Tuesday, September 29, 2009

John Finnis on Hart, Homosexuality, Immigration, and the Decline of Western Civilization

Brian Tamanaha

Natural law philosopher John Finnis, of Oxford and Notre Dame Law School, thinks Western societies are quickly going to pot, and he lays some of the blame for this on sexual permissiveness (including homosexuality) and on loose immigration policies. These claims can be found in his recent essay on the political philosophy of H.L.A. Hart:

European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia’s or the Levant’s.
That is a dire prognosis.

Much of Finnis’s essay is taken up with a critique of Hart’s Law, Liberty, and Morality (1963), which argued against the criminalization of private, consensual, sexual behavior—homosexual behavior in particular. Hart’s argument, simply put, is that restrictions on natural sexual impulses exact a high cost on individuals (affecting “the development or balance of the individual’s emotional life, happiness, and personality”); consensual private sexual conduct does not harm others; the state lacks a weighty justification to restrict it. Hart’s argument takes on added poignancy in light of the recent disclosure by his biographer that he acknowledged having homosexual attractions.

Finnis grants Hart’s argument that private homosexual conduct should not be criminalized, but he nonetheless insists that law can and should condemn homosexuality in various ways (although he does not specify, presumably this would include not allowing homosexual marriage or adoption). This is appropriate, he suggests, because homosexuality is immoral and potentially harmful to society:

To take up the issue on which Hart chose to focus—those who actually judge homosexual acts, like other non-marital sex acts, immoral, while they might grant that the private homosexual sex acts of two already morally corrupt adults in private do no harm, can argue with force that predisposing children to approve of adult homosexual acts, and to be disposed to engage in them when of age, is gravely and unjustly harmful to the child and to society, since it involves the child, and eventually perhaps the society, in a gross misunderstanding of the contribution sex acts have to make—and of the act-descriptive conditions without which such accts cannot make it—to marriage as the indubitably most favourable and fairest milieu for the procreation and upbringing of children and for the lifelong fulfillment of the married persons themselves.

It’s hard to read this argument (he elaborates further along the same lines) without seeing the strong echoes of two articles of faith in the anti-homosexual campaign in the United States. The first claim is that homosexuals pose an imminent danger to our youth: by sexual guile (or the offer of candy?), they corrupt heterosexual young people into becoming homosexuals. The second claim is that homosexuals pose a threat to marriage—either by breaking up existing marriages (seducing one of the partners), or because homosexuals would be happily married themselves if they did not indulge their homosexual desires.

These claims have always struck me as fatuous, resting, as they do, on the empirically dubious notion that one can be “converted” into or out of homosexuality. (Hart raised this same doubt in his original essay, 67-68). Human sexuality is complex and comes in many shades, but it seems clear that a core homosexual or heterosexual orientation is not fundamentally subject to "conversion."

Finnis does not put it so baldly, of course, as his essay carries on in a properly philosophical tone. But reading it prompted me to wonder about the extent to which moral arguments by philosophers amount to common prejudices (or their own unexamined assumptions) dressed up in fancy attire.

His comments about immigration could have been uttered by a European Lou Dobbs: the “community’s medium-term survival” is at risk because Europeans are not procreating enough, and owing to their “replacement, as a people, by other peoples, more or less regardless of the incomers’ compatibility of psychology, culture, religion or political ideas and ambitions, or the worth or viciousness of those ideas and ambitions.”

Said many times by doomsayers in the past, and frequently repeated by cultural-nationalist populists today, Finnis shrilly warns about the imminent demise of (European, Anglo-American) civilization posed by the aliens at the gates, the yellow peril, the Muslim hordes, the Mexican laborers…a collapse facilitated by the internal rot of moral decay and sexual debauchery.


Almost all arguments against homosexualty boil down to one, two, or all three of these contentions:

1. Homosexuality must be prohibited / discouraged / punished / disincentivized because God says it is wrong.
2. Homosexuality must be prohibited / discouraged / punished / disincentivized because sexuality is a choice and having more and more open gays and lesbians will "recruit" others into the "lifestyle".
3. Homosexuality must be prohibited / discouraged / punished / disincentivized because only straight couples can or should procreate.

That's it. There are basically no others. And every one of them is just a cover for bigotry and prejudice.

1 is unprovable. Nobody knows if God even exists, or if She cares about homosexuality. Religious sources are contradictory and certainly there is little evidence that this was an important concern in many religions. Further, the same religious texts tell people not to be so judgmental and not to discriminate or mistreat people, and people who are anti-gay rights selectively ignore these passages.

In any event, nobody who is NOT an adherent of a religion should be inconvenienced or punished for not following the tenets of the religion that he or she does not believe in.

2 is wrong for the reasons stated in the original post.

3 is wrong because it is circular-- gays can obviously adopt and raise children, as long as the state doesn't stop them from doing so, or they can conceive children that carries one partner's DNA (as many straight couples do) through artificial insemination. And it is also wrong because there isn't a shred of proof that people with same gender parents are worse off than people with opposite gender parents.

That's it.

Now, of course, the real reason why people oppose gay rights is because they hate TEH QUEERS. But I guess we can't say that and have to pretend that they are arguing in good faith.

. . . two already morally corrupt adults . . .

I love to hear you moralize

I realize this is patently unfair, as Eric is the better singer.

Could the legal rule against homosexuality rest upon the same ground as the dietary laws and the social rules (10 Commandments): that they are necessary to a continuing, vital community?

And if homosexual conduct were forbidden, like gambling, theft, etc., who's to say that such a regulation is irrational?

Either way, the argument seems to be speculative.

A nation's culture can survive mass immigration of alien cultures when the alien cultures are integrated into and adopt the mores and language of the dominant culture. See the United States to date.

However, the United States is arguably the exception to the general historical rule that migration usually brings concurrent cultural conquest. See the Roman Empire, the British Empire, the Chinese Empire, etc.

Europe's western civilization is indeed endangered by the enormous migration of Islamic immigrants.

1) Native Europeans are almost without exception dying off because they reproduce at a level far below the 2.1 children per couple required to maintain the population. In sharp contrast, Islamic immigrants have birth rates in multiples above replacement rates in addition to the ongoing migration of foreign Muslims.

2) The EU is doing an awful job of integrating the migrants into their societies and convincing the migrants to adopt Western mores. Instead, the EU is covered with rapidly expanding Islamic enclaves with their own cultures. Indeed, because much of the EU is unwilling to defend western culture in the name of diversity, the new immigrants are increasingly successful in compelling the EU governments to adopt Islamic culture and law.

Under these trends, Europe will be fundamentally changed in 2-3 generations.

NOTE TO MOURAD: Before you start on multiple several hundred word tirades about how I am some sort of anti-Muslim bigot, I never once argued that the cultural changes underway in the EU are good or bad. I am simply noting the undeniable demographic and cultural trends that are the subject of ongoing debate in the EU itself.

FWIW, Finnis grossly overestimates the ability of a free state to govern personal sexual behavior. For good or for ill, the sexual license unleashed by the advent of effective contraception and legalized abortion (which is distinct from contraception) overcame laws governing personal sexual behavior across the world in less than a generation, with the exception of totalitarian states like Iran, Saudi Arabia and Taliban dominated Afghanistan. This is especially true when applied to homosexuality, which is almost certainly genetic in origin.

Bart, first your point about totalitarian states and sexual regulation is right on the money.

Second, I don't totally disagree with your point that Europe isn't doing enough to assimilate immigrants. I suspect they could do more.

But, you do have too rosy a view of what went on in this country. Assimilation wasn't this magical process where people came here and became Americans. For years, there were German and Italian speaking ghettos in major American cities. There were the same charges lobbed at white ethnic immigrants not assimilating that are now lobbed at Hispanics. A pretty major Supreme Court case, Meyer v. Nebraska, arose from efforts to counter what was seen as the lack of assimilation of German-speaking immigrants.

In other words, a certain amount of resistance to assimilation, especially among first generation immigrants, is NORMAL and is in no way a predictor that immigration will destroy the social fabric. Learning new languages and customs, fitting in in a world where you stand out, etc., is DIFFICULT. (Indeed, I suspect it was difficult for previous generations of DePalmas!) It doesn't come instantly. This country has demonstrated a remarkable ability to absorb immigrants and assimilate them OVER TIME. But the first generation often doesn't assimilate that much.


I do not have any illusions as to what was required to assimilate waves of immigrants into American culture. It was a coercive process where a powerful social stigma was enforced against those who declined to assimilate. If they wanted to access the economic opportunity and education America offered, immigrants had to adopt the dominant culture and language.

You bet my Irish, German and Italian immigrant ancestors went through this social grinder to assimilate into being Americans. I am uncertain about my 19th century Irish and German ancestors, but the first generation of my Italian ancestors who immigrated in during the 1890s assimilated immediately. One of the DePalma brothers who came over was Ralph DePalma, a famous race car driver of the era. Ralph's cousin and mechanic wrote a pretty good book about their exploits entitled "The Wallbangers."

However, with the recent multi-lingual extensions of education and welfare state benefits to immigrants without strings, we are getting away from what made this nation of immigrants work.

"Human sexuality is complex and comes in many shades, but it seems clear that a core homosexual or heterosexual orientation is not fundamentally subject to 'conversion.'"

If only some people have a “core” sexual orientation that is not subject to external influence or “conversion,” the implication is that other people (like Hart, perhaps) are not so fixed in their orientation. Maybe Finnis has given some thought to his assumptions, after all.


I suspect that if your ancestors were like many other immigrants, it took a couple of generations to assimilate and that some/many first generation immigrants continued to speak native languages and may have lived in segregated communities. This was the norm for many immigrant groups (as it still is for many immigrants today).

As for welfare benefits, remember, the 1996 Clinton/Gingrich welfare reform bill restricted benefits to even legal immigrants. Illegal immigrants are basically limited to emergency care and public schooling for their kids, as well as citizenship for offspring born in this country-- and these things were available to immigrant communities (such as they were) even in the 19th Century.

At best you have an argument that the more generous social welfare benefits of the post-New Deal era that are allowed for American citizens function as a magnet for immigrants, but if that is the case, that process may actually encourage assimilation by requiring immigrants to attain citizenship to get the benefits.

But I really don't see the particular social welfare state benefits that are available to immigrants now, were not available in the 19th Century, and are going to cause huge assimilation problems. Instead, I see the same arguments being made about Mexicans that were once made about folks from your ancestral lands.

Whether in holy orders or a laymen, moral philosophers who happen to be Roman Catholics are expected to toe the line of the hierarchy of their Church on matters of faith and doctrine and at present that Church is going through a phase of reaction to the comparative freedom of thought which briefly flowered under Pope John XXIII and the Vatican II Council.

Finnis is a follower of the tradition of Thomas Aquinas. It so happens that one of the great controversies of Aquinas's time was the influence of the Andalusian scholar Abū 'l-Walīd Muammad ibn Amad ibn Rushd ("Averroes") who may properly be considered the founding father of secular thought in Europe. As a member of the Dominican Order Aquinas was ordered to assume the Regency of the University of Paris where he wrote two works condemning Averroism and secular Aristotelianism as incompatible with Christian doctrine and that is the view which eventually prevailed in Catholic philosophy.

Later, of course, the Dominicans played a principal role in the Inquisitions, and in particular the Reconquista of Andalusia, the expulsion of the Jews and the repression of the Conversos and Moriscos, not to mention the repression of sodomy - see the Inquisitions of Seville, Zaragoza and Valencia where many were tortured and executed - and, of course, it was argued that this "crime against nature" had been only introduced into Spain by the Moors.

So it is hardly surprising to find Finnis railing against secularism, homosexuals and immigrants, especially Muslims: he is only continuing a Thomistic and Dominican tradition of very long standing.


I do not want to go to far afield here, but legal and illegal non-citizens can obtain every benefit of our welfare state so long the state does not verify citizenship. That is the basis for the kerfuffle between Messrs. Wilson and Obama over the latter's veracity.


There is no question that European societies will change as a result of immigration. What I question is whether these changes will have the dire implications suggested by Finnis--communities at war with one another?

I also question his implicit assumption that the cultural changes will be bad. Cultures are changing all the time, absorbing new strains, while continuing old ones. You point out that immigrants assimilated into America, which is correct, but American culture also changed with each wave of immigration.

Finnis appears to believe that there is a kind of purist essence to European cultures which is threatened with destruction. I doubt that, and I note that his position exhibits classic xenophobic overtones.


that predisposing children to approve of adult homosexual acts, and to be disposed to engage in them when of age

I love the elision between 'predisposing children to approve'* of homosexuality [acts] and disposing them to engage in homosexual behavior. As I recall, Lord Devlin employed much the same rhetorical move in suggesting that to fail to condemn some conduct is to promote it - even among persons otherwise not so inclined.

* What it means to predispose someone to approve of something is a separate question, but I think we can assume that not condemning that something and predisposing people to approve of it will turn out to be roughly equivalent.


I want to say how much I enjoy your informative and elegant comments. They are certainly neither the longest nor the most numerous we encounter, here.

I've kind of given up on philosophy in the past few years. Law school really killed a lot of it for me, but so did reading more William James. So, I'm not going to be able to express this as well as I probably should. In other words, bear with me.

Jurisprudence as a whole suffers from a sheer, mind-blowing pointlessness. If there is anything that demands a minimum of theory, it is law. Here is that minimum theory as I see it:

Law is successful to the extent that it addresses actual problems that people face in their day to day lives. The common law, particularly, has succeeded over several centuries because it has adapted to different challenges and it has been able to adapt because it is in regular contact with the details of individual's lives. So long as it is, the law survives.

Jeremiads in general fail because they idealize the past and assume the present and future are worse. There is nothing new in this particular case. As lawyers, we should be particularly aware that the law has for its entire life been in contact with the not just the best parts of humanity but also the worst. We should know that the world isn't getting worse, because we already have laws against murder, against rape, against harming children, against torture, etc.

We don't have those laws because we sat down and decided what was best. We have those laws because we know from the past that people will do those things, i.e. that they will cause actual harm to other human beings, and we want to prevent it.

The existence of law itself is an argument against jeremiads, not in favor of them

My 2 cents.

There is absolutely no doubt that recent immigration to Europe has caused temporary tensions. That is not new.

So far as this land is concerned, the Anglo-Saxons and the Celts did not think too well of the Danes or the Normans. There were similar complaints about Hugenot refugees from France, Jewish refugees from the pogroms of the Russian Empire, Italians coming here after World War II, Commonwealth immigrants in the 1960's, from the Indian sub-continent and East African Asians in the 1970's and 1980's.

Today's tensions are not confined to Muslims, we have recently seen refinery workers go on wildcat strikes because the oil companies are recruiting teams of maintenance workers in other EU countries and there have been complaints about the numbers of Poles, Roma and others from within the EU migrating here for economic reasons.

First generation immigrants do have larger families. That was true of the post-war Italians - but they took to contraception as quickly as the natives then took to spaghetti and pizza and have since taken to kebab houses, curry houses, chinese takeways and sushi bars and, God help us, Macdonalds.

Within a generation the immigrant family size generally matches the norm of the whole population. By the 2nd generation, these new families are British, natives if you will. My own family is of immigrant origin. But we have been here since around the time of Cromwell and I think we are quite well assimilated by now.

Immigration has always enriched our society and after the initial culture shock we adapt. In post war Britain, olive oil was not sold outside London and big conurbations except in pharmacies, now there will be 15 or 20 varieties from Spain, Italy France Greece and Turkey in every large supermarket in the Kingdom. My Local Wal-Mart (trading as "Asda") has a Halal butcher in-store because Muslims are well represented locally. Nationally Chicken Tikka Masala is consumed more frequently than fish and chips.

I do not attribute Bart's post to bigotry. But it is a great pity that so much of the wide open empty space, of which Colorado is so rightly proud, seems to be located between Bart's ears. Because nature abhors a vacuum, I fear that the empty space gets filled with tripe while Bart browses the internet sites of the great right-wing conspiracy, and he then regurgitates the offal here.

I don't know if I agree with Finnis or not . . . more likely not. But it ought to be possible to debate the issue without hurling terms like "bigotry," which has no real meaning in this context, into the mix. There is a good case to be made for a moral, political, and demographic decline in contemporary Europe, and it seems fair to ask what its causes are. Is there no room between irrational prejudice against homosexuality, feminism, etc. on the one hand, and uncritical celebration on the other?

I do not want to go to far afield here, but legal and illegal non-citizens can obtain every benefit of our welfare state so long the state does not verify citizenship. That is the basis for the kerfuffle between Messrs. Wilson and Obama over the latter's veracity.

Bart, it's one thing to make that argument as a fraud or government waste argument-- it's entirely possible that some noncitizens are getting benefits they aren't entitled to.

But to make an argument that this is affecting assimilation, you would need to claim that this sort of fraud is so common that a majority or significant minority of immigrants are coming here to commit benefits fraud (rather than to work, which all evidence suggests the vast majority come here to do), AND further that committing benefits fraud somehow stops assimilation.

That seems EXTREMELY remote.

The reality is that there's very little evidence that modern immigrants are any different than those who came before, and no reason to think that they are going to tear the nation apart.

Is there no room between irrational prejudice against homosexuality, feminism, etc. on the one hand, and uncritical celebration on the other?

There's plenty of room for people to dislike gays and lesbians, refuse to associate with them, or morally condemn them. That's all really stupid, on the same level as condemning people for being left-handed, but people have the right to do it and the government shouldn't stop them.

But there is no room for asking the government to punish or disadvantage people for being gay. That's pure bigotry.


My original point above was limited to the observation that providing education and other benefits to immigrants in their native languages does not encourage assimilation.

Brian Tamanaha said...

There is no question that European societies will change as a result of immigration. What I question is whether these changes will have the dire implications suggested by Finnis--communities at war with one another?

Wars require two belligerents. What the current cultural conflict in the EU more resembles is a surrender by the Europeans. It is incomprehensible to this American how the Europeans can allow muslim immigrants to set up a parallel system of Sharia law. Or how the French could allow muslim youths to rampage around the country burning thousands of cars for weeks on end. Failing to integrate the muslim immigrants and simultaneously denying them full access to economic opportunity is a certain recipe for future conflict.

I also question his implicit assumption that the cultural changes will be bad. Cultures are changing all the time, absorbing new strains, while continuing old ones.

While I find many things about Islam and the Quran to admire, theocratic Sharia law is not one of them. Sharia law is a direct attack on western democracy, tolerance and individual liberties and has no place in Europe or America.

I utterly reject the diversity theory that all systems of human government are equally meritorious. While hardly perfect, western civilization at its best is the best guarantor of freedom and liberty the world has yet devised and well worth defending and preserving.

You point out that immigrants assimilated into America, which is correct, but American culture also changed with each wave of immigration.

Not in any of the important aspects. America is still based upon freedom and liberty. Immigrants come here for the freedom to pursue their aspirations rather than to impose their cultures upon us. When a wave of immigrants breaks that understanding and attempts to restrict our freedoms, that attempt must be defeated.

Going back to Finnis on Hart, and the homosexuality issue, it is perhaps important to remember that Hart's "Law, Liberty and Morality" was written in 1963 just as Britain started ever so slowly to emerge from a culture of prudery and hypocritical public virtue matched only by rampant private immorality.

The Wolfenden Report recommending the decriminalisation of sex between consenting male adults in private had been published in 1957. But the Conservatives refused to implement the recommendations. Viscount Kilmuir, the then Lord Chancellor, observed in a parliamentary debate on the report "I am not going down in history as the man who made sodomy legal."

Yet during all this time homosexuality was widely practised notably in our public (private) schools. Although not a Christian, I went to a Roman Catholic boarding school and it was pretty common there, not only between the boys but between boys and priests. Homosexual sex between men was still illegal at the time of Hart's treatise and it was only partially decriminalised by the Sexual Offences Act 1967.

The Act did not extend to the armed forces (on or off duty). Yet at the time, there were a number of public houses in Central London where "trade" in the form of off-duty soldiers or matelots up from Portsmouth on a "blank weekend" (the Navy was paid fortnightly) was readily available, and the from the guardroom of the barracks one could watch the expensive motor cars bringing the tired but rather richer participants back to their duty. I remember an "oppo" saying to me that he was going off to South Africa. "Why?", I asked. "First it was illegal", he said, "Now, its permissible, I'm getting out before it becomes effing compulsory and the takings go down!"

However, homophobia, was still so rampant, and the privacy requirements so restrictive, that some felt the passage of the Act actually resulted in an increase in the number of prosecutions.

For example, the offence of "importuning for an immoral purpose" was still on the statute book so an invitation to have sex was criminal and police entrapment a commonplace. As late as 1978, the Lord Chancellor had to reprimand Mr Justice Melford Stevenson for describing the Act as "a bugger's charter"

I do not think now that the practice has increased or decreased because of decriminalisation, just that there is less prudery now that it is socially acceptable to be gay - even in HM forces.

Whenever I read someone like Finnis on the subject, I try to persuade myself that religious indoctrination is the motivation behind the distaste, but there always lurks in the back of my mind the knowledge that some of the most virulent homophobes are actually persons who have repressed their homosexual feelings.

Now Bart writes:-

"It is incomprehensible to this American how the Europeans can allow muslim immigrants to set up a parallel system of Sharia law."

On the basis that incomprehension may be the precursor to enlightenment, perhaps this will help.

In the UK, our arbitration acts permit parties to any dispute to refer their disputes to any tribunal they wish applying any system of law they wish and, provided the laws and any award do not contradict our public policy, the court will enforce the award of the arbitrators.

That enables Jews who wish to do so to submit disputes to their Rabbinical Courts, Muslims likewise to their courts.

One frequently finds this happening in relation to family law issues. Less well known is that there are Jewish sects which require their adherents also to submit purely commercial disputes to the Rabbinical Courts and some Muslims might feel happier having a commercial dispute resolved in accordance with sharia principles.

I believe that to be true in the USA as well.

Indeed, because our Courts respect freedom of contract, if parties contract under a foreign law system, the courts will respect that choice of law in litigation as well as arbitration. As a former imperial power we are used to that. The Privy Council used to decide appeals from Mauritius applying pre-Napoleonic French law, from Palestine applying Ottoman land law, from Jersey applying the law of the Duchy of Normandy at the time of William Rufus, or even Canon Law in relation to papal titles of nobility on an appeal from Malta.

I well recall a dispute between a Brazilian exporter of frozen chickens and an Muslim importer located in a Middle Eastern country. I acted for the Brazilians. The dispute was about several refrigerated cargoes worth in total about £8 millions. The sales were on cash against documents terms but the importer did not take up the documents and managed to get hold of the cargoes without producing the bills of lading. Since the cargoes had long been delivered and, presumably, consumed, I applied for summary judgment. The Defendant contested and in the Affidavit served on a Thursday afternoon for a Friday hearing, raised as an arguable issue whether, despite the Halal Certificate required as one of the shipping documents and duly issued, the meat had been properly slaughtered in accordance with Islamic law. The Defendants were quite surprised when at the hearing I produced an Affidavit in response from a Professor of Islamic Law stating that the issuer of the certificate takes upon himself the responsibility before the Almighty for the validity of the certificate and therefore if there is a properly issued certificate the meat will be halal in the hands of the consumer and the civil law judge need not enquire into how the meat was slaughtered. I got the summary judgment, and the Muslim Defendant's (Jewish) solicitor inquired how the hell I had found an expert on the point of Islamic law between Thursday afternoon and Friday morning. I suggested he look at my own Affidavit and read my full names whereupon the penny (or rather the £8 million) dropped.

Every system has its advantages and disadvantages and I'd be pretty slow to say that one is superior to another in all respects.

For example, I'm a lot happier with our system now that we have abolished the death penalty. But I don't find the fact that the USA has not yet done so incomprehensible, I actually think it's a consequence of a degree of immaturity in your nation. It took us long enough to do the right thing, and I'm sure the USA will one day leave the company of China and Saudi Arabia and adhere to the standards of the generality of western democracies in the 21st century.

My original point above was limited to the observation that providing education and other benefits to immigrants in their native languages does not encourage assimilation.

That may be true (there's certainly a spirited academic debate about it), but local communities handle the issue of bilingual education differently.

Bear in mind that 125 years ago, it was common for the children of immigrants to only get a few years worth of public schooling. As a result, I suspect that their English proficiency was much poorer than the children of current immigrants.

None of this is to say that we shouldn't be careful about bilingual education-- I agree with you that there is at least a danger of it intefering with assimilation. But don't assume that immigrants aren't assimilating now and they all did before-- there has ALWAYS been people arguing that immigrants aren't assimilating fast enough.

On assimilation:

Bart's point about the "ghetto dwellers" of the Parisian "quartiers chauds", is, perhaps unwittingly, well taken. It is a good example of the folly of expecting instant assimilation. France has a tradition of secularism, quite alien to both Christian and Muslim traditions, although logically justifiable in both faiths, In many ways on this it is much closer to the the US approach today which seems to me to have elevated the "no religious test" requirement of the Founding Fathers into a secularist principle which is actually contrary to what I consider to have the been the Founders' original intent insofar as they may be said to have had any common intent.

France bans any religious symbol from public schools just as there is a proposal from its current right wing clown, Sarkozy, to ban the wearing of the haik in public. But there is a background of hypocrisy to this. During French rule in Algeria, the French authorities espoused the principle that Algeria was part of metropolitan France, not a colony. So the "Francais de Souche Musulmane" were forced into the straightjacket of the French National Curriculum and their first text book in history began with the unforgettable words "Nos ancetres les Gaulois..." - a palpable nonsense.

If France had applied the principles of Liberty, Equality and Fraternity to Algeria, Algeria might well have become an autonomous region of France today and a part of the EU. Funnily enough, having decided that Algeria had to become independent, De Gaulle even tried at the last minute to carve Algeria in two by creating a new separate state for the Algerian Sahara so as to hang on to the then newly discovered oil and gas deposits, but the idea came too late and the first pipeline to bring the oil and gas to the coast was built, not by French contractors but by a British contractor financed by a British merchant bank.

In England we probably go as far as any European nation to respect different ethnic and religious customs. So the Metropolitan Police have appropriate Muslim dress for female police offices, Sikhs wear their turbans, etc. My local primary school celebrates and explains the features of all the major religious festivals and shopping centres put up signs for Diwali, or Eid-es-Seghir in the same way as they do for Christmas, Easter and the Jewish festivals. The Prince of Wales has mused that upon his accession it might be a good idea to drop the title "Defender of the Faith" granted by a Pope to Henry VIII before his break with Rome and replace it with "Defender of Faiths" - I think that's a charming idea.

Diversity is to be celebrated and enjoyed - not repressed in the name of a forced secularist assimilation principle.

Our intrepid backpacker says:

" America is still based upon freedom and liberty. Immigrants come here for the freedom to pursue their aspirations rather than to impose their cultures upon us. When a wave of immigrants breaks that understanding and attempts to restrict our freedoms, that attempt must be defeated."

Just how do immigrants "impose" their cultures upon us"? What is their power to impose?

And exactly how does the Constitution address "that understanding" that immigrants may be breaking? Is it that, applying originalism, assimilation - however our intrepid backpacker may describe it - becomes an obligation, as opposed to choice, or can such assimilation be forced?

Perhaps our intrepid backpacker is concerned that when the majority in America shifts shifts from "white" in a few decades, that majority may look at assimilation in another way, thus impacting the current majority as a future minority.

Back to imposing of cultures, Calvin Trillin in his "Feeding a Yen" (2004) credited changes in US immigration laws (1970s) with the improvement of cuisine (and thus culture) in New York City. I guess the restaurateurs among these immigrants "imposed" upon regular Americans to come to their restaurants - and keep coming back. So perhaps immigrants have the "freedom and liberty" that is the basis of America to address how they will assimilate - or not - in America.

By the Bybee (no, I have not forgotten), how do whites assimilate to avoid segregated communities? The Constitution does not say to immigrants "The white (or "right") way or the highway."

Are we really sure that, absent cultural norms, there is really such a thing as "core" heterosexual or homosexual orientation? Or, assuming that there is, do we really have a firm handle on how many people are "absolutely" one or the other?

Two examples: Ancient Athens, or any prison: cultural circumstances where same-sex sexual activity seem to have been, or to be, far in excess of what the modern U.S. "normal" hererosexual/homosexual ratios would appear to predict. Don't anti-gay activists have a point when they say that a permissive culture would remove psychological restraints that now inhibit sexual experimentation among people whose sexual orientations are not firmly anchored at one pole or the other? I don't say that's a bad thing. But I do wonder if it's not so vehemently denied for political reasons?


The US judicial system generally only permits citizens to resolve disputes outside of court that are within their power to resolve in the first instance.

For example, the parties to a contract have the power under law to agree to modify or withdraw from that contract. Thus, they can reach such a settlement on a contract dispute outside the judicial system on their own, with a mediator or in a Sharia court.

However, where the decision is to be made by a jury or a court, the matter must be brought before our courts and may not be resolved by a parallel set of secular or religious courts. To do so would undermine the rule of law.

Our intrepid backpacker instructs Mourad:

"The US judicial system generally only permits citizens to resolve disputes outside of court that are within their power to resolve in the first instance."

Only citizens? Is this our intrepid backpacker's variation on Dred Scott or just plain xenophobia?

Don't anti-gay activists have a point when they say that a permissive culture would remove psychological restraints that now inhibit sexual experimentation among people whose sexual orientations are not firmly anchored at one pole or the other? I don't say that's a bad thing

Well, there's two different things here:

1. If the argument is that open acceptance of homosexuality and other forms of sexual orientation will remove stigmas and result in greater experimentation and people getting in touch with their own sexuality and desires rather than repressing them, sure, that could happen.
2. If the argument is that gays and lesbians will pray on straights and try to recruit or convert them to their "lifestyle", no, that's not going to happen.

And the homophobes are usually arguing some form of "2".

I will say this. I do think that the gay rights movement, for tactical reasons, sometimes oversells a binary model of sexuality, because they want to convince people that homosexuality is basically innate (which is correct as a matter of orientation). That is indeed necessary to win the civil rights arguments they are making.

But in the end, the case for gay rights would be equally as strong even if sexual orientation were chosen, and quite honestly, there is certainly a continuum of sexual desires and there are plenty of people who are either bisexuals or who may identify as one orientation but have desires or experiences with partners of both genders. And sometimes, the very strong version of the "it's innate" argument slights these people and pretends they do not exist.

Oh, it would be equally wrong of me to discriminate against left-handed folks if their handedness was their choice.

But public opinion runs differently here. We tend to view discrimination against people for something that's out of their control as wrong, and for something they choose as not so wrong.

Finnis harmonizes nicely with this view, but that's of no consequence: no one cares what he thinks.

It does matter at the end of the day that the case for gay rights is better supported by the public when the public understands sexual orientation as inherited and relatively inflexible.

It can even be expressed in ways that show difference as core humanity. We are what we are. "When did you first realize you were straight?" "Did you choose to be left handed?" And so on.

I don't deny the tactical sense it makes to emphasize the innate nature of homosexuality.

But in addition to your reasons, it is also the case that there is still a lot of sexual puritanism out there, a desire to label people as "perverts" and "deviants" and to use the government's power to punish the sexual choices of consenting adults.

And the problem is, that really is wrong and there needs to be someone making that argument. Witness the recent cases declining to extend Lawrence v. Texas to the sale of sex toys. Sex toys improve a lot of people's marriages and sex lives. But it's a more difficult claim to make because there's nothing "innate" about purchasing one.

But the real, underlying reason why this isn't the state's business isn't simply that homosexuality is an innate condition, but that a person's decision to have sex with someone of the same gender, or with a plastic device, is simply none of society's business.


I am curious how far your sexual libertarianism extends. Is it any of society's business to regulate consensual sex involving children, bestiality or incest? If so, why?

Let me see, is banning alcohol sales to minors a slippery slope to banning the substance, or is allowing alcohol sales to adults a slippery slope to child drinking? I can never quite remember that one.

Maybe we can get the two straw men to fight. Make a little side wager.


Age of consent laws are perfectly legitimate. And animals obviously can't consent.

Consensual adult incest I don't really care about one way or the other. I know it's supposed to be the big test case, but really, who the heck cares if two adult relatives are sleeping with each other. I am sure it happens whether or not there are incest laws, and I am also sure that incest prosecutions where there isn't any abuse are rare to nonexistent. If we repealed adult incest laws, nothing at all would change.

I suppose, however, you could argue that these laws are permissible to prevent congenital birth defects.

In any event, if there's some outbreak of consensual adult incest that I don't know about, let me know and maybe I'll consider that to be an important issue for the legislature's time.

Now I'll ask you, Bart. As a matter of policy, or if we assume Lawrence v. Texas is correctly decided, you can do it that way too-- what do you think of these laws that prohibit the sale of sex toys?

sexual libertarianism
Is believing that (a) the state has no business telling 2 adults what kinds of harmless, consensual sexual acts they may undertake really aptly described as sexual libertarianism?
Of course, true libertarians should agree that the state has no business in such matters, but one might take position (a) without being a libertarian with regard to sexuality or more generally.
Suppose we deleted the 'harmless' descriptor. Many nonlibertarians might favor regulation or prohibition of self-harming sex between consenting adults. Sexual paternalism, we could call it – hardly a libertarian stance.
Thus, if one were convinced on reasonable grounds that sex between members of the same sex is self-harming, one might support regulation or prohibition of such acts.
But, the point is that most of us do not think homosexuality among consenting adults is harmful to anyone. No harm to others; no harm to self. So, to liken such sexual conduct to bestiality, incest, pederasty, etc., is not simply to indulge in strawman arguments or to fall prey to slippery slopes. It is to miss the point of the view taken by others that this not only consensual, adult sex, but also nonharmful, consensual, adult sex.

A couple of commenters have referenced 'core' sexuality, noting that many people may be deeply bisexual and many others only generally inclined in one direction or the other. It is worth noting, as well, that there are human beings who are not meaningfully single-sexed. No one of the anti-homosexual movement, so aptly characterized by Dilan, ever seems to acknowledge that fact, a fact which renders the more simplistic arguments against homosexuality even sillier. What can it mean to be either homosexual or heterosexual when one is neither simply male nor female?


We have almost identical views on the subject of state regulation of consensual sexual behavior. I was just curious where you drew your lines and why.

However, just because I believe that such regulation is bad policy does not mean that I agree to any extent with the awful Lawrence v. Texas decision. There is no express right enumerated in the Constitution or a natural right protected under the 9th Amendment to sodomy, nor is there any limit on the ability of the legislatures to criminalize such acts. Even though I agree with the policy result, Lawrence is bald faced outlaw judicial legislation.

I agree with you that Lawrence was not a very good decision doctrinally, both for the reason you mention (although I do think that there's a decent case for 9th Amendment rights when it comes to these sorts of sexual privacy issues, and you can also argue, as Justice O'Connor did, that sodomy laws which single out gays while permitting straights to do the same acts violate the rational basis test under equal protection law) and because it is so vague that nobody knows how far it extends (as is demonstrated by the sex toys cases).

But Lawrence is a great example of the sort of judicial pragmatism that conservatives often hate but which is an inevitable part of constitutional law.

What I mean by this is that there were very few prosecutions against gays for sodomy. Many states had taken these laws off the books. A few, however, haven't, and were thus THEORETICALLY threatening all the gays in their state with prison time while not actually prosecuting them.

Whatever you want to say about this, this is very bad for democracy. The purpose of the criminal code is not to make a moral statement about things that the majority doesn't like and then never prosecute.

And the thing is, liberals in these states proposed repeal, and conservatives and the religious right resisted. Even for 20 years after Bowers was decided with a bare 5-4 majority.

Under those circumstances, is it really that surprising that the Court stepped in and overturned the laws? Conservatives bear a real responsibility for this-- if they had joined with liberals to call for the repeal of these laws and actively fought to get them off the books, there would never have been a Lawrence v. Texas. And there shouldn't have been, at least in theory, because conservatives mostly claim to oppose these laws.

The real lesson of Lawrence is, if you don't want more judicial activism, you need to get stupid laws off the books, because when a court perceives a law to be stupid, the Constitution will get stretched to overturn it.


SCOTUS justices swear to neutrally apply the law, even if they personally find it "stupid." The proper response to a stupid law is to add dicta encouraging the legislature to modify or eliminate the law.

O'Connor's EPC argument about limiting the sanction for sodomy to gays has some merit, which brings up an anecdote.

I needed an additional credit to finish up law school and took a throwaway Supreme Court role play course where students played a justice assigned by the Con Law professor and had to write an opinion from that justice's POV on cases that were before the Court that session. The Con Law prof was my moot court advisor and knew well that my POV was a hybrid of Scalia and Thomas, so he had me play Souter. The professor then assigned me Romer v. Evans, where the Court was reviewing whether the people of Colorado could enact an amendment barring civil rights laws based in sexual orientation.

I knew that Souter would rule against CO regardless of the merits of the case, but I had to come up with a plausible legal argument that I could stomach writing as something less than pure camp. So, I took the O'Connor route that Prop 2 violated the EPC even under a rational relationship clause. That way I avoided the cop out of making sexual orientation a suspect class or engaging in a Kennedy-esque philosophy discussion as a cover for legislating from the bench.

I aced the course. Too bad O'Connor did not also prevail with that approach in Lawrence.

" ... my POV was a hybrid of Scalia and Thomas ...."

Is there a sexual connotation that I'm missing?


Believe me, we are very close on Lawrence. But I do want to emphasize to you-- it's fine to talk about judicial oaths and such, but where the rubber meets the road, the "stupidity" of the law in question, AND the inability of the political branches to knock it off the books (this was the other half of my point, which you skipped past), will often sway a court to stretch the law in order to find a way to strike it down.

Conservatives knew that these statutes were around, and they knew that certain parts of their base thought that they embodied biblical law, etc. So they figured "nobody's getting prosecuted for sodomy anyway" and left it to liberals (who don't have much power in the South) to argue for repeal.

And having made that choice, you guys shouldn't be THAT surprised that a mushy, somewhat incoherent Supreme Court opinion struck the statutes down. It was the only way those statutes were going to be rendered unenforceable, because conservatives who opposed the laws weren't interested in rocking the ideological boat.

Reading Dilan's comments (equality, Ninth Amendment, especially), I don't understand how he is "very close" to Bart's position.

The ruling had a strong equal protection vibe even if it was ultimately based on substantive due process. It quite reasonably applied precedent (which Dilan might disagree with independently) on an equal basis. Bowers itself singled out homosexuals, ignoring the law (as Stevens noted) barred heterosexual sodomy too.

The state there said upfront that they took for granted that married couples had a right to sodomy. Post-Griswold cases suggest unmarried heterosexuals would have a similar claim if the state selectively banned certain type of sex practices too.

Substantive due process has a long history; it in effect does the function of the 9th Amendment, and the Casey ruling in fact cited it toward this end.

As to line drawing, past cases differentiated private conduct (e.g., you can possess but not but obscene materials), and the lines drawn by this decision in the summary of what "it was not" is sound.

The opinion did have a pragmatic value and was somewhat messy, but this can be said about many decisions. The law in question was not just "stupid" or whatever. It was discriminatory and violated protected conduct.

The broad liberty over private sexual behavior protected would logically cover sex toys for various reasons, including that the bans tend to selectively harm certain groups for no legitimate reason.

But, I don't really see how the opinion here is "incoherent" or anything. The fact it is somewhat "mushy" (as a whole, I don't think it is, though it might be along the edges) doesn't change much. And, there is a reason why the SC targeted this specific stupid law.

I'd add that the SC protected the right to buy birth control too (you need to buy some things to enjoy various liberties, even those done in private) and most sex toys don't seem to meet the definition of "obscene" so the 11th Cir. ruling that upheld such a ban (many state courts have not) was wrongminded. The dissent had the better argument.

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