Balkinization  

Friday, April 25, 2003

JB

Undermining the "Traditional Family"

Stanley Kurtz comes to Santorum's (partial) defense in this NRO online column:

when the pope says that sexual relations not directed toward reproduction within the context of marriage tend to threaten the structure of the traditional family, he is absolutely right. It is not necessary to be Catholic — or religious — to grant the acuity of the pope's sociological insight. In fact, it is not even necessary to agree with the pope about the need to limit non-marital sexual relations to see the validity of the connection he is making. The truth is, a whole series of non-marital or non-reproductive practices that have gained social approval over the last 30 years — from birth control, to abortion, to premarital sex, to homosexuality — have in fact helped to undermine the structure of the traditional family. That is true, whether or not you are religious, and whether or not you think that these developments have been positive or not.

So when Santorum says that "all these things" (homosexuality, polygamy, etc.) tend to undermine the traditional family, he is absolutely right. And I can agree with Santorum about this, even if I personally happen to believe that the tradeoff in family instability happens to be worth it in the case of sodomy laws, which I think should be abolished. We all need to decide — individually, and as a society — how to balance the complex tradeoff between family stability and personal freedom. But the tradeoff is real, and there is nothing wrong with any individual consulting his religious beliefs to help him decide how to balance these competing goods. In this case, moreover, I believe that Santorum's religiously derived wisdom contributes to the public debate by reminding naive secularists that there is in fact a tradeoff between sexual freedom and family stability.


The flaw in this logic is Kurtz's equation of the stability of the "traditional family" with "family stability" per se. Pre-marital sex and acceptance of homosexuality may have destabilized or undermined traditional notions of how families should be formed, including, for example, the subordinate role of women and the sexual division of labor. But it does not follow that other understandings of how families should be organized might not replace those traditional understandings. To a very significant degree, this has been the case. Men and women have somewhat different views about their responsibilities to each other in and out of marriage than they had in say, the mid 1950's, although it would be foolish to think there are not also strong continuities in expectations about gender roles. And homosexual families have formed, which can be, and are, just as stable and loving as heterosexual families.

We should not think that the choice is one between "traditional families" with all of their hierarchical elements and gendered expectations, or personal freedom. This is a false dichotomy. American society is in the process of producing new ways for families to be families. (Indeed, the nature of the family has been in continuous change throughout the country's history, and the notion that there was once a golden age when American families were simply "stable" is a myth that involves forgetting much of the coutnry's history, including the effects of, among other things, chattel slavery, immigration, industrialization, war, and so on.). Kurtz and I share, I think, a desire that family relations be relatively stable because both of us think that families are important units of social cohesion that help inculcate moral values and promote many of the goods of social life. What we appear to disagree about is whether there is more than one way to constitute a family.


Wednesday, April 23, 2003

JB

Why the Jury is Still Out on the War in Iraq, Part II

According to a report by the Washington Post

With little to show after 30 days, the Bush administration is losing confidence in its prewar belief that it had strong clues pointing to the whereabouts of weapons of mass destruction concealed in Iraq, according to planners and participants in the hunt.

After testing some -- though by no means all -- of their best leads, analysts here and in Washington are increasingly doubtful that they will find what they are looking for in the places described on a five-tiered target list drawn up before fighting began. ...

If such weapons or the means of making them have been removed from the centralized control of former Iraqi officials, high-ranking U.S. officials acknowledged, then the war may prove to aggravate the proliferation threat that President Bush said he fought to forestall.


I must say that this does not inspire confidence in President Bush's judgment. We can still hope that these weapons will be found soon, or at least conclusive evidence uncovered that virtually all of them were destroyed shortly before the war began. For if they were not *all* destroyed, and we can't find them, there is a strong possibility that they were distributed to or stolen by terrorist organizations during the chaos that surrounded the fall of Baghdad.

One could say that this is ironic-- that going to war to disarm Saddam might bring about the arming of terrorists with weapons of mass destruction, the very thing we wanted to prevent-- but in fact it's not ironic at all. The Bush Administration was repeatedly warned that attacking Iraq might have this undesireable side effect. It simply didn't listen to these warnings. Indeed, it didn't listen to a very large number of warnings about the unintended consequences of starting this war.

Now we must pray that we will not be punished for our President's overconfidence.

JB

Why the Jury is Still Out on the War in Iraq

I was and continue to be a war skeptic, although, like my pro-war friends, I am delighted that Saddam and his Stalinist-style regime have been overthrown. My concern has not been that the U.S. might not win, or that the war would take too long, but rather that the occupation would be very long and difficult, and that the war would unleash a set of unintended consequences that would get the United States into deeper and deeper trouble, destroy our security, fracture our alliances, undermine our moral authority, and ensnare us in many more destructive wars in the future.

The jury is still out on those questions, and indeed, we will not know for some time whether the Bush Administration's strategy was far wiser than I now believe it to be.

In the meantime, when I read stories like the following from today's Washington Post, I am not comforted that our leaders know what they are doing:

As Iraqi Shiite demands for a dominant role in Iraq's future mount, Bush administration officials say they underestimated the Shiites' organizational strength and are unprepared to prevent the rise of an anti-American, Islamic fundamentalist government in the country.

The burst of Shiite power -- as demonstrated by the hundreds of thousands who made a long-banned pilgrimage to the holy city of Karbala yesterday -- has U.S. officials looking for allies in the struggle to fill the power vacuum left by the downfall of Saddam Hussein.

As the administration plotted to overthrow Hussein's government, U.S. officials said this week, it failed to fully appreciate the force of Shiite aspirations and is now concerned that those sentiments could coalesce into a fundamentalist government. Some administration officials were dazzled by Ahmed Chalabi, the prominent Iraqi exile who is a Shiite and an advocate of a secular democracy. Others were more focused on the overriding goal of defeating Hussein and paid little attention to the dynamics of religion and politics in the region.


Chou-en-Lai famously responded to the question "Do you think the French Revolution was a success?" with the answer "It's too soon to tell." I think that the same is true of Bush's adventure in remaking the Middle East in America's image. Perhaps we will look back on this moment in history with satisfaction, and view Bush and Rumsfeld and their neoconservative allies as visionaries who saw that America could remake the world into a vibrant garden of democracy with enough military force and enough political will. But I doubt it very much.

And so, I continue to be a war skeptic, and, indeed, I think it important more than ever to call the President and his followers to task for their shortcomings and misjudgments about this war and its aftermath. That sort of criticism, whether made in time of war or in time of peace, is the most crucial to the health of a democracy like ours. If we allow the President simply to do what he thinks best, his thinking may not be the best thinking, and we shall all have to pay for his hubris, for many years to come.


Monday, April 21, 2003

JB

Rick Santorum and Homosexuality

Pennsylvania Senator Rick Santorum angered gay rights groups with this recent interview with the Associated Press:

Referring to an upcoming decision from the U.S. Supreme Court on the constitutionality of antigay sodomy laws, Santorum told the Associated Press, "If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything." He then added, "All of those things are antithetical to a healthy, stable, traditional family. And that's sort of where we are in today's world, unfortunately. It all comes from, I would argue, this right to privacy that doesn't exist, in my opinion, in the United States Constitution."

I well understand that Santorum was trying to compare homosexuality to incest and polygamy in order to criticize homosexuality. I completely disagree with his criticism of homosexuality and think that the Supreme Court should overturn Bowers v. Hardwick, the 1986 case that upheld criminalization of same-sex relations. Nevertheless, Santorum's remarks raise an important issue about constitutional interpretation and how the meaning of constitutional rights changes over time that is well worth discussing.

First some background on what Santorum said: The Supreme Court has protected procreative liberty under a mis-named "right to privacy," which is really a combination of several different rights, including the right of intimate association, the right to decide the conditions under which one will bear or beget a child, and the right to sexual autonomy. Judicial recognition of this set of rights stems from two cases decided in the 1920's that concerned the right of parents to direct how their children were raised, a case in the 1940's which struck down a compulsory sterilization law directed at lower class criminals (as opposed to white collar criminals), and was finally recognized in a 1965 case which upheld the right of married couples to purchase contraceptives, and a 1972 case which extended the right to unmarried persons. The 1973 decision in Roe v. Wade is based on this right as well.

The basic problem with the right of privacy is not that it is not mentioned in the Constitution (the word "liberty" does appear in both the 5th and 14th Amendments) nor is it that it was unknown under the original understanding (a lot of rights that we would not be willing to give up today were unprotected according to the original understanding). It is rather that it is difficult to put a precise boundary on how far the right to privacy extends. A convervative traditionalist might argue that the right of procreative liberty only should extend to traditionally recognized rights of intimate association and procreative liberty like those of married couples to have sex and beget children, but not to anything that is nontraditional. The argument is that courts are not very good at defining the boundaries of the right of privacy, so they should just stick to rights that have a long and hallowed tradition.

If courts move past the most traditional versions of the right to intimate association and procreative autonomy that almost everybody agrees are ok, the argument goes, they will not be able to find a clear stopping point. That's because all of the practices that courts might wish to protect will be controversial and immoral to someone or somebody. This is Santorum's point: You may think that incest (even between consenting adults), polygamy and adultery are morally wrong, but not homosexualty. Santorum thinks they are all morally wrong and undermine the stability of society. Other people might think that all of them (or some of them) are morally permissible (Think about the official position of the Mormon Church in the 19th century, for example). Whose views about morality should win out? Since there is strong disagreement about these practices, courts should leave it up to local communities to determine their legality. This is, I think, the best version of the argument that Santorum was trying to make.

But this argument overlooks an important point about how constitutional rights get their content. In fact, the scope of the constitutional right of privacy is determined by evolving social norms, not by legal logic. It is determined by politics and social movement contestation, even if judges don't recognize this fact or admit it to themselves. We often think that fundamental rights should reflect basic values that do not change over time. In fact it is quite the opposite. Through social movement contestation, people demand that the articulation of fundamental rights keep pace with their changing ideas of what values are most important and fundamental. Rights become timeless, in other words, when the time is right for them.

The right of privacy is a perfect example of this phenomenon. The right of privacy is always responding to changing notions of what is sexually appropriate and inappropiate. Today most people in the United States (and certainly most young people) think that heterosexual sex between unmarried individuals is permissible. It was not always thus. The sexual revolution changed people's views about the morality of pre-marital sex. That, in turn, changed what people thought the state had a right to regulate. Most people now probably think that it is none of the state's business whether heterosexual couples have sex and whether they wish to live together outside of marriage.

The same thing, I would submit, is happening with same-sex relations. When the Supreme Court first considered the issue in 1986 in Bowers v. Hardwick, homosexuality was only beginning to win widespread social acceptance. Not surprisingly, the Supreme Court, filled with people of a much older generation, could not muster five votes to protect the rights of gays and lesbians. What was surprising was that there were already four votes to do so. Now, with Will and Grace one of the top-rated comedies on television, it is quite clear that a very large number of people have changed their views. It is only a matter of time before the Supreme Court begins to protect same-sex relations. Whether they will do so through extending the right of privacy or through the use of the equal protection clause is yet to be determined. But they will change constitutional law to accomodate changing social mores. However, since there have been no similar changes in social attitudes about incest or polgyamy, there is no reason to think that courts will protect those practices. As I have said, the reason is not based on logic, but experience, which, as Oliver Wendell Holmes, Jr. once said, is the real source of the life of the law..

Conservative religious groups used to have the upper hand in the debate over gay rights. But now they have seen the writing on the wall. They are, for the most part, resigned to the Supreme Court's overruling or severely limiting Bowers v. Hardwick. Santorum's comments should be understood in this light. He is giving this feature of right wing politics its last hurrah. Right wing politicians will quickly see that the most overt forms of gay baiting do not work except to an increasingly small number of their constituents, and so they will gradually give up trying to do it. Instead, they will shift to more subtle forms of homophobic appeals, just as they did in the case of race. Within twenty years or so, it will be impossible for Santorum or someone like him to make comments like this and still expect to be elected to national office. At that point, it will be seen as akin to Trent Lott's comments about race. In fact, as the outcry over Santorum suggests, we are witnessing this transformation of what is politically acceptable to say before our very eyes. Santorum is on the losing side of a long battle. In the future, social conservatives will change their rhetoric, for example, by insisting that gays have a perfect right to do what they want behind closed doors, as long as they do not try to flaunt their practices in front of heterosexuals. The struggle for gay rights will then focus on the question of full acceptance rather than mere tolerance.


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