Who’s Talking?

Among the decisions handed down by the Supreme Court at the conclusion of this term was a little-noted one addressing the question whether states that sell specialty license plates can refuse to issue plates with controversial images like the Confederate flag. The ruling itself is less consequential (at least, in my view) that the opportunity if affords for a much-needed lesson in Constitutional analysis.

The First Amendment prohibits government from censoring the speech of its citizens. In the case before the Court, the Sons of Confederate Veterans claimed that Texas’ refusal to issue plates bearing a Confederate flag constituted such censorship.  But the Court could not analyze that claim until it decided what lawyers call a “preliminary” question: who is speaking through that state-issued license plate–the driver or the state?

Justice Steven Breyer, writing for the court’s majority, said that Texas’ program “constitutes government speech” and that the state was “entitled to refuse to issue plates featuring SCV’s proposed design.” Just as the state could not force drivers to espouse a particular message, he said, drivers could not force a state to espouse theirs.

I think the Court got this one right. But it’s amazing how many people don’t understand the importance of determining who’s talking for First Amendment purposes.

Several years ago, plaintiffs sued Indiana’s General Assembly over legislative prayers claimed to violate the Establishment Clause. (The Courts have long allowed what we might term “de minimus” legislative prayers, so long as they are  brief and inclusive; many scholars–including this one–disagree with that admitted exception to the Establishment Clause, but it is what it is.) In Indiana, the prayers had gotten much longer and much more specifically Christian–one pastor, invited to the Speaker’s podium, had led the room in a rousing rendition of “Take a little walk with Jesus.” The District Court ruled that the practice violated the Establishment Clause and must stop, and all hell broke loose, with protestors complaining that religion had been censored.

It hadn’t.

I got several calls from local media, with breathless questions about a group of aggrieved pastors praying together at the back of the chamber–wasn’t that a violation of the Court’s order?

No, it wasn’t.

When a clergyman is invited to pray from the Speaker’s podium, as an official part of the legislative session, that prayer becomes state speech. The Establishment Clause prohibits government from endorsing or sponsoring religion. When individuals gather to pray, the Free Exercise Clause protects them against government interference.

Who is talking, who is praying, who is making the decision–makes all the difference.

The Bill of Rights only restrains government. That makes it pretty important to identify when government has acted.

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An Unexpected Reaction

I had very little doubt that the Court would rule in favor of marriage equality; I was more nervous about the politics of the Obamacare ruling. (I say the politics, because the legal case was so flimsy a non-political court would never have accepted the case).

Every constitutional scholar who had weighed in on the marriage case anticipated yesterday’s result. It wasn’t just compelled by (recent) precedents, but by those “facts on the ground” that even isolated Justices cannot avoid taking into account–with 70% of Americans living in states with marriage equality, a contrary ruling would have invited chaos.

And yet I really wasn’t prepared for the emotions I felt as I read Facebook posts and emails from so many friends and relatives, listened to the powerful speech by President Obama, saw major companies add rainbows to their ads …and just let it sink in. Like many others, I teared up a lot.

I probably can’t fully understand the emotions of my LGBT friends and family members, although I share their elation. But what I really don’t understand are the mean-spirited, vicious homophobes who went crazy (okay, crazier) when the decision was handed down.

I understand principled disagreement. I understand (okay, maybe not) adherence to rigid religious beliefs that label other people (it’s always other people) sinners. But the venom, the threats of civil disobedience, the seething hatred….the Bobby Jindals, the Mike Huckabees, the “Christian” pastors refusing to obey the rule of law, all spewing raw animus–that, I find incomprehensible.

There are lots of ways to “slice and dice” humanity. I would suggest that the last couple of weeks have shown us two very basic kinds of people: those who hate and those who don’t. Those who gun down innocent people in a church because their skin is a different color (and those who support them by setting fire to other black churches, by donating via kickstarter to their legal defense, or defiantly waving their own Confederate flags)–and decent human beings who are able to see themselves as part of a wider community that includes the “other.”

I don’t think I’m overstating the case when I say that America is engaged right now in an existential conflict between those decent human beings and the small-minded, self-serving and morally deformed forces waging an increasingly frantic war on the poor, on women, on African-Americans, on gays…on all of us who refuse to recognize their right to continued privilege.

Yesterday was a glorious repudiation of those people. But we still have a lot of work to do.

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Misunderstanding Tenure

Wisconsin Governor Scott Walker seems to be engaged on a vendetta against higher education.

Walker has cited Wisconsin’s (very real) fiscal woes as justification for slashing  $250 million dollars from the University of Wisconsin’s budget; however, Time Magazine reports that he has proposed forking over that same amount– $250 million in taxpayer money– to help construct a new arena for the NBA’s Milwaukee Bucks, who have threatened to relocate if the city doesn’t build them a new home by 2017.

Walker previously tried to change the mission statement of the University from a search for truth to “meeting the state’s workforce needs.” He retreated after that effort created a firestorm within the state, but now he has launched an entirely gratuitous attack on tenure.

There is immense public misunderstanding of tenure. Tenure is not “job security,” as it is often portrayed; as Josh Marshall recently wrote at Talking Points Memo, 

Tenure is among other things in place to protect scholars from the patronage and political demands of the moment and incentivize independent scholarship free of ideological, market or political pressures. That is 100% true. And by and large it is a good system – especially when understood in the larger context of academic life.

Tenured professors are protected from dismissals based upon the expression of  unpopular viewpoints. We are not protected against dismissals for poor work performance. (My own school has a post-tenure review process that defines performance expectations and expressly permits sanctions–including termination–for continued failure to meet those expectations.)

In a very real sense, however, the actual operation of the tenure system is beside the point. As Marshall notes,

The crown jewel of the Wisconsin university system is the University of Wisconsin at Madison. It is one of the top research universities in the country and the world. With this move, you will basically kiss that jewel goodbye. To me this is the more salient reality than whether you think academic tenure is a good thing or not in itself.

If this happens, over time, the professors who can will leave. And as the top flight scholars and researchers depart, so will the reputation of the institution. So will graduate students who want to study with them, the best undergrads, money that flows to prestigious scholarship. Don’t get me wrong. Not in a day or a year or even several years. But it will. If you don’t get this, you don’t understand the economy and incentive structure of university life.

If Walker’s attacks on a storied academic institution are successful, the University will be hard pressed to “meet the workforce needs of the state,” let alone engage in a search for truth.

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Speaking of Abortion..

Yesterday’s blog ended with a question about the motives of the anti-abortion culture warriors. Although there are obviously many sincere people who have moral or religious objections to reproductive choice, the punitive measures advanced by many others (together with their utter lack of concern about what happens to the babies so “saved” once they are born) raises legitimate questions about their real agenda.

I’m not much for conspiracy theories; I tend to agree with a colleague from my days in city government who often remarked that incompetence explains so much more than conspiracies. But in this case, it’s hard to avoid the conclusion that a fair number of the men who have staked out anti-abortion positions (and yes, they’re disproportionately male) aren’t as opposed to abortion as they are to women’s full equality. (Keep ’em barefoot and pregnant, like God intended…).

After all, if you are truly anti-abortion, you’d support programs that reduce the need for and incidence of abortion.

The New York Times recently reported on the GOP’s war on contraception and Planned Parenthood:

One would imagine that congressional Republicans, almost all of whom are on record as adamantly opposing abortion, would be eager to fund programs that help reduce the number of unwanted pregnancies.

That would be the common sense approach, anyway.

And yet since they took over the House in 2011, Republicans have been trying to obliterate the highly effective federal family-planning program known as Title X, which gives millions of lower-income and rural women access to contraception, counseling, lifesaving cancer screenings, and treatment for sexually transmitted diseases.

A House subcommittee on Labor, Health and Human Services has proposed to eliminate all Title X funding — about $300 million — from a 2016 spending bill.

The bill would also slash funding by up to 90 percent for sex education, specifically President Obama’s teen-pregnancy prevention initiative. The only winner was abstinence-only education, whose funding the subcommittee voted to double, despite the fact that it has basically no effect on abstinence and has been associated with higher rates of teen pregnancy.

Federal law prohibits the use of any federal dollars for abortion or abortion-related services, and has for many years. That inconvenient fact hasn’t prevented the “pro-life” posers from insisting that their efforts to eviscerate reproductive health programs serving poor women–programs that save the lives of many of those women–are “pro life.” Of course, they aren’t “pro” anything. They are anti-woman–and fiscally irresponsible.

What Title X grants actually do is help prevent unwanted pregnancies — more than one million in 2012, which translates to about 363,000 abortions avoided. According to the Guttmacher Institute, a research organization, every public dollar spent on family planning services saved about $7 in costs related to pregnancy, birth and infant care, as well as sexually transmitted diseases and cervical cancer. So the proposal to slash the program’s funding is not just inhumane, it’s also fiscally dumb.

A genuine opposition to abortion would require support for family planning programs that reduce abortions. A genuine concern for “life” would include concern for the lives of poor women. A genuine commitment to fiscal conservatism would mandate support for programs that demonstrably save tax dollars.

The operative word is “genuine.”

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What the Numbers Show

It used to be that references to the culture wars brought to mind the various efforts to marginalize the LGBT community. Over the last several years, as attitudes about homosexuality and gender identity have changed dramatically, fundamentalist culture warriors have increasingly reverted to an older battle: restricting women’s right to control their own reproduction.

State after Red state has passed measures restricting access to abortion, defunding Planned Parenthood, even criminalizing “suspicious” miscarriages. Many of the more draconian measures have been struck down, but many others have not.

Activists holding passionate attitudes about the issue are unlikely to change their positions. The policy question is: where should this battle take place? In the court of public opinion, or in legislative chambers?

Political philosophy holds that legislation is unworkable and seen as illegitimate when there are deep divisions within a polity. (Even when there is wide acceptance of a rule, experience tells us that changing public attitudes can be more effective than legal mandates–just compare the dramatic change in public behavior effected by MADD, Mothers Against Drunk Driving, to the effectiveness of DUI laws.)

So the AP’s recent report that abortions have declined nationwide raises an interesting question.

Abortions have declined in states where new laws make it harder to have them — but they’ve also waned in states where abortion rights are protected, an Associated Press survey finds. Nearly everywhere, in red states and blue, abortions are down since 2010.

Most observers credit the drop to a sharp reduction in teen pregnancies and the availability of affordable, effective contraception. Interestingly,

The only states with significant increases in abortions since 2010 are Republican-led Louisiana and Michigan, which have passed laws intended to restrict abortion. Louisiana — where abortions increased 12 percent between 2010 and 2014 — was recently honored by Americans United for Life as the No. 1 state in taking steps to reduce access to abortion.

The question is: do the (mostly male) legislators sponsoring these laws really want to reduce the incidence of abortion? Or–as many feminists suspect–are they equally opposed to effective birth control?

To put it another way, is their objection to abortion, or to women’s autonomy? I’ll consider that question tomorrow.

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