Is Being Gay Protected for Intrinsic or Extrinsic Reasons?

Jonathan B. Wight

The Richmond Federal Reserve Bank is flying a gay-pride flag this June that upset some local politicians, according to the Richmond Times Dispatch.

Fed President Jeff Lacker wrote to employees that the decision to fly the flag "was motivated by business reasons and an attempt to foster inclusiveness." The RFRB, Lacker said, was interested in improving its ability to attract talented employees, "which requires respecting different perspectives."

On one level this decision was courageous. On another level this justification sounded hollow and perhaps a bit insulting. It is undoubtedly true that most large employers have adopted same-sex partner benefits and other inclusiveness policies as a way to improve productivity. And perhaps this is all the political climate in the nation can tolerate. But I'd like to think that a clearer articulation of basic human rights would sometime soon be accepted:

Did we free slaves because that would increase productivity? Or because we came to recognize the fundamental injustice of an economic system that would permit other persons to be treated as less than fully human?

There are few things that I am certain of looking to the future. But one conviction I do have is that in a few decades it will become a universal understanding that sexual orientation is a matter of human right, and will be respected for that reason alone—independent of important economic efficiency considerations. It is interesting and useful to speculate about which comes first.

Assessing Competence to Refuse Medical Treatment

Mark D. White

Last night I read a wonderful and concise article by Jillian Craigie (King's College London) from the latest issue of Bioethics (25/6, July 2011) titled "Competence, Practical Rationality and What a Patient Values." The abstract follows:

According to the principle of patient autonomy, patients have the right to be self-determining in decisions about their own medical care, which includes the right to refuse treatment. However, a treatment refusal may legitimately be overridden in cases where the decision is judged to be incompetent. It has recently been proposed that in assessments of competence, attention should be paid to the evaluative judgments that guide patients' treatment decisions.

In this paper I examine this claim in light of theories of practical rationality, focusing on the difficult case of an anorexic person who is judged to be competent and refuses treatment, thereby putting themselves at risk of serious harm. I argue that the standard criteria for competence assess whether a treatment decision satisfies the goals of practical decision-making, and that this same criterion can be applied to a patient's decision-guiding commitments. As a consequence I propose that a particular understanding of practical rationality offers a theoretical framework for justifying involuntary treatment in the anorexia case.

Craigie argues for assessing the procedure--in this case, practical judgment--by which a person comesto the decision whether to refuse treatment, rather than applying external standards to the decision itself or the reasons that led to it. She emphasizes that in the past, simply exhibiting a behavior and expressing a preference that was characterized as or associated with a mental disorder was taken as evidence that the patient was "irrational." In the case of anorexia nervosa (on which she focuses in the article), if the patient expressed an overwhelming desire to be thin, this was judged to be irrational simply because that was one of the hallmarks of the disorder. Craigie correctly identifies this as circular reasoning, akin to listing homosexuality as a disorder and then "concluding" that homosexual desires are "pathological" (or interpreting denial of a problem as evidence of the problem--for one of the most disturbing instances of this that I've read, see Deirdre McCloskey's Crossing: A Memoir).

Instead, Craigie recommends looking into the quality of the reasoning by which the patient forms the value or preference that leads to the treatment refusal. She considers several approaches of evaluating the process by which the patient comes to a particular conclusion rather than simply judging the decision itself, or the value or preference that led to it. I was gratified to see this approach, because that is what I argue in much of my work on paternalism and welfarism: assuming that paternalism is justified in cases of involuntary behavior, involuntariness must be assessed procedurally--based on how the individual came to "act" in a certain way--rather than judging the value, prudence, or wisdom of the act itself. Whatever external evalutors think of an action is irrelevant--all that matters is how she came to that decision, and if she acted voluntarily.

Craigie argues that there is some evidence--though perhaps not enough at this point--to suggest that anorexics form their overwhelming desires for thinness in ways that compromise their true autonomy, and compares this case to Jehovah's Witness who refuses blood transfusions, in which case she recognizes that the religious value leading to that decision may be a core value of the individual, and is therefore less questionable. This is in line with what I have argued elsewhere (including chapter 5 of Kantian Ethics and Economics), we should assume that individuals make decisions in their own interests, as complex and multifaceted as they are, and interference with them is only justified if there is evidence that a decision (or action) was not made (or taken) voluntarily. (And yes, I realize that voluntariness is a topic of discussion all in itself, but I think the point stands even without specifying it further.) Refusal of medical treatment is  fantastic application of this, and I am very happy Craigie raised these issues.

Same-Sex Marriage Should Be Defended on Moral Terms, Not Economic Ones

Mark D. White

Sociologist Jaye Cee Whitehead (Pacific University) has a wonderful piece in The New York Times today titled "The Wrong Reasons for Same-Sex Marriage," arguing that the recent arguments espousing the economic benefits of same-sex marriage for cash-strapped states and municipalities miss the point:

Those making these economic arguments probably have the best of intentions. After all, why can’t gays and lesbians have full equality, while also saving the state money and bolstering local economies? Aren’t civil rights narratives consistent with the economic case for same-sex marriage? Shouldn’t supporters use all possible arguments in the hopes that at least one will finally stick?

And yet supporting marriage on economic grounds dehumanizes same-sex couples by conflating civil rights with economic perks. Americans should be offended when the value of gays and lesbians is reduced to their buying power as consumers or their human and creative capital as workers.

Why can’t same-sex couples have access to the same rights and protections as their straight neighbors simply because they are citizens? How would we respond if the right to interracial marriage were based on the prospects that these relationships made good business sense or added to the state budget? While economic arguments were certainly advanced during the struggle for African-American civil rights — in the late 1950s, Atlanta’s business-oriented mayor, William B. Hartsfield, promoted his city as being “too busy to hate” — those rationales are not what we think about when we remember that struggle’s highest ideals.

I made a similar point in my paper "Same-Sex Marriage: The Irrelevance of the Economic Approach to Law," aimed more at academic economic arguments than popular ones, but with the same general thesis: that the argument for same-sex marriage is properly a moral one, based on dignity and equality, not an essentially contingent cost-benefit calculation (particularly one based on current economic conditions).

One more step toward repeal of "don't ask, don't tell" (DADT)

Mark D. White

As I'm sure you already know, the U.S. Senate voted today to end the ban on open homosexuals in the military. I hope the president signs this bill and ends seventeen years of forcing gay and lesbian Americans who wish only to serve their country to either lie about or conceal an essential part of their identities.

Same-sex marriage case continues in California

Mark D. White

The Wall Street Journal today reports on the ongoing legal struggle over same-sex marriage and Proposition 8 in California, with a three-judge panel of the Ninth U.S. Circuit Court of Appeals hearing both substantive arguments as well as arguments regarding standing Monday.

Several things stood out to me from the article, such as this:

Charles Cooper, representing Protectmarriage.com, said the court had to address whether the definition of marriage was an issue that "the people themselves can resolve through the democratic process…or whether our constitution takes that out of their hands."

Regardless of our substantive differences of opinion about same-sex marriage itself, Mr. Cooper highlights the essential issue of political philosophy behind this case: is eligibility for marriage an appropriate matter for democratic vote, or would that represent a "tyranny of the majority" by allowing a majority to limit the essential rights of a minority? Reasonable people will disagree on this, depending on their view of the purposes or nature of marriage, and whether the right to marry the person of your choice is an essential right or is instrumental to a larger purpose (as in the defense of traditional marriage and childrearing as the bedrock institution of human society).

Senior Circuit Judge Michael Hawkins presumably takes the essential right view, "asking whether the people of California could reinstitute school segregation. 'How is this different?'" (The more direct analogy would be the bans on interracial marriage overturned in Loving v. Virginia, but apparently he wanted to make a broader argument.)

Mr. Cooper, as with other traditional marriage proponents, makes an instrumental defense of traditionl marriage, which (according to him) was "designed to channel 'sexual relations between a man and woman' to raise children in stable families." (Clever, that "design argument" for traditional marriage--no mention of whether it was intelligent design!) Judge Stephen Reinhardt makes the obvious reply: "That sounds like a good argument for prohibiting divorce." In other words, if people want to argue that alternative institutions will compromise the "intended goals" of traditional marriage, they should first explain how aspects of traditional marriage have not compromised those same goals (and why it should still enjoy privileged status).

The immediate fate of the case may turn, however, on issues of legal standing rather than the merits of same-sex marriage itself. I fully recognize and appreciate the importance to the legal system of ascertaining proper standing before a case can proceed, but I hope those issues can be resolved so this case can move forward, rather then get tied to a procedural muddle for months or years to come.

Study Dismisses Concerns about Gays in Military, But Should It Matter?

Mark D. White

Today's news about a new study showing most military personnel do not oppose open service of gays and lesbians leads to mixed feelings. On the one hand, it should speak against those who argue that open homosexuals in the military will reduce morale, especially given the reported correlation between those who have served alongside (believed) homosexuals and acceptance of repeal of DADT. If this study is of use in achieving repeal--and it very well may, if early reports of its impact are any guide--all the better.

But at the same time, I find the study irrelevant in the more general, less political sense. As much as I respect, admire, and am grateful to our men and women in service, I don't think their opinions regarding who can or cannot serve alongside them should matter. That is the same "tyranny of the majority" that we see in calls for legislation dealing same sex marriage, wherein the majority would be granted improper influence over the essential rights of the minority (even if those rights are voted for). Homosexuals should be allowed to serve their country without hiding an important part of their identities, regardless of how active personnel, or anybody else, feel about it.

I fear that elation over this study, as politically efficacious as it may turn out to be, may lead people to forget the real nature of the wrong to the dignity of gay and lesbians perpetuated by DADT.

Federal judge orders injunction against "don't ask don't tell" policy

Mark D. White

This afternoon, U.S. District Judge Virginia Phillips ordered a worldwide injunction against the Clinton-era "don't ask don't tell" policy in the United States military, under which homosexual servicemen and women must keep silent about their sexual orientation. As I wrote earlier, this demeans our proud men and women serving their country, both straight and gay: the straight ones, for being presumed unable to serve among gay comrades, and the gay ones, for being blocked from military service and for being encouraged to lie rather than be duscharged. I hope this ruling stands.

An unintentional survey of the ethics of gays in the military in the WSJ

Mark D. White

In today's Wall Street Journal, Bret Stephens has a piece arguing why the GOP should let "Don't Ask Don't Tell" (DADT) lapse in the 2011 Defense Bill, and in it he happens to cover the three mainstream approaches to ethics: consequentialism (DADT forces the expulsion or rejection of qualified, eager men and women from the armed forces), deontology (DADT violates the rights of homosexuals), and virtue ethics (DADT discourages honesty). And, in a consequentialist twist on virtue ethics, he argues (correctly, in my opinion) that this incentive for dishonesty is what weakens the armed forces, not the existence of homosexual servicemen and women itself:

In the meantime, it's worth noting that there are an estimated 48,000 homosexuals on active duty or the reserves, many of them in critical occupations, many with distinguished service records. If they pose any risk at all to America's security, it is, paradoxically, because DADT institutionalizes dishonesty, puts them at risk of blackmail, and forces fellow warfighters who may know about their orientation to make an invidious choice between comradeship and the law. That's no way to run a military.

If you'll indulge me my comics habit for a moment, the origin of the new Batwoman included a similar message on DADT, when a young Kate Kane has to withdraw from the US Military Academy after word gets out that she is a lesbian. Her CO asks her to deny the rumor (subtly insinuating that he knows they're true), but she cites the military code of honesty, and chooses to accept a discharge rather than compromise that principle. (This scene can be found in Batwoman: Elegy, written by Greg Rucka and illsutrated by the incomparable J.H. Williams.)

This shows that DADT not only asks our men and woman in the armed forces to deny an essential part of themselves, but also to deny the very principles on which the military is grounded, in order to serve their country. Stephens emphasizes the more basic consequentialist argument (which is certainly valid as well), but I favor the others (naturally)--just ask Batwoman!

Proposition 8 (and the tyranny of the majority) overturned in California

Mark D. White

Yesterday, Judge Vaughn R. Walker overturned Proposition 8, the voter-enacted amendment to the California Constitution that declares marriage to be exclusively between a man and a woman. This case will undoubtedly move up through the court system, but for now this is undeniably a huge step.

I especially appreciated this passage in Judge Walker's decision (page 118 in the opinion linked above):

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

This echoes what I wrote in  "Same-Sex Marriage: The Irrelevance of the Economic Approach to Law" (International Journal of Law in Context, 6/2, 2010; draft version available here), drawing from the jurisprudence of Ronald Dworkin:

If rights are in question, they should not be up for vote; a right either exists or it does not... And whether or not it does exist should be formally recognised by the part of the legal system responsible for deciding on issues of rights – the courts. To do otherwise is to invoke Mill’s "tyranny of the majority" by endorsing a system in which the majority can vote to rescind essential rights claimed by the minority. ... But just as judges should not legislate or make policy, the standard legislative process cannot do justice to the principled matter of same-sex marriage, nor does it serve democratic principles to try. (p. 147)

Aside from my approval of the substance of Judge Walker's decision, I especially appreciate the way in which he made it, confirming that some rights - especially ones so important as the right to marry the person of one's choosing - are beyond popular vote.

Noentheless, the optimal solution remains that the state should withdraw from marriage entirely, leaving it a purely private matter between individuals, their community, and their faith (when appropriate), stepping in only to enforce private agreements or other aspects of the law that apply to married and non-married persons, and with no privileged (positive or negative) status accorded to marriage. Only when the state takes its finger off the scales will marriage be truly equal for all.

Same-Sex Marriage: The Irrelevance of the Economic Approach to Law

Mark D. White

My article on same-sex marriage and law-and-economics, "Same-Sex Marriage: The Irrelevance of the Economic Approach to Law," is now available at the International Journal of Law in Context; the abstract follows:

Several noted legal scholars, most prominently Richard Posner, have applied the economic analysis of law to the debate over same-sex marriage. In this note, I argue that the economic approach to law is ill-equipped to deal with the issues of principle, dignity and rights that are at the core of the debate, regardless of the position taken on the issue. Other scholars, such as Darren Bush, acknowledge the shortcomings of the economic approach, such as the importance of the assumptions on which cost-benefit analysis is made, but they do not appreciate that this is symptomatic of the economic approach as a whole, not merely the application of it by some scholars in some cases. My contention is that the economic approach to law is appropriate regarding issues of policy, where trade-offs are essential and necessary, but not regarding issues of principle, with which trade-offs are not so easily made.