Posts Tagged 'Volokh Conspiracy'

gay marriage! controversy! slow down!

[by JSC5]

I’m a little late in getting to this, but a federal judge has ruled that California’s Proposition 8, which prohibited gay marriage in that state, is unconstitutional. I like to think of same-sex marriage is one of those “duh!” issues, like beer deregulation or early childhood education. We recognize, however, that despite how simple an issue it is for some, same-sex marriage has caused a great deal of controversy for other people. Orin Kerr had a post up recently over at Volokh Conspiracy that took this fact of controversy and conflated it with actual importance. He starts by quoting Judge Walker’s ruling, and then responds to it:

[Judge Walker’s opinion]: “Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.”

[Orin Kerr’s commentary]: Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

Now, gay marriage is certainly politically salient in that it stirs up emotions and seems to divide people into two camps. That said, I don’t think it’s nearly as polarizing as he makes it out to be. Who exactly is Kerr hanging out with to make him think that mainstream opinion runs from “the greatest advance for civil rights in America” to “the end of the world”? I know a lot of pro-gay marriage people, and I don’t think a single one thinks that gay marriage clearly outranks the civil rights movement for African-Americans or the women’s rights movement. Furthermore, I know many (though fewer) anti-gay marriage people,  none of whom think it will seriously end the world. In fact, mainstream opinion on this subject seems to stretch from “good idea/duh” to “I’m concerned about it/ewww”.

Either way, I’m not sure that the actual level of controversy even matters. It seems that Orin Kerr is confusing (1) political salience with (2) actual breadth or depth of change. What exactly is the evidence Professor Kerr would offer up in defense of his contention that same-sex marriage is “one of the more significant questions of social policy of our time”? The simple fact that Americans fall into two broadly equal pro and con camps isn’t enough. Lots of issues – both important and superficial – are politically salient in a similar way,  so the mere fact of salience can’t help us to distinguish actual importance.

Just how important and sweeping of a change would gay marriage be? Judge Walker;’s answer (quoting a bevy of experts who testified at trial) is that it’s pretty important for the gay couples who would get married, and not at all important for everyone else. In response, Orin Kerr says that the mere fact of political controversy proves Judge Walker wrong.

It’s an effective strategy for troglodytes trying to make sure that gay people don’t have the same rights as everyone else. They don’t even need to marshal any real evidence or reasons as to why the proposed reform would be bad or that implementing it right now would be dangerous; all they need to do is disagree, and the disagreement becomes the evidence.That is, until smart professors like Orin Kerr, along with the rest of us, some day stop believing the hype.

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A note to everyone who looks like the people from the bar last night: you’re on my list

[by JSC5]

If you were looking for a concrete example of what I was talking about in my previous post on how terribly puerile our privacy culture is these days, then look no further.* The libertarian/conservative law prof blog Volokh Conspiracy has you covered. Here’s Prof. Kenneth Anderson talking about the effect the JournoList ‘scandal’ has had on his perceptions of reporters in general:

When I was reading Peter Finn’s reporting on the Washington Post website on the CIA for my previous post, and despite this being a widely reported, straight-facts story, and despite my long-time, continuing, unstinting admiration for Peter Finn as a reporter on national security and related issues at the WaPo, I do admit that one of the first thoughts in my head was … is he a JournoLister?  And if he is, do I need to somehow discount his account as being part of a pre-conceived narrative?  And if so, by how much? 

So Kenneth Anderson used to have tremendous respect for Peter Finn’s work as a reporter because of his extensive body of work as a journalist. But post-JournoList, suddenly Kenneth Anderson has grave doubts about Peter Finn’s reporting — so much so that he’s decided to cast aspersions about Finn’s work on a widely-read media outlet.

That’s quite an about-face to be caused by one listserve. For those of you who’ve rationally decided to care more about your own things than the latest inside-the-beltway ‘scandal’, here’s a brief recap. JournoList was a private listserve for center-left journalists, opinion writers, professors, bloggers, and public intellectuals. From what I know, J-Listers used it to chat about current events, policy, sports, gossip, and the state of journalism. Some members clearly used it to let off steam. Dave Weigel, a former journalist/blogger for the Washington Post, famously used it to complain to his friends on JList about Rush Limbaugh and some other celebrities on the right. Someone with an anti-Weigel axe to grind leaked the JournoList archives to a new right-wing website called the Daily Caller. It was a win-win for all involved in the shady deal: the Daily Caller got a bunch of new hits, and the leaker got Weigel fired and may have destroyed his career (we’ll find out in a few years).

Some conservative media outlets decided to run with the story that JournoList was a liberal cabal coordinating stories and manipulating the news. The evidence to support this view is pretty weak / non-existent, but that hasn’t stopped some people – like Kenneth Anderson – from moving into full freak out mode.

It’s probably unfair to single out Kenneth Anderson, since there are plenty of other examples, but I think it’s important to have a concrete example of how insane our culture has become. Anderson used to have a very high opinion of some journalist named Finn based on years of experience consuming and appreciating  his reporting. But now that some partisan hack media outlets are publishing vague accusations of journalistic misconduct among a group of people on J-List, Anderson is suddenly extremely distrustful of ALL JOURNALISTS. I apologize for the profanity, but that’s just fucking nuts. I’ll echo my colleague JSC7 in asking why vague allegations about JList, or specific citations of intemperate words said in private, should be such a powerful signal that should change a person’s professional credibility despite years and years of actual work product that could provide a more accurate source of judgment?

Let me put this another way: A random, untrustworthy dude on the street comes up to you and says that some heinous shit went down at a local bar last night. Do you (A) dismiss the bum’s allegations and go on with your life unless you get some actual, credible information, or (B) gasp in horror and publicly question the morals and credibility of anyone who even looks like the people who would have been in that bar last night — even if you had just recently asked one of them to be your newborn child’s godfather?

Common sense says (A). Certain oh-so-earnest and concerned political operatives on the right say (B).

Does this mean that everything about JournoList was above board? I don’t know. I wasn’t on it. But nothing yet has come out that makes me think JournoList was any more problematical than an office water cooler. So like any sane, good-spirited person, I’m choosing not to believe the worst and most outlandish conspiracy theories until I see some credible evidence. I’d like to even stop reading, writing, or caring about this topic untill/unless this credible evidence materializes. Unfortunately, the cause of maintaining standards of decency and privacy is too important.

* The title of the piece in question, as you’ll notice if you click through, is “A note to all the non-JList reporters”. Combine that with my bar analogy later in the post and you have the odd title to my blog post. Sorry about that.


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This is a group blog. JSC5 currently writes from the US. JSC7 writes from behind the Great Firewall of China.

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