We Should Live - Ben Bateman

Clayton Cramer and Eugene Volokh both point to a decision from a panel of the Ninth Circuit Court of Appeals holding that a student has no first-amendment right to wear a t-shirt critical of homosexuality, even though he wore it in direct response to a school-sponsored event that endorsed, or at least appeared to endorse, homosexuality. See Cramer and Volokh to learn about the case law in this area. My impression is that it’s like most controversial areas of constitutional law, which is that there is no real law, just politics masquerading as law. And that’s extra-obvious in this case, as Judge Reinhardt, who wrote the majority opinion, is well-known for ignoring precedent and simply declaring his personal views to be law, as is the Ninth Circuit generally.

What grabbed my attention came from this part of the majority opinion:

We conclude that Harper’s wearing of his T-shirt “colli[des] with the rights of other students” in the most fundamental way. Tinker, 393 U.S. at 508. Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. (emphasis added)

Sexual orientation is a core identifying characteristic? Judge Reinhardt apparently thinks so, and considers it obvious enough to state without citation or explanation. In doing so, he tells us far more about himself than the law. It reminds me of George Kelly’s personal construct or person-as-scientist theory of personality, in which each person chooses a handful of variables with which to understand the world in general, and other people in particular. Reinhardt’s phrase shows that within his personal reality, sexual orientation looms large. It seems like an awfully small and unstable world.

Start with the phrase ’sexual orientation’. What does it mean? Technically, it could refer to any type of sexual interest, but in practice it means homosexuality and other practices and desires currently deemed politically acceptable. Surely Judge Reinhardt would be perfectly comfortable discriminating against pedophiles, necrophiles, or bestialists. (At least I hope he would. The alternative is frightening to contemplate.) Only the most devout and politically clumsy leftists follow their dogma to its logical conclusion, which is that all sexual practices are fundamentally equivalent, from procreative sex to coprophilia and sexual asphyxiation.

And why discriminate among pleasures? Sexual pleasure is the most pleasure for many people, but not for all. Others prefer non-sexual pleasures, some of which are socially acceptable, and some of which are not. Some people drink, some smoke, some pick their noses in public. Some are committed nudists. Some eat too much and become fat. Some get obnoxious tattoos and piercings. If some people enjoy those things more than sex, then how can we deny them the same rights and protections that the sex-obsessed enjoy?

But internal inconsistency is the minor problem. The much larger problem involves the consequences of actually believing that sexual orientation is one of each person’s core identifying characteristics. If you believe that, then what else must you believe? If our pleasures define us, then what distinguishes humans from animals? Is a human being’s orgasm any more intense than a cow’s? And if not, then why should cows suffer for human pleasure, rather than humans suffering for bovine pleasure?

If you deny that humans are inherently more important than animals, then you must explain why we’re the ones who kill the cows, and not the other way around. The practical answer is raw power: We are capable of killing the cows, and they are not capable of killing us. But making power the sole basis of morality opens up possibilities too dark for the western imagination to fully comprehend.

Mao Zedong said that power comes from the barrel of a gun—and he’s the sort of man who would know. If power defines morality, then who’s right and who’s wrong depends on who holds the gun, and where it points. The man deserves to eat the cow because he’s holding the gun, and the cow deserves to die and be eaten because it’s on the wrong end of the gun. And that works just fine for cows. But one moral idea always leads to another. Eventually we must ask: What happens when one man points the gun at another man?

Here’s a pet theory of mine: A key component of Christianity is the idea that each person is a child of God, with unlimited moral worth. It was a novel idea at the time, wildly at odds with the ancient world. That cornerstone idea silently undergirds most of our moral thinking: What’s wrong with infanticide, or cannibalism, or even slavery? Few people today can articulate a coherent non-circular answer, but the proper answer is that each person is a child of God.

Take that away and we go back to the ancient world. Homo Sapiens don’t naturally think of all people as having equal moral worth. Instead, we think in tribal terms: family, nation, region, class, race, and language. The natural state of humanity is tribalism, where small groups struggle continuously to kill or enslave each other, where a man can be equivalent to a cow—if he’s wearing the shackles rather than holding the whip. Christianity didn’t change human nature; it merely suspended it.

Ideas have consequences. Announce often enough that humans are nothing more than animals, and someone may take you seriously. If a man is no more or less important than a cow or horse, then why not hook him to your plow and make him till your field? Why not butcher him and sell his parts for profit, as the Chinese do with their political opponents? Ask not why the communists are capable of such atrocities; their practices have a long historical pedigree and plenty of intellectual supporters. Ask instead why some of us still consider it to be morally unacceptable. And ask why so many people today cringe at slaughtering political prisoners for profit, but see nothing wrong with abortions for convenience, euthanasia for the infirm and elderly, or a right to suicide.

God is dead, or at least he has no shortage of would-be assassins. Only our inarticulate residual squeamishness holds us back from the Abyss.

I assume that Judge Reinhardt had no grand purpose for announcing that sexual orientation is one of a person’s core identifying characteristics. But he didn’t need to have a grand purpose. You don’t change the morality of whole populations through deduction, with moral premises that lead to moral conclusions. Instead, you change their words and actions, on whatever pretext, and they will then infer from their behavior a belief in corresponding moral principles: “I act this way and say these words, so I must hold these beliefs. And since I hold these beliefs, then I cannot deny the rightness of the actions and words that follow from them.”

The people who think about these subjects often underestimate the ordinary man’s capacity for moral reasoning. It’s true by definition that most people have average intelligence, and it’s true that the details of their daily lives occupy most of their attention. This is why most people don’t keep up with politics, or study history, or learn theology. But morality is different, because it asks the perpetually interesting question that is the essence of moral inquiry: “What should I do?” Every man, woman, and child must ask that question hour by hour, minute by minute. Over time, they figure it out. They infer their words and actions down to principles, then they deduce those principles back out to actions and words—for efficiency’s sake, if nothing else.

The judge says that sexual orientation is a core identifying characteristic. It’s a shocking statement with horrifying implications. But we don’t oppose it by objecting to it. In morality as in politics, you can’t beat something with nothing. If we would sustain Christianity’s centuries-long holiday from human nature, then we need words of our own. The judge was wrong, but do most of us agree on what he should have said that would have been right? How should we think about homosexuality? What are a person’s core identifying characteristics? How should we think about and categorize people, in opposition to the zeitgeist that demands strict non-thinking about a growing list of characteristics?

I don’t know the answers. I don’t know how to preserve the ancient moral base the Christianity has bequeathed to us. But I sure hope that somebody figures it out, because I know exactly where Judge Reinhardt and his ilk will take us.