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Rethinking “Rethinking the Moral Status Debate”

photograph of boy and girl watching elephant at zoo

To have moral status is to be morally important for your own sake. Dogs, for instance, matter morally in a way that rocks don’t. Dogs have moral status. To have full moral status is to matter morally for your own sake as much as people do. Most people think dogs have moral status, but not full moral status. They think dogs matter morally, but not as much as people. Some philosophers agree with this, while others think this belief is a mere prejudice (“speciesism”), and that all conscious beings have full moral status. I have written about this here before.

Much of the abortion debate centers around the question of whether and when fetuses possess moral status, and/or full moral status. Is, say, an eight-week embryo morally important for its own sake? Is an eight-week embryo as morally important for its own sake as an eight-year old child? These questions may not automatically settle the abortion debate, but they are clearly important to it.

The relevance of moral status to abortion spurred an interesting recent piece in which Ben Rossi suggests that many of us are thinking about moral status incorrectly. Most of us think moral status is an intrinsic property, but Rossi thinks it is an extrinsic property. An intrinsic property depends on how you are in yourself, while an extrinsic property depends on how other things are. That I have a lap is an intrinsic property. That my cat, Apollo, is currently sitting in my lap is an extrinsic property: if he moved, I would lose the property “having a cat sitting in my lap,” even if nothing about me in and of myself changed. Or, in science, mass is an intrinsic property, while weight is an extrinsic property. If you put me on the moon, I would weigh a lot less, even if I was the same in and of myself.

Most of us think moral status depends on intrinsic properties. We think it depends, say, on whether you are capable of consciousness, or of reasoning, or whether you are a human, etc. Rossi thinks it depends on an extrinsic property: “the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood” determine whether you have full moral status. I take it we are supposed to accord full moral status to a being if doing so would have the best consequences.

We can see that this makes moral status extrinsic by noting that it means I could gain or lose moral status without changing anything about how I am in and of myself. If hostile aliens threatened to destroy the world unless we ceased treating Prindle Post writers as having full moral status, then I suppose it would be best not to treat Prindle Post writers as having full moral status. In that way, I could lose my moral status without changing how I am in and of myself. Or, to take things back to abortion, suppose we developed cheap artifical wombs, and could safely transplant embryos from pregnant people into these wombs. I suppose that on Rossi’s view, since this means the burden of treating embryos as having full moral status would no longer impose as great a burden on pregnant people, the invention of this device would strengthen the case for embryos having full moral status, without changing anything about embryos themselves.

Rossi notes that his account makes moral status extrinsic, and notes this is odd: it does not seem that the aliens issuing this threat could cause me to become less morally important. But since he has already discussed this, I will focus on a different worry for his view. I worry that his view involves a troublesome circularity. In order to know how good or bad an outcome is, we need to know the moral status of the individuals involved. But if the moral status of the individuals involved determines how good or bad the outcome is, then how good or bad the outcome is cannot then determine the moral status of the individuals involved. That’s a circle.

Consider, for instance, Rossi’s concern for equality. If people were allowed to kill eight year-olds, our society would not be one that respects equality. On the other hand, if people are allowed to kill hydrangeas, our society might still be one that respects equality. Why is that? Eight-year olds have full moral status, but we are not giving them the protections given to others who have full moral status. In this way, we fail to respect their equal moral standing. On the other hand, hydrangeas do not have full moral status. Perhaps they have no moral status at all. Accordingly, it is not an offense against equality to deny them the protections given to individuals with full moral status.

In our current society, people (at least in most states) can kill eight-week old embryos. Is this an offense against equality? To know this, we may need to know whether eight-week old embryos possess full moral status. If they do, perhaps we are failing to respect their equal moral status by failing to give them the protections we have. If not, then not. But if we need to know their moral status in order to know whether we are satisfying the demands of equality, and if satisfying the demands of equality is one of the things that determines how good or bad it is to treat them as having full moral status, then how good or bad it is to treat them as having full moral status cannot be what determines what moral status they actually have. That would be a circle.

Rethinking the Moral Status Debate

photograph of silhouetted woman on cliff

The impending death of constitutionally-protected abortion rights in the United States highlights the fact that one of the major political controversies of our era implicates a deeply philosophical puzzle. In everyday life, there are certain entities with respect to which serious questions about how we ought to treat them frequently arise. Some clear examples include human children and adults, and perhaps some other animals. Call such entities moral subjects, defined minimally as beings that, in our reasoning about how to act, are entitled to a quantum of consideration concerning how our actions affect them. An important group within this category consists of beings that are entitled to the degree of consideration we are typically obliged to give to human adults and children. I will call these beings strong moral subjects. Possessing an entitlement to such strong consideration is often referred to as having a “moral right.” Thus, if human adults generally possess a moral right to life, this means at a minimum that for other moral agents, certain actions — paradigmatically, and with narrow exceptions, deliberately killing them — are out-of-bounds. Yet there are many other entities that do not ordinarily seem to demand any degree of consideration — for example, chairs and stones. Call these entities things. At least a large part of the abortion debate — though not all of it, as Giles Howdle reminds us — seems to revolve around the question whether the unborn fall within the category of things or that of strong moral subjects. This is the so-called “moral status” question.

Yet, as I will argue, the popular and significant portions of the philosophical discourses about moral status are deeply mistaken.

To begin with the popular discourse, consider the language used in an introduction to a recent episode of Ezra Klein’s podcast featuring a discussion about the ethics of abortion with the moral philosopher Kate Greasley. “We discuss . . . why the status of fetal life is the central question at the heart of abortion ethics, [and] whether life begins at conception or emerges later in fetal development.” This focus on the question of when fetal life begins, which is characteristic of how many ordinary people tend to talk about the abortion issue, is liable to cause immense confusion. To start with, “life” is a highly ambiguous term: Merriam-Webster enumerates no less than twenty distinct meanings that we attach to it in common parlance. In many contexts, it refers to a biological characteristic — namely, the characteristic that distinguishes animals and plants from inorganic matter.

Now in one way, whether the fetus is alive in this biological sense is clearly relevant to the question whether the fetus is a strong moral subject possessing a right to life, since inorganic things cannot have a right to biological life. At the same time, however, it is intuitively not sufficient to clinch the question. After all, virtually no one thinks that merely in virtue of being alive, an entity is a strong moral subject. This view would put amoeba, algae, and bacteria on a moral level with adult human beings. So, it’s hard to see how the question of when the fetus becomes a living organism is the central question of abortion ethics. Another common meaning of “life” is biographical — something like the series of events that make up a living thing’s existence. Of course, when a being’s life begins in this biographical sense is parasitic on when the being becomes alive in the biological sense. Moreover, all living things have a life in this sense. Hence, the biographical sense of “life” does not take us beyond the biological sense in answering the moral status question.

It is also common in the popular discourse to see the question whether the fetus is a “human being” treated as central. But the terms “human” or “human being” are ambiguous in ways similar to “life.”

In one sense or cluster of senses, “human being” is a biological term denoting (a) possession of a characteristic human morphology; (b) membership in the species homo sapiens; or (c) possession of a certain genome. But quick reflection suggests that these characteristics are intuitively neither necessary nor sufficient for strong moral subject-hood. Any given episode of Star Trek suggests that non-human aliens may be strong moral subjects; and isolated human skin cells don’t seem to have a strong claim to consideration.

So much for the popular discourse. The philosopher Mary Anne Warren’s classic paper “On the Moral and Legal Status of Abortion,” still a staple of ethics courses across the country, serves as a paradigm for a common philosophical approach to the moral status question. Warren argues that the key issue is not whether the fetus is, say, alive or human, but whether it is a person. There are two crucial parts to her account of personhood. First, she says that all and only persons have full moral rights. (By “full” moral rights, she means something like the moral rights typically afforded to adult human beings as such). In other words, personhood is the decisive criterion for strong moral subject-hood, and it operates like an on/off switch: if you are a person, you are a strong moral subject, and if you are not a person, you aren’t. Second, Warren says that personhood itself can be defined as the possession of at least some of five capacities: consciousness, reasoning, self-motivated activity, the capacity to communicate an indefinite number of messages, and the presence of self-concepts.

Taken together, Warren’s account implies that the possession of some combination of these capacities is a necessary and sufficient condition for strong moral subject-hood. Warren goes on to argue that fetuses are not persons, and therefore do not have moral rights.

There are, in my view, two serious problems with this approach. The first is that it may involve a worrying circularity. In developing her account of the characteristics that constitute personhood, she asks us to consult our intuitions about which capacities we would count as relevant to determining whether newly-discovered alien life possessed a moral right to life. She plausibly claims that we would consider the five capacities listed in the last paragraph as relevant to that determination. But she does not ask us to consider whether, if we discovered that the aliens possessed those capacities and reproduced in a similar fashion as human beings, we would consider their fetuses as possessing the moral right to life and accordingly change our account of the characteristics necessary for strong moral subject-hood.

That question seems highly pertinent to the inquiry, but it introduces a dilemma for Warren. On the one hand, many people might conclude that they would consider the alien fetuses as possessing a right to life, and on this basis develop an account of personhood that counts human fetuses as persons, which would be an unwelcome result from Warren’s point of view. On the other hand, many others might conclude that they would not count the alien fetuses as rights-bearers. But if they went on to develop an account of personhood that excludes human fetuses partly on the basis of this intuition, they might be vulnerable to a circularity objection. The ultimate basis for the conclusion that human fetuses lack the right to life would be an intuition about the moral rights of alien fetuses. But since ex hypothesi the human and alien fetuses are so similar, that intuition would in all probability be itself based on the person’s views about the moral rights of human fetuses. Thus, the conclusion would be ultimately based on a premise that is identical to it.

This is sort of like holding that God exists because the Bible says so — based on the claim that what the Bible says is trustworthy because it is divinely inspired.

(Indeed, the same circularity problem would arise in the case of the person who would count the alien fetus as possessing the right to life.)

An even more serious problem with Warren’s approach is that it assumes a criterial account of moral status, according to which strong moral subject-hood is conceptually structured in terms of some set of necessary and sufficient characteristics. Again, on this approach, if you have capacities X, Y, and Z, then you are a strong moral subject; if you don’t, then you aren’t. One result of this way of thinking that students often encounter is that it turns out to be quite difficult to develop a criterial account that can accommodate all of our intuitions about strong moral subject-hood. For example, we seem to treat some non-conscious, non-reasoning, non-communicative, and non-self-aware human beings very differently from others. But why think moral status is conceptually structured like this? Instead of arguing further against the criterial approach, let me sketch out another approach that I think may be more fruitful.

The approach I favor is one that focuses on the question, what are the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood?

On this view, recognizing that fetuses do or not have a right to life is itself a moral choice, not one conceptually compelled by their possession of capacities like consciousness, rationality, and so on. Of course, whether fetuses do or do not possess these capacities may be highly relevant to our moral calculus. But this approach does not treat the possession of these capacities as a criterion of strong moral subject-hood. Rather, these capacities are probably relevant because they bear on the welfare, autonomy, and equality of all affected by the decision to treat fetuses as strong moral subjects.

A few surprising consequences may follow from my approach. First, it may follow that two classes of human beings with exactly the same intrinsic characteristics have fundamentally different moral statuses. This might sound strange, but that is because our thinking about this question is so deeply in thrall to the criterial approach. Second, it may follow that the same class of human beings might have one moral status under some circumstances and another moral status under other circumstances. Again, this seems strange, given that we’ve been taught that strong moral subject-hood wholly rests on the possession of certain intrinsic capacities. But if my view is correct, then it turns out to be not quite right to aver that, as the saying goes, you have rights simply because you are human. If by “human” we mean “possessing capacities X, Y, and Z,” on my view you don’t have rights simply because you are human; and you have rights because you are human only insofar as having X, Y, and Z is relevant to the overall moral costs and benefits of treating the class of human beings to which you belong as a rights-bearing class. Moreover, having these capacities does not guarantee that you have rights.

A full defense of my account of moral status goes well beyond the scope of this column; and without this defense, it may seem like the cure is worse than the disease.

Nevertheless, the main attractions of my account, I think, are that it avoids the potential circularity of Warren’s approach, as well as the tendency of that approach to devolve into a kind of desultory parlor game in which one tweaks one’s account of personhood ad nauseam to better accommodate intuitions about who has rights. It can also better account for some of those intuitions, although I will not argue that point here.

Even if the reader ultimately prefers the more orthodox philosophical approach to the moral status question, I think there is little doubt that popular discussions of the question are often couched in terms that serve to obscure rather than elucidate. This is one area where philosophy can perhaps be of greatest use — even if it may not be able to resolve the debate, it can help clarify its terms in ways that may facilitate moral and political progress.

What Toilet Paper Can Teach Us About Climate Change

photograph of empty toilet paper rolls stacked

One of the stranger parts of the COVID-19 pandemic has been people’s sudden obsession with bathroom sanitation. While there was never any pandemic-related disruption to the supply chain, nor the risk of even the strongest lockdown measures in place preventing people from buying essential groceries, many found themselves overcome by a desperate need to panic-buy vast quantities of toilet paper. Ultimately, this created a self-fulfilling prophecy in which paranoid hoarding led to the very shortage that had been feared. A similar scenario played out earlier this year when a cyberattack on Colonial Pipeline led to gasoline shortages throughout the East Coast. Panic-buying ensued once again, with individuals stockpiling vast quantities of fuel and further exacerbating an already struggling supply line.

Many of us might have the intuition that hoarding of this kind is wrong. But why? There are many ways we might try to determine the moral rightness or wrongness of an action. One of the simplest is to see whether it causes harm to others. But that’s not hugely helpful here. Suppose I hold a one-hour exam information session for my class of sixty students. In order to be fair, each student is given one minute in which to ask any questions they might have. Suppose, then, that one student ignores this guideline, and instead monopolizes a total of two minutes for her queries. It seems wrong of her to do this. But why? It’s not clear that her actions harm her fellow classmates. The extra minute she takes only subtracts slightly more than a second from each of their times – hardly enough to make an appreciable difference.

One way of explaining the wrongness of this student’s action is instead to claim that she is taking more than her fair share. We often find ourselves having to divide a finite resource amongst some group of individuals: time in a meeting, pizza amongst friends, holidays between family members. And in each of these scenarios there is, presumably, a fair way of making that division – one that gives full consideration to the interests of all individuals concerned. Once that allocation has been made, exceeding your fair share is wrong, regardless of whether it results in actual harm to others. This is precisely the kind of approach we might take toward food in a famine and water in a drought – and it explains what’s wrong about taking more than your fair share of toilet paper during a pandemic, too.

For many, the fair share approach may be so obvious as to appear trivial. But it can help inform our approach to far more complicated problems – like climate change. In 2011, nearly all countries agreed to limit the global average temperature rise to no more than 2°C compared to preindustrial levels – the maximum global temperature rise we can tolerate while avoiding the most catastrophic effect of climate changes. According to the Intergovernmental Panel on Climate Change, achieving this with a probability of >66% would require us to keep our global carbon expenditure below 2900GtCO2. As at the time of writing, only 605GtCO2 remains. Divided equally amongst the 7.9 billion population of earth, this comes out at a lifetime carbon allowance of 76.6 tonnes of CO2 per person — or around 0.9 tonnes per year over an 85-year lifespan.

Of course, it might be the case that a fair share isn’t necessarily an equal share. Another way of dividing up the carbon budget might be to instead require a proportional reduction in carbon emissions by all emitters. Put another way, this requires that everyone’s emissions peak around 2020, drop 50% by 2045, and fall below zero by 2075. The problematic side of this approach is that it allows historically high emitters to continue to emit at a much greater rate than many others around the world. As such, it provides a far more generous carbon budget for those living in a country like the U.S. According to Carbon Brief, a child born in the U.S. in 2017 will – on this approach – have a lifetime carbon budget of 450 tonnes of CO2, or 5.3 tonnes per year over an 85-year lifespan. By contrast, a child born in the same year in Bangladesh will receive only 4 tonnes of CO2, or 0.05 tonnes per year.

Of course, other factors may come into play in determining what a ‘fair share’ of carbon emissions is for each individual. One such factor is need. Suppose, for example, that I live in a part of the country where the only electricity production I have access to is derived from a coal-fired power plant. In such a case, I might necessitate a higher budget than someone who lives in a location with renewable energy options.

But the precise method by which we determine a fair share of carbon emissions is largely academic. This is because – even on the most generous allocation – we are all still horribly over-budget. In 2019 (the most recent year for which data is available), the per capita carbon emissions of a U.S. citizen was around 16 tonnes of CO2. Ultimately, this means that there is a moral imperative on each of us to do all we can to reduce our future emissions in any way possible. Some actions – like recycling and patronizing public transport – may be easy, but other changes (like the one I suggested in a previous article) may require much greater sacrifice. But without these changes, we – like those who hoarded toilet paper and gasoline – will continue to take far more than our fair share, and subsequently treat others unfairly in the process.

The Ethics of Pardoning

photograph of Trump pardoning Thanksgiving turkey

Back in October, I read the single greatest news article that I have ever read. It had everything you could want in a story: courage, a murderer turned hero, a thwarted terrorist attack, the London Bridge, a narwhal tusk, and a royal pardon. If you have not already read the article, you absolutely should; each paragraph is better than the one before.

But the story is not only a thrilling and satisfying narrative, it also provides us an excuse to talk about the ethics of pardons. This is a good thing, because I expect that, as happened in previous presidential administrations, we will see a flurry of presidential pardons before president-elect Biden is sworn in. It is always a good idea to think carefully through your principles before there is some controversy where you need to apply them. Otherwise it is far too easy to shift into principles that end up siding with your political tribe after a controversy arises.

Black’s Law Dictionary defines a pardon as “the act or an instance of officially nullifying punishment or other legal consequences of a crime.” In the United States, the power to pardon is possessed by the executive. The president can pardon federal crimes, while governors can pardon state crimes.

When we look at the ethics of pardoning, there are two types of questions we might ask. We might wonder about how extensive the power to pardon should be. These are questions framers ask when structuring a constitutional system. An example question is whether the president should be empowered to pardon him or herself? We might also wonder whether any given pardon is a good idea. These are questions that the executive branch asks before issuing a pardon. An example question is whether President Ford should have pardoned President Nixon. Note that these two questions come apart. Just as I can simultaneously think it is a really bad idea to own a gun and also think people have extensive rights to own guns if they choose to, so I can think that most pardons are a bad idea and yet also think the president should have broad power to pardon.

There are fascinating questions about how extensive the presidential power to pardon should be. But here I want to look at the second set of questions. Suppose that the president is empowered to pardon someone, when is it appropriate to exercise that power?

One context where pardoning might make sense is when the president believes a criminal trial was unjust, either in process or outcome. A recent example of this is President Trump’s posthumous pardoning of the Boxer Jack Johnson. While there are many checks internal to the judiciary, the presidential pardon is probably the largest external check on incorrect judicial decisions.

Another context where pardoning seems justified is where the judicial branch properly applies the law, but where peculiar circumstances make the application of the law unjust. This is the justification for the presidential pardon given by Alexander Hamilton in the Federalist Paper No. 74. Alexander Hamilton explains the power to pardon is important because criminal codes have a “necessary severity” and so “without an easy access to exceptions in favor of unfortunate guilt” justice would often end up too “cruel.”

Of course, neither of those two justifications are operative in this narwhal story. According to the NYTimes, in the U.K. “pardons for early release are generally recommended by officials in exceptional situations, such as if a prisoner risks his safety to prevent death or serious injury to another.” Here, the idea is that pardons might be a way to recognize something particularly remarkable about an individual.

And indeed, many pardons do seem to track something about the individual. For example, it is not uncommon that famous people are much more likely to receive pardons for crimes. This may in part be in recognition of their accomplishments, but it is also simply a consequence of being much more likely to be brought to executive attention.

This brings us to one of the biggest worries about the use of pardons, namely that they are idiosyncratic and thus seem in tension with a commitment to equal treatment under the law. Suppose I am also in jail in the U.K. for murder. It could be that I, like Steven Gallant, turned my life around, am close with my child, and act as a role model and mentor. However, none of that will be enough to secure a pardon, I also need to have the opportunity to do something heroic. Opportunities for heroism, however, are not evenly distributed throughout society. And thus some people will have access to pardons that others do not, merely as a matter of luck.

Indeed, this worry about the idiosyncratic nature of pardons applies even to pardons designed to act as a check on the judiciary. This issue is examined in detail in The West Wing episode “Take This Sabbath Day.” President Bartlet faces the question of whether to commute the sentence of a man soon to be executed. President Bartlet, who is Catholic, believes the use of the death penalty is unjust. However, he also worries about punishment for a crime changing based on the beliefs of whoever happens to be president. Toward the end of the episode he expresses his frustration:

“I commute this guy, for no particular reason other than I don’t like the death penalty . . . And the next president sees it in a different way. . . .  We cannot execute some people and not execute others depending on the mood of the Oval Office. It’s cruel and unusual.”

So what should we think about this worry concerning equal justice?

It is actually a tricky legal principle. Is it unjust to give a good thing to one person, if you cannot also give the same good thing to others who are equally deserving? Obviously, certain motivations for giving the good thing only to some people are unjust. For example, if you pardon one person and not the other because the one person is famous, then you are doing something wrong. But what if you would be willing to pardon anyone in that situation, you just know you will only hear about famous people. Then is it still unjust to pardon the famous? This question has important parallels. It would be unjust if I chose to only give money to white beggars and not to black beggars. But would it be unjust if I gave money to every beggar I see, I just also happen to live in a part of town where almost all the beggars I see are white?

It seems plausible that in the interpersonal case, one does not need to be too concerned about the unequal application of personal charity. However, it also seems plausible that in cases of criminal law, we have special reason to maintain not just justice before the law, but also the equality of all persons. It matters, if for no other reason that it not look as though the rich and famous get access to extra opportunities to avoid punishment.

If you think that it is important that everyone have an equal chance before the law, then the use of the power to pardon should be extraordinarily rare. If, instead, giving a good thing to someone is still good, even if you can’t also give it to another, then probably the presidential pardon is an underutilized tool.

The Ethics of the Masterpiece Cake Shop Decision

Photo of cakes in a display case

On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple.  The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision.  One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons.  The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

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For Testosterone Testing in Sports

Image of numbers on the lanes of a running track.

In my last post, I explained that the IAAF has a new policy on testosterone testing for female athletes. See that post for the details. I presented an argument against testosterone testing in sport and now I’ll present an argument for it. Which is the better argument? You decide. (Full disclosure: I don’t know.)

The first thing we need to consider is why sports are gender-segregated. It’s not because there’s a need to segregate people with different gender identities (why would we do that?). Sports are gender-segregated for reasons having entirely to do with bodies. The crux of the matter is that people with female bodies would be at a tremendous disadvantage if they competed against people with male bodies. Averaging over different sports and different individual people, male bodies have a 10 percent advantage. With gender mixing, the female-bodied wouldn’t as often qualify for and win events. To enjoy all the goods associated with sport, people with female bodies have to compete amongst themselves.

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In the Boy Scouts, Making Room for More than Just Boys

Photo of Boy Scouts saluting.

In October of last year, the Boy Scouts of America announced that the organization would begin admitting girls.  Cub Scouts, the organization for youths 7-10 years old, will begin welcoming girls this summer.  The program for youth 11-17—The Boy Scouts—will change its name to Scouts BSA and will begin accepting girls, providing a pathway for young women to become Eagle Scouts.

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When Men Dominate the Film Industry, What’s the Problem?

Watching the Oscars recently, I was struck by the fact that, for all the emphasis on women over the last year because of the #metoo movement, the winners were still mostly a parade of men. Greta Gerwig did not win for her wonderful movie Lady Bird; Guillermo Del Toro won for the overly contrived movie The Shape of Water. Yes, there were female winners in the acting categories, but there have to be: those categories are gender-segregated.

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Tax Reform and the Value of Economic Equality: Part Three

An image of the Capitol Hill dome with a statue in the foreground

Egalitarianism is the assumption behind the criticisms of the recent Republican tax reform legislation (“The Tax Cuts and Jobs Act”) that were presented in the first two parts of this series. Egalitarians of all stripes believe that all persons deserve equal moral consideration. Unequal treatment is the exception and needs justification. Egalitarians disagree on what is required by equal moral consideration. Most egalitarians would criticize the Republican tax legislation for disproportionately benefiting the rich and exacerbating economic inequality in the United States.

The argument in Part One held that economic equality was itself desirable, while the argument in Part Two held that a more economically equal society is desirable because it would promote a society where everyone was treated as equal citizens. Both arguments presume that all persons deserve equal consideration in policy decisions; they just disagree what that consideration would entail regarding the distribution to tax benefits and burdens.

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Let Them Eat Cake: Public Accommodations and Religious Liberty in Colorado

A photo of a man waving an LGBTQ+ rainbow flag outside the Supreme Court

On December 5, the US Supreme court heard arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  This case gives the newly minted Trump majority an opening to rethink public accommodations law. Currently, 45 states have laws that prohibit discrimination by businesses offering public accommodations: loosely, those offering goods or services to the general public. (The federal government claims some scope for jurisdiction under the interstate commerce clause.) These laws have always been controversial.  Most recently, evangelical Christians have been arguing that these laws are too broad. The court has a chance to narrow the scope of public accommodation laws: prohibiting discrimination only in more narrowly defined range of essential accommodations.

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Gender Segregation: Empowering or Exclusive?

A black-and-white photo of a movie theatre during a film.

With over $400 million dollars in North American profits, Wonder Woman has set the record for the biggest U.S. film opening with a female director. Even before setting this record, the 2017 comic book adaptation was heralded by many as a feminist film, including actress and former Wonder Woman Lynda Carter. Despite its success, the film was not without criticism, with some women claiming that they did not find the film empowering, and even that it ignores non-white women. Perhaps the biggest controversy surrounding the film has to do with a Texas movie theatre, which offered “women-only” screenings of the film back in June. This decision was met with a wave of retaliation, accusations of discrimination, and even a lawsuit. Is it sexist to provide a women-only screening of the film? Is it fair to call the movie theatre’s actions as feminist? And most importantly, how does this reaction reflect American society’s tolerance, or lack thereof, of gender segregation?

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Do Harvard’s Final Clubs Undermine Equality and Inclusion?

A recently released report from a Harvard panel of faculty members recommended that Harvard adopt an outright ban on student participation in unrecognized social clubs such as “Final Clubs,” fraternities, and sororities. These organizations have not had official recognition from Harvard since 1984, when such formal recognition was rescinded because these social clubs refused to end membership policies discriminating on the basis of gender. In May 2016, Harvard decided to penalize anyone who joins these single-gender social clubs by banning student members from “holding athletic team captaincies and leadership positions in all recognized student groups. They will also be ineligible for College endorsement for top fellowships like the Rhodes and Marshall scholarships.” The report from the faculty panel takes the May 2016 policy to its natural conclusion: an outright ban.

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Social Issues as Product Promotion: Exploitation or Artistic License?

On April 4, Pepsi recalled an ad less than 24 hours after its release on account of ridicule for its insensitivity towards social justice movements. In the ad, Kendall Jenner is in a photoshoot when she notices a protest occurring outside. Prompted by a head nod from one of the protesters, she joins the crowd and eventually hands the police officers on duty a Pepsi; outbursts of applause and cheering come from the crowd when the officer accepts the Pepsi.

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Affirmative Hesitations in India and the United States

In February of 2016, caste tensions that have always smoldered under the covers of Indian life were shocked back into the open. February’s caste riots in Haryana, India, brought much needed attention to the ways in which the long-outlawed caste system manifests itself in modern India. These rioters joined the peculiar yet growing number of protesting high castes. The Jats, members of a high caste in northern India, violently protested to change their status from a high caste to a low caste to gain from the government sanctioned benefits enjoyed by the lower castes.

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Walking on Thin Ice: Political Correctness and Redefining the Problem

Everyone is walking on thin ice. In modern America, it seems we are called to constantly filter our words in an effort to respect those different from us. This mandate–political correctness–has the best of intentions. However, it has grown into a roadblock; we cannot further understand our differences and progress in the fight for equality if we are so compelled to tip toe around tough subjects and often avoid them altogether for fear of being politically incorrect.

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The (Long) Road to Equality

As the Supreme Court’s decision is announced in the Obergefell v. Hodges case, one cannot help but reflect upon the shape the discourse has taken, and the possibilities for continuing the conversation about LGBTQ equality. The media coverage has focused on the right to marry, but what about the host of other heretofore denied rights of contract, such as the right to divorce, or the right to form parental agreements? Consider a thought experiment, one similar to the content of some of the testimony heard before the Court:

Imagine you and your partner are residents of New York and you marry there. You both later move to Louisiana for work (or simply because you want to live on the bayou). At some later point, your marriage fails and you separate (for years). Yet, since the state of Louisiana does not recognize your marriage, you cannot get divorced. As you drive home to visit family in upstate New York, you decide to view Niagara Falls from the Canadian side. As you drive across the border, it occurs to you that Canada will certainly recognize that marriage you could not legally exit—should some unfortunate fate befall you, your estranged spouse might have a say over your healthcare decisions, or could take possession of your body. After your vacation, as you drive back across the United States, you realize how often your marital status changes—married in New York, single in Tennessee, married in North Carolina, single in Kentucky.

This thought experiment was a lived reality for individuals across our country, and arose as a result of a patchwork system of recognition. A patchwork system of recognition exists when individual states can choose whether to extend rights to groups that have historically been denied them, and if so, the terms under which such rights will be recognized, enabled, inhibited, or blocked altogether. When a patchwork system of recognition is in place, it can give rise to a number of practical and ethical concerns.

The first challenge that arises from a patchwork system is the clear limitation on one’s freedom of action and freedom of movement that are antithetical to the spirit of a liberal democracy. In this regard, the state has two corresponding duties derived from the general citizen’s freedom of movement: a guarantee that the State will protect the right to travel across city and state lines, and ensuring a citizen’s right to be treated equally to those who are already residing in the area (e.g., not facing unduly burdensome restrictions placed on the right to vote, freedom of expression and association, and that the public acts of one state will be recognized and upheld in other jurisdictions). While this practical constraint is now lifted for those who are married in one state and heretofore unrecognized in others, what of parental agreements and second-parent adoption rules? There are plenty more barriers to full equality and recognition in the contractual agreements that mediate familial life and personal relationships.

The second, more profoundly philosophical, challenge presented by a patchwork system is the effects on one’s personal identity—to what extent can I conceive of myself as autonomous if the state blocks my ability to enter into certain kinds of agreements and be recognized as I wish to be? The state mediates our personal relationships—those between romantic partners and those between citizens and their children, most notably. Insofar as regulatory mechanisms (i.e., contracts or legislation) reflect how individuals see themselves, or at least provide measures to align identity with recognition, this mediation can appear seamless. However, where recognition and uptake fail, the result is narrative friction. My life’s narrative, the self-told story that helps us maintain a sense of who we are over time, becomes interrupted because of state interference. Marital status and parental status, like a person’s sexual identity is a constitutive part of our lives and determines how we constitute many aspects of our practical identities. There are normative expectations and judgments made about one’s behavior, informing how others treat you.

As we move forward, and take up the next battle in the barrier to LGBTQ equality, let us keep in mind that we are legislating people’s lives, their identities, and whether they are recognized throughout the entire country. How does contract law, in itself, dehumanize the texture of human relationships? To what extent should we be mediating our relationships in this way? These questions should be part of the broader conversation concerning the next steps in the long road to equality.