SO ENTERTAINMENT WEEKLY PUBLISHES A NASTY HIT JOB — Larry Correia Fisks it here — and without contacting any of the people it attacks, and then after publication, the author, Isabella Biedenharn, invites Larry to give the other side.After publication. What, did she come to Entertainment Weekly from Rolling Stone or something?Correia responds with typical reticence: “You went to press with a bunch of asinine, obvious lies, and you’re happy to include my side AFTER YOU LIED?”UPDATE: See, this is why you punch back twice as hard: Entertainment Weekly retracts claim of ‘misogynistic, racist’ Hugo Awards voting campaign.CORRECTION: After misinterpreting reports in other news publications, EW published an unfair and inaccurate depiction of the Sad Puppies voting slate, which does, in fact, include many women and writers of color. As Sad Puppies’ Brad Torgerson explained to EW, the slate includes both women and non-caucasian writers, including Rajnar Vajra, Larry Correia, Annie Bellet, Kary English, Toni Weisskopf, Ann Sowards, Megan Gray, Sheila Gilbert, Jennifer Brozek, Cedar Sanderson, and Amanda Green.
This story has been updated to more accurately reflect this. EW regrets the error.Bottom line: Entertainment Weekly listened to some Social Justice Warrior types, made the mistake of believing them, and humiliated itself. Here’s the corrected version. Props to Entertainment Weekly for correcting so swiftly and prominently.
Monday, May 04, 2015
Instapundit » Blog Archive » SO ENTERTAINMENT WEEKLY PUBLISHES A NASTY HIT JOB — Larry Correia Fisks it here — and without cont…
Instapundit » Blog Archive » SO ENTERTAINMENT WEEKLY PUBLISHES A NASTY HIT JOB — Larry Correia Fisks it here — and without cont…
Sunday, May 03, 2015
Requires Abasement | According To Hoyt
*** Not only has the other side publicly declared they wouldn’t read anyone nominated by Sad Puppies because they have bad-thought cooties, but those who claim to have read Larry have CLEARLY not done it (like, they missed all the women in the book: strong, and powerful women at that) and they certainly haven’t read Brad. And then there was, (and I wish I had the link but no time to look, and doubtless one of you can find it), the precious flower having hysterics, because what if one of us wrote a book under a pen name and she unknowingly read it and became tainted with wrong-thought? This is a very real worry, and the buttercups SHOULD be worried. Because some of us have plans.Broken Hugo Fisking
The solution is “eff off”.
We have to stop granting the left, and especially the activist left, the SJW types, the courtesy of treating them as if they are legitimate. We need to tell them to eff off. We need to stop debating and start dismissing. Most of what they are saying is so stupid and flimsy that it NEEDS the prop of our treating it seriously to lend it the mantle of legitimacy.
Now obviously I'm not talking about treating serious policy or foreign affairs issues cavalierly. Of course adult subjects need to be treated in an adult manner. There is so much clutter and noise over stupid, inconsequential shit that we need to stop wasting our time responding to it. The entire point of most of this stuff is to keep us distracted and to maneuver us into a position where we can be cast as haters or villains.
What kind of stuff am I talking about? Well, basically, anything that The Political Hat links from social media.
“I'm a dragon-kin, I demand that you respect my draconic traditions!”
No, you're not. Eff off.
“Oh, your belly dancing is cultural appropriation !”
“That's your white privilege talking!”
Eff off, I have the same privilege as you do, I'm a free American.
“You're fat shaming!”
Eff off and eat a salad once in a while.
“I can't stand these micro aggression from you”
How about a macro aggression? Eff off.
And so on. All of this stuff stems from three impulses:
1) A desire to assume unearned moral superiority – I'm better than you
2) A desire to assume unearned prominence – I'm more important than you
3) A desire for attention – Look at me! Aren't I special?
That's what they're looking for. Don't give it to them. Don't play their game, refuse to acknowledge that their game even exists. I just realized it right this second, but this is exactly what Breitbart did, and it drove them NUTS! They're yapping on about the oppression of the 1% and he's screaming “STOP RAPING PEOPLE!” in their face. He popped their bubble. He refused to acquiesce to their assumptions. He pointed out the reality they were purposefully attempting to ignore. Imagine how Andrew would have handled the VA frat rape hoax or the reaction to Christina Hoff Sommers' speech.
Be Breitbart. And have fun with it. The meltdowns from the special snowflakes when you refuse to grant them what they assume is theirs by right of their magnificence are AWESOME.
When Minimum-Wage Hikes Hit a San Francisco Comic-Book Store | National Review Online
Minimum Wage Myths
‘I’m hearing from a lot of customers, ‘I voted for that, and I didn’t realize it would affect you.’” So says Brian Hibbs, owner and operator of Comix Experience, an iconic comic-book and graphic-novel shop on San Francisco’s Divisadero Street, of the city’s new minimum-wage law. San Francisco’s Proposition J, which 77 percent of voters approved in November, will raise the minimum wage in the city to $15 by 2018. As of today, May 1, Hibbs is required by law to pay his employees at Comix Experience, and its sister store, Comix Experience Outpost on Ocean Avenue, $12.25 per hour. That’s just the first of four incremental raises that threaten to put hundreds of such shops out of business.
Minimum Wage Myths
Why would you want to raise the minimum wage? A few possibilities: 1. Minimum-wage workers are worth more than we pay them. That is a meaningless statement; labor, like apples and oranges and widgets, is worth what you can sell it for. If you believe that we have a large supply of low-wage workers who are secretly more skilled and productive than they let on, you have to assume that everybody in the question — the workers, their employers, their employers’ competitors — has somehow overlooked that fact, but that our ingenious friends in Washington have special insight into the conditions of people they have never met and markets they have never operated in. That’s fanciful.
2. Slight variation: You might want to raise the minimum wage because you think that markets can set prices for most things but not prices for labor. This is contrary to pretty much all of the economic evidence in existence on the question, so maybe you want to refine that and argue instead that markets may do a pretty good job of setting prices for labor, but they don’t do a good job of setting prices for labor when those laborers are at the lower end of the market. Another way of saying this is that you believe that low-income people are too stupid and hopeless to negotiate appropriate, market-value wages for themselves, and that the vast majority of businesses that employ minimum-wage labor are operated by people too stupid to see that there’s a lot of higher-value labor out there for the taking that they are simply too thick to avail themselves of. But that isn’t really an argument for a higher minimum wage; it’s an argument for a more generous food-stamp program. It’s sort of uncomfortable to argue that low-income people are too stupid to see after themselves, but that is, after all, the assumption behind things like Medicaid and Section 8 housing vouchers and food stamps — if low-income people could be trusted to make appropriate choices about things like health care and housing, we could just give them money and let them make their own decisions about whether they need an extra $1 in health care or an extra $1 in groceries. In any case, it’s not likely that that millions of low-income people are too dumb and shiftless to seek higher wages but are smart and enterprising enough to compete for those higher-wage positions.
3. You might want to raise the minimum wage because you think that low-income people “should” make more money. The word “should,” however, has no meaning at all when it comes to questions of prices — if tomorrow people start paying more for Hyundais than for Ferraris, are we going to lecture them that the Ferrari “should” cost more? People assign their own values to things, and your opinion of the value they assign does not change anything about that. An hour of Bob’s labor is not more valuable just because you really, really wish it were so — if you really believed it were worth more, Bob would be working for you.
4. Maybe you think that raising the minimum wage is effectively “free.” That’s what is meant when people cite studies alleging that increases in the minimum wage do not cause higher unemployment or contribute to higher prices. That may be true in some narrowly defined circumstances; to be broadly true, it would have to be the case that higher prices do not correlate with lower demand — i.e., that everything we know about basic economics is wrong — and that prices of goods and services are not in the long run affected by the prices of inputs, which is contrary to common experience. Perhaps you also expect the price of gasoline to go down when the price of oil is going up — which very well may happen in the short term, but is less likely in the long term. And the “free” model of the minimum wage of course ignores what an increase would cost employers, but, thankfully, nobody cares about them.
5. Maybe you think the working poor deserve to have more money. If that’s your argument, then the most sensible policy is to simply write them checks. If you want to increase the purchasing power of low-income people who are employed, then you should give them money rather than trying to distort the labor markets in such a way as to get the money to them through indirect means with unintended consequences, including the possibility of higher unemployment. Nobody proposes this (or rather, proposes expanding our existing program that does this, the EITC), because nobody wants the cost of these subsidies to be known. If we wrote poor people checks (more checks), then that would show up on a budget somewhere; if we pass a law saying that other people, mostly firms in the private sector, have to write those checks, they don’t show up on the budget (the government budget, that is, the one we do together). And if they don’t show up on the budget, then that reinforces the illusion that this is effectively “free.”
6. Maybe you think that if we “gave” low-income people more money, then they would spend that money, stimulating the economy. No doubt they would; on the other hand, their employers would have spent that money, too, perhaps on things like hiring other people or expanding lines of business or developing new products. There is not much evidence that money spent by low-income people is more stimulating in the long run than is money spent by businesses. That is, so far as I can tell, pretty much it. Most of the arguments for raising the minimum wage are variations on “I like poor people and I feel sorry for them,” which is fine, but the country and its low-income citizens would be far better off in the long run instituting something like Milton Friedman’s negative income tax than by monkeying around with the numbers, mostly after the decimal point, on low-income workers’ wages. The real scandal is that so many Americans have labor that is worth so little. But that’s an indictment of the public schools and the welfare state, not of the mean meanies at Walmart.
Sunday, April 26, 2015
Saturday, April 25, 2015
Productivity, Compensation and Economic Growth
Conventional wisdom holds that worker productivity has risen sharply since the 1970s while worker compensation has stagnated. This belief rests on misinterpreted economic data. Accurate and careful comparisons show that over the past 40 years measured productivity has increased 100 percent and average compensation has risen 77 percent. Inflated productivity measurements account for most of the remaining 23 percentage point difference. An apples-to-apples comparison shows that employee compensation continues to closely follow productivity. American workers continue to earn more as they become more productive. To help Americans advance economically, policymakers should seek policies that will increase productivity.
Friday, April 24, 2015
Books and Authors Law goes into effect - National News - Jerusalem Post
The legislation also requires stores and publishers to reach agreements on what kind of discounts can be put on books, and those discounts can be only on books that are over 18 months old. That includes “buy one, get one free” and similar sales, and an exception will be made for Hebrew Book Week every summer.
During those 18 months, Israeli authors will receive at least 8 percent of the price (minus VAT) of the first 6,000 books sold and 10% of the price of book 6,001 and up. The bill also regulates authors’ royalties after 18 months.
As a result, analysts expect the prices of books to rise significantly in order to maintain profits for publishers, booksellers and authors, though the Culture and Sport Ministry predicted it would lower prices by increasing fair competition.
Monday, April 20, 2015
No, food stamps aren’t subsidies for McDonald’s and Wal-Mart - The Washington Post
Many liberals argue that the food, health-care and cash assistance she receives from the government amounts to a subsidy to her employer, which should be paying her a higher wage. Ken Jacobs, co-author of a report on the subject out this week that received a lot of attention, writes here in The Washington Post that “American taxpayers are subsidizing people who work … because businesses do not pay a living wage.” Citing a 2013 report from the National Employment Law Project (NELP), The Huffington Post writes that “low wages at the top 10 largest fast food chains cost taxpayers about $3.8 billion per year.” In testimony before Connecticut lawmakers last month, an NELP lawyer argued that “the low-wage business model practiced by many of the largest and most profitable employers in the country not only leaves many working families unable to afford the basics, but also imposes significant costs on the public as a whole.”
It is easy to sympathize with this argument. Low-wage workers have had a really difficult time for many years now. They are working hard and playing by the rules, but many can’t seem to get ahead, despite years of struggle. If they are working so hard, why should their employers pay them so little that they qualify for government assistance?
To begin answering this question, it is important to acknowledge that wages are heavily influenced by market forces. And if a worker can only bring in, for example, $9 per hour in revenue to his firm, it is simply unrealistic to expect his firm to pay him, say, $15 per hour. If it did, the firm would be losing six bucks for every hour the worker worked. That arrangement can’t last long.
And so if the “living wage” movement — which in many incarnations advocates for a $15 per hour minimum wage — had its way, we would surely have many more Americans receiving government assistance, because many fewer Americans would be able to find a job at all. This is a serious flaw in the argument against low-wage employers that many liberals are advancing.
And there remains a bigger flaw still. Their argument against low-wage employers also reflects deeper misunderstandings about the nature of society and the roles different members play.
Society should have as a goal that no one who works full time and heads a household lives in poverty. But since this is a social goal, resources from all of society should be marshaled to meet it. The argument that low-wage employers are doing wrong by paying so little that some of their workers qualify for government assistance suggests that the responsibility of ensuring an adequate standard of living for these workers falls solely on the businesses which employ them. This is a very limited vision.
McDonald’s and Wal-Mart should bear some of that responsibility, sure. But not just them. Hedge fund managers, corporate CEOs, well-to-do economists and law-firm partners should pitch in, too. Resources from all of society — including, but not limited to, low-wage employers — should be used to ensure that no one who works hard lives in poverty.
And that, of course, is exactly how society is currently organized: Wages are (largely) determined by the market, and government assistance — funded by taxpayers — is used to help low-income families meet a baseline standard of living. That some low-wage workers receive government assistance isn’t a bug in the system; it’s a feature. The government isn’t subsidizing Wal-Mart; it’s not exclusively Wal-Mart’s responsibility to make sure that Wal-Mart’s workers bring in enough cash every week. Instead, the government is helping workers who can’t command adequate wages to make ends meet.
The system doesn’t work perfectly, of course. There are flaws in the assistance we give to low-wage workers, and it is likely the case that at least some government programs do lead to lower wages for some workers. The labor market has flaws in setting workers’ pay and hours. And many non-market factors influence these outcomes as well.
But if I had to pick between a system in which the responsibility to help low-wage workers escape poverty falls on all of society or falls merely on their employers, I would go with the former every time.
This isn’t to say that we should let corporate America completely off the hook. We shouldn’t, though conservatives often do. Firms need a stronger sense of attachment to society and to their workers. The “implicit contracts” that used to govern worker-firm relationships have become too frayed, and public policy should be used to strengthen them.
Indeed, ensuring that working- and middle-class Americans have the skills needed to compete in the 21st-century labor market is one of the greatest challenges facing public policy today. As is making sure that no one who works full time and heads a household lives in poverty.
The left is correct that low-wage employers have a role in meeting these challenges. But so do we all.
Friday, April 17, 2015
Scalias Worst Opinion
Smith is the well-known “Peyote Case,” in which Scalia, for a 5-4 majority, adopted the most narrow possible reading of the Free Exercise Clause of the Constitution, concluding that the First Amendment’s ban on laws “prohibiting” the “free exercise” of religion stated a non-discrimination rule only. Government could not target specific religious practices for prohibition, and could not prohibit conduct because it is engaged in for religious reasons. But if a “neutral” and “generally applicable” rule had the effect of banning religious practice or religiously motivated conduct, that was not a law prohibiting the free exercise of religion.
Scalia’s reading of the Free Exercise Clause was not entirely implausible: There is at least a colorable argument from the text (and history) that the Free Exercise Clause states a rule about the formal content of government’s rules — that government may not adopt a law that, by its terms, prohibits religious exercise. But the better conclusion (as I argue in today’s piece, and at greater length in my academic writing on the topic) is that the Free Exercise Clause confers an affirmative substantive right to the free exercise of religion, unimpaired by government’s laws, and that this sometimes may indeed confer an immunity, specifically for religious conduct, from government’s usual rules. (What was less plausible was Scalia’s manipulation in Smith of the Court’s prior Free Exercise Clause precedents, which Scalia refashioned into rather unprincipled, incoherent exceptions to his refashioned rule.)
I argue that Smith is a positively perverse reading of the Free Exercise Clause: As the sphere of government expands, the sphere of religious liberty contracts. And it has proved unqualifiedly pernicious in its consequences.
Monday, April 13, 2015
Saturday, April 11, 2015
The Hugo Awards: How to Fight Back in the Culture War
This is the era in which we are all being drafted in the Culture War. It doesn’t matter if you’re secular or religious, political or apolitical, frat boys or geeks, hipsters or bros. Nobody gets to be neutral or sit on the sidelines, because we’ll all be expected to make our obeisance to the latest politically correct opinion handed down to us by a Twitter mob.
By now, we know the basic ingredients of a typical skirmish in Culture War 4.0. It goes something like this: a) a leftist claque starts loudly pushing the “correct” Culture War position onto b) a field previously considered fun, innocuous, apolitical, purely personal, or recreational, and c) accusing anyone who opposes them of being a racist, sexist, bigot who relies on oppressive “privilege” to push everyone else down, while these claims are d) backed up by a biased press that swallows the line of attack uncritically and repeats it.
Any of that sound familiar? It’s just daily life for anyone on the Right, and it’s slowly becoming daily life for everybody else. Ask Comet Guy.
The innocuous field in which the personal is suddenly discovered to be very political might be fashion, music, toys, sports, or sex, not to mention weddings, flowers, cake‐baking, and pizza.
Or video games. Or science fiction.
Which explains the latest, wide new front of the Great Social Justice War: Gamergate*, and the battle over the Hugo Awards, a prestigious annual fiction award for science fiction and fantasy writers.
Hugo nominations are not made by a cloistered group of experts. They are voted on by anyone who becomes a “supporting or attending member” of the World Science Fiction Convention, or Worldcon. This has usually meant that the voting is limited to a small pool of a few thousand die‐hard science fiction fans. But in practice it means that anyone willing to shell out $40 can cast a ballot.
Science fiction has always been a fertile arena for exploration of big ideas—much more so, these days, than highbrow “literary” fiction. The use of fantastical science fiction premises allows authors to project a future in which everything is done differently, or in which human nature itself has been altered, and this leads them to ask questions about what is really natural, necessary, or essential to human life and what is merely conventional, artificial, and unnecessary. It has been remarked that “big‐idea novels are more likely to have an embossed foil dragon on the cover than a Booker Prize badge.”
Clearly, all of this freewheeling exploration of ideas has got to stop. So in marched the Social Justice Warriors, a term adopted in the Gamergate controversy to describe the kind of politically correct busybodies who decide that the output of every field has to be remade to promote the proper, “progressive” social agenda—or else.
A few years back, conservative science‐fiction author Larry Correia noticed that left‐leaning participants at Worldcon were engaged in a whispering campaign against one of his nominated books because of his political views. Many of them had not even read his novels. They opposed him, not because of the quality of his work, but because of who he was. In effect, the Left was enforcing a blacklist in which no right‐leaning science fiction writer can be allowed to win awards.
All of which sounds drearily familiar. Believe me, when you’re in my line of work, you don’t expect to win any of the mainstream awards, either. They just don’t give those things to people like us. It’s a part of our professional life that most writers on the right have just given up on. And maybe we shouldn’t have.
To counteract the voting bias, Correia organized a campaign called “Sad Puppies”—because, he explains, “boring message fiction is the leading cause of Puppy Related Sadness.” Which gives you a small sampling of the kind of goofy, irreverent humor with which the campaign has been conducted. The idea was simply to suggest a slate of authors Correia thought were likely to be overlooked or slighted because of their views—and to counteract that effect by lobbying in their favor.
His goal wasn’t even to win, but just to bring attention to the issue. Here is how he described it:
1. I said a chunk of the Hugo voters are biased toward the left, and put the author’s politics far ahead of the quality of the work. Those openly on the right are sabotaged. This was denied.The goal was simply to bring the leftist bias out into open view.
2. So I got some right wingers on the ballot.
3. The biased voters immediately got all outraged and mobilized to do exactly what I said they’d do.
4. Point made.
But then things got out of hand. This year, the Sad Puppies campaign (and a related slate of recommendations called Rabid Puppies) swept the field. The response was a total meltdown among the leftist elites who had assumed, in previous years, that they (and their favorite publisher, Tor) basically owned the Hugos. So they did what the Left always does: they smeared everyone who disagrees with them as racists.
Correia notes that on April 6, eight different news sites, from Entertainment Weekly to The Guardian, all published suspiciously similar hit pieces describing the Sad Puppies campaign and its organizers as racist and misogynist. Clearly, someone was feeding these sites the new official narrative, and they all swallowed it without any attempt at basic research. So for example, the original version of the Entertainment Weekly piece claimed:
The Hugo Awards have fallen victim to a campaign in which misogynist groups lobbied to nominate only white males for the science fiction book awards. These groups, Sad Puppies and Rabid Puppies (both of which are affiliated with last year’s GamerGate scandal), urged sci‐fi fans to become members of the Hugo Awards’ voting body, World Science Fiction Convention, in order to cast votes against female writers and writers of color.But the article had to be repeatedly corrected, adding this humiliating admission:
After misinterpreting reports in other news publications, EW published an unfair and inaccurate depiction of the Sad Puppies voting slate, which does, in fact, include many women and writers of color. As Sad Puppies’ Brad Torgerson explained to EW, the slate includes both women and non‐caucasian writers, including Rajnar Vajra, Larry Correia, Annie Bellet, Kary English, Toni Weisskopf, Ann Sowards, Megan Gray, Sheila Gilbert, Jennifer Brozek, Cedar Sanderson, and Amanda Green.As the sardonic saying goes: “Other than that, the story was accurate.” Obviously, the “correction” guts the central point of the whole piece, and what is really required is a wholesale retraction. And more: any journalistic entity worthy of the name would decide that the real story is, who is smearing Sad Puppies as racist, and why?
(Brad Torgerson, by the way, posted his own moving refutation, leading with a photo of himself with his black wife and mixed‐race daughter.)
The other thing we’ve come to expect from the Social Justice Warriors is a bitter, dismissive hatred for the fans of their own field, who stubbornly refuse to be reformed by their betters. A rant from “progressive” writer Philip Sandifer, echoing last year’s proclamation that “Gamers Are Dead,” declared “The Day Fandom Ended.”
Sandifer argued for “the moral duty of progressive voices to form a blocking majority, and to loudly admit that fandom as it stands is broken, and that any work proclaimed to be the best of the year by a fandom this broken is demeaned by the association.” So he advocates that “progressives” should buy their way into the final ballot and vote for “No Award Given” in every category. “The 2015 Hugos should simply be blank.”
In other news, he’s going to take his ball and go home.
Not to be outdone, “Jeopardy Jerk“ Arthur Chu decided to live down to his epithet by denouncing “democracy” as such. It’s like Stalin said: the problem with elections is that you never know ahead of time who’s going to win.
To be sure, it is possible some of the Sad Puppies nominees won because of their right-leaning politics rather than their quality. And it also appears that the proprietor of the competing slate, Rabid Puppies, has said a few genuinely objectionable things. But the science-fiction establishment might want to take a moment to ask how they have so alienated their core audience as to provoke this kind of mass protest vote. Than again, forget I said that. “Progressives” never ask that question. Inherent in leftism is the notion that we all must be guided by a small elite, a revolutionary vanguard, and that if we resist our indoctrination, it is necessary to dissolve the people and elect another.
From our perspective as draftees in the new Culture War, the 2015 Hugo Awards lay out the pattern for a successful counter-attack. Sad Puppies and its sympathizers have discovered how to use the Internet effectively as a tool to mobilize the “silent majority.” They have managed to wrest control of an existing institutions from an entrenched establishment—roughly the equivalent, say, of getting Binyamin Netanyahu nominated for this year’s Nobel Peace Prize. Above all else, both Gamergate and Sad Puppies are managing to mobilize people who were previously unengaged with politics, or who come from the center-left but are disillusioned after being hectored by a holier-than-thou claque of super-radicals.
In short, this is the one area where our side is winning the Culture War and making some headway at beating back the left’s politicization of every aspect of life.
*Correction: This article originally referred to the 2015 Hugos controversy as an “outgrowth” of Gamergate, which was strongly implied by some of the sources I’ve read. I have since heard from people who are connected to or knowledgeable about the Sad Puppies campaign, who tell me that the two events are independent and there is less overlap than I had assumed between gamers and sci-fi fans. So I removed that description.—RWT
Patterico's Pontifications » Yes, Sally Kohn, Laws Are Coercive
Some readers may remember Sally Kohn from such articles as “I’m gay. And I want my kid to be gay too.” Kohn’s latest Dispensed Wisdom is an argument that, hey, government’s not forcing you to cater a gay wedding with your pizza, because you don’t have to sell pizza:
This issue of government force is a funny one. You could also argue that the government is forcing you to drive below the speed limit or wear a seatbelt in your car. But it’s not. There isn’t a police officer holding a gun to your head literally forcing you to buckle up. In fact, you are 100 percent free to speed and not wear your seatbelt—and simply deal with the consequences if you’re pulled over. Is the threat of the fine for breaking the law amount to “forcing” you to follow the law? No.
And more to the point, the government certainly isn’t forcing you to drive. If you don’t like the speed limit and seatbelt rules, and don’t want to be subject to the consequences of breaking them, then you can not drive. Whether to drive or not is your choice.
This all seems simple when we talk about driving, but somehow a fringe set of rightwing conservatives want us all to believe that hapless business owners are somehow being forced, against their will, to serve pizza to gay people. Nothing could be further from the truth. If you don’t want to serve pizza to gay people, by all means, don’t—which, by the way, is legal in Indiana and 28 other states, but even where it is illegal, you’re still free to do so and deal with the consequences of breaking the law. That, pizza shop owner, is your choice. And if you don’t want to deal with those consequences, well, no one is forcing you to be in the pizza business. You’re free to do something else.
. . . .
Don’t like following the laws that apply to businesses—including serving all customers equally? Then don’t start a business. That’s your choice.
Yes, I suppose that you could say that people don’t “have” to drive, or sell pizza. By the same logic, people don’t “have” to have sex. So I guess that means that if government wanted to pass laws mandating that any sex be heterosexual, then by Kohn’s logic, that wouldn’t be “forcing” people to have heterosexual sex.
In other words: Don’t like laws that apply to everyone having sex? Then don’t have sex. That’s your “choice.”
Right, Ms. Kohn?
But even if you could mount an argument that such laws would not “force” homosexuals to have heterosexual sex, it’s more difficult to argue that these examples do not involve government coercion. Even if you’re not literally “forced” into the behavior government demands, you are indeed being coerced into either a) performing that behavior, or b) giving up a major life function.
Kohn doesn’t seem to understand that labeling coercive action as coercive (or even as “force”) does not necessarily make that action wrong. Government “forces” those who drive to drive on the correct side of the road, and that is a proper function of government. Rather than make lame arguments that coercive action isn’t coercive, the honest approach is to recognize coercion for what it is, and defend it . . . if you can.
Kohn is busy digging deeper holes on Twitter, and exposing herself further as someone who can’t hold her own in logical debate. For example, she dismisses the example of sodomy laws I give above, which has been raised by many people, with the following “logic”:
But the cherry on top of this delicious hypocrisy sundae comes courtesy of Sean Davis, who sent me a link to Kohn’s article on the Hobby Lobby decision. You’ll never guess what she said there (OK, actually, you will). Namely, she said that conservatives were trying to “force” their religious beliefs on America.
To put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us.
We’ll place to one side, for the time being, the question: “What the hell is a forbearer?” To put it mildly, our forebears would be appalled at seeing their language mangled like this. But they would also be amused, as I am, by the inconsistency of Kohn’s “laws don’t force people to do stuff!” argument, as contrasted with her Hobby Lobby position.
Ms. Kohn: you don’t like religious freedom laws that apply to Hobby Lobby and other similar closely held corporations? Don’t work for said closely held corporations. That’s your “choice.” Where’s the “force”?
In the end, the Hobby Lobby decision isn’t actually coercive because there is plenty of freedom to work for companies that are not closely held corporations run by highly religious people. By contrast, your life is severely restricted if are told you can’t drive, or engage in your chosen occupation, or even engage in sexual activity. So governmental restrictions on such activities should be absolutely necessary — because they are inherently coercive.
Ultimately, all government laws are coercive, because resistance always ends up with men coming to your door and pointing guns at you. Keeping this precept in the forefront of the minds of the citizenry is critical, because it helps focus our attention on the fact that passing laws is serious business. Laws and government should protect the public. They should not be used for much else. Certainly, laws should not be used to force you to make me a sandwich. Although I would like a sandwich.
Friday, April 10, 2015
Thursday, April 02, 2015
Why The Atlantic Is Wrong about Indiana's Religious Freedom Law | The Weekly Standard
Garrett Epps writes at The Atlantic that I am wrong to say there aren't "significant" differences between the federal Religious Freedom Restoration Act (RFRA) and Indiana's RFRA.
According to Epps, who teaches creative writing and constitutional law at the University of Baltimore, there are two major differences between the Indiana law and the federal law. "First, the Indiana law explicitly allows any for-profit business to assert a right to 'the free exercise of religion.' The federal RFRA doesn’t contain such language," writes Epps. "Second, the Indiana statute explicitly makes a business’s 'free exercise' right a defense against a private lawsuit by another person, rather than simply against actions brought by government."
"I am not sure what McCormack was thinking," writes Epps, referring to my claim that there aren't any "significant" differences between Indiana's RFRA and the federal RFRA.
If Epps could have continued reading just a bit longer, he would have discovered that I back up this claim by directing readers to the writings of University of Virgina law professor Douglas Laycock, Stanford University law professor Michael McConnell (a former federal judge on the Tenth Circuit Court of Appeals), and South Texas law professor Josh Blackman: "Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)"
In an email to THE WEEKLY STANDARD, University of Virginia law professor Douglas Laycock explains why the Indiana RFRA's inclusion of corporations isn't really different from federal RFRA:
On corporations: The United States has what is commonly known as “The Dictionary Act.” At the very beginning of the United States Code (Title 1, section 1) is a series of definitions. As used in this Code, unless the context otherwise requires, these words have the following meaning. The federal RFRA protects every “person,” and the Dictionary Act defines “person” to include corporations. Most states have the same sort of Dictionary Act, and the same definition. In Indiana, they put it directly into the RFRA, presumably because of the litigation culminating in Hobby Lobby. That’s not really a difference.Epps wrote that a "lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage." What Epps doesn't acknowledge is that only two of the nine Supreme Court justices (Sonia Sotomayor and Ruth Bader Ginsburg) dissented from the majority opinion's holding that closely-held coporations may defend themselves under federal RFRA (Kagan and Breyer didn't take a position).
As for Epps's claim that the Indiana RFRA differs from the federal RFRA in allowing people to defend themselves in private lawsuits, Josh Blackman points out that there hasn't been unanimous agreement, but "four federal courts of appeal and the Obama Justice Department have all taken the position that [federal] RFRA can be used as a defense in private suits."
So I stand by my original claim that these two features of the Indiana law cited by Epps are not significantly different from the federal law.
But does Indiana's RFRA differ from other state RFRAs?
Epps points out that the New Mexico Supreme Court did not allow a RFRA defense in a private lawsuit, and he suggests that Texas is the only state besides Indiana that allows such a defense. But Stanford's Michael McConnell has argued persuasively that other state RFRAs cover private lawsuits: "The New Mexico RFRA specifically covers action by 'a government agency.' The Arizona RFRA applies to all action by 'government' and extends to 'all state and local laws and ordinances and the implementation of those laws and ordinances.' Courts are not agencies, but they are an arm of government. 'All' law includes common law; civil suits are a means of implementing and enforcing law."
It is worth noting that the Illinois RFRA--which Barack Obama voted for as a state senator--also applies to all state and local laws: "This Act applies to all State and local (including home rule unit) laws, ordinances, policies, procedures, practices, and governmental actions and their implementation, whether statutory or otherwise and whether adopted before or after the effective date of this Act."*
So how did the confusion arise as to whether or not RFRA applied in private lawsuits in New Mexico? In his email to TWS, Douglas Laycock explains:
On private lawsuits, the federal RFRA was clearly intended to provide a possible defense (subject, as always, to the compelling interest test) when a religious organization or believer is sued, whether by a government or a private citizen. The statute specifically mentioned relief against a government, because of concerns about sovereign immunity (the rule that you usually can’t sue a state). And that created an ambiguity; did it mean only against a government?It's unfortunate that Epps didn't make any effort to respond to the arguments made by McConnell, Laycock, or Blackman. Perhaps a public debate is in order. Isn't that what C-SPAN is here for?
Most states copied the federal language, and copied the ambiguity. And the New Mexico Supreme Court took advantage of that, and said no RFRA defense in a suit by a private citizen. So the Indiana bill addresses that ambiguity. If your church is feeding the homeless, and the neighbors don’t like it, it really doesn’t matter whether you get sued by the neighbors or by the city.
The New Mexico court was clearly hostile to the religious claim, rejecting every argument she made; if it had not had the ambiguity about private lawsuits, it would have just found a compelling government interest, which is what the state trial court in Washington did in the florist case. And what the Minnesota Supreme Court did thirty years ago in the only reported case of a business claiming a religious justification for discriminating against gays just because they are gay.
*Update (11:40a.m.): Here's Michael McConnell's analysis of the Illinois statute:
Here is the relevant part [of the statute]:
If a person's exercise of religion has been burdened in violation of this Act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government. A party who prevails in an action to enforce this Act against a government is entitled to recover attorney's fees and costs incurred in maintaining the claim or defense.It allows the person to assert RFRA as a claim or defense in any judicial proceeding, but seems to authorize appropriate relief only against a government. That seems to suggest RFRA can be asserted as a defense in a lawsuit brought by a private person, but not to allow suits by RFRA claimants against other private parties -- or at least, not to get relief. Perhaps a RFRA plaintiff could get a declaratory judgment that a particular act violates RFRA.
This does not make much sense. What it really might mean is that RFRA plaintiffs cannot obtain affirmative relief such as damages against private parties, but only protective relief like an injunction. In any event, the hypothetical cases people have been raising involve RFRA claimants being sued by other persons who want to compel them to take actions contrary to their religion.
The second sentence reinforces the idea that RFRA applies to lawsuits between private parties, because if it did not, there would be no need to restrict attorneys fees to those cases involving government.
Wednesday, April 01, 2015
The New Intolerance - WSJ
In the increasingly bitter battle between religious liberty and the liberal political agenda, religion is losing. Witness the media and political wrath raining down upon Indiana because the state dared to pass an allegedly anti-gay Religious Freedom Restoration Act. The question fair-minded Americans should ask before casting the first stone is who is really being intolerant.
The Indiana law is a version of the federal Religious Freedom Restoration Act (RFRA) that passed 97-3 in the Senate and that Bill Clinton signed in 1993. Both the federal and Indiana laws require courts to administer a balancing test when reviewing cases that implicate the free exercise of religion.
To wit: Individuals must show that their religious liberty has been “substantially burdened,” and the government must demonstrate its actions represent the least restrictive means to achieve a “compelling” state interest. Indiana’s law adds a provision that offers a potential religious defense in private disputes, but then four federal appellate circuits have also interpreted the federal statute to apply to private disp
utes. The federal RFRA followed the Supreme Court’s Employment Division v. Smith ruling in 1990 that abandoned its 30-year precedent of reviewing religious liberty cases under strict scrutiny. Congress responded with RFRA, which merely reasserted longstanding First Amendment protections.
In 1997 the Supreme Court limited RFRA’s scope to federal actions. So 19 states including such cultural backwaters as Connecticut, Rhode Island and Illinois followed with copy-cat legislation, and Indiana is the 20th. Courts in 11 states have extended equally vigorous protections.
Indiana was an outlier before the new law because neither its laws nor courts unambiguously protected religious liberty. Amish horse-drawn buggies could be required to abide by local traffic regulations. Churches could be prohibited from feeding the homeless under local sanitation codes. The state Attorney General even ruled Indiana Wesleyan University, a Christian college which hires on the basis of religion, ineligible for state workforce training grants.
Becket Fund Executive Director Kristina Arriaga discusses the controversy surrounding the Hoosier State’s religious freedom law. Photo credit: Associated Press. In February, 16 prominent First Amendment scholars, some of whom support same-sex marriage, backed Indiana’s legislation. “General protection for religious liberty is important precisely because it is impossible to legislate in advance for all the ways in which government might burden the free exercise of religion,” they explained.
That hasn’t stopped the cultural great and good from claiming Indiana added the religious defense in private disputes as a way to target gays. If this is Indiana’s purpose, and there’s no evidence it is, this is unlikely to work.
The claim is that this would empower, say, florists or wedding photographers to refuse to work a gay wedding on religious grounds. But under the RFRA test, such a commercial vendor would still have to prove that his religious convictions were substantially burdened.
And he would also come up against the reality that most courts have found that the government has a compelling interest in enforcing antidiscrimination laws. In all these states for two decades, no court we’re aware of has granted such a religious accommodation to an antidiscrimination law. Restaurants and hotels that refused to host gay marriage parties would have a particularly high burden in overcoming public accommodation laws.
In any event, such disputes are rare to nonexistent, a tribute to the increasing tolerance of American society toward gays, lesbians, the transgendered, you name it.
The paradox is that even as America has become more tolerant of gays, many activists and liberals have become ever-more intolerant of anyone who might hold more traditional cultural or religious views. Thus a CEO was run out of Mozilla after it turned out that he had donated money to a California referendum opposing same-sex marriage.
Part of the new liberal intolerance is rooted in the identity politics that dominates today’s Democratic Party. That’s the only way to explain the born-again opportunism of Hillary Clinton, who tweeted: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love.”
By that standard, Mrs. Clinton discriminated against gays because she opposed gay marriage until March 2013. But now she wants to be seen as leading the new culture war against the intolerant right whose views she recently held.
The same reversal of tolerance applies to religious liberty. When RFRA passed in 1993, liberal outfits like the ACLU were joined at the hip with the Christian Coalition. But now the ACLU is denouncing Indiana’s law because it wants even the most devoutly held religious values to bow to its cultural agenda on gay marriage and abortion rights.
Liberals used to understand that RFRA, with its balancing test, was a good-faith effort to help society compromise on contentious moral disputes. That liberals are renouncing it 20 years after celebrating it says more about their new intolerance than about anyone in Indiana.