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The Hobby Lobby case; summary and links

3 Jul

here are some helpful articles about this case and the implications of it:

From the National Review (Ed Whelan con law scholar)

Here’s a quick summary of (and a few comments on) Justice Alito’s majority opinion in Hobby Lobby:

1. For-profit corporations are persons protected under RFRA. (Pp. 16-20.)

2. Closely held for-profit corporations are capable of engaging in an exercise of religion protected by RFRA. (It “seems unlikely” that publicly traded corporations would “often” assert RFRA claims, but no need to decide whether they can.) (Pp. 20-31.)

3. The HHS mandate substantially burdens the exercise of religion by the Hahns, the Greens, and their companies. (Pp. 31-38.)

a. Severe economic consequences.

b. We need not reach novel claim that companies would be better off forcing their employees into the exchanges. But if we did reach the claim, we wouldn’t find it persuasive. (Pp. 32-38.)

4. We need not decide whether the HHS mandate is in furtherance of a compelling governmental interest. Even if we assume it is, the mandate flunks the least-restrictive-means test. (Pp. 38-40.)

5. The mandate flunks the least-restrictive-means test. (Pp. 39-45.)

The least-restrictive-means test is “exceptionally demanding.” (P. 39.)

The most straightforward way for the government to achieve its desired goal would be to pay the cost of the objected-to contraceptives itself. We see nothing in RFRA that supports the argument that the government can’t be required to create entirely new programs in order to comply with RFRA. (Pp. 41-43.)

We need not rely on the option of a new government-funded program because HHS has already demonstrated that it has at its disposal an approach that is less restrictive of religious liberty—the accommodation for religious nonprofits. “We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Emphasis added.)

Commentary: There will be much parsing of this passage. I think that some mandate opponents, worried that a defeat is lying in this victory, will misread this passage. What I think that Alito is saying is that the objection to the accommodation is not to “providing insurance coverage” per se but rather to providing a self-certification that has the consequences of making the certifier morally complicit in the provision of objected-to drugs and devices.* This issue is being, and will continue to be litigated, in the pending suits against the accommodation.

Indeed, it bears highlighting that the majority, in a footnote (footnote 9 on page 10) has offered an expansive reading of the relief that it afforded the Little Sisters of the Poor in the Little Sisters’ challenge to the accommodation: That order means that all “eligible organizations” must “be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators.” Together with the Court’s sound understanding of substantial burden, that proposition ought to provide gives high hopes for a victory to the challengers to the accommodation.

(In his brief concurrence, Justice Kennedy cites the passage above from the majority opinion in stating that the accommodation “does not impinge on the plaintiffs’ religious beliefs.” In context (given that Kennedy joins Alito’s opinion and does nothing more than cite the passage above), I think that it’s clear that he is saying nothing more than Alito is saying: only that the religious beliefs that plaintiffs have set forth in this case against providing insurance coverage wouldn’t be impinged by the accommodation.)

6. This ruling will not lead to the parade of horribles that the dissent trots out. (Pp. 45-49.)

* Justice Ginsburg, in her wildly overwrought dissent, offers a compatible reading on this narrow point, as she asserts that the government has shown that there is no less restrictive means that would “satisfy the challengers’ religious objections toproviding insurance coverage for certain contraceptives.” (Dissent at 27-28.)


From Robert George (full article here):

Just as the for-profit company known as the New York Times enjoys the right to freedom of the press under the First Amendment, so Hobby Lobby enjoys the right to religious freedom protected by RFRA. Protection for religious liberty doesn’t stop where commerce begins. As Neuhaus tirelessly insisted, our religious lives cannot be restricted to what we do in our homes before meals or on our knees at bedtime, or to our prayers and liturgies in churches, synagogues, mosques, and temples. Religious faith motivates, or can motivate, our convictions and actions in the exercise of our rights and responsibilities as citizens, in our philanthropic and charitable activities, and in the conduct of our businesses and professions.


From Emma Green (no conservative):

the Court doesn’t think bosses should get to deny affordable birth-control access to their employees—they just shouldn’t necessarily have to pay for it.

Ginsburg doesn’t buy this. The ruling, she says, “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” She also pointed out that the list of medications included drugs that address issues beyond pregnancy, including pelvic pain, cancers, and menstrual disorders.

But Anthony Kennedy, in an opinion concurring with the majority, calls her out on this. Of all the justices who wrote in this case, he seems to find the best way of balancing these two sides:

Among the reasons the United States is  so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or  her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.

In other words, nobody gets to be “right” in this case. No one’s religious beliefs can trample someone else’s health needs, and even if the government can’t force closely held private companies to pay for contraceptives, these companies can’t stop their employees from being on birth control. Hobby Lobby is a balancing act, not a bludgeon—and certainly not an attack on women’s rights.


What did the founders think about church and state, religion and public life, God and natural rights?

23 Jun

Political Scientist John Eastman:

In defense of teaching Western Civilization

23 Jun

Interview with Professor Rodney Stark on his new book How The West Won (original link)


Rodney Stark, distinguished professor of the social sciences at Baylor University, is attracting attention with his new book, How the West Won: The Neglected Story of the Triumph of Modernity (ISI Books). The Wall Street Journal praises Stark for being one of the “few unapologetic defenders of Western civilization [who] can still be found,” and World magazine declares that How the West Won “slaughters more of conventional history’s sacred cows.”

Stark speaks with the Intercollegiate Review about the dangerous myths about Western civilization that are gaining currency—and about why the truth matters.

 In How the West Won, you note how most colleges have abandoned “Western Civ” courses. What are today’s students losing by not studying Western civilization?

They remain ignorant of their intellectual heritage and of the most fundamental historical facts—where did the modern world come from? In my last year at the University of Washington, I gave a lecture about the situation of women in ancient Greece and Rome. Afterward, two undergraduates came up to me and asked where and when was the Roman Empire. I thought it was some sort of tease, so I told them the Roman Empire ruled Southern California in the 1920s. I was stunned when they wrote it down! These young women were bright students with high GPAs. But they had never had a history course—Washington no longer requires any history courses, or much of anything else. When I quizzed them further, these good students did not know in what century the Civil War had been fought, and they guessed that D-Day was a Roman Catholic holiday. More recently, I had a conversation in an airport waiting lounge with a young man who had a brand-new PhD in literature from an Ivy League university. He thought the United States was the only society that ever had slavery! Later he asked me what I was reading on my Kindle. I told him it was a book about the War of 1812. And he replied, “Oh, who fought that one?” I was tempted to tell him that it was between Angola and Cuba and that it had been mostly an air war.

 What are a few of the pernicious myths about the West to have gained currency in recent decades?

One of the most blatant is blaming the West for all the problems involving Muslims, specifically terrorist attacks. Reflecting what is being said in the classrooms, academic conferences devote many sessions to “Islamophobia” (hatred of Muslims) but none to terrorism—except for the explanation that it is provoked by the many wicked things the West has done to Islam, now and in the distant past. To avoid any taint of Islamophobia, the U.S. Justice Department refused to admit that the 2009 Fort Hood massacre was an incident of terrorism despite the fact that Major Hasan shouted “Allahu akbar!” while he gunned down his victims. Instead, this was merely a case of “workplace violence.” As for the 9/11 destruction of the World Trade Center, even former president Bill Clinton blamed it in part on the Crusades as one of our crimes against Islam. Of course, rather than being an attempt by Westerners to colonize the Holy Land, the Crusades were a response to Islam’s more than four centuries of efforts to colonize Europe. Unfortunately, students don’t learn that in school either. Overlooked, too, is the fact that the overwhelming number of Muslim terrorist attacks are on other Muslims. It is hard to imagine how Western crimes can cause Sunni Muslims to kill and be killed by Shi‘a Muslims.

Another pernicious myth is that Europe slept in ignorance through many centuries following the fall of Rome—an era known as the Dark Ages. But it never happened. Many professors, even if they know it, are reluctant to admit that the major encyclopedias now acknowledge that the notion of the Dark Ages was invented by Voltaire and his friends to vilify the Church and makes themselves seem important. It always should have been obvious that the centuries denounced as the Dark Ages were an era of remarkable invention and progress, at the end of which Europe had advanced far beyond the rest of the world.

Nearly all academics and Western intellectuals also take for granted that Europe grew rich by draining wealth from its worldwide colonies. But in fact, the colonies drained wealth from Europe! Granted, some people in Great Britain and other colonial powers got rich from trade with the colonies (thus creating a powerful lobby in favor of continuing colonialism), but overall the colonial nations lost money once the costs of maintaining the colonies were taken into account. It is true that Spain imported many tons of gold and silver from the New World. In that case, the reliance on gold and silver from the New World prevented Spain’s economic development and turned it into a second-rate power.

 Why did science arise only in the West?

Because of the Judeo-Christian conception of God as a rational creator. The scientific enterprise is absurd unless one believes that the universe functions on the basis of rational rules and that these rules can be discovered and understood by the human mind. The other great world religions dismiss the idea of a rational universe as absurd. Rather, they conceive of the universe as a supreme mystery, far too complex for human comprehension, an appropriate object for meditation but not for reason. In contrast, the Judeo-Christian God is regarded as a rational creator who therefore created a lawful universe, and it is possible to discover these laws. Lacking this conception of God, the non-Western world had no basis for science. It should be noted, too, that the great stars of early science, such as Isaac Newton, Johannes Kepler, and Blaise Pascal, were deeply religious men—Newton wrote far more theology than he did physics.

 You suggest that the Black Death in the mid-fourteenth century, though an incredible tragedy, had beneficial effects. What were they?

The primary one was the end of serfdom. This was because when the Black Death killed about half or more of the population of Europe, hitting young adults especially hard, it resulted in a huge labor shortage. Consequently, land owners were forced to compete for laborers, which greatly improved the financial and social status of the common people. For example, in England in a two-year period from 1347 to 1349, the average wage for a plowman rose from two shillings a day to ten shillings, six pence a day. Similarly, people were no longer tied to the land as serfs but began to move freely in pursuit of the best terms—landlords were agreeing to furnish tenets with seed, oxen of horse teams, better housing, and much lower rents.

 Does the history of Western civilization challenge relativistic notions about culture and morals embraced by today’s academics and intellectuals?

Yes, but so does common sense. The constant chant in today’s social science classrooms, often reiterated in English and philosophy departments, is that all cultures are equally valid and, therefore, all morality is equally arbitrary. Nothing is right or wrong. Any sensible person would suppose that this is just a slogan and that even the most committed relativist would have to admit that some things are wrong, no matter how some group judges them. But many cultural relativists are not sensible.

Consider this example. Recently, in collaboration with a graduate student, I began a study of female circumcision, an extraordinarily brutal and vicious practice that involves cutting away all of a young woman’s external genitals, done at about age twelve without any pain medications or antibiotics. The practice is prevalent in Africa, among other places. Reading the social science literature, we discovered that French anthropologists have denounced efforts to end this practice as “cultural colonialism” and “racist.” This, of course, is totally in conflict with the great moral achievements of Western civilization, which sustain the recognition that some things, such as slavery, are immoral no matter what. All students should be taught that Western societies were the only ones ever to outlaw slavery without being forced to do so by outside interference. And surely no one dismisses the Holocaust as merely reflecting that Hitler and the Nazis had a different, but valid, moral code.

You make some pretty bold claims in this book, one of which is that the accomplishments of Rome can be boiled down to the invention of concrete and the rise of Christianity. What do you make of Roman contributions to politics, namely republican government?

Not much. The Roman republic was ruled by a senate to which only the superrich could belong. No doubt it was a better form of government than the imperial system that replaced it, but it was less representative and responsive than Greek democracy, which often elected men of very modest means. Of course, both the Greeks and the Romans possessed huge numbers of slaves (Aristotle owned thirteen and Plato owned six), but Greek society was less repressive and brutal. Even during the days of the republic, Romans regarded mass torture and murder as a popular form of mass entertainment. Probably more than 2.5 million persons died hideous deaths in the many Roman amphitheaters, all before cheering crowds.

 You talk about the strengths of Western civilization. What are its weaknesses?

I don’t think there are important weaknesses that are specific to Western civilization. As with all human groups, the primary basis for social problems lies in the universal human flaws summed up as the Seven Deadly Sins: wrath, avarice, sloth, pride, lust, envy, and gluttony. Unfortunately, because of its advanced technology, Western civilization greatly magnifies the consequences of some of these sins. When wrath erupts into war, the results are often far more dire than when people armed only with swords and spears go to war—although even among Stone Age groups, an entire small society was sometimes wiped out. The combination of avarice and envy has produced the modern development of the welfare state, which too often encourages sloth. Lust, combined with freedom, has fostered a huge pornography industry. And although not very long ago millions were chronically undernourished, today gluttony has resulted in widespread obesity.

The ins and outs of mass American polarization

12 Jun

Polarization is the tendency for large segments of society to develop a growing distance between themselves ideologically, culturally, politically).  Pew has uncovered more information about this reality in their latest survey of Americans.   Here are a few highlights of the larger study you can find here.

Democrats and Republicans More Ideologically Divided than in the Past

Beyond Dislike: Viewing the Other Party as a ‘Threat to the Nation’s Well-Being’

Growing Minority Holds Consistent Ideological Views

Republicans Shift to the Right, Democrats to the Left

A Rising Tide of Mutual Antipathy

Liberals Want Walkable Communities, Conservatives Prefer More Room

Conservatives Attracted to Small Towns, Rural Areas; Liberals Prefer CitiesEthnic Diversity More Important for Liberals, Faith Community More Important for Conservatives

Ideological Consistency: Leaners More Similar to Partisans  Than Other Independents



Has the American Presidency, particularly recently, become hegemonic?

9 Jun

I’m not usually alarmist, but here’s Dr. David Corbin’s take:

In a week of news coverage dominated by the Bergdahl affair, President Obama submitted, “I’m never surprised by controversies that are whipped up in Washington,” before forwarding his administration’s latest rationale as to why he agreed to swap an American serviceman for five Taliban terrorists: “I write too many letters to folks who, unfortunately, don’t see their children again after fighting a war.”

Earlier in the same press conference, he posited that it is a “basic principle” that the United States does not leave any soldier behind on the battlefield. A day prior, the Obama Administration defended the secrecy of the deal on the basis that telling Congress as required by Section 1035(d) of the 2014 National Defense Authorization Act would have put Sgt. Bergdahl’s life at risk. And the day before that, the Administration suggested that it was motivated by Bergdahl’s health.

The Administration’s daily affirmations, explanations, and refutations followed last weekend’s Rose Garden announcement celebrating the Bergdahl swap and a Sunday talk show circuit victory tour aptly described by both the Weekly Standard’s Stephen Hayes and the Wall Street Journal’s Kimberly Strassel as amateur hour once again at 1600 Pennsylvania Avenue. Why send Administration officials on national television advancing the case that Bergdahl had served honorably and that the move did not undermine American national security, if you knew otherwise? And why argue thereafter that the Administration was fully within its legal prerogative in a blatant misreading of the Defense Authorization Act? Memo to the White House: Many of the controversies that are whipped up in Washington D.C. are self-inflicted.

We certainly understand the President hating to write letters to parents of lost servicemen. The 70th anniversary of D-Day last Friday was a poignant reminder of the sacrifices that servicemen and servicewomen and their families make to secure American liberty. The military’s commitment not to leave soldiers behind is also, obviously, commendable. But neither of these principles justifies actions that undermine the core constitutional responsibilities of the President. Let President Obama show that his trade made American liberty more secure before he calls this a Washington tempest in a teapot or seconds Harry Reid’s judgment that critics “are making a big deal over nothing.”

In reality, when one peels away the outer layers of this week’s news onion, it becomes clear that “the controversy whipped up by others” emerged from the President’s desire to make good on his 2008 campaign promise to close the Guantanamo Bay detention camp. Why hasn’t he simply closed down the camp? Too politically risky. Why not suggest that as Commander-in-Chief, he has the constitutional authority to act unilaterally on the matter? Because his Administration had already penned a memocontending that the executive did not possess sole authority on such matters. Thus he was left this week trying to square several circles he had drawn in his attempt to distance himself from President Bush’s foreign policy.

At the core of the onion, however, is not anything the president or his advisors said on the campaign trail or on their way into office, but rather the Constitution itself and its distribution of powers among the three branches of the federal government. Senator and candidate Obama was a consistent critic of what he took to be executive overreach on the part of the Bush Administration in its response to the September 11th attacks of 2001. President Obama, however, has acted upon much the same principles as his predecessor, while adding new dimensions of domestic policy executive overreach. The result: an increasingly hegemonic presidency that employs the Constitution as campaign fodder during election season but sees it as a nuisance otherwise.

Statesmanship bridled by the Constitution looks very different.

It is impossible to overstate the significance of the separation of powers in the political thought of the American founders, despite the fact that the connection between it and the cardinal principle of republicanism–the rule of law–was of relatively recent discovery. John Locke’s definitive Second Treatise of Government, for example, published one hundred years before the Constitution was written, identifies three basic political powers, but places no special emphasis on maintaining their independence. As James Madison notes in Federalist 47, it was only with the publication of Montesquieu’s Spirit of the Laws, sixty years later, that the doctrine of the separation of powers was brought decisively “to the attention of mankind.”

Its conquest, if recent at the time of the founding, was nevertheless complete: “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty,” claimed Madison in the same essay. As a result, he readily conceded that if the Constitution did not provide adequately for the separation of powers “no further arguments would be necessary to inspire a universal reprobation of the system.”

Why such a strong affirmation? According to Madison:

“The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

For Madison, tyranny can be identified in the form of a regime, before any tyrant has appeared or any oppressive actions have been taken: absolute power can be “accumulated” in the framing of a government. On the other hand, it may also arise, de facto, even where the formal constitution provides against it, by the progressive “accumulation” of power by one branch or another. While Madison did not expect the powers exercised by the three branches of government to be completely ‘separate and distinct,’ he warns, “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.”

As we’ll see further in subsequent essays, Madison, like most of the founders, believed that a hegemonic Congress was the greatest (at least near-term) threat to the American republic. But here too one hundred years of Progressivism has taken its toll, making the Congress, today, the “least dangerous branch” in the system.


On the absence of conservatives in higher education

9 Jun

From Steven HAyward in the New Criterion:

The social scientist Neil Gross made a splash last year with his book Why Are Professors Liberal, and Why Do Conservatives Care?, which, among other things, attempted to refute the claim that conservatives face ideological discrimination in academic hiring. There is some quantitative evidence (with more on the way soon) of ideological discrimination, which Gross grudgingly acknowledges, but he then goes to great lengths to argue that it is vastly overestimated.

He may be partly right, but not for the reasons his data-rich analysis lays out. Furthermore, Gross does not begin to reach the more important dimensions of the ideological shape of today’s humanities and social science departments that come into play before you even reach the fever swamps of race, class, and gender.

Liberals have pushed back against the charge of ideological discrimination in hiring with an entirely valid point: You guys don’t show up! There simply aren’t many conservative graduate students in the humanities and social sciences. If the top 200 universities set out to hire a conservative for each of their humanities departments, they’d run out after about 75; in some departments, they might run out of qualified conservative job candidates after about two. And if you can’t find newly minted Ph.D.’s for tenure track jobs, you have to poach the thin ranks of conservatives already in academia somewhere, leading to no net increase in conservative presence in universities. But while liberals can’t be blamed wholly for this, they can be blamed for acquiescing in, when not actively causing, the degradation of the humanities and social sciences in ways make academic track jobs repellent to many intellectual conservatives. Understanding what has taken place requires a three-part analysis.

First, it is necessary to take brief note of what so many are calling the “higher education bubble,” that is, the shockingly high cost of colleges and universities today. It is necessary to connect this trend with the precipitous decline in enrollment in humanities and social sciences—a 50 percent decline over the last generation. It is presumed that this decline is a direct result of education’s high cost and increasing job consciousness among students, but the decline in humanities and social science enrollment preceded the worst of higher education cost inflation. In other words, the soaring cost of college may have only aggravated a more important underlying cause.

Second, it is useful to pose a series of questions about what might be learned from the particular places where you do find conservatives in higher education—questions that are susceptible of a range of possible answers, and therefore perhaps more controversial.

Third, there is no escaping or papering over the substantive differences between the way left and right think about education itself. These differences explain a lot of things that have escaped notice, but taking these differences into account might ironically make liberalism more robust on campus.

Everyone knows what has happened to the cost of higher education: a 500 percent increase in college tuition in the last twenty-five years, while the Consumer Price Index rose just 115 percent. By contrast, health care costs have risen just 300 percent. The figure the White House put out to accompany President Obama’s speech last summer on this subject noted that, since 1983, tuition and fees at four-year public colleges have risen by 257 percent, while typical family incomes have advanced 16 percent. What is less well known is the adverse result: Today, only about 7 percent of recent college graduates come from the bottom-income quartile, compared with 12 percent in 1970, when federal aid was scarce. From a liberal egalitarian point of view, we’re going in the wrong direction.

The decline in humanities and social science enrollment began long before the current economic downturn made students more hyperconscious of the marketability of their degree. And if the enrollment in humanities courses continues to slide, can a reduction in humanities faculty positions be far behind? I think we are not far from starting to see “double-retirements,” that is tenure-line faculty positions in the humanities discontinued when a senior professor retires. Already we’re witnessing signs of a rapidly shrinking hiring market in the humanities and some social sciences. Political science hiring is down sharply in recent years according to numbers out of the American Political Science Association.

It could be even worse. In Vietnam, still run by the Communist Party, the very selective national university is offering free tuition to anyone who signs up for the university’s curriculum in Marxism. They’ve had to offer free tuition because no students have been signing up for these courses. I can’t help but be amused that the market-clearing price for courses in radical philosophy is lower in a Communist university than in American higher education.

All of this happens in the context of the peculiar world of academic employment in which the road to a professorship has always been steep. Now it’s no longer just a steep hill—more like a rock climb without ropes. Max Weber said over a hundred years ago that “Academic life is an utter gamble.” The odds are getting steadily worse, and if you’re a rational person calculating the odds, you may shy away from a Ph.D. track, or consider non-academic paths as more attractive than academic paths. This probably describes conservatives more than liberals.

It is here that some of the data that Neil Gross, Harvard’s Louis Menand, and others have unearthed and reanalyzed is interesting and helpful, and provides the transition to my short set of queries. Drawing on student survey data from UCLA’s Higher Education Research Institute, Matthew and April Woessner found that self-identified conservative students report higher levels of satisfaction with their university educational experience than self-identified moderate or liberal students, though not surprisingly conservative students report lower levels of satisfaction than liberal students with the humanities and social sciences. (Incidentally, the data found that liberal and conservative students tend to get higher grades than moderates or students who report no political outlook.)

On the surface you’d think that the pool of conservative students who express satisfaction with higher education would lead more of them toward graduate paths, except for their evident alienation from the liberal dominance of the humanities and social sciences, perhaps along with a perceived higher salience for conservatives on pursuing “practical” professional vocations. While these factors can’t be dismissed, Neil Gross points to compelling data about how the most important determinants of whether students go into graduate study are not large ideological factors, but mundane things like whether students have close relationships with professors or find academic mentors to encourage them along graduate paths. And lacking mentors and direct encouragement means that liberal predominance in graduate education, and hence the ranks of left-leaning professors becomes self-reinforcing, even if there is zero political bias in hiring decisions.


How the French debate on SSM thwarts the stereotypes of American progressives

6 Jun

From Dr. Robert Lopez:

If the recent French mobilizations against same-sex marriage have taught us anything, it’s this: The LGBT lobby has misrepresented its cause’s relationship to time and history. Illinois Democrat Greg Harris stated in a National Public Radio piece what the lobby has been claiming for years:

Folks know this will be a vote that history will remember . . . And I think a lot of folks are deciding they’re going to want to be remembered on the right side of history.

The proponents of same-sex marriage like polls. A Gallup poll published in mid-May showed public support for their cause rising from 27 percent in 1996 to 53 percent this year. Pew’s survey data reflect a more modest rise, from 35 percent in 2001 to 49 percent in 2013, but the upward march is still clear. In April 2013, the Williams Institute published a state-by-state analysis that reflected a steady growth in the number of states, such as New York, in which more than 50 percent of respondents supported same-sex marriage.

Less often mentioned are certain caveats in all these polls. For instance, in Gallup’s poll respondents were asked to choose between supporting or opposing same-sex marriage, without being offered a third option such as civil unions. The data from the Williams Institute show that liberal California is still only at 50 percent for same-sex marriage, perhaps because the state has domestic partnerships already. Minnesota residents only supported same-sex marriage by 43 percent, despite their popular vote to reject a constitutional ban in 2012 and despite the legislature’s hurried process of legalizing it in the state.

Nevertheless, two assumptions have determined the way pundits have interpreted these data.

One assumption is that the increase in support will be consistent over time rather than fickle. We can name this the Inevitability Assumption, a quasi-Marxian or at least Hegelian view that History is beckoning in one direction and there will be no turning back.

The second assumption is that more people accept same-sex marriage because they have more reliable information about what it entails. This is theEnlightenment Assumption, the notion that there is a transcendental benevolence in same-sex marriage, which can rely on the good and the true, if not the beautiful, to be vindicated by the diffusion of knowledge.

A recent piece in the Los Angeles Times offers a digestible version of the Enlightenment Assumption: “Knowing a gay person is a key factor in rising support of gay marriage.” The example of Ohio Senator Rob Portman is Exhibit A for this line of reasoning: All Portman had to do was put a face on the issue, in the form of his gay son’s visage, to be persuaded to the cause.

If we combine the Inevitability Assumption and the Enlightenment Assumption, the resulting concoction is the message that predominates in American propaganda: Gay marriage is on the right side of history because history will take us in only one direction, based on the most fundamental of human goods: knowledge of the truth.

Assumptions and Fallacies

These assumptions are in fact fallacies. More than any other populace, the French have laid them bare with their four massive “manifs” or mobilizations (November 17January 13March 24, and May 26).

These four mobilizations are credited as the largest mass uprising in France since the famous revolts of May 1968. As many as 60 percent of French respondents supported same-sex marriage in the fall of 2012, but the level of support now hovers around only 39 percent, with 54 percent supporting “civil unions” only. It is no wonder that the French government has had to shield itself and its LGBT benefactors from outrage with an increasingly totalitarian modus operandi encompassing tear gas and other familiar police-state tactics.

The French resistance to same-sex marriage has demonstrated that an ostensibly progressive nation that had little issue with homosexuality as a moral question can change its mind, not based on ignorance of reality, but based on knowing more about what same-sex marriage really means. 

Sorry, LGBT lobby, the French are sending your soufflé back to the kitchen.

The French had little issue with the PACS, or domestic partnerships, passed in the 1990s. The nation is not a die-hard right-wing country, as we know from the fact that Socialists took over the government in 2012.

Yet millions of French citizens stormed the streets of Paris and dozens of other cities to block same-sex marriage. Despite attempts by the international press to paint the “Manif pour Tous” and the “French Spring” as a band of intolerant Catholic reactionaries, polls show that a comfortable majority of the French people share their view of the same-sex marriage law, even if some within that majority are not eager to join in the street protests.

The drop in support for same-sex marriage came with education and broader public debate. As the French knew more gay people individually and learned more about the ramifications of their legalized marriage on the community at large—especially children and poor communities overseas targeted foradoption and surrogacy—they liked the idea of same-sex marriage less and less.

The text of the law that passed bears the scars of a public backlash. For instance, both insemination rights for lesbian couples and gestational surrogacy rights for gay men had to be scrapped by President François Hollande’s government because of their horrendous unpopularity. (Both insemination and surrogacy are subject to broader bans in France than in the United States.)

Adoption was included in the final bill that went through the French parliament, over the strenuous objections of adoptees of all stripes, ranging from a fifteen-year-old writing in Boulevard Voltaire to Cyril Langelot toBenoît Talleu, an eloquent Franco-Vietnamese teen who addressed 700,000 French marchers on January 13.

Benoît’s adoptive father, Franck Talleu, was inexplicably arrested two and a half months after his son’s famous speech. Police detained him for wearing a sweatshirt with the children’s rights blazon on it. The arrest was widely viewed in France as proof that the Hollande regime had to employ invasive practices to cover up the unpopularity of its pro-LGBT proposals.

While same-sex adoption survived massive protests, its chances are going to be rather slim because of the long waiting list of heterosexual couples looking to adopt. Since France’s public controversy, now Russia has refused to authorize any more adoptions into the country and India has blocked surrogacy by same-sex couples. It will be more difficult for same-sex couples to mask their purchase of babies through surrogates abroad as international adoption.

The French attorney general Christiane Taubira tried to skirt the French ban on surrogacy with a memo allowing the government to treat overseas babies conceived by surrogate mothers as adoptees eligible for citizenship. Instead of quiet acquiescence to this sleight, she sparked mass protests against themerchandizing of women’s wombs. The shocking turn in the Washington Post,with an unprecedented column criticizing surrogacy by Kathleen Parker, might be evidence that the French street revolution set off a chain reaction that eventually brought even a super gay-friendly American publication like the Post to face the grim business behind same-sex parenting.

The French government’s attempts to scrub these controversial aspects of the same-sex marriage bill quietly didn’t work. As the public contemplated the problems with sperm banking and surrogacy, they grew increasingly suspicious of everything the LGBT lobby was promoting about its “families.” This happened despite all the assurances from Hollande’s ministers that the marriage bill would not lead to a boost in artificial reproductive technology.

Fallacy #1: The Inevitability Assumption

France proves that no opinion trend on any graph can be taken for granted as perpetual. In the United States we knew this already; we simply weren’t aware that we knew it. We know from the abortion debate that what seems like a steady march of acceptance can actually grind to a halt or reverse.

The Gallup polls on abortion show how unpredictable the trends in opinion can be, for the number of “pro-choice” Americans peaked in 1996 at 56 percent, then declined to 45 percent today, while pro-life opinion gained significant ground, albeit in fits and starts (only 33 percent of Americans were pro-life in 1996, compared to 48 percent today).

If we take a step back and examine how the international LGBT lobby has fought for same-sex marriage, we see that the lobby’s leaders must be equally aware that nothing is inevitable about acceptance of same-sex marriage, regardless of what they say publicly. Rather than patience, haste has characterized their tactics.

It would not be necessary to push the case for same-sex marriage so fervently in the Supreme Court if the electoral victories in Maine, Washington, and Maryland were truly confidence-inspiring signs of the movement’s inexorable march toward mass public approval. Nor would it have been necessary for the lobby to rush same-sex marriage through the Minnesota legislature when polls showed that fewer than 45 percent of the state’s voters really wanted to redefine marriage.

In France, the same sense of haste was also evident. Debate was noticeably cut short by the government. During the hearings leading up to the introduction of the bill in Parliament, only religious groups were invited to expressobjections. On February 15, 2013, when 700,000 petitions were presented to the nation’s Economic, Social and Environmental Committee (CESE) asking for full research into the impacts of the same-sex marriage bill, the French government committed a possibly unconstitutional act and deemed the petitions “unacceptable.”

The process of passing the law also quickened. The vote in the Senate was held ahead of schedule and only conducted with a show of hands, so that it was impossible to record which parliamentarians voted for the law and which voted against it.

Fallacy #2: The Enlightenment Assumption


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