Religious Liberty vs. Hobby Lobby

Let's start with one thing. It is not acceptable for my boss to make my religious decisions. It is not acceptable for your boss to make your religious decisions, or for somebody else's boss to make religious decisions for them. Your religious freedom is yours, alone. It does not belong to your employer, to your landlord, or to anybody else. The deepest stupidity of the inane Hobby Lobby decision is that it uses religious freedom to let your boss take away your religious freedom. That is not acceptable. And it is not sustainable. Five allegedly rational Supreme Court justices have just opened the door to vicious religious conflict. Because letting your boss make your religious decisions is not acceptable, and over the long run people will not accept it.

I will admit that the Supreme Court and I come at First Amendment questions from different directions (although with a shared commitment to the First Amendment's value). They look back at it from the present day, viewing the Constitution as a point of intellectual origin. They understand its context and immediate antecedents, but their historical narrative is about the creation of the Constitution and the past two centuries of its interpretation. My scholarly work forces me to look forward to the Constitution. The writers and books I study are from an earlier period, inhabiting a world in which the Constitution is not yet imaginable. So I have gradually come to see the Constitution in terms of what went before, to see it as a set of codified solutions to particularly ugly historical problems. I don't have to imagine where we would be without Constitution or the Bill of Rights, because I have all too clear a picture of what the world without them was like.

The 16th and 17th centuries were periods of ferocious religious warfare, complete with terrorism, persecution, assassination, torture, inquisitions, and massacres of civilians. I use none of those terms figuratively. Kings were stabbed to death by religious fanatics. Religious leaders were burned alive in the public square. Conspirators plotted to blow up government buildings, to overthrow regimes. Women and children were beaten to death by mobs of their own neighbors. All of this was done by Christians to other Christians, and no denomination's hands were clean. If you look back at this history hoping to find that your own church behaved like the good guys, you will be sorely disappointed. Every existing Christian group played both the villain and the victim, more than once.

The hundred years or so before the Constitutional Convention saw the European religious conflicts modulate somewhat, so that religion became one volatile and dangerous wild card in larger games of international conflict and domestic factionalism. But religious intolerance and aggression did not go away. The settlement of the Thirteen Colonies was partly driven by the need to escape various forms of sectarian prosecution. And while the wars of religion were no longer the main show, they were certainly not gone. The last armed revolt aimed at putting a Roman Catholic on the English throne was in 1745. Benjamin Franklin was 39 years old at the time.

When I hear 21st-century American Christians complain about being persecuted for their beliefs, I am caught between laughter and disgust. Those people have no idea what real persecution is. And the danger to Christians has never been the secular state. The greatest danger to Christians; religious freedom is always other Christians. Secular government was devised to protect Christians from one another, and it is the only thing that has been shown to work.

The First Amendment guarantees free exercise of religion, and prohibits the establishment of any favored religion. The current religious right loves one clause and hates the second. They want freedom of exercise. They hate that the Establishment clause enforces a level playing field, and prevents one religious group's exercise from infringing upon others. Enormous bitterness is directed toward Jefferson's phrase "separation of Church and State," with endless tedious reminders that Jefferson's phrase is not in the First Amendment per se (but only a clear record of, ahem, original intention). But the fact is, you can't have one without the other. Religious freedom is only possible if the officially-secular state enforces a neutral playing field.

If we allow various Christian groups (or hypothetically other groups, although only Christians have that kind of political muscle in the United States) to use political or economic power to push their version of Christianity on others, the live-and-let-live "free exercise" arrangement falls apart. And then push comes to shove.

If certain parties are allowed to exercise their religious rights so vigorously that other people aren't free to make their own religious decisions, then no one can afford religious tolerance anymore. If my neighbor is permitted to impose his religion on me, then my only recourse is to drive everyone whose religion I disagree with out of the neighborhood. If the principal of the public elementary school has religious freedom to proselytize my (hypothetical) children, then I need to discriminate against certain potential principals on religious grounds, eliminating people whose beliefs I don't share. If a Mormon governor is liable to ban coffee shops, then I can no longer vote for a Mormon candidate. If people are using business to push religion, I can no longer do business with people of incompatible religions. That's a very bad outcome, but it's also the inevitable outcome.

If the government does not act as a referee, religious toleration becomes impossible, unworkable. If individuals are allowed to use whatever leverage they happen to have to coerce their neighbors or employees or tenants into conforming with their own religious beliefs, what you create is a competition in which people are forced to keep amassing more and more coercive muscle. The only way to keep your neighbors from jamming their religion down your throat is to organize some coreligionists and jam your religion down the neighbors' throats. That turns into persecute or be persecuted: a swift, ugly, and distinctly ungodly cycle.

What five of the Supreme Court justices have decided in Hobby Lobby is that religious coercion by non-government agents is actually a guaranteed right, and that the government cannot step in to prevent it because that would limit the coercive party's right to free exercise. That is a mind-bogglingly stupid position. And it ultimately leads back to the bad old days of sectarian infighting, where the only way to protect your own religious liberty was to trample everybody else's. I don't want any part of a country like that. I been there before.

cross-posted from Dagblog

You Don't Need a Gun: Mass Shooters

The shootings in Isla Vista have left me too angry to blog. But now we have yet another shooter on a college campus, at Seattle Pacific. Fortunately, this murderer was stopped after killing one and wounding three. And he was stopped in the way the gun-rights community says he can never be stopped: he was stopped without a gun.

If you'll forgive me repeating parts of a blog post from two years ago, written after another of our endless repeated mass murders:

if you are attacked by a shooter in a public place, and if you ever get a chance to stop the shooter by force, you will get that chance when the shooter stops to reload.
 ...
You are not guaranteed to get that chance, or any chance.

Tonight, thank God, the Seattle Pacific shooter was tackled by a student security monitor when the gunman paused to reload his shotgun. [I salute that brave person, and hope the press finally covers the hero of the day instead of the murderous failure of a villain.] If the gunman had used a gun with a larger clip, such as a Bushmaster, he would have been able to shoot many more people before he was vulnerable.

Why does this matter? Because:

If you did get a chance to attack the shooter, in that moment when he needs to reload, you would not need a gun to stop him. When he is temporarily unable to fire, he can be attacked with bare hands or hit with anything handy. And there are documented incidents where shooters have been stopped, and further killing prevented, in exactly this way.

On the other hand, if you happened to have a handgun on your person when the shooting started, it still wouldn't help much until the shooter had to reload. Most mass shooters are using semi- or fully-automatic weapons with a high rate of fire, designed to provide suppressing fire that makes it hard for anybody to fire back.

Now, the NRA fans will tell you, every single time one of these shooting happen, that "The only thing that can stop a bad guy with a gun is a good guy with a gun." But this is clearly not true. In fact, it's the opposite of the truth.

You do NOT need a "good guy with a gun," to stop a mass shooter. More than one mass shooter has been stopped by good people who were totally unarmed. There are real cases we can point to, and another, thank God, tonight.

And if by, "a good guy with a gun" you mean, as gun-rights advocates usually mean, an armed bystander with a gun, that is completely wrong. I can't think of a single mass shooter who has been stopped by a random civilian with a gun.

Shooting incidents like this end in three ways:

1. The police kill the gunman.
2. The gunman kills himself when the police have him cornered.
3. Unarmed bystanders rush the gunman when he reloads.

The police don't count as "good guys with guns" in the discussion over gun rights and gun control, because no one in America advocates disarming the police. So when the NRA/open-carry/Second-Amendment-absolutist crowd talks about the need for more guns, they are talking about something that never happens. Private citizens who happen to be carrying a gun do not stop mass shooters.

So, the gun-rights crowd demand that everyone have guns to stop this violence that everyone having guns has never, ever stopped. On the other hand, their insistence that everyone have untrammeled access to serious firearms means that mass shooters do have guns. We need to let emotionally-troubled criminals amass the firearms they need to massacre people, so that it will remain hypothetically possible that someone, somewhere, at some time might possibly use a gun to cut a senseless gun massacre short, although that has not happened so far.

That's the logic, if you can call it that. Keep gun laws loose, no matter how many lunatics use them for mass murder, so that private citizens with guns can continue to not stop those mass murders. It's hard to imagine a worse plan than that.

cross-posted from Dagblog

Donald Sterling, Big League Sports, and the Free Rider Problem

Can the other 29 NBA owners force Donald Sterling to sell the LA Clippers? Let's put it another way: can the other 29 owners be forced to remain Donald Sterling's partner? Of course, private citizens shouldn't be forced to sell privately owned businesses. But how much of Sterling's business exists if you take away his association with those other 29 private businesses? If you take away the other 29 teams, what does Sterling own?

Sterling's real business isn't the basketball team itself, but his partnership with the rest of the owners. Donald Sterling didn't "make the league" as he has put it. The league made Donald Sterling an owner. The league has made Donald Sterling very, very rich, while Sterling has never made any money for the other franchises. Can his 29 partners, who have indirectly subsidized his business for over 30 years and who are now worried that Sterling is going to cost them untold millions, be forced to stay in business with him?

What would happen if the NBA owners decided that they couldn't make Sterling sell the team itself, so that the only way to get free of him was to expel the whole team from the NBA? Sterling would still own his business: a basketball team named the LA Clippers. He'd have that business's assets and its debts, hold its leases and its contract obligations. But the other NBA teams wouldn't play the Clippers. They would be free to find other opponents. But who would pay to watch that? Who would pay to advertise at those games? Who would put that on TV?

A Clippers organization cut loose from the NBA would never bring in the profits Sterling has gotten used to as an NBA owner. It wouldn't be able to bring in enough revenue to pay the players' existing contracts. Without its league connection, the team would go bankrupt. Without the NBA, the Clippers organization does not exist. The other 29 owners are Donald Sterling's business.

The truth is that Sterling's membership in the NBA has always involved both indirect and direct transfers of wealth from the other owners. The Clippers have been a notoriously terrible organization for most of Sterling's tenure; that they have actually been winning the last two or three years is an almost flukey interruption after three decades of futility. (And that fluke was directly engineered by the last NBA commissioner, who forced another team to trade a star player to the Clippers instead of the Lakers.) To put it very simply, Sterling has spent 30 years as the owner of a basketball team that people don't want to see. He has basically gotten rich as the owner of the Washington Generals.

Sterling has made money because his team that people don't want to watch holds one of the 30 exclusive licenses to play the basketball teams that people do want to watch. Sterling's business has not been putting on the Clippers' home games but hosting the other 29 teams' away games. Sterling has been granted a special license to sell tickets to Lakers, Spurs, Bulls, Pistons, Celtics, and Heat games. The other 29 teams are obligated to play on Donald Sterling's floor 41 times a year, no matter what. And they are obliged to host the Clippers 41 times a year, no matter how low the demand for those games.

Most of those teams, most of those years, could do as well or better by playing someone beside the Clippers. Fans happily paid to see Bird's Celtics, Ewing's Knicks, Jordan's Bulls, and generations of championship-bound Lakers teams play Sterling's Clippers over the years. But they were paying to see those teams, not the Clippers. And when your team was having attendance troubles, you never got a boost when the Clippers came to town. On the other hand, Sterling could always count on selling extra tickets when better, more popular teams came to town. Sterling has profited off generation after generation of visiting basketball stars, from Magic and Bird in the 80s to LeBron and Durant today.

Now, running an also-ran team for 30 years, with only rare and brief playoff appearances, means that your team doesn't get much time on national TV. But that's okay for Donald, because the league has a formula for sharing out its TV revenue to all of the owners. So Donald Sterling has gotten a slice of the Lakers/Celtics money, the Bulls/Jazz money, the Spurs/Heat money. In the same way, league revenue sharing means that Donald gets some money from every NBA hat, jersey, and official knick-knack that gets sold, although nearly all of that merchandise has some other team's logo. LeBron's jersey puts cash in Donald's pocket. The cash other owners have gotten from the sale of Lamar Odom and Danny Ferry gamers doesn't even begin to match the revenue Sterling has made from Jordan, Magic, Shaq, and the rest. The number of kids who've bought an NBA video game so they could play as the Clippers might actually be the square root of -1, but Sterling has taken a split from every XBox cartridge.

The other 29 NBA owners haven't been hurting, and they haven't missed the cut that goes to Sterling. But for the last 30 years and more, they have been subsidizing him. They have put money in his pocket, and he hasn't put any in theirs.

You'd think that Sterling would be grateful. But, well. Only a few years after buying the Clippers, Sterling moved them from San Diego to LA (which, you may have heard, has another basketball team) despite being forbidden to do so by the league. Instead of building up the league by strengthening the San Diego market, Sterling took the NBA out of that market entirely. Instead, he went to a city where his team added nothing -- and indeed could add nothing -- so he could feed off the existing market created by the Lakers organization. Sterling could not possibly build LA's interest in the NBA; a better owner had already built a deeply beloved franchise there. Years later, NBA Commissioner David Stern would actually reward Sterling by forcing Chris Paul to go the Clippers instead of the Lakers. Sterling couldn't attract stars to his business, so the NBA gave him one. Sterling's relationship to the NBA has always been parasitic.

Sports fans love to hate the big-spending owners who don't give smaller-market teams a chance. But fans give a free pass to owners like Sterling, who exploit their membership in the big-league club to get a lucrative free ride. Every major sports league has some owners who have decided that they can get rich fielding mediocre teams and making a buck off the stars that better owners pay. Attempts to restore competitive balance with revenue sharing don't fix this free-rider problem; they make it worse, because they make it even easier to profit off your association with better-run businesses. Some of these owners are in smaller media markets, but it's not just about the size of the market. Donald Sterling runs his crappy business in Los Angeles.

George Steinbrenner took a lot of heat over the years, and I talked smack about him myself. But Steinbrenner put money in the other owners' pockets. Every team the Yankees play this year is going to make money marketing Derek Jeter's farewell; every team they played last year made money from Mariano Rivera's farewell. Yankee Stadium doesn't get to market the farewell tours of beloved Royals or Indians Hall-of-Famers. The Yankees don't have paid attendance double when the Padres come to town. And they don't double the ticket prices for spring training games against the Florida Marlins. Other teams do charge extra for spring training games against the Yankees; they make a profit off Steinbrenner's payroll. Free-riding owners are at least as big a problem for competitive balance as free-spending owners.

One of the jokes about Sterling's self-immolation is that he castigated his girlfriend for "broadcast[ing]" her association with Magic Johnson. But associating with Magic Johnson has always been good for the NBA's business. He has always made them money and always improved their brand. (Magic is a likeable version of Hyman Roth -- he always makes money for his partners.) The other owners literally want to broadcast their association with Magic; they want him associated with the NBA on TV. The essence of Sterling's entire business model has been to broadcast his association with Magic Johnson, who has put fans in Sterling's seats and dollars in Sterling's bank account.

The rest of the league has carried Donald Sterling for over 30 years, and the value of his NBA franchise has increased twenty-fold in that time; that increased value has been created by the other 29 franchises, not by Sterling. Now Sterling's craziness has threatened those other 29 owners' businesses. Advertisers don't want to be in business with Donald Sterling. TV networks don't want to be in business with Donald Sterling. So the rest of the owners simply cannot afford to be in business with Donald Sterling. They're considering making him sell, at a ridiculous profit that has nothing to do with how Sterling has run his business and everything to do with how the other owners have run theirs. If Sterling fights in court, it will be likely be on anti-trust grounds; major American sports leagues essentially do operate like trusts or cartels, and need to. The joke is that if the NBA didn't operate like a trust, Sterling's Clippers would not exist at all.

cross-posted from Dagblog

Why Colleges Mishandle Sexual Assault

My first week of college, someone passed along some time-honored undergrad wisdom: "If you're going to get arrested," we were told, "and you see a campus cop coming one way and a city cop coming the other, run to the campus cop." I've been thinking about that advice lately, as the news brings more scandals about sexual assault at American colleges. This week the Department of Education named 55 colleges and universities being investigated for mishandling sexual violence complaints. Fifty-five. The school where I was told to run to the campus police is one of them. That advice is part of the problem: completely backwards for victims of sexual violence. If you've been the victim of a crime, you should run away from the campus authorities. You need the actual police.

The advice to choose the campus police presupposed that I was going to be arrested, for drinking or some other college-boy misdemeanor. And while I managed to get through college without needing it, that advice was sound. Getting arrested by the college police is a better deal. College authorities don't want their students in serious trouble, and they look for ways to let them off easy. Getting arrested by the campus police could still have real consequences. But you can be sure you will face the fewest consequences your actions permit.

But if you are the victim of a crime and only go to the college authorities, that means your attacker will face the fewest consequences possible. Not might. Will. If you are assaulted or raped and you only go through the school's judicial process, you are keeping your attacker safe in the hands of the people most reluctant to punish him.

Colleges don't especially want to punish crimes of any description. Not petty drug and alcohol beefs, not iPad swipes or bicycle theft, not anything. The individual people who make up the school naturally believe, in the abstract, that crimes should be punished. But the organization itself is not interested in crime or punishment. A university will, if you push it far enough, punish you for a crime. But you have to give it no other choice.

I work as a college professor. I was raised by a police officer. Those two things are nothing alike. Police departments and universities obviously look different. But they are actually even more different than they look. The differences are pervasive and profound, shaping the outlook of everyone inside either institution. Cops and deans, simply because they are cops and deans, see the world in radically different ways.

What colleges want is for their students to succeed. Schools are willing to suspend students, expel them, or flunk them out when a particular case seems hopeless. But those are always considered bad results. Flunking and expelling people is not the general goal. What schools want is for as many students as possible to do well and graduate.

That means if one student has assaulted another the school will hope, deep in its institutional heart, that there's some way that things can work out for both students. They will try to mediate a solution that, at least in the mediators' minds, keeps everyone happy. That comes, originally, from a benign place. But the how-can-this-work-out-for-everybody mindset becomes insanely inappropriate when one person has committed a crime against another. It is a ghastly response to sexual assault.

Police and prosecutors are not concerned about everything working out for all parties involved. They're not worried about the long-term future of people accused of serious crimes. The police, by their nature, take sides. The accused can get his own damn lawyer. If someone has assaulted you, go to the people who will treat you as a victim and your attacker as a potential criminal. Do not go to people who view you and your attacker as equally valued members of the community.

Sexual assaults aren't the only crimes that colleges mediate in this wrongheaded way. If you're in college and another student causes you serious harm or does major property damage, you will not get full satisfaction from the school authorities, because they are not a court of law. I cannot tell any specific stories here, but if you have been a victim colleges are not set up, or legally empowered, to give you genuine restitution. And universities' approach to adjudicating crimes can be grotesquely Solomonic. If you go to them about a stolen baby, they will often propose cutting the baby in half. (In the original story, of course, Solomon only proposes the baby-splitting to smoke out a malefactor, because anyone okay with cutting a baby in half is no damned good.) This leads to the kind of Mickey-Mouse discipline often given out to young men who have sexually attacked their classmates. Colleges don't treat rape as a crime because colleges have trouble thinking of their students as criminals.

Even worse, precisely because universities are not courts of law, they have generally become skittish about being sued in real courts of law by the parents of students who misbehave. When a student does get suspended or expelled, they sometimes turn up with parents and lawyers arguing that the punishment is too "extreme" and that the punished student didn't get due process and the school is ruining this young man's bright future and so on and so on and so on. So, the Mickey-Mouse nature of the college discipline process not only means that serious crimes get only Mickey-Mouse punishments, but means even those lame, inadequate punishments are vulnerable to challenge on the grounds that the whole procedure was Mickey-Mouse. After the panel gives the victim half a baby, lawyers show up demanding that the criminal be given three quarters of the baby.

Many school have apparently been conditioned by this process to bend over backwards trying to avoid lawsuits by the families of the very students that the school has slapped on the wrist for serious crimes. Schools have faced legal expenses and jeopardy over taking crimes too seriously. They have not been sued, until just the last few years, for not taking crimes seriously enough. The recent spate of lawsuits, and the investigation by the federal government, is a needed and long-overdue corrective.

What is completely inexcusable, and what I hope the recent lawsuits and investigations and bad publicity will finally end, is colleges' practice of deliberately steering young women away from pressing charges. Colleges, whose self-interest dictates that everything stay in house, tell victims of sexual violence that staying with the college's in-house disciplinary procedure is in the victim's interest. That is a scandal. It is a terrible thing to frighten a young woman fresh from a traumatic experience of sexual violence with stories of how scary it would be for her to go to the police. But traumatized young women are frequently told that going to the police will be much worse for them than staying with the college's in-house procedures. That is a lie. Nothing is worse for victims than a college's in-house procedures.


Whenever someone is telling you how horrible going to the police would be for you, that's usually a sign that you should go to the police right away.  And if someone is urging you not to go to the police, ask yourself why your going to the police scares them.

Worst of all, discouraging women from going to the police when they have been raped or assaulted discourages them from understanding what has happened to them as a crime. And if you have been victimized you must never, ever let go of that basic truth. What has been done to you is not a misunderstanding or a discourtesy or a violation of some pissant code of conduct. It is a crime, and no one who treats it as something else cares about your welfare.

If you are a college or university, the best way to protect yourself from litigation over how you've handled felonies on your campus is not to fool around trying to adjudicate felonies. You're not set up for it, and you're not good at it. Bring in the police as soon as you can; dealing with crime is their thing. And never, ever try to protect one student from the police by leaving another unprotected.

If you are a victim, don't walk to the police. Run. If you can get to the police without telling any campus authorities, do it. You can go to the deans after the police report has been filed. Asking that your attacker be moved out of your dorm will have a lot more bite if you're pressing criminal charges. And that charge will change the deans' sense of the situation's magnitude. They'll be less likely to tell you that moving your attacker to another dorm for a semester is a sufficient final punishment.

A crime is a crime no matter where it happens. If you want to learn about Platonic philosophy, don't go to a police lieutenant. If you've been a victim of a serious crime, don't go to a dean.

The Shakespeare Slly Season

This week marks Shakespeare's 450th birthday, leading to many celebrations. We don't know exactly which day he was born (because we only have a record of his baptism, not of his birth), but it was sometime before April 26, and the April 23 has become the "official" birthday. (Why? 1. Shakespeare died on April 23, so wouldn't that be cool? and 2. April 23rd is an English national holiday, so wouldn't that be lovely and patriotic?)  But because it's a big round-number birthday, it's also attracting scammers and hucksters.

First, there was a viral post about the discovery of lost Shakespeare play, Cardenio. Now, there is a lost play by Shakespeare called Cardenio, which various contemporary witnesses refer to as his. (There may well also be a lost play called Loves Labors Won, the sequel to Loves Labors Lost. If you've read to the end of LLL, you'll know why some people might be expecting a sequel.) And now, news of that Cardenio has been discovered! Bad news ... the website announcing this discovery is worldnewsdailyreport dot com (which I will not link), the online successor to The Weekly World News. It's a website about Bigfoot and Bat Boy; the story after the Cardenio one is about UFO links to the Vatican. (I did not make that last bit up, because I could not.) So, nope. Good timing to drive traffic, though.

More seriously, a pair of antiquarian booksellers in New York are claiming that they've found William Shakespeare's personal dictionary, the Alvearie (or Beehive) by John Baret. A very fair-minded response to their claims can be found here, courtesy of the Folger Shakespeare Library. The book isn't signed; the booksellers claim it's Shakespeare's handwriting. But they claim that the expert scholars they've had examine the book are too timid to risk their reputations. Translation: they've asked a bunch of experts who haven't given them the answers they wanted. For example, the writing in the margins of this book are in a different type of script than the script we've seen Shakespeare use. (Just about everything we have in his hand is in what's called "secretary hand," and this is in an italic hand. Whoops.) But the booksellers have timed their publicity for maximum attention.

Actually, respectable scholars are willing to put their neck out to claim "new" Shakespeare all the time. In the 80s it was a "new" Shakespeare poem, duly put into some anthologies, but now back out of most of them. A few years ago it was a "new" portrait of Shakespeare, looking much thinner and better-dressed than the attested images (Shakespeare can never be too rich or too thin, it seems). That's still an image you see a lot, and it's treated in some quarters as genuine; we'll see how that goes over time.

What's amazing to me is what kind of Shakespeare discoveries, or "discoveries" get play in the news. They're always pretty concrete, but seldom anything that would tell you much about the poems or plays. If that were his dictionary, it wouldn't teach us much about his plays, because the only sign it's him is that he's underlining things we already know from his plays. (Another explanation, of course, is that an early Shakespeare fan marked up this dictionary; that's a kind of reading practice we've come to recignize and expect.)

Let me make a suggestion, if you're in the mood to celebrate Shakespeare's birthday this week: celebrate some old Shakespeare. The old stuff is right there between the covers, just as it has been, and those poems are so rich and complicated that you can almost always find something you haven't noticed before. I've been stumbling across surprises in that book for decades, and the more I know, the more new things I see.

Discover some old Shakespeare. It's pretty good.