A Philosopher's Blog

Kim Davis & Rule of Law

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on September 14, 2015

Those critical of Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples and was jailed for being in contempt of court, often appeal to a rule of law principle. The main principle used seems to be that individual belief cannot be used to trump the law.

Some of those who support Davis have made the point that some state and local governments are ignoring federal laws in regards to drugs and immigration. To be more specific, it is pointed out that some states have legalized (or decriminalized) marijuana despite the fact that federal law still defines it as a controlled substance. It is also pointed out that some local governments are ignoring federal immigration law and acting on their own—such as issuing identification to illegal immigrants and providing services.

Some of Davis’ supporters even note that some of the same people who insist that Davis follow the law tolerate or even support state and local governments ignoring the federal drug an immigration laws.

One way to respond to the assertions is to claim that Davis’ defenders are committing the red herring fallacy. This is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. The basic idea is to “win” an argument by leading attention away from the argument and to another topic. If the issue is whether or not Davis should follow the law, the failure of some states and local governments to enforce federal law is irrelevant. This is like a speeder who has been pulled over and argues that she should not get a ticket because another officer did not ticket someone else for speeding. What some other officer did or did not do to some other speeder is clearly not relevant in this case. As such, this approach would fail to defend Davis.

In regards to the people who say Davis should follow the law, yet are seemingly fine with the federal drug and immigration laws being ignored, to assert that they are wrong about Davis because of what they think about the other laws would be to commit the tu quoque ad hominem. This fallacy is committed when it is concluded that a person’s claim is false because it is inconsistent with something else a person has said. Since fallacies are arguments whose premises fail to logically support the conclusion, this tactic would not logically defend Davis.

Those who wish to defend Davis can, however, make an appeal to consistency and fairness: if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished. Those not interested in defending Davis could also make the point that consistency does require that if Davis is compelled to obey the law regarding same-sex marriage, then the same principle must be applied in regards to the drug and immigration laws. As such, the states and local governments that are not enforcing these laws should be compelled to enforce them and failure to do so should result in legal action against the state officials who fail to do their jobs.

This line of reasoning is certainly plausible, but it can be countered by attempting to show a relevant difference (or differences) between the laws in question. In practice most people do not use this approach—rather, they have the “principle” that the laws they like should be enforced and the laws they oppose should not be enforced. This is, obviously enough, not a legitimate legal or moral principle.  This applies to those who like same-sex marriage (and think the law should be obeyed) and those who dislike it (and think the law should be ignored). It also applies to those who like marijuana (and think the laws should be ignored) and those who dislike it (and think the laws should be obeyed).

In terms of making the relevant difference argument, there are many possible approaches depending on which difference is regarded as relevant. Those who wish to defend Davis might argue that her resistance to the law is based on her religious views and hence her disobedience can be justified on the grounds of religious liberty. Of course, there are those who oppose the immigration laws on religious grounds and even some who oppose the laws against drugs on theological grounds. As such, if the religious liberty argument is used in one case, it can also be applied to the others.

Those who want Davis to follow the law but who oppose the enforcement of certain drug and immigration laws could contend that Davis’ is violating the constitutional rights of citizens and that this is a sufficient difference to justify a difference in enforcement. The challenge is, obviously enough, working out why this difference justifies not enforcing the drug and immigration laws in question.

Another option is to argue that the violation of moral rights suffices to warrant not enforcing a law and protecting rights warrants enforcing a law. The challenge is showing that the rights of the same-sex couples override Davis’ claim to a right to religious liberty and also showing the moral right to use certain drugs and to immigrate even when it is illegal to do so. These things can be done, but go beyond the scope of this essay.

My own view is that consistency requires the enforcement of laws. If the laws are such that they should not be enforced, then they need to be removed from the books. I do, however, recognize the legitimacy of civil disobedience in the face of laws that a person of informed conscience regards as unjust. But, as those who developed the theory of civil disobedience were well aware, there are consequences to such disobedience.


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Same-Sex Marriage, Religious Liberty & Obedience

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on September 2, 2015

Kim Davis, a country clerk in Kentucky, has refused to issue marriage licenses to same-sex couples on the grounds that doing so violates her religious beliefs. When questioned about this, she has replied that she is acting “under God’s authority.” Some of those supporting her, and other clerks who have also decided to not issue marriage licenses, are contending that it would violate her religious freedom to be compelled to follow the law and do her job. This situation raises numerous important issues about obedience and liberty.

When taking a position on situations like this, people generally do not consider the matter in terms of general principles regarding such things as religious liberty and obedience to the state. Rather, the focus tends to be on whether one agrees or disagrees with the very specific action. In the Davis case, it is not surprising that people who oppose same-sex marriage tend to favor her decision to disobey the law and claim that she has a moral right to do so. It is also not surprising that those who favor same-sex marriage tend to think that she should obey the law and that it is morally wrong for her to disobey the law of the land.

The problem with this sort of approach is that it is unprincipled—unless being in favor of disobedience one likes and opposing disobedience one dislikes is a reasonable moral position. Moral consistency requires the application of a general principle that applies to all relevantly similar cases, rather than simply going with how one feels about a particular issue.

In regards to the situation involving Davis, many of her defenders have tried to present this as a religious liberty issue: Davis is being wronged by the law because it compels her to act in violation of her religious beliefs. Her right to this liberty presumably outweighs the rights of the same-sex couples who expect her to follow the law and do her job.

Having been influenced by Henry David Thoreau’s arguments for civil disobedience and by Thomas Aquinas, I agree that an individual should follow her informed conscience over the dictates of the state. The individual must, of course, expect to face the consequences of this civil disobedience and these consequences might include fines, being fired or even time in prison. Like Thoreau, I believe that a government official who finds the law too onerous should endeavor to change it and, failing that, should resign rather than obey a law she regards as unjust. As such, my general principle is that a person has the moral right to refuse to follow a law that her informed conscience regards as immoral.

In the case of Davis, if she is acting in accord with her informed conscience, then she has the moral right to refuse to follow the same-sex marriage law. However, having failed to change the law, she needs to either agree to follow this law or resign from her position.

That said, I am well aware that a person’s informed conscience can be in error—that is, what she thinks is morally right is not actually right. It might even be morally wrong. Because of this, I also accept the view that while a person should follow his informed conscience, the actions that follow from this might be morally wrong. If they are wrong, the person has obviously acted wrongly—but, to the degree that she followed her informed conscience, she can be justly excused in regards to her motivations. But, the actions (and perhaps the consequences) would remain wrong.

Since I favor liberty in regards to marriage between consenting adults (and have written numerous essays and a book on this subject), I believe that Davis’ view about same-sex marriage is in error. Though I think she is wrong, if she is acting in accord with her informed conscience and due consideration of the moral issue, then I respect her moral courage in sticking to her ethics.

While subject to the usual range of inconsistencies, I do endeavor to apply my moral principles consistently. As such, I apply these principles to all relevantly similar cases. As such, whenever there is a conflict between an individual’s professed moral views and the law she is supposed to enforce, I ask two questions. The first is “is the person acting in accord with her informed conscience?” The second is “is the person right about the ethics of the matter?” This is rather different from approaching the matter by asking “do I agree with the person on this specific issue?”

As noted above, some of the defenders of Davis are casting this as a religious liberty issue. In this case, the implied general principle would be that when an official’s religious views conflict with a law, then the person has the right to refuse to follow the law. After all, if religious liberty is invoked as a justification here, then it should work equally well in all relevantly similar cases. As such, if Davis should be allowed to ignore the law because of her religious belief, then others must be allowed the same liberty.

As might be suspected, folks that oppose same-sex marriage on religious would probably agree with this principle—at least in cases that match their opinions. However, it seems likely that many folks would not be in favor of consistently applying this principle. For example, consider the matter of immigration.

The bible is reasonable clear about how foreigners should be treated. Leviticus, which is most commonly cited to condemn same-sex marriage, commands that “The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the LORD your God.” Exodus says “”Do not mistreat or oppress a foreigner, for you were foreigners in Egypt” while Deuteronomy adds to this that “And you are to love those who are foreigners, for you yourselves were foreigners in Egypt.”

Given this biblical support for loving and treating foreigners well, a border patrol agent, INS official, or immigration judge could find easy religious support for refusing to enforce immigration laws violating their conception of love and good treatment. For example, a border patrol agent could, on religious grounds, refuse to prevent people from crossing the border. As another example, a judge could refuse to send people back to another country on the grounds that the bible says about treating the foreigner as a native born. I suspect that if officials started invoking religious freedom in order to break immigration laws, there would be little support for their religious liberty from the folks who support religious liberty in regards to breaking the law governing same-sex marriage.

To use another example, consider what the bible says about usury. Exodus says “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him.”  Ezekiel even classified charging interest as an abomination: “Lends at interest, and takes profit; shall he then live? He shall not live. He has done all these abominations; he shall surely die; his blood shall be upon himself.” If religious liberty allows an official to break/ignore laws, then judges and law enforcement personnel who accept these parts of the bible would be allowed to, for example, refuse to arrest or sentence people for failing to pay interest on loans.

This can be generalized to all relevantly similar situations involving law-breaking/ignoring officials who do so by appealing to religious liberty. As might be imagined, accepting a principle that religious liberty grants an official an exemption to the law would warrant the breaking or ignoring of a vast multitude of laws. Given this consequence, it would seem that accepting the general principle of allowing religious liberty to trump the law would be unwise. It is, however, wise to think beyond one’s feeling about one specific case to consider the implications of accepting a general principle.


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Protesting the Pat

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on November 18, 2010
Male model wearing racing briefs, 2003.
Ready for his pat down. Image via Wikipedia

Some people have proposed protesting the TSA body scans and pats by refusing the body scan and electing for the full body pat down in public view. Presumably the goals are to call attention to the humiliating nature of the procedures and to slow down travel, thus making people angry.

Like Thoreau and King, I do think that civil disobedience and its relatives are legitimate and often morally commendable means of protest. However, the protests should be calculated to win public support and focus the outrage of the public on the target of the protests rather than on the protesters.

As I write this, the protest is planned for the day before Thanksgiving-a rather busy travel day. While this will provide the protesters with a large audience, the members of this audience (their fellow passengers) will most likely be more concerned about getting to grandma’s house than with the injustice of the scans. I suspect that more people will be angered at the protesters slowing down the process than at the government for implementing such invasive and unwarranted procedures. However, I could be mistaken-perhaps there will be a groundswell of support for the protesters and this will be known as the Pre-Thanksgiving Miracle Protest of 2010.

This is a matter of legitimate concern. After all, a protester has an obligation to consider the impact of his/her protest on others. If this impact is morally unacceptable, then the protest should not take place. If it is, then the protest would be (obviously) acceptable. In the case of the travel protest, there is the legitimate concern that the protest might significantly slow down travel. At the very least, the TSA will probably need to put more people on pat down and this will mean fewer people to handle the other tasks. Also, as with any protest, there is the possibility that things might go wrong. Perhaps a tired and annoyed TSA agent will slip and give a fellow a full groin grope, leading to a punch to the face (which would not be unreasonable-touching another man’s junk without permission is a punchable offense) which would probably be followed by an exciting security lock down. Or perhaps an angry passenger will start something. Or maybe everything will go smoothly. In any case, the protesters need to consider what effect their actions will have on others.

I happened to be thinking about this while running and my running attire (shirtless and short shorts) gave me an idea for another type of protest: men going through security in Speedos and women going through in bikinis. I assume that TSA would still have to pat such almost naked people down-after all, bureaucracy is really big on mindlessly following rules.

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Gratitude Towards the Rich?

Posted in Business, Politics by Michael LaBossiere on July 19, 2009

In a recent Newsweek article, Robert Samuelson wrote an article arguing that the fact that the rich have been suffering from the recession is bad for everyone. Not surprisingly, people who are not rich have not been terribly sympathetic to the rich who are not quite as rich as they once were. After all, it is hard to feel the pain of people who are still vastly better off than the overwhelming majority of Americans (and incredibly better off than the vast majority of human beings).

Like most of the non-rich, I have fairly minimal sympathy for those who are merely less rich. After all, it does not make sense for me to feel bad for folks who are still considerably better off than I am, at least financially. My sympathy is reserved for people who are truly suffering, such as the folks who are struggling to make enough money to pay rent and feed their kids. I just cannot feel for someone who is suffering because she has to wear last year’s $10,000 dress to that party at the Hamptons or is dealing with the horror of having to fly first class rather than taking a private chartered flight to a vacation getaway at his fourth house in Cape Cod. Of course,  I do have sympathy for people who have been totally ruined, such as those who were deceived by the likes of Madoff.

Of course, the general state of the economy does concern me and it is true that the fact that some rich folks are less rich does impact the economy. Samuelson makes a case for why we should be concerned about the plight of the rich by presenting three considerations.

First, he notes that consumption spending (which is a major fuel for the economic engine of America) is dominated by the rich. Folks who make $100-200,000 make up 14% of the US population, but compose 34% of the spending.

As he notes, they are able to spend so much because they make so much more money. In addition to having more money overall, they also have more income left over after meeting their basic expenses, thus allowing them to engage in more consumption spending on non-essential items. This spending by the rich enables many of the rest of us to have jobs making things for, selling things to, and providing services for the rich.

Of course, they are such a important factor because they have so much wealth. Naturally, if this wealth were spread out (or distributed, to use a word guaranteed to jack up the blood pressure of any Republican reading this) we would still have the same amount of overall spending, only it would not be coming from such a small percentage of the population. Also, if the wealth were more distributed, it would enable more people to enjoy better lifestyles (such as being able to afford health insurance).

Of course, there is the obvious question of why such a broader distribution of wealth would be desirable. One way to argue for this is to use an analogy: suppose there is a party and 14% of the guests consume 34% of the food. This would strike most people as being a rather unfair situation-why should so few people consume so much?

The obvious and stock reply to this is that the analogy is flawed. If the 14% who consume 34% of the food paid for all that food themselves, then they are entitled to that extra consumption.

Of course, the question does arise as to whether or not the wealthy actually deserve such wealth and whether or not everyone has a fair chance of achieving such wealth. Obviously, some people do earn their wealth and some do not. But, more importantly, not everyone has a fair chance of getting wealth. By this, I do not mean an equal chance: not everyone has the abilities, skills, will, and drive to achieve the success needed to be wealthy. A fair chance is like the starting line of a race: everyone has to run the same distance and everyone has to run. Of course, that is obviously not the case. People born into wealthy families get a vast head start and are given additional advantages. People born into poor families are way behind from the start and are generally confronted with ever increasing obstacles rather than given any advantages.

The current economic problem revealed a great deal about how many companies and individuals became wealthy or increased their wealth: scams, “magic money” packaging and repackaging, unearned bonuses, predatory loans, and other morally dubious means.

Of course, there are “rags to riches” tales of people who started in poverty or challenging circumstances and ended up in a mansion (or the White House). But these tales are the very rare exceptions. To say that they show that the current situation provides fair access to opportunity for everyone would be like claiming that most high school/college athletes become pro athletes by pointing to a few examples.

My thought is that while we should be concerned that the rich have less money to spend on consumption, we should be more concerned that so few people have so much more than everyone else and that we have to rely so heavily on them. We should also be concerned about how this wealth was acquired.

Samuelson’s second point is that the rich pay most of the taxes in the US. As he points out, 50% of the 2006 taxes were paid by the wealthiest 10% of the population. Amazingly, 28% of the taxes were paid by the richest 1%.

Part of this is due to the obvious fact that the rich are richer and hence would pay more even if they paid the same percentage of their income in taxes. The other part is due to the fact that the income tax is progressive-the more you make, the higher percentage of your income you pay in taxes.

While this does show that the rich pay most of the taxes, it also raises the obvious worry: why do so few people have so much wealth? Perhaps this is perfectly just: the rich earned their wealth and deserve, if not every penny, at least most of what they earn. If this is the case, then this is obviously just and fair. Obviously, the mere fact that the distribution of wealth is so extreme does not itself entail an unfair system. To use an analogy, I have far more running trophies than most people, but that is not due to injustice. It is due to the fact that I train hard and race hard, thus earning those trophies.

Of course, some of the disparity is no doubt due to unfair factors-just as some athletes win by using steroids and by other unfair means.

One final point here, to borrow from Thoreau, is that although the rich pay more taxes, they tend to benefit more from the government. As such, they should be expected to pay more for what they receive. For the argument, read Thoreau’s essay on civil disobedience.

Samuelson’s third point is that the rich give the most to charity. To be specific, half of the charitable contributions of money are made by the 10% wealthiest Americans. Even more extreme is the fact that 27% of such contributions come from the wealthiest 1.5% of Americans

While it is good that the wealthy give to charity (and presumably they do so not just for the tax breaks or the good PR), it is still worrisome that so few people have so much wealth. It might be noted that if wealth was not so concentrated, there would not be so much need for charity.

Samuelson’s final point is that the wealthy provide money for venture capital. As he points out, about 10% of this money comes from individuals and families.

While venture capital does help companies start up and thus creates more jobs (for someone at least, even if the jobs created are overseas jobs), the rich can do this because they are already rich. Also, they provide such capital in order to become even richer, although perhaps some of them do it out of a concern for helping provide new jobs.

Samuelson’s article does do an excellent job at laying bare how much the economy depends on so few. However, this facts should not inspire us to be worried about the well being of the rich. Rather, we should be dismayed by such an extreme concentration of wealth and consider how this concentration itself helped bring the economy down.

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