When you are accused of a crime, likely of chief concern will be that your jury will treat you fairly. Once the jury is presented with the facts and are briefed on how to understand the law, they go off to deliberate. How the jury deliberates from there is up to them, and you trust that they follow the judge’s instructions and don’t hold any biases they may have against you.
Continue reading “Who is Getting a Fair Trial? A Problem with Ensuring the Impartiality of Juries”
On June 27th, the Supreme Court decided on the hotly debated case, Whole Woman’s Health v. Hellerstedt, which dealt with access to abortion clinics in Texas. In 2013, Texas proposed a law requiring that all abortion clinics in the state hire only doctors that have “admitting privileges at local hospitals and meet outpatient surgical center standards.” This law would have shut down nearly 30 of Texas’ 40 abortion clinics, a state home to 5.4 million women in the reproductive age range.
Continue reading “Supreme Court Strikes Down Texas Abortion Law”
This post originally appeared November 3, 2015
“Dignity” was invoked no fewer than 10 times by the supporters of gay marriage during the proceedings of the landmark Supreme Court decision legalizing gay marriage. Supreme Court Justice Anthony Kennedy used the term 8 times in the majority opinion of the court. He concludes the opinion of the court with these final words: “[The petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The take-away message is this: any sort of ban on gay marriage undermines the dignity of those couples and/or of homosexuals in general; anything that undermines dignity is unconstitutional.
Yet, not everyone on the bench agrees that the dignity of homosexuals is in peril with state-based restrictions on marriage. Supreme Court Justice Clarence Thomas argued that dignity is not at issue here:
Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away. (Obergefell V Hodges 2015)
This somewhat surprising point was quickly picked up by The Nightly Show host Larry Wilmore. During the June 29th episode immediately following the ruling, he asks, “Do you even know what slavery is? Slavery is the complete stripping of humanity and dignity. That’s the point of slavery. When do you think slaves were whipped? Whenever they tried to dare to show any humanity or dignity.”
Although Thomas and Willmore appear to disagree, it’s hard to say what the disagreement is really about. There is something right about what each of them says. Thomas is right to point out that when we say that someone has human dignity, we mean they have intrinsic value and that they are equal in value to other humans. Government policies, even policies permitting slavery, cannot diminish this human value. The intrinsic value of the slave and the slave owner is equal, even if the government says otherwise.
Wilmore’s take also gets something right. The slave holder or the slave state undermines the slave’s human dignity insofar as it fails to treat the slave with the respect that dignity demands. Moreover the slave owner forces the slave into a life not worthy of dignity. The central question is, how can you rob someone of something that is inalienable? If the answer is, “You can’t!,” as Thomas insists, then what are we to conclude about the role that dignity plays in explaining why slavery and discrimination are morally wrong?
Martha Nussbaum suggests that perspectives like that of Thomas’ are based in the ancient Greek tradition of Stoicism. The Stoics believed that all humans have intrinsic dignity on account of their moral rationality and this dignity is invulnerable to the misfortunes of life. No matter what harm or humiliation befalls you, your dignity remains intact. Nussbaum identifies a serious problem with the Stoics’ view of dignity: it lacks normative relevance or force. It cannot be used to condemn certain practices or even explain why certain actions are immoral. If Thomas is right, then the concept of a ‘human dignity violation’ is meaningless.
Contemporary ethicists including Nussbaum argue that this view should be replaced by one that takes into account the extent to which material conditions do impact someone’s dignity.
Contemporary views of the concept of dignity tend to recognize it as having both descriptive and prescriptive aspects. Dignity describes a particular human property (the property of having intrinsic value) while at the same time providing moral reason to refrain from enslaving, degrading, or otherwise denying a person equal rights. Recognizing dignity as having these dual roles allows us to explain the wrongness of certain moral practices we otherwise couldn’t. For example, slavery is clearly a violation of dignity. Denying someone a set of rights enjoyed by all others simply because of their sexual orientation is also, for many, a dignity violation.
Thomas’ view of human dignity is at best parochial. He appears blind to the vital prescriptive role that the concept of dignity plays in everyday discourse concerning our duties to each other. Appeals to dignity underlie our reasons to treat others with respect and explain our moral outrage when governments fail to recognize these reasons. At worst, Thomas provides fodder for denying certain minorities equal rights. This view should be jettisoned in favor of one that provides explanation for why practices such as slavery or discrimination are morally wrong. Wilmore is right to point out that dignity is of central importance in debates concerning the treatment of minorities, especially the treatment of minorities by their government.
The Supreme Court ruled yesterday that minors convicted of murder and sentenced to life imprisonment have a right to argue that they be released from prison. This 2012 decision was ruled to apply retroactively, as it was considered a significant change to the law. The court ruled 6 to 3 on applying the law retroactively; the 2012 case had been decided 5 to 4.
The dust is just now beginning to settle on same-sex marriage in the United States, since the Supreme Court’s recent ruling in Obergefell v. Hodges established the unconstitutionality of state-level bans on such marriages. Though the law of the land has been established, all the legal and sociocultural effects remain to be seen (for example, can elected officials receive a religious exemption from performing certain job-related duties).
Is same-sex marriage a victory for freedom? It’s hard to say, and depends on who you ask. The ability to marry a partner of the same sex at the same time both expands the life possibilities for many citizens, while also bringing them into the fold of semi-coercive social norms regarding what a proper long-term romantic relationship and family look like. The Supreme Court let “love win,” but that love is now an increasingly institutionalized one.
To those who we could call “rule of law” libertarians, the most important consideration is fairness and impartiality under the law. This perspective comes down in favor of same-sex marriage for obvious reasons having to do with fairness and equal protection. End-the-state libertarians, on the other hand, strongly disapprove of government in marriage to begin with (on the grounds that it invites and normalizes the meddling of government in private affairs), and object to its expansion (even to same-sex couples) as more of a bad thing. Some in the LGBTQ community (who may or may not be libertarians or anarchists) share this concern, believing that marriage is a kind of well-meaning but ultimately pernicious encouragement towards the conventional domesticated lives they don’t actually want.
No principled libertarian objects to gay marriage for specifically moral reasons, having to do with “marriage” being reserved for the permanent bond between a man and a woman, for instance. Whether it is un-libertarian to have reservations about progressive views regarding the malleability of sexuality and family is a trickier question (certainly progressive, libertine, and conservative libertarians have basically always co-existed in libertarianism’s big tent).
Libertarians do reasonably worry that same-sex marriage will lead to the abridgment of other liberties, namely freedom of religion and freedoms of association, especially through commerce (see, for example, the fight over whether religious bakers must bake a wedding cake for a same-sex couple). However it is certainly nothing new in principle that some values in a plural society would necessarily become pitted against others. And it does not seem to be the goal of same-sex marriage proponents to use that position strategically for the purpose of dismantling other liberties, though the possibility is real and conspiracy theories abound.
Could there be other libertarianism-consistent reasons to oppose same-sex marriage? Not really. Allowing only straight marriage in order to “strengthen the nuclear family” runs afoul of the libertarian goal of making minimalist policy that is as value-neutral as possible. Even if same-sex marriage and parenting somehow did in fact weaken family life overall (it’s complicated, and family stability may matter more than gender), that would be a less important consideration for even most socially conservative libertarians than establishing state neutrality in marriage. In any case, there are relatively hands-off ways for the government to fight childhood poverty and provide opportunity to families, like properly-structured earned income tax credits and basic food support, that do not necessarily require discriminating on the basis of the biological or adoptive parents’ sexuality.
Similarly, slippery slope arguments against same-sex marriage don’t seem to be consistent with libertarianism. The threat of a slippery slope from same-sex marriage to multiple partner marriage (polygamy) is real. However, that move only seems like a pernicious slippery slope if one assumes that legally-sanctioned marriages must be between one man and one woman in the first place. Rule-of-law libertarians would likely reject that assumption.
In the end, it is not really up for debate – from a libertarian perspective – whether people of the same gender should be allowed to marry conditional on the fact that government is in the marriage business in the first place. Since marriage, in the civil-legal light, is about distributing the benefits and burdens of a particular form of citizenship, that form of citizenship should be in some strong sense available to all.
It’s a separate issue as to whether the government should require private businesses that cater to heterosexual weddings also to cater to same-sex weddings. The primary values at stake here are economic freedom versus non-discrimination, but the situation is much more narrow than the marriage question in general (which necessarily has broad and far-reaching consequences over many citizens’ whole lives). Whether a libertarian, or anyone, should trade some economic freedom in the attempted pursuit of non-discrimination is, however, a topic for another time.