Some more on sexual harassment

In Monday’s Washington Post, Sally Kohn argues that “Sexual harassment should be treated as a hate crime”:

We have to stop seeing sexual harassment and sexual assault as some sort of flattery of women gone awry. In truth, sexual assault has nothing to do with sex, or sexuality, or flirting, or courtship, or love. Rather, sexual assault is a kind of hate. The men who gratify themselves by abusing women aren’t getting off on those women, but on power. These men don’t sexually assault women because they like women but because they despise them as subordinate creatures. We should call it misogynistic harassment and misogynistic assault, not sexual assault. These are hate crimes.

Had she stopped there, the column would have been another example of why “hate crime laws” are noxious weeds, but she didn’t stop:

I don’t mean this in the formal, legal sense. Hate crimes are already problematic ….

Whew! That’s a relief!

But then, what’s her point?

  • We need to fight the misogyny, sexism and the systemic marginalization of women and disproportionate empowerment of men. That’s what creates the society-wide dynamic in which men think they’re better than women …
  • the predictable dynamics of a society that hates women.
  • we need to see about how our boardrooms and stockrooms and classrooms and family dining rooms teach, incentivize and perpetuate misogynistic hate.
  • Employers also need to address misogynistic hate deep within corporate culture and rooted in business policies …
  • Whether we realize it or not, most men hate women. As do most women as well; studies show
  • we’ve all grown up inside the rotten barrel of a society that automatically grants men disproportionate power and privilege …
  • it’s the rotten air we’ve all learned to breathe. That’s the rot at the core of misogynistic harassment and assault — a rot within all of us, that has nothing to do with sex or affection and everything to do with hate.

My synthesis of that list of quotes is “our society is rotten, top to bottom and surface to core. Maybe even that nature is rotten.

I’ve complained that we’re not getting to the bottom of the sexual harassment revelations (and no doubt false accusations in at least a few cases), so I’ll give Kohn credit for trying to get more radical (that is, getting to the roots).

But her “woke” indictment is too sweeping to be of any use. It’s the secular counterpart to a generic Christian meta-explanation “Why? Because ‘sin,’ that’s why, dummy” or a Calvinist positing that it’s all fore-ordained to glorify God’s sovereign good pleasure.

The level of generality it too high to help. Only the “woke” will bite, and if they try to impose some specific top-down solutions to a society that is (according to Kohn) so fundamentally rotten, they’ll produce more populist backlash, more Donald Trumps, more Roy Moores.

Maybe there are a few nuggets in there, but I rate it, overall, “not helpful.”

* * * * *

Maybe I’m too pessimistic about progress on sexual harassment thus far:

There is a radical change in culture. Things which used to be tolerated by both genders are now increasingly defined as inconceivable. And I find it interesting that this case focuses on the margins: You said, but you didn’t touch. It’s a good place for the debate to be. It’s an interesting indication how the culture has changed.

(Amitai Etzioni) “Inconceivable.” Oh! Wait! That was written 26 years ago! Never mind.

(H/T Joel Mathis, who’s somewhat skeptical himself.)

* * * * *

Helpful—no, make that “Bracing”:

Sexual harassment is a filthy offense. However, it is impossible to restrain unless we acknowledge a standard of sexual morality.

To avoid conceding any such thing, workplaces have taken to defining sexual harassment as unwanted sexual attention toward another person. In other words, the point isn’t what one is actually doing, but how the other party receives it. It is entirely subjective.

Such a standard is unworkable, because the lecher cannot know whether his beastly attention is unwanted until he commits it. The rule merely encourages him to give it a try. If the other party is too intimidated to object, his behavior is not identifiable as harassment even then.

Suppose we define sexual harassment in the older way, as lewd attention toward another person. Whether attention is lewd does not depend on what the other party thinks of it.

Persisting in lewd behavior over the protests of the other person makes it still more despicable, of course. But it would have been despicable anyway.

(J. Budziszewski)

Note that the second paragraph is cognate with David French’s observation that for sex to happen, somebody must “make the ask.” French’s point was that consent is vitiated if the askor is disproportionately powerful relative to the askee.

Budziszewski is going a level deeper, and his definition would improve things. But even workplace flirtation strikes me as a problem when there’s a power imbalance.

* * * * *

Some succinct standing advice on recurring themes.

 

Bringing closure

In Hidalgo County, Texas, an 85-year-old ex-Priest has (finally) been convicted of murdering a beautiful and accomplished Latina, Irene Garza, in 1960. The Washington Post story ritually pronounces “closure” before probing “why so long?”

What is this “closure” that gets trotted out in news and commentary after every murder conviction?

It’s some relief that I’m not the only one asking, though until I Googled it, I feared I was. Here’s one exploration:

The idea of closure is powerful. It’s something Arkansas invoked in an April 15 motion that tried to fight a temporary restraining order that McKesson Medical Surgical, Inc., has used to block the use of its drug vecuronium bromide in state executions. (The drug is typically used as general anesthesia to relax muscles before surgery).

“The friends and family of those killed or injured by Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis, and Terrick Nooner have waited decades to receive some closure for their pain,” it read.

But even when executions take place, a surviving family’s pain doesn’t disappear with the perpetrator’s pulse.

Death penalty advocates and politicians, including Arkansas Attorney General Leslie Rutledge, argue that when the state executes a person who has committed a terrible crime, the act brings closure to victim’s family. But it’s not that simple.

If you ask murder victims’ families, “closure is the F-word,” said Marilyn Armour, who directs the Institute for Restorative Justice and Restorative Dialogue at the University of Texas at Austin. She’s researched homicide survivors for two decades. “They’ll tell you over and over and over again that there’s no such thing as closure.”

Hypothesis: “Closure” is something politicians and society generally invoke to mask revenge (maybe there’s a better word) as altruism.

Alternate hypothesis from Mrs. Tipsy: It brings closure only to journalists, who don’t have to report on this case any more. (I should solicit her thoughts more often.)

* * * * *

I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.

Masterpiece Cakes thoughts

The consensus, with a few dissenters, is that the oral arguments Tuesday portend victory for Jack Phillips, proprietor of Masterpiece Cakes. I’m going to assume that for purposes of this blog.

What worries me now is how he will win. There are a number of options, but I’ll just mention three.

  1. The Colorado Civil Rights Commission (or whatever they call it) was biased against Phillips and its decision can’t stand. This has the benefit of being true; the bigotry of one commissioner was manifest. But by the time a case gets to the Supreme Court, who wins this particular case is barely relevant; the case now is about principles that are going to govern cases nationwide. The court never would have taken the case if it was only about Jack Phillips and the Colorado commissioners. It would be terrible if the only result of this case was “commissioners shouldn’t utter their bigotries aloud.”
  2. The Colorado Civil Rights Commission has applied its facially “neutral law of general application” (terms of art) with “an evil eye and uneven hand” (anachronistic terms of art), so the law is unconstitutional as applied to Phillips’ bona fide religious scruples. In other words, he wins under the free exercise of religion clause. This result would be mildly surprising, but the evil eye and uneven hand appear to be there. A provocateur asked another baker for a bible-shaped cake with some of the “clobber passages” inscribed on it. The baker refused. The provocateur filed a discrimination complaint, which he lost, partly because the baker had served other Christians (proving he’s not anti-Christian), though the Commission ignored that Jack Phillips served other homosexuals. (Transcript of Oral Arguments 58-59) This tends de facto to negate “general application,” so a subtle escape route of Employment Division v. Smith opens for Jack Phillips (and presumably for others in Colorado). I’d still hope against this outcome, which would sort of be limited to Colorado, with a cautionary note to other states to enforce their law equally, across-the-board. It’s an invitation to lots more litigation and to set-ups like the Christian provocateur with his clobber passage cake.
  3. Jack Phillips reasonably believed that Craig and Mullins were seeking one of his custom-designed wedding cakes, and the Colorado Civil Rights Commission denied him discovery from Craig and Mullins to prove that. A wedding cake is primarily a festive, celebrative central ornament in wedding receptions, only secondarily food. An artist or artisan cannot constitutionally be compelled to create fruits of his artistry in celebration of something he chooses not to celebrate for any reason. In other words, he wins under the free speech clause (which protects against compelled artistic expression).  This has seemed Phillips best shot since I first learned of the case. It was in the first sentence out of Kristen Waggoner’s mouth on Phillips’ behalf (although she noted that his objection to speaking was religious). One of the little ironies is that free speech has become a powerful protector of dissident Christians who may have weak free exercise cases thanks to our brother, the late Justice Scalia, who took leave of his senses one day and penned Employment Division v. Smith (which turned out to have some escape routes, so it wasn’t as bad as initially feared). The “problem” here is Justices agonizing, some probably insincerely, about “where to draw the line.” That will be the interesting analysis if Phillips wins on free speech/freedom from compelled expression, which I think is the best analysis, but then I’d probably draw the line very, very protectively against compelled speech—maybe further than most of my readers.

Update: I regret rushing this blog, because it made me forget my favorite way Jack could win.

The court could decide that Jack did not refuse service to anyone because of their sexual orientation, but because they wanted him to adorn a same-sex wedding reception (with a custom creation, Jack believed).

Like Option 1, above, this has the virtue of being true. But Colorado equated that with discrimination on the basis of sexual orientation because same-sex marriage is really, really closely correlated to sexual orientation. Thus did it refuse categorically to recognize a vital distinction, thus extending the legislature’s law beyond what it may have intended and setting up this constitutional clash.

There’s some reason to think that may be where pivotal Justice Kennedy is headed.

MR. COLE: … the public accommodations law does not say you must treat everybody; it says you cannot discriminate on the basis of protected categories.

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think
they should have a marriage because that’s contrary to my beliefs. It’s not -­

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity. It’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s – –  your identity thing is just too facile.

(Transcript of Oral Arguments 86-87)

I like this possibility because it seems to me that:

  • It leaves intact the core protection of persons against discrimination because of their sexual orientation. (I’ve never been convinced that’s more that a vanishingly rare problem in the realm of public accommodations, but if it is a problem, this covers it.)
  • It gets to the nub of Jack Phillips’ objection and validates it. Jack’s sincere professions of willingness to serve all people, and history of serving all people, got lost in the politics of this issue, with him getting branded just another Christianist homophobe. That was false and, yes, facile. Jack deserved better.
  • It avoids all the parade of horribles and slippery slopes that attend the “what’s artsy enough and what isn’t?” questions. Nobody, artist or not, is discriminating against persons as person if they decline to help provision an event they find objectionable.

Yes, in a few corners of the country, it may be hard for same-sex couples to get vendors for their celebrations, as an amicus argued. But custom cakes, floral arrangements, wedding invitations, photographers and such are “not goods or services like lodging or transportation necessary for full participation in public life,” as Rabbi Dovid Bressman argued in a friend of the court brief.

That gets us back to the heart of this case: the couple’s sense of entitlement. I don’t think that sense commands validation men and women of goodwill.

* * * * *

I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.

 

Monday, 12/4/17

1

Okay, I suppose. If you insist:

2

Caveat: David French is a skillful lawyer and an excellent pundit. So far as I know, his opinions on football rank right up there with some random guy sitting next to you at a bar.

3

4

5

6

7

8

* * * * *

I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.