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For the past several years, I have asked the following question on my Law and Policy midterm examination:

Town officials in Whitebread, Indiana, became concerned by the number of “undesirables” who were “hanging out” in Whitebread. They passed an ordinance against loitering, defined as “Three or more persons congregating in a manner annoying to passersby.” Is this ordinance enforceable? Why or why not?

The correct answer is that the ordinance is unenforceable, because its language is unconstitutionally vague. What is “annoying” is very subjective–what annoys me may not bother you at all. The rule of law requires far more specificity–any statute, to be enforceable, must be sufficiently clear and specific to allow citizens to know what sorts of behaviors cross the line.

Most of my students answer this correctly.  I discovered that Indiana’s lawmakers know less than my students when I read this about a challenge to our public intoxication law in the Indianapolis Star.

 It takes more than just being drunk to get convicted of public intoxication in Indiana. The law says you also have to be annoying.

As the lawyer challenging the standard correctly pointed out, this language doesn’t tell the public what conduct may annoy another person.

“There needs to be some standard,” she told the justices, “so a person can read the law and know what (conduct) is prohibited.”

A three-judge panel from the court of appeals agreed when it found the “annoying” standard unconstitutionally vague.

The requirement that laws be sufficiently specific to allow citizens to understand what they can and cannot do is fundamental to the rule of law. Any of my former students could have told the General Assembly that “annoying” wasn’t a constitutionally-compliant standard.

I find it very annoying that Hoosier lawmakers evidently don’t know the most basic requirements of the constitution and rule of law.


What Do We Teach the Children?

Pew Research Center on Religion and Public Life is probably the gold standard when it comes to survey research, and I watch my inbox for their periodic in-depth research updates as well as their daily email list of news from the intersection of religion and society. Yesterday, they released findings on a recent survey of child-rearing practices and attitudes, broken down by religious affiliation.

This particular finding struck an uncomfortable chord:

Those with religious affiliations — and particularly white evangelical Protestants — are more likely than the religiously unaffiliated to prioritize obedience and being well-mannered, and somewhat less likely to say creativity, curiosity or tolerance is important.

The reason this brought me up short was that it reminded me of a study I read several years ago by a couple of psychologists who compared the Germans who hid Jews and otherwise resisted the Nazi regime with those who were swept up in the mythology of   Ayran superiority and either assisted or stood by as their Jewish neighbors were rounded up. The researchers attributed a substantial amount of the differences in behavior to the ways in which the children were raised.

According to the book (which I purchased at the Holocaust Museum and can no longer find in my messy library), children raised in the traditional German fashion, which emphasized the importance of obedience and respect for authority over most other traits and frequently employed corporal punishment, grew (not surprisingly) into adults who were willing to obey authority–and not very willing to question it.

Children whose parents explained their reasons for disapproving of the behavior in question–parents who rarely spanked and who engaged the children in conversation about the reasons for rules and why those rules were important–were far more likely to grow into adults who questioned authority and made their own moral judgments.

We have five children and four grandchildren, and I’d be the last person on earth to suggest that kids shouldn’t be taught to obey the rules. But–as with so many other aspects of life–the question isn’t whether–it’s how. It’s certainly easier to enforce obedience with a smack across the buttocks than to take the time to explain why nice people don’t act that way. It’s lots easier to say “because I say so” (and boy, I’ve done that!), than to explain why I say so.

The problem is, when we make reflexive obedience the measure of our parenting, when we prioritize respect for authority over compassion and critical thinking, we risk raising some pretty flawed people.

Unlike that football player who’s currently all over the news, I’m not a big fan of “spare the rod, spoil the child” theology.

Evangelicals and Same-Sex Marriage: An Evolution

File this under Things I Never, Ever Thought I’d See.

According to Religion News Service, there’s a new organization called—I am not making this up–Evangelicals for Marriage Equality. It was launched on Tuesday, September 9th, and immediately began collecting signatures from evangelicals who support same-sex marriage. Its advisory board lists several evangelical luminaries.

It is immensely heartening to see prominent evangelicals recognize that, if opposite-sex marriage is good for society, same-sex unions should be equally good for the social fabric. This new organization is yet another expression of a growing recognition that fidelity and stability in relationships require social acceptance—that when you demonize people, when you deny them respect and equal civil rights, you are encouraging the destructive behaviors you claim to deplore.

So—you may be late to the party, Evangelicals for Marriage Equality, but we certainly welcome you.

That said, there may also be an element of self-preservation in this sudden turn-around.

Over the past few years, membership in conservative churches has been declining. Young Christians, especially, have increasingly rejected a theology that seemed to place homophobia at the very center of its belief structure.

Polling has confirmed that the demographic split that characterizes the broader American society is equally pronounced among conservative and evangelical Christians. Young evangelicals may not be leading the charge to embrace equal rights for their LGBT peers, but they are demonstrably less homophobic than their elders and changing (for the better) with dizzying speed.

In 2012, Pew found that 29 percent of young white evangelicals (age 18-29) expressed support for allowing gays and lesbians to marry legally, higher than older evangelicals at 17 percent. That’s far below the level of support for same-sex marriage expressed by young adults as a whole (65 percent).

 A 2014 Public Religion Research Institute survey suggested that white evangelical Protestant millennials are more than twice as likely to favor same-sex marriage as the oldest generation of white evangelical Protestants (43 percent compared to 19 percent).

Other polling has confirmed that continued culture-war messages–and especially anti-gay rhetoric—coming from the pulpits of these churches is a significant element in the disaffection of young evangelicals. A change of message and a softening of that rhetoric can only help rebuild dwindling congregations.

At the end of the day, whether the change of at least some evangelical hearts is prompted by a sincere rethinking of old shibboleths or by a savvy eye on the future, really doesn’t matter.

What matters is that at least some of the most adamant opponents of equality have decided to reconsider a theological tenet requiring belief in an omnipotent god who would create people he disapproved of.

What’s next? Acceptance of evolution? After this, nothing would surprise me….





File Under Told You So

A recent story in the Indianapolis Business Journal confirms what rational observers have been saying for quite a long time: keeping wages low is bad for business, and hurts the economy.

When significant numbers of workers are struggling just to make ends meet, they don’t have discretionary funds to spend in the market. That depresses business activity–and is a further drag on job creation. Most people with even an elementary understanding of market behaviors had figured that out.

What many of us probably didn’t realize is that, according to both the IBJ and that well-known bastion of socialism, Standard and Poor, low wages also threaten state budgets.

Indiana has tied its fiscal wagon to a mule. The biggest source of revenue for the state is its sales tax, which at 7 percent is among the highest in the nation. But the slowdown in wage growth for most Hoosiers means they’re not spending much more money than before. And our wealthiest residents tend to save a greater share of their income and spend it on untaxed services.

Standard and Poor report that the widening gap between the wealthiest Americans and everyone else has made it more difficult for the economy to recover from the Great Recession. Their report attributes the sluggish recovery primarily to low wages; that’s because consumer spending fuels about 70 percent of the economy, and weak pay typically slows economic growth.

This isn’t rocket science. People can’t spend what they don’t have. Economic growth–for better or worse (and that’s a different debate)–requires consumer spending.

That’s the reason that evidence fails to support all those rosy promises about economic growth being triggered by Right to Work laws, and that’s the reason that the economy actually improves in places that raise the minimum wage.

When poorer people have more money, they spend it. What a concept.

Is Charity in the Eye of the Beholder?

A friend who works for a charitable foundation sent me an interesting article a couple of weeks ago, describing an upcoming, invitation-only conference to debate whether the rules that currently govern such enterprises are actually promoting the common good.

Some of the questions to be discussed were intriguing, to say the least. They ranged from “should donors get a bigger tax benefit if the charity to which they contribute helps vulnerable people?” to whether foundations should be required to spend more than 5% of their assets, as they are currently required to do, to a re-examination of the different legal treatment of private foundations and public charities.

These are all important issues in philanthropy, but if I had to choose the most significant item on the conference agenda, it would be “Does the law adequately delineate what makes an organization ‘charitable,’ given that some nonprofits (like hospitals) operate in a way that is indistinguishable from their for-profit counterparts?”

Actually, what sorts of activities are appropriately labeled “charity” is less obvious than we might think. Feeding the hungry? Sure. Building a wing on the church? Maybe. A Lexus for the nonprofit’s CEO? Probably not. And there are plenty of nonprofit, tax-exempt entities that are not “charitable” in the usual sense–arts organizations, professional associations and the like fall into a different category.

Any lawyer who helps new organizations incorporate can attest to the blurred boundaries between far too many for-profit and non-profit enterprises. Take the hospital example cited in the article: CEOs and upper managers at purportedly “nonprofit” hospitals take home salaries that are the envy of many for-profit businesspeople; meanwhile, the hospitals pay no taxes–including property taxes to local governments– and enjoy other benefits of a tax-exempt entity. The amount of “charity” they engage in is an open question.

Hospitals are hardly the only entities taking advantage of the opportunity to do well by purporting to do good. A corporation with a mission that is arguably philanthropic can forego “profit” by the simple expedient of paying money that would otherwise be considered profits as salaries.

Americans as a whole are a charitable lot. We give a lot of money to causes we care about, with the expectation that we are thereby making our communities and our world a bit better. If antiquated rules and dubious behaviors make us cynical, and less charitable, we’ll all suffer.

A good hard look at these issues is in order, and I’m pleased to see that it’s occurring.