An Army Of Strawmen: Courtesy Of Jonathan Zasloff
By Pejman Yousefzadeh Posted in Elections — Comments (10) / Email this page » / Leave a comment »
Seeking to dole out "sauce for goose and gander," UCLA law professor Jonathan Zasloff instead builds more strawmen for the purposes of disingenuous argumentation than one can keep count of:
Just a few days after the United States Supreme Court holds in FAIR v. Rumsfeld that the federal government may condition funding of universities on law schools' willingness to accept military recruiters on campus, the California Supreme Court holds that the city of Berkeley may refuse to provide subsidies to the Boy Scouts and other groups that discriminate against gays or atheists.
The CA Supremes are no dummies; they wait for the US Supremes to rule on whether government may condition spending on whether entities adhere to other laws, and as soon as it comes down from DC that this doesn't violate these entities' free speech rights, then the state supreme court follows. This isn't exactly a profile in judicial courage, but ever since 1986, when a right-wing recall campaign kicked out three justices for their pro-plaintiff rulings in tort cases, the California Supreme Court has pretty much been afraid of its own shadow.
I will state first and foremost that I am against the Boy Scouts' policies towards gays. Let me repeat that: I AM AGAINST THE BOY SCOUTS' POLICIES TOWARDS GAYS.
And now for a procedural matter: Those of you who--like me--cocked a quizzical eyebrow at Zasloff's assertion that the California Supreme Court was waiting for the U.S. Supreme Court's opinion in FAIR v. Rumsfeld, are probably justified in your skepticism. It is more than a little unlikely that the California Supreme Court decided to hold off on delivering its opinion, all the while checking and rechecking the newswires to see whether or not the U.S. Supreme Court had come down with an opinion of its own in FAIR. This skepticism is justified, perhaps, by the fact that if one actually bothers to read the California Supreme Court opinion, one will find no mention of FAIR in it. As such, it is more than a little puzzling as to how the California Supreme Court waited "for the US Supremes to rule on whether government may condition spending on whether entities adhere to other laws, and as soon as it comes down from DC that this doesn't violate these entities' free speech rights, then the state supreme court follows."
In typical fashion, an amicus brief for the Scouts was filed by the odious Pacific Legal Foundation, which usually is in the business of trying to destroy environmental regulations on the altar of private property rights. Now, it has decided the most important free speech issue it can find is the right to discriminate.
Professor Zasloff certainly did not waste any time in smearing those with whom he disagrees, now did he? For the record, the Pacific Legal Foundation, like the Institute for Justice is at the forefront of fighting for the economic freedoms that are fundamental to the preservation of a free society in general; freedoms that Professor Zasloff writes about with ever-so-snide casual contempt in a dismissive paragraph wholly devoid of substance of proof to back up his smears. Writers more profound than Professor Zasloff have opined on the crucial importance of property rights, and the issue is especially important to deal with in the context of the bout of eminent domain abuse we have unfortunately been forced to combat. But to Professor Zasloff, property rights have "an altar," like some angry deity, upon which the pure and innocent and always justifiable sacrifice of "environmental regulations" are so carelessly and savagely offered in bloody and butchered form. Most interesting.
But PLF's and many other conservative libertarians' positions come with a deeper corruption. In writing about Fair v. Rumsfeld, many libertarians took the position, "See? This is what you get when you support a big welfare state. You've become dependent upon them. If you don't want government funding decision affecting you, don't take money from the government." Many of them triumphantly pointed to Hillsdale College, a right-wing institution that refuses to take federal money, as an example of conservatism's flinty, tough, self-reliance.
But what happens when their ox is gored? They get one of their very well-funded foundations to cry that the lack of a subsidy from the city of Berkeley is infringing on their free-speech rights. Libertarians are so committed to small government that they cannot go without a subsidy from perhaps the most left-wing city in the country.
Not only are we wrong, then, our positions come "with a deeper corruption"! Take that, people like me!
Of course, Professor Zasloff's positions come with a deeper confusion. In no way, shape or form is the legal dispute in the Boy Scouts case comparable with FAIR. The former involves the city of Berkeley refusing to subsidize the Boy Scouts because the Scouts practice a policy whose values are considered antithetical to those of Berkeley. In FAIR, however, law schools continue to ask for federal subisidies while not only engaging in practices that are antithetical to the values of the federal government (the federal government places value, after all, in recruiting members of the Armed Forces from law schools), but in practicing a policy that is specifically designed to frustrate the federal policy of recruitment from law schools. No Berkeley policy, per se, is being frustrated in a similar manner.
As for the supposed hypocrisy that he purports to uncover, Professor Zasloff is similarly off the mark. His next paragraph gives the game away--rather clumsily, one might add:
We shouldn't be surprised at this, of course. Many of the most Republican districts in the country essentially live on federal subsidies; the South was pulled out of decades of backwardness with Washington's money; former Senator Phil Gramm, who could never resist the temptation to lecture the poor on their lack of self-reliance, never held a private sector job in his life. But we should keep pointing it out.
The whole issue is actually fiendishly complex. Our instinct tells us that the government can condition its spending quite freely: if you don't like the terms, don't take the money. But if that's the case, could the government do it with a tax credit, too? Well, sure: the government often spends money through tax credits. But if that's the case, could the government choose to tax some entities based upon their policies or political positions? No, you say: that would be discrimination. The power to tax is the power to destroy. But as scholars have long pointed out, one can always decide to "spend" through the tax system and tax through the spending system. (A recent example of this scholarship can be found here.).
First of all, it is nonsensical and insulting to compare someone who works for a living for an agency of government with the reception of government "subsidies." But concerning the game that Professor Zasloff is trying to play, libertarian-conservatives like me are always glad to debate people like Zasloff regarding the propriety and merits of maintaining our current bloated and inefficient subsidy system. But that is not the debate Zasloff seeks. Instead, he plainly seeks to use subsidies as punishment for people who don't vote or think his way ("The power to tax is the power to destroy. But as scholars have long pointed out, one can always decide to "spend" through the tax system and tax through the spending system"), while demanding that libertarian-conservatives refuse to compete with him in that game because of their antipathy to subsidies in the first place.
This won't do and is deeply dishonest. If one wants to have a debate about whether the current subsidy system ought to be maintained, we can engage in that debate. But neither side is going to unilaterally disarm and let the other side use subsidies willy-nilly to punish its political foes. Either Professor Zasloff has not had much interaction with the world of politics, or he labors under the misapprehension that all of his political opponents are startlingly naïve and easily taken in by ruses one can spot a mile away.
There is no simple solution to this problem; I'm doubtful if there is one at all. But at the very least, we might decide to avoid the legal obfuscations and see that this is really a problem of politics. Let's stop the nonsense about free speech rights: the right wants to discriminate against gays, and the left wants to stop discrimination against gays. Tocqueville was right but missed the point: it's not so much that every American poltiical issue eventually becomes a legal one, but rather that every major American legal issue is essentially a political one.
How utterly disgusting. It is a staple of libertarianism that discrimination against gays ought to come to a screeching halt. And right-of-center libertarians have been at least as active in that pursuit as any of their left-of-center counterparts. Writing for myself, I have argued for the recognition of same-sex marriage, against the Defense of Marriage Amendment, and in favor of the inclusion of gays in the military. I am not the only libertarian-conservative to have argued and adhered to these positions and people like me don't need people like Jonathan Zasloff to lecture me on the importance of fighting bigotry.
And I have to hope that at some level, Zasloff knows that. Which means that his sanctimonious tirade is mostly designed at throwing red meat towards his own side. I'm sure his ideological compatriots will appreciate the steady diet of misrepresentation, but it ultimately does no one any good to think that Jonathan Zasloff can frame the issues of the day with any semblance of accuracy.
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An Army Of Strawmen: Courtesy Of Jonathan Zasloff 10 Comments (0 topical, 10 editorial, 0 hidden) Post a comment »
against the federal government when you're receiving money from it and ban what you previously allowed. Is the mission and purpose of the college altered in any way? However you are asking the Boy Scouts to change their identity and practice for political goals and in fact are discriminating against that organization because of that identity. By "you" I mean those who who attack and pressure that organization. The public identity and governmenat related structure of colleges is much more pronounced than the B S A and therefore so is their public obligation. No student is required to talk to a military recruiter but one who joins the BSA,or his parents, is required to adhere to the membership qualifications, hardly unusual in a private or semi-private group. To change the membership is to alter the nature of that group. Should we look around for other groups to bend to the will of the current zeitgeist? If so let me nominate Planned Parenthood, and then stand back and listen to the squeals.
The way I see it, the citizens of Berkely, acting through their representatives, have a perfect right to refuse to subsidize the Boy Scouts for any reason that tickles their fancy, or even for no reason at all. By the same token, I believe the Boy Scouts have a perfect right to establish and enforce a membership policy that excludes homosexual youth and adults, even if I happen to find that policy morally odious and intellectually indefensible.
I don't see those two positions as being contradictory.
I question the judgement. My post did cover a few other points including the stance of colleges on military recruiters and , you might say, the eternally shifting winds of political crusades. Including in the post is the fundemental differences in cases and effects. I didn't say it was contradictory for the city to do what it did. But you are aware of a years long effort, or war, against the BSA, it is that campaign in toto that I find reprehensible and feel that there is a plentitude of other worthy targets that we might take aim at were we to be consistent. And if the city is correct in the legality of their action than perhaps the federal government may wish to revisit it's policies towards idealistic but waywards colleges. One can hope. I may add I was unable to link to the courts decision and am somewhat in the dark as to the nature and amount of subsidies. I have heard of locales who have banned the BSA from using public property for meetings or jamboree's, petty,very petty, but legal.
That policy such a moral outrage? It was put in place to Protect the scouts from homsexual adults. There is a Documented History of rapes of scouts by homosexual adults.
As for banning homosexual scouts, it is to protect Them from the other boys. There is a Documented History of homosexual scouts being sodomized and beaten by fellow scouts once their orientation became known.
Furthermore, the BSA is Based on the principles of Christianity (thus no atheists). One thing all the major religions agree on is that homosexuality is wrong. Why should they allow One major anti-religious behaviour when they ban others? (Note: this last is not the main reason for this particular policy, merely a supporting argument).
I need to rearrange a few things.
It seems the BSA has switched tracks and changed the religious basis for banning homosexuals to their primary reason.
However, even so, how do you find it morally outrageous? Do you have the same opinion of the Catholic Church banning homosexuals from being Priests?
I'm thinking your response is informed by ignorance of both these issues and of the Scouts. So let me deal with these objections one at a time.
- A policy to exclude homosexual adults from leadership positions in order to protect young men from sexual predators makes sense if and only if there is a disproportionately-high incidence of pedophiles among the homosexual population. Yet the opposite is true: the most credible criminological data shows that most sexual predators, even those who attack same-sex targets, identify as heterosexuals; and high-profile groups like NAMBLA notwithstanding, there is actually a disproportionately-low incidence of pedophiles among the homosexual population. So if anything, the Scouts' policy actually increases the likelihood that one of their members will be molested, by removing from the pool of possible adult leaders a low-risk-of-pedophilia group.
- A policy to exclude homosexual youth from membership in order to protect them from peer bigotry is another way of saying, "Some of our members are violent bigots, and we'd rather tolerate them and exclude their victims than tolerate their victims and exclude them." Which is, frankly, disgraceful for an organization that promotes virtues such as charity, kindness, and courage.
- The BSA is emphatically not "based on principles of Christianity"; since its inception the organization has been ecumenical in nature, and today recognizes some 50 or so religious service awards for faiths as disparate as Catholicism, Hinduism, Episcopalianism, Judaism, Islam, Methodism, Moravianism, and Zoroastianism. All the major religions do not agree that homosexuality is inherently immoral: for instance, there are moderate Protestant denominations which are perfectly accepting of homosexuals, and Catholic teaching on the subject is that while homosexual conduct, like all out-of-wedlock sex, is sinful, homosexual individuals are God's children as much as anyone else. In fact I know of only a handful of religious denominations (SBC and Mormonism being the most noteworthy examples) which take the position that it's acceptable to affirmatively shun homosexuals for any reason; indeed, it's not unheard of for a church-chartered troop to lose its charter because the Scouts' membership policy contravenes the chartering church's teachings.
Look, I love the Scouts. I'm an Eagle Scout (bronze palm, class of 1989), myself; I have a lot of really fond memories of my Scouting experience, and I think the organization can have a tremendous positive influence in the lives of young men.
And that's precisely why I'm so critical of the organization on this point. The Scouts have effectively embraced the view that homosexual-oriented people (as opposed to behaviors) are inherently immoral and/or are at high risk to molest children. The latter is nonsense; the former is despicable.
Indeed, I think the Catholic Church's recent move to ban homosexual priests is also despicable -- it's a pretty transparent attempt to scapegoat gay priests for the child molestation scandals.
All priests take a vow of chastity, and so I cannot for the life of me fathom how a priest's sexual orientation matters one whit with respect to his ministry.
Who comes from a Large family of Boy Scouts. I am Quite familiar with them. Started with the Scouts when I was 6 and even now am an adult leader. So make sure you know who you're talking about before you start throwing around what he doesn't know about.
As for your point about "all major religions" not finding homosexuality inherently immoral and then trottingout the example of particular Protestant religions, keep in mind 2 things.
1)I said MAJOR religions. The Protestants who stand against them are fringe.
2)Christianity SPECIFICALLY declares homosexuality to be immoral. Any supposedly Christian religions that declare otherwise need to find themselves a new religion.
And the Boy Scouts most certainly ARE based on the principles of Christianity. Just because they recognize other religions and admit to the equal validity of them says nothing about what they are Based on. When's the last time you said your Oath or Law or, better yet, read anything written by Lord Baden Powell?
1)I said MAJOR religions. The Protestants who stand against them are fringe.
Methodists, Episcopalians, and Lutherans are all "fringe"? Riiight; pull the other leg.
2)Christianity SPECIFICALLY declares homosexuality to be immoral.
You're not going to start quoting Leviticus at me, are you? Because if so we might as well end this conversation right now.
Bottom line: There are a lot of religions in the world. Some of them don't really have a problem with homosexuals. Others do. Of those that do, most don't have a problem with homosexual identity, but rather with homosexual acts. And yet the Scouts exclude on the basis of identity alone. If this isn't naked bigotry, what is it?
Any supposedly Christian religions that declare otherwise need to find themselves a new religion.
I'm sure that Methodists everywhere are simply crushed that you've cast them out for their heresy.
And the Boy Scouts most certainly ARE based on the principles of Christianity.
You don't have the faintest idea what you're talking about, do you? Ernest Thomas Seton looked to Indian religions as a model for his spirituality. Daniel Carter Beard was blacklisted as an illustrator for anti-church illustrations he created. And John L. Alexander, one of the writers of the first Scout Handbook, stated explicitly that:
The Boy Scouts of America therefore recognize the religious element in the training of a boy, but it is absolutely non-sectarian in its attitude toward that religious training.
So please spare me the notion that the Scouts are based on Christianity. You're just wrong.
When's the last time you said your Oath or Law or, better yet, read anything written by Lord Baden Powell?
When's the last time you actually took the time to think about your Oath or Law, rather than just reciting it?
FRIENDLY
A Scout is a friend to all. He is a brother to other Scouts. He seeks to understand others. He respects those with ideas and customs other than his own.
And:
KIND
A Scout understands there is strength in being gentle. He treats others as he wants to be treated. He does not hurt or kill harmless things without reason.
And:
BRAVE
A Scout can face danger even if he is afraid. He has the courage to stand for what he thinks is right even if others laugh at or threaten him.
And:
REVERENT
A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.
These are universal principles, not Christian ones. Christians don't have a monopoly on virtue; get over yourself.
Lefty law professory constructs stupid straw man and knocks it down, smears political opponents. Film at 11.
Anyway, if the city of Berkeley doesn't want to subsidize the Boy Scouts because of principled disagreement with the Scouts' practices, that's certainly fine by me. I, too, find the Scouts' policies on homosexuals fairly odious, to the point where I returned my Eagle ribbon to the National Council along with a letter of protest. Zalsoff's hectoring could hardly be more misaimed.