Saturday, April 25, 2015

Productivity, Compensation and Economic Growth

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.

“Opposite of America” is full of lies | Rare

“Opposite of America” is full of lies 

If you waste much time on Facebook, you’ve probably stumbled upon at least one of the memes I address in this article. The style of the meme is to take individuals, have them explain how their country is able to accomplish some national goal, then state that it’s the “opposite of what America does.”

None of the quotes are real, and indeed the Facebook page that creates them acknowledged this: “the Opposite of America memes were created by US Uncut and have reached 30 million people. The reason you know the quotes are fake is because the series is so popular—it’s not too different than the Onion. We aren’t trying to fool anyone and we don’t use fake quotes on anything else.”


This is what I like to call “chicken and egg” economics. What came first, the record profits or the well paid workers? It isn’t much of a hard riddle to solve – how do you pay workers well unless you’re first profitable?

The business model of Walmart and Sam’s Club focusses on serving low income individuals, while Costco is located in wealthier areas. Finance blog “The Motley Fool” refers to Costco as the “Walmart of the Wealthy.” And it should come to no surprise that Costco brings in more revenue per employee than Walmart does when their business model is catering to the upper class. Costco brings in $620,000 per employee, compared to $211,000 for Walmart.

Does anyone really think that Walmart’s cashiers would develop the ability to bring in an additional $400k for the business every year had only they been paid more? There is evidence that well paid workers do perform better, but not to such an inflated extent.


John Derbyshire was certainly onto something when he said, “wherever there is a jackboot stomping on a human face there will be a well-heeled Western liberal to explain that the face does, after all, enjoy free health care and 100 percent literacy.

Even I was surprised by the support of Fidel Castro, but US Uncut has posted in support of Ahmadinejad as well so maybe this isn’t such a stretch.

America actually does spend more on education than on the military. Liberals will often try to prove otherwise by isolating the Federal budget. And indeed when you look at the federal budget, we see a miniscule $71.9 billion spent on education, compared to $672.9 for the military (in 2012).

This neglects that basic fact however that most education spending is done on the state and local level. When you look at the cost of government at all levels – federal, state, and local – 15.2% of money goes towards education, compared to 13.8% on defense. Now, we surely don’t spend five times as much on education than the military as Cuba does, but Cuba isn’t the world’s biggest military spender – America is. For our education spending to be five times the size of military spending, we would have to devote over 20% of GDP towards education. Anyone who thinks this is a good idea should familiarize themselves with the concept of diminishing returns.

So how does Cuba’s spending compare? To Cuba’s credit, they do spend an enormous chunk of their budget towards education – 10%. But as we’ve seen, 15.2% of all government spending in the U.S. goes towards education. Education spending per pupil in the U.S. is $11,184 (2009-10), which is higher than the average Cuban’s yearly income.

The student to teacher ratio in Cuba is a small 9:1, compared to roughly 16:1 in the U.S.. Flaws of the U.S. education system stem from much more than its student teacher ratio however. Test scores have remained virtually unchanged since the 1970s (when the student teacher ratio was 22.3:1), even while real education spending per student has tripled.

If only it were so easy to fix our education system! We can know for sure that this isn’t the solution – because American teachers earn more than Finnish teachers. A teacher in Finland with 15 years experience earns $37,500 a year, compared to $45,225 for an American teacher with the same level of experience. And that doesn’t even take into account that the cost of living is 30% higher in Finland.

Doctors in Finland only earn $70,000 a year, so perhaps “In Finland we pay doctors like teachers” is a more appropriate claim.

The only true part of the meme is regarding mandatory testing and recess. There is no mandatory testing in Finish schools, with the exception of a National Matriculation Examination taken at the end of high school. How additional time to play kickball plays a role in the success of Finish education remains a mystery however.

Read the whole thing.

Friday, April 24, 2015

Books and Authors Law goes into effect - National News - Jerusalem Post

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.

The left-wing Israel newspaper Haaretz, which usually writes in favor of “social justice” issues, conceded that the law “has had the opposite effect its backer promised it would bring.”
Publishers told Haaretz that the law “has upset the entire literary food chain” with sales of new book titles down between 40 and 60 percent and down 20 percent for books overall.
Israel’s Channel 2 television on Sunday visited booksellers who said that after their customers see the newly elevated prices of children’s books, they head straight for the toy department. Booksellers say they’ve experienced a 25 percent drop in children’s book sales in just one year, according to Channel 2.

Monday, April 20, 2015

No, food stamps aren’t subsidies for McDonald’s and Wal-Mart - The Washington Post

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

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.

Saturday, April 11, 2015

The Hugo Awards: How to Fight Back in the Culture War

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.

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.
The goal was simply to bring the leftist bias out into open view.

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

Patterico's Pontifications » Yes, Sally Kohn, Laws Are Coercive

Who knew?

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

Sally Kohn Doesn't Understand How Laws Work

Sally Kohn Doesn't Understand How Laws Work

The debate over religious freedom has officially broken the collective liberal mind. Rather than just admitting that many same-sex marriage supporters wish to use the power of government to force people of faith to violate their consciences, at least one skeptic of religious freedom has invented a new legal theory on the matter.

In a column for TPM,
liberal media personality Sally Kohn asserted that it makes no sense to say the government is forcing people of faith to violate their consciences, because government can’t force you to do anything:
You may have heard that the government is forcing businesses not to discriminate. It isn’t. If you chose to run a business, you have to follow the laws. If you don’t, that’s a choice—and you choose to suffer the consequences.

Kohn, who has a law degree from NYU, carried her theory even further, stating that members of the police force aren’t really using force to enforce the law unless they put a gun to your head:
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.

Eric Garner, who was choked by Staten Island police and later died at the scene of his arrest for selling untaxed cigarettes, might disagree with Kohn’s description of what does and doesn’t constitute force. Unfortunately, Kohn fails to see the linguistic hints embedded in the words we use to describe how government compels legal compliance.

We use the phrase “force of law” for a reason: laws that are not backed by force aren’t laws; they’re suggestions. We use the phrase “law enforcement” for a reason. We use the phrase “police force” for a reason. If a law is not followed, it is not unusual for the government to dispatch its resources to force compliance or to levy punishment.
One gets the impression that @sallykohn hasn’t thought about government a great deal.
Charles C. W. Cooke (@charlescwcooke) April 6, 2015

Governments pass laws to change behavior. Sometimes government uses carrots — engage in this particular activity we like and you’ll be rewarded with subsidies. And sometimes government uses sticks — engage in this particular activity we don’t like, and you will be punished.

Kohn appears to grasp that last part. After all, she specifically wrote that if you don’t follow a law, you might have to “suffer the consequences.” Unfortunately, she doesn’t expend any mental energy following that logic all the way through. In the absence of force, how are any consequences possible? Who has been sanctioned by government to impose this suffering?

Americans don’t pay taxes out of the goodness of their hearts. They pay taxes to avoid force in the form of government fines or levies. We don’t generally drive the speed limit because it’s fun to go slow. We do it to avoid fines and arrest, an act which requires literal physical force. Martin Luther King, Jr. didn’t end up in a Birmingham jail cell because he longed for the quaint, cozy confines of prison. He ended up in that cell because police forced him into it for the crime of peacefully protesting segregation. That’s how laws — even vile ones like those of the Jim Crow era — work. Blacks didn’t choose to use different water fountains or lunch counters. They were forced to do so by police, hoses, and dogs.

A law is nothing but a threat backed up by force. This principle is not “ideological,” as Kohn tried to suggest on Twitter. It is definitional. The threat of force is what converts a mere recommendation into an actual law.

At one time, Kohn appeared to roughly understand the principle of government force. During the debate over the Obamacare contraceptive mandate, Hobby Lobby argued in court that it should not be forced by the government to pay for abortifacients for its employees. The arts and crafts supplier said that if employees wished to use abortifacients, they were free to purchase those with their own money.

This was unacceptable to Kohn, who claimed in a 2013 column for The Daily Beast that “right-wing conservatives are using the Hobby Lobby Supreme Court case on contraception to force their religious views on the nation”:
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.


Hobby Lobby wants to go one step further. This corporation, which already takes advantage of special government benefits by incorporating as a private business in the first place (entitling Hobby Lobby to tax benefits and liability shelters to which individuals alone are not entitled), wants to use its government-created corporate status with the help of government-run courts not just to express its religion on a poster or what have you but to force its employees to comply with the supposed religion of the corporation’s founders. This is, plain and simple, a corporation trying to contort government to impose the religious views of some onto many. This is precisely what our nation was founded against.

She asserted the existence of government force five separate times in that article. Granted, she had it completely backwards, but at least she accepted the premise. Hobby Lobby didn’t want to force anything on anybody. Its owners wanted the freedom to not pay for items they considered to be abortifacients. Hobby Lobby never argued during the case that its employees should be forever banned from using certain types of birth control. The company merely suggested that maybe people should buy some things with their own money. Perish the thought.

But to Kohn, even though a company choosing not to pay for something has nothing to do with government force, that was an example of blatant government force, a dynamic which as of yesterday she said did not even exist. Kohn apparently believes that government force doesn’t exist, that individuals can be forced to “suffer consequences” in the absence of force, that fines and imprisonment for non-compliance don’t constitute force, and that, somewhat paradoxically, an individual choosing to abstain from an activity is a perfect example of the use of government force.

As I noted previously, Sally Kohn has a law degree from NYU.

While the Indiana religious freedom debate raged on last week, I joked that many same-sex marriage supporters had moved the goalposts from “if you don’t like gay marriage, then don’t have one” to “if you don’t like having your conscience violated, then don’t have one.” I didn’t expect to be proven right in less than a week, but Sally Kohn is a charitable person who decided that I needed to be vindicated in short order.

“Don’t like following the laws that apply to businesses,” Kohn asked at the end of her column for TPM. “Then don’t start a business. That’s your choice.”

Segregationists made the exact same argument during the Jim Crow era. Thank goodness that people like Martin Luther King, Jr. ignored them, government force notwithstanding.

Thursday, April 02, 2015

Why The Atlantic Is Wrong about Indiana's Religious Freedom Law | The Weekly Standard

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?

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.
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?

*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

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.