form to apartheid and seems harmonious with a relatively aggressive set of responses. On the other hand, if you press him on the substantive meaning behind the rhetoric, he can fall back and say "no, no -- I'm talking about something much more expansive". But that class of wrongs is no longer in sync with the sort of remedies Hill is proposing -- unless he's willing to say that pretty much every country on earth should be subjected to violent insurgency on account of its failure to abolish laws which have a disadvantageous disparate impact on certain minorities in the state.

And if even he is willing to ride that slope all the way to its slippery bottom, he'll find that few are willing to follow him down. A theoretical consistency is overshadowed by an known and accepted practical inconsistency; the mobilizing force of his remarks depends on preserving an intentional asymmetry between substance and rhetoric, between the actual content of the wrongs he's alleging Israel commits and the connotations implied by how they're described. It is not feasible to get widespread support for the proposition that every country should be targeted for a terrorist insurgency as a means of overturning its unjust practices. It is feasible to get widespread support for the proposition that a particular country (preferably someone else's) be so targeted.

Again, the argument here isn't "well, if you don't criticize Romania and Sri Lanka for this, how can you criticize Israel?" I'm well aware that caring equally about everything is an impossible and unreasonable demand; people focus on what they focus on for all number of reasons. But there is a very large difference between arguing "this is a wrong we see everywhere, I just happen to focus on it in this particular place" and "this particular place stands out as wrongful in a way one doesn't see anywhere else." The former and the latter are different claims and demand different justifications.

And likewise, I'm concerned about the rapidity with which people are beginning to argue that a claim of double-standards is just a way of kicking up dust. Yes, it's true that no functioning program of political or social action actually comprehensively applies to every "like" case simultaneously. No, that doesn't mean that patterns of disparate or disproportionate focus on a particular group never can give rise to an inference of discriminatory maltreatment (hell, that's the entire basis for looking askance at disparate impact!). Curtis Marez's limp argument that academic BDS targets Israel because, hey, "one has to start somewhere" -- as if the focus on Israel was a sort of random precipitation, as if the next academic organization over might just as easily look at China or Turkey or America -- is an insult to everyone's intelligence.

Certainly, Hill understands this well in his case -- defending his friendship with and admiration of Louis Farrakhan (with whom he is far closer to than, say, Linda Sarsour), Hill contended that "Black people are the only people who are demanded to throw people away". Regardless of whether it is in fact true that this is only demanded of Black people (and I might respond with: "Hi! I'm a Jew! My people should talk with your people about our shared experiences on this dimension!"), would it really suffice as a response to reply by saying "well, maybe 'throwing away' open bigots is only demanded of Black people -- but it's still the right thing to do, and we should demand it everyone, so what grounds have you to complain"? In reality, it isn't an accident that such demands disproportionately fall on certain groups and not others, and that non-accidental non-proportionality does not exist outside of valid discourses about justice and equal treatment.

In any event, we've strayed afield from where we started. In broad sweep, the move Hill is making is a similar play to that which I critiqued in my column on accusing Israel of "genocide". That allegation likewise attempts to harness the moral gravity of a narrow set of wrongs and apply it to something substantively much broader -- switching back and forth between the rhetorical force generated by the former (genocide as death camps) and the substantive sweep captured by the latter (genocide as "losing your culture"). The move only works if one consciously blurs the pivot, but that obfuscation is fair to call out. Here, it's paired with the more prosaic problem I identified with those omnipresent maps -- a failure to use consistent metrics across cases, such that the statement "laws which deny citizenship rights" doesn't mean "nothing short of explicit segregation or denaturalization" in Turkey and "any law which isn't arrived at through a perfect simulacrum of the Rawlsian original position" in Israel.

The problem with the "60 laws" formulation isn't that there aren't valid objections to some or even many of the laws Adalah has in its database. Nor is it the self-serving (and transparently ridiculous) argument that Palestinians (whether citizens of Israel or not) face systematic and serious discrimination in Israel, much of which emanates directly from the Israeli state. The problem is that the move Hill is pulling relies on a set of disingenuous rhetorical tropes that deliberately mislead as to the content of the claims he's making. The substantive content of his claims absolutely establish that Israel commits wrongs -- but only within the normal bandwidth. That's a problem, because Hill needs to characterize Israel as especially evil, especially mendacious, especially corrupt, and especially worthy of revulsion. Why? Because he knows full well that the sorts of demands he wants to make -- a full boycott coupled with a violent military insurrection -- only fly if people believe he's talking about an especially horrible Other.

And that's how you get a phrase like "more than 60 Israel laws that deny citizenship rights to Palestinians just because they are not Jewish."

Gail Heriot is now a regular Volokh Conspiracy contributor, but I kind of wonder how long she'll last. All of her posts thus far are rather generic right-wing hobby horses of the "actually, civil rights activists are bad for minorities"/"actually, feminists are bad for women"/"actually, we should be putting more Black people in jail" sort. And while there are any number of publications that would be delighted to put those thoughts into print, it doesn't really work well in the blogging format because they're too generic. For blogging to be sustainable, it generally is responsive to contemporaneous events (if only someone else's post). In my experience, people who blog their general abstract political views tend to get bored pretty quickly.

I guess we'll see. Anyway, today's entry is "actually, feminists should oppose the Equal Rights Amendment." The argument is that feminists like certain identity-conscious programs (and hence have opposed, e.g., Proposition 209 which banned affirmative action in California), but the ERA's sex equality language would place programs of that sort in jeopardy where they operate to the benefit of women. Given this, Heriot suggests, there are two possibilities:

(1) Feminists secretly want the ERA to fail; or

(2) Feminists are willing to see sex-conscious policies struck down as unconstitutional.

Maybe. But might I suggest there might be something behind door #3?

(3) Proponents of the ERA don't understand the term "equality" in the ERA to ban the sorts of programs Heriot has in mind.

Put another way, perhaps the most straight-forward way of parsing "feminists support the ERA and support sex-conscious policies where they facilitate gender equality" is that "the prevailing public meaning of 'equality' in the ERA's text -- at least as understood by ERA backers -- does not preclude the passage and enforcement of sex-conscious policies that facilitate gender equality."

Now, to be sure, Heriot might not be wrong that the ERA, if ratified, "would very likely be interpreted to invalidate the many state-sponsored 'affirmative action' programs that currently give preferential treatment to women and women-owned businesses." The "colorblind turn" in Fourteenth Amendment jurisprudence has been notorious in not resting on even a purported attempt to discern the original understanding of the relevant constitutional text; a point of considerable embarrassment for the Court's originalists. So it strikes me as perfectly likely that the Court would give the ERA the same treatment -- ignoring powerful evidence of how what its backers and ratifiers understood themselves to be doing in favor of a particular, contested viewpoint of "equality" as sex-blindness. Still, it seems rather telling that even the prospect that an alternative view of "equality" is being appealed to here -- one that harmonizes the positions Heriot sees as inconsistent -- isn't even recognized as a possibility.

In one of those statements that is obvious on reflection but which I hadn't really thought of until it was pointed out to me, Bernard Williams argues that virtually no one really argues that people should be treated differently or worse "simply" or "solely" because of their race (or sex, or other like identities):

This point is in fact conceded by those who practice such things as colour discrimination. Few can be found who will explain their practice merely by saying, 'But they're black: and it is my moral principle to treat black men differently from others'. If any reasons are given at all, they will be reasons that seek to correlate the fact of blackness with certain other considerations which are at least candidates for relevance to the question of how a man should be treated: such as insensitivity, brute stupidity, ineducable irresponsibility, etc. Now these reasons are very often rationalizations, and the correlations claimed are either not really believed, or quite irrationally believed, by those who claim them. But this is a different point; the argument concerns what counts as a moral reason, and the rationalizer broadly agrees with others about what counts as such -- the trouble with him is that his reasons are dictated by his politics, and not conversely. The Nazis' 'anthropologists' who tried to construct theories of Aryanism were paying, in very poor coin, the homage of irrationality to reason.

Bernard Williams, "The Idea of Equality," in P. Laslett & W.G. Runciman (eds.), Philosophy, Politics, and Society (Oxford: Blackwell 1962), 112-17.

That last line, about paying "the homage of irrationality to reason", is what earns the quote a place on the blog. But the whole argument matters. Again, virtually all assertions of hate against a particular outgroup are dressed up in this sort of garb -- albeit some wearing more layers than others. Recall the "bombing a synagogue isn't antisemitic if its based on dislike for Israel" case. They don't hate Jews, the argument goes, they hate alleged bad conduct done by Jews. But this is utterly ordinary as a case of antisemitism.  People who hate Jews do so, they say, because Jews are greedy, or bloodthirsty, or conniving, or murderers. It virtually never unadorned, and so the fact of adornment itself doesn't falsify the hypothesis that the attitude is discriminatory.

Exams are graded and turned in. I've yet to have an angry mob of students assail my office door (or email inbox). And my browser is starting to be overrun. So let's clear some debris, shall we?

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* The always-provocative Northwestern Law Profesor Eugene Kontorovich explores how the international community and international press has reacted to other blockades in situations analogous to the Israel/Gaza conflict (e.g., Georgia/Abkhazia, Sri Lanka/Tamil, and Saudi Arabia/Yemen). In all cases there seem to be few claims that the blockades are illegal (indeed, there seem to be few instances where people pay attention at all).

* Eugene Volokh has the rundown on a really bizarre story out of Canada, where some reports have high government officials threatening prosecution of anti-Israel BDS activists (on "hate crimes" charges), while other officials dismiss those reports as "conspiracy theories." It's unclear what is going on, but if I had to guess the government is not planning to prosecute anyone for mere advocacy of a boycott, but might be indicating its belief that actually carrying out such a boycott would constitute illegal national origin discrimination. But that's really a wild guess on my part.

* Speaking of national origin discrimination and boycotts, a proposed BDS resolution at an Ithaca co-op was rejected after co-op attorney's determined it would put them at risk of liability under New York human rights laws (which prohibit boycotts based on national origin). This interests me, since I've always though the BDS movement was vulnerable to this point of attack, but I hadn't seen it get much traction up until this point. And to be clear: the attorneys are not saying adopting a BDS resolution is illegal, only that it raises a sufficiently colorable risk such that it might (for example) affect their insurance rates. That seems pretty incontestably true.

* A South Africa columnist sharply condemns those rallying around a student leader who expressed admiration for Hitler (the defenders, needless to say, are accusing the student's administrative critics of being "puppets" for the shadowy Jewish conspiracy supposedly funding the university). I'm of two minds on this: On the one hand, the column really is well done and unapologetic in its condemnation of this form of anti-Semitism, even when it (as always) tries to cloak itself as mere "anti-Zionism" (and the author makes abundantly clear that he agrees with the basics of the anti-Zionist position). On the other hand, I feel like if I'm getting excited that a columnist is able to unapologetically condemn praising Hitler, I might be setting the bar too low.

* My latest draft paper is up on SSRN. It's titled The Siren Song of Strict Scrutiny, and explains why the failure of sexual orientation to be elevated to the ranks of a "suspect classification" is actually a very good thing for the gay rights' movement.

The current tax orthodoxy amongst congressional Republicans has been simple: no more taxes, period. But some Republican presidential contenders realize that's unsustainable. And they've finally hit on a tax increase they can support: raising taxes on the bottom 50% of American workers. The language is "broadening the tax base", and the argument is that these are Americans who pay no income tax at all (though of course they pay other taxes, such as social security and sales taxes), because their incomes fall below the minimum required to trigger tax liability.

Libertarian blogger Radley Balko* concurs with those who find it worrisome that half the country pays nothing in income taxes. The problem, as he sees it, is that "an increasingly small percentage of earners fund the government, we’ll soon have a majority of people who pay no tax voting for more and more government services they benefit from, but don’t have to pay for." The reason we want to broaden the tax base is to ensure that everybody (or at least as many people as is feasible) have "skin in the game", that is, have an incentive to care about governmental expenditures.

The concern is legitimate, but it doesn't necessarily take us where Balko thinks it does. Let's put aside for the moment the fact that just because a majority of Americans don't pay income taxes doesn't actually mean that majority controls policy (both because of apportionment issues, and also because of structural concerns which disproportionately reduce the influence the bottom 50% have in political institutions). And also put aside the fact that taxation is not the only way that one can have "skin in the game" -- poorer Americans are more likely to be dependent on governmental services for the provision of basic needs, and thus have every reason to care about the efficacy of such services (Balko's main concern is less effected by this, because his primary worry is that government will do more, not that it will do what it does poorly -- though he suspects it will).

That fifty percent of Americans don't pay income tax is not because our tax code is set up to say "the poorest half of Americans pay nothing". Rather, the income tax system simply decrees that people who make below a certain threshold pay nothing income taxes, presumably because we feel that taking money away from people who earn that little represents too much of a hardship. And, as income inequality continues to skyrocket, the number of people who fall below that demarcation is now hovering around 50%.

But if we started seeing rising wages and earnings amongst the working class, that number would drop as more Americans earn enough to join the ranks of taxpayers. In other words, to the extent conservatives are really concerned that as many people as possible have "skin in the game", the current income tax structure in turn gives conservatives an incentive to care about an issue important to liberals: income inequality. One can broaden the tax base by taking more away from the already-poor. But it seems the better option is to broaden the income tax base by broadening the income base -- rendering fewer people poor in the first place.

And aside from the fact that this is simply more humane -- there is a threshold level of income below which we don't think a family is earning enough to support itself to a standard commensurate with our status as the greatest country in the world -- I think the incentive question cuts in its favor as well. I already explained above that the poor already have lots of incentives to care about how government works, and, regardless, it's far cheaper to incentivize them to act anyway. By contrast, there are very few notable points of leverage society has on the rich to get them to care about the living standards of the poor. To the extent that they are genuinely concerned over an emergent democratic majority which pays no taxes (to be honest, I'm dubious that they're actually that concerned), that's a very rare opportunity to make a trade.

* I want to say that, while obviously I strongly disagree with Balko on issues such as this, I have a lot of respect for him as a libertarian who actually puts his money where his mouth is -- he devotes as much if not more attention to aspects of governmental power which harm the poor and marginalized as he does to decrying regulations which hurt primarily the rich and powerful. His work on police brutality and the death penalty, in particular, has been stellar and admirable.

The opinion is here, I'm reading it now.

Huge win for equal rights. It won't be the last stroke in the battle by any means. But tonight, we can celebrate.

A federal court has just struck down Section III of the Defense of Marriage Act as unconstitutional. There are actually two decisions here: the first holding that DOMA violates the equal protection and due process clauses of the constitution, and the second claiming it violates the 10th Amendment.

I don't have time to give these cases my full attention right now, but obviously this is very exciting. And of course, it is particularly exciting to see the 10th Amendment angle, as I greatly look forward to conservatives dropping their commitment to state's rights like a bad habit in the coming, well, minutes.

The story of the respective passages of the Partial Birth Abortion Ban, and the Ledbetter Fair Pay Act, as told in two pictures.

In his victory speech last night, Senator Barack Obama stated that this election gave us an

answer spoken by young and old, rich and poor, Democrat and Republican, black, white, Latino, Asian, Native American, gay, straight, disabled and not disabled - Americans who sent a message to the world that we have never been a collection of Red States and Blue States: we are, and always will be, the United States of America.

At least with regards to gay Americans, he was wrong.

* California narrowly voted to overturn its state supreme court ruling granting gay couples the right to marry.

* Arizona passed its own amendment barring gay marriage, after narrowly failing in the endeavor two years ago.

* Florida managed to leap its 60% hurdle to also write discrimination into its constitution.

* Arkansas prohibited gay couples from adopting children.

There was a sense yesterday and today that America had taken a great step forward -- that it had spoken with a voice of inclusion and respect for all persons, regardless of who they are or how they were born.

I can't imagine what it feels like to be someone who was written out of that message of inclusion. The historic nature of this election makes the resounding repudiation America gave to the equal human dignity of gays and lesbians that much more shameful. The nation this year was primed to be thinking about discrimination. In a very real sense, the decision to cast a ballot for Barack Obama was a decision to cast off the weight of our prior inequities. In such a context, the choice to strip gay and lesbian Americans of their natural human rights was more than just a failure of imagination. It was an affirmative decision by the electorate to announce that gays and lesbians are less than full Americans. In past years, we could blame inertia, apathy, and ignorance. This year, it was willful.

It is a decision that we will look back upon in shame, and it is a decision that is a disgrace to America, no matter what other barriers we broke today.

Volokh conspirator Todd Zywicki has an interesting post up asking about people's development on the issue of abortion. Specifically, how and why they might have changed their mind on the issue. He says that he knows plenty of people who used to be pro-choice, but became pro-life -- but few who made the opposite journey. And for those who have, he's curious as to what prompted the change in mindset.

My abortion journey, like the hobbit's, was a case of there and back again. I started off pro-choice in my youth, primarily as an off-shoot of growing up in a generally liberal household that made my default views on most issues liberal. Then I switched over to being pro-life, albeit uncomfortably. I say uncomfortably because all the reasons for being pro-choice made no less sense to me: it still seemed critical for the equality of women, and it still seemed like not allowing it was a tremendous state imposition on female bodies. But even those tremendous costs, large as they were, could not logically seem to override my thought that you're still killing a person, which I took to be a moral bright-line.

My discovery of pragmatism aided in me switching back to the pro-choice side. I decided that, regardless of when and whether a fetus qualified as a biological member of the species, that doesn't answer the question of when it becomes infused with moral personhood. That is a question that has no bright-line answer, and thus ought to be answered pragmatically. At the point, the massive costs the "life(/moral personhood) begins at conception" standard imposes on women becomes a good reason to reject it as a standard. Alternative measures seem far more effective at balancing whatever moral interest we have in protecting fetal life with insuring the equal participation of women in society (not to mention allowing women ownership over their own bodies). Judith Jarvis Thompson's "violinist" story also was helpful in my transition by raising the point that moral personhood might, in fact, not be relevant at all (though I'm not 100% sure I buy it).

The major point is, however, that once I lost my faith in the existence of crystalline, pre-social categories of moral truth, the pro-life position became untenable, because it constructed a moral framework that was hideously oppressive to women on the basis of a groundless presupposition that we could just as easily avoid. Given the choice, I choose to draw the rules so as to promote equality.

But I'm interested in your stories, if any of y'all have undergone similar shifts on the issue (in any direction). Leave them for me in the comments.

This one is from Charles Taylor (the great philosopher, not the brutal Liberian dictator):

But through all the differences of interpretation, the principle of equal citizenship has come to be universally accepted. Every position, no matter how reactionary, is now defended under the colors of this principle. Its greatest, most recent victory was won by the civil rights movement of the 1960s in the United States. It is worth noting that even the adversaries of extending voting rights to blacks in the southern states found some pretext consistent with universalism, such as 'tests' to be administered to would-be voters at the time of registration.

Charles Taylor, "The Politics of Recognition," in Multiculturalism: Examining the Politics of Recogntion, Amy Gutmann, ed. (Princeton: Princeton UP, 1994) pp. 25-73, 38.