What About Infertile Heterosexual Couples?

Keith Burgess-Jackson writes,

The purpose and point of marriage, as everyone knows, and as the law has long recognized, is to bind a man and a woman to one another for the sake of any children they produce. Please, please, please don't say that infertile heterosexual couples are allowed to marry, as though that refutes my claim. Immature 21-year-olds are allowed to drink alcohol, but that doesn't mean the purpose and point of the drinking age isn't to prevent immature individuals from drinking alcohol.

That's right.  As I say near the end of a long entry, The Infertility Argument for Same-Sex Marriage:

The law cannot cater to individual cases or even to unusual classes of cases.  Consider laws regulating driving age.  If the legal driving age is 16, this is unfair to all the 13-16 year olds who are competent drivers.  (E.g., farm boys and girls who learned to operate heavy machinery safely before the age of 16.)  If the law were to cater to these cases, the law would become excessively complex and its application and enforcement much more difficult.  Practical legislation must issue in demarcations that are clear and easily recognized, and therefore 'unfair' to some.

But a better analogy is voting.  One is allowed to vote if one satisfies quite minimal requirements of age, residency, etc.  Thus the voting law countenances a situation in which the well-informed and thoughtful votes of mature, successful, and productive members of society are given the same weight as the votes of people who for various reasons have no business in a voting booth.  We don't, for example, prevent  the senile elderly from voting even though they are living in the past out of touch with the issues of the day and incapable of thinking coherently about them.  We don't exclude them or other groups for a very good reason: it would complicate the voting law enormously and in highly contentious ways.  (Picture armies of gray panthers with plenty of time on their hands roaming the corridors of Congress armed with pitchforks.)  Now there is a certain unfairness in this permissiveness: it is unfair to thoughtful and competent voters that their votes be cancelled out by the votes of the thoughtless and incompetent.  But we of the thoughtful and competent tribe must simply 'eat' (i.e., accept) the unfairness as an unavoidable byproduct of workable voting laws.

In the same way, whatever residual unfairness to homosexuals there is in allowing infertile oldsters to marry (after my foregoing arguments have been duly digested) is an unfairness that simply must be accepted if there are to be workable marriage laws.

The Deep Meaning of Ferguson: The End of the Rule of Law

Ferguson is of course just one instance.  But it is emblematic.  As usual, Victor Davis Hanson gets it right:

In the Ferguson disaster, the law was the greatest casualty. Civilization cannot long work if youths strong-arm shop owners and take what they want. Or walk down the middle of highways high on illicit drugs. Or attack police officers and seek to grab their weapons. Or fail to obey an officer’s command to halt. Or deliberately give false testimonies to authorities. Or riot, burn, and loot. Or, in the more abstract sense, simply ignore the legal findings of a grand jury; or, in critical legal theory fashion, seek to dismiss the authority of the law because it is not deemed useful to some preconceived theory of social justice. Do that and society crumbles.

In our cynicism we accept, to avoid further unrest, that no government agency will in six months prosecute the looters and burners, or charge with perjury those who brazenly lied in their depositions to authorities, or charge the companion of Michael Brown with an accessory role in strong-arm robbery, or charge the stepfather of Michael Brown for using a bullhorn to incite a crowd to riot and loot and burn. We accept that because legality is becoming an abstraction, as it is in most parts of the world outside the U.S. where politics makes the law fluid and transient.

Nor can a government maintain legitimacy when it presides over lawlessness. The president of the United States on over 20 occasions insisted that it would be illegal, dictatorial, and unconstitutional to contravene federal immigration law — at least when to do so was politically inexpedient. When it was not, he did just that. Now we enter the Orwellian world of a videotaped president repeatedly warning that what he would soon do would be in fact illegal. Has a U.S. president ever so frequently and fervently warned the country about the likes of himself?

Read it all.

On Legal and Illegal Immigration

A reader from Down Under poses this question:

America is experiencing immigration problems somewhat like Australia's. The idea of  'multiculturalism' some would say is beginning to show its flaws. Who do you believe should be allowed to enter your country? Please feel free to be as politically incorrect as you like.

1. First of all, one must insist on a distinction that many on the Left willfully ignore, that between legal and illegal immigration. (Libertarians also typically elide the distinction.)  Legal and illegal immigration are separate, logically independent, issues. To oppose illegal immigration, as any right-thinking person must, is not to oppose legal immigration. So, to answer one of the reader's questions, no one should be allowed to enter illegally. But why exactly? What's wrong with illegal immigration? Aren't those who oppose it racists and xenophobes and nativists? Doesn't everyone have a right to migrate wherever he wants?

2. The most general reason for not allowing illegal immigration is precisely because it is illegal.  If the rule of law is to be upheld, then reasonable laws cannot be allowed to be violated with impunity simply because they are difficult to enforce or are being violated by huge numbers of people.  Someone who questions the value of the rule of law is not someone it is wise to waste time debating.

3. There are several sound specific reasons for demanding that the Federal government exercise its legitimate, constitutionally grounded (see Article I, Section 8 of the U.S. constitution) function of securing the national borders, and none of these reasons has anything to do with racism or xenophobia or nativism or any other derogatory epithet that slanderous leftists and libertarians want to attach to those of us who can think clearly about this issue.

There are reasons having to do with national security in an age of terrorism. There are reasons having to do with assimilation, national identity, and comity. How likely is it that illegals will assimilate, and how likely is social harmony among citizens and unassimilated illegals?  There are considerations of fairness in respect of those who have entered the country legally by satisfying the requirements of so doing. Is it fair that they should be put through a lengthy process when others are allowed in illegally.

There are reasons having to do with the importation of contraband substances into the country. There are reasons having to do with increased crime. Last but not least, there are reasons pertaining to public health. With the concern over avian influenza, tuberculosis, ebola, and all sorts of tropical diseases, we have all the more reason to demand border control.

Borders are a body politic's immune system. Unregulated borders are deficient immune systems. Diseases that were once thought to have been eradicated have made a comeback north of the Rio Grande due to the unregulated influx of population. These diseases include tuberculosis, Chagas disease, leprosy, Dengue fever, polio, and malaria.

You will have noticed how liberals want to transform into public health issues problems that are manifestly not public but matters of private concern, obesity for example. But here we have an issue that is clearly a public health issue, one concerning which Federal involvement is justified, and what do our dear liberals do? They ignore it. Of course, the problem cannot be blamed solely on the Democrat Party. Republicans like Bush and McCain are just as guilty. On immigration, Bush was clearly no conservative; he was a libertarian on this issue. A libertarian on some issues, a liberal on others, and a conservative on far too few.

4. Many liberals think that opposition to illegal immigration is anti-Hispanic. Not so. It is true that most of those who violate the nation's borders are Hispanic. But the opposition is not to Hispanics but to illegal entrants whether Hispanic or not. It is a contingent fact that Mexico is to the south of the U.S. If Turkey or Iran or Italy were to the south, the issue would be the same. And if Iran were to the south, and there were an influx of illegals, then then leftists would speak of anti-Persian bias.

A salient feature of liberals and leftists — there isn't much difference nowadays — is their willingness to 'play the race card,' to inject race into every issue. The issue of illegal immigration has nothing to do with race since illegal immigrants do not constitute a race. There is no such race as the race of 'llegal aliens.' Opposition to them, therefore, cannot be racist.  Suppose England were to the south of the U. S. and Englishmen were streaming north.  Would they be opposed because they are white?  No, because they are illegal aliens.

"But aren't some of those who oppose illegal immigration racists?" That may be so, but it is irrelevant. That one takes the right stance for the wrong reason does not negate the fact that one has taken the right stance. One only wishes they would take the right stance for the right reasons.  Even if everyone who opposed illegal immigration were a foaming-at-the-mouth redneck of a racist, that would not detract one iota of cogency from the cogent arguments against allowing illegal immigration.  To think otherwise is to embrace the Genetic Fallacy.  Not good.

5. The rule of law is a precious thing. It is one of the supports of a civilized life. The toleration of mass breaking of reasonable and just laws undermines the rule of law.

6. Part of the problem is that we let liberals get away with obfuscatory rhetoric, such as 'undocumented worker.' The term does not have the same extension as 'illegal alien.'  I discuss this in a separate post.  But having written thousands of posts, I don't quite know where it is. 

7. How long can a welfare state survive with open borders?  Think about it.  The trend in the USA for a long time now has been towards bigger and bigger government, more and more 'entitlements.' It is obviously impossible for purely fiscal reasons to provide cradle-to-grave security for everyone who wants to come here.  So something has to give.  Either you strip the government down to its essential functions or you control the borders.  The first has no real chance of happening.  Quixotic is the quest  of  strict constructionists  and libertarians who call for it.  Rather than tilting at windmills, they should work with reasonable conservatives to limit and eventually stop the expansion of government.  Think of what a roll-back to a government in accordance with a strictly construed constitution would look  like.  For one thing, the social security system would have to be eliminated.  That won't happen.  Libertarians are 'losertarian' dreamers.  They should wake up and realize that politics is a practical business and should aim at the possible.  By the way, the pursuit of impossible dreams is common to both libertarians and leftists.

8. Even though contemporary liberals show little or no understanding for the above arguments, there are actually what might be called 'liberal' arguments for controlling the borders:

A. The Labor Argument. To give credit where credit is due, it was not the conservatives of old who championed the working man, agitated for the 40 hour work week, demanded safe working conditions, etc., but the liberals of those days.  They can be proud of this. But it is not only consistent with their concern for workers that they oppose illegal immigration, but demanded by their concern. For when the labor market is flooded with people who will work for low wages, the bargaining power of the U.S. worker is diminished. Liberals should therefore oppose the unregulated influx of cheap labor, and they should oppose it precisely because of their concern for U. S. workers.

By the way, it is simply false to say, as Bush, McCain and other pandering politicians have said, that U.S. workers will not pick lettuce, clean hotel rooms, and the like. Of course they will if they are paid a decent wage. People who won't work for $5 an hour will work for $20. But they won't be able to command $20 if there is a limitless supply of indigentes who will accept $5-10.

B. The Environmental Argument. Although there are 'green' conservatives, concern for the natural environment, and its preservation and protection from industrial exploitation, is more a liberal than a conservative issue. (By the way, I'm a 'green' conservative.) So liberals ought to be concerned about the environmental degradation caused by hordes of illegals crossing the border. It is not just that they degrade the lands they physically cross, it is that people whose main concern is economic survival are not likely to be concerned about environmental protection. They are unlikely to become Sierra Club members or to make contributions to the Nature Conservancy. Love of nature comes more easily to middle class white collar workers for whom nature is a scene of recreation than for those who must wrest a livelihood from it by hard toil.

C. The Population Argument. This is closely related to, but distinct from, the Environmental Argument. To the extent that liberals are concerned about the negative effects of explosive population increase, they should worry about an unchecked influx of people whose women have a high birth-rate.

D. The Social Services Argument. Liberals believe in a vast panoply of social services provided by government and thus funded by taxation. But the quality of these services must degrade as the number of people who demand them rises. To take but one example, laws requiring hospitals to treat those in dire need whether or not they have a means of paying are reasonable and humane — or at least that can be argued with some show of plausibility. But such laws are reasonably enacted and reasonably enforced only in a context of social order. Without border control, not only will the burden placed on hospitals become unbearable, but the justification for the federal government's imposition of these laws on hospitals will evaporate. According to one source, California hospitals are closing their doors. "Anchor babies"  born to illegal aliens instantly qualify as citizens for welfare benefits and have caused enormous rises in Medicaid costs and stipends under Supplemental Security Income and Disability Income.

The point is that you can be a good liberal and oppose illegal immigration. You can oppose it even if you don't care about about increased crime, terrorism, drug smuggling, disease, national identity, national sovereignty, assimilation, the rule of law, or fairness to those who have immigrated legally. But a 'good liberal' who is not concerned with these things is a sorry human being.

I hope I have been politically incorrect enough for my reader's taste.

Ferguson

I have been asked my opinion.  But before opining it would be better to wait until we know or at least have a clearer idea of what exactly transpired between Michael Brown, the 18-year-old black male, and the white police officer Darren Wilson. We know that Brown is dead and that the officer hit him with five or so rounds. (And we know that it was the shooting that caused the death.)

And we know that prior to the shooting, Brown stole some tobacco products (cigarillos in one account, Swisher Sweet cigars in another) from a convenience store, roughing up the proprietor on the way out.

The theft is not something that Wilson could have known about prior to the shooting, and even if he did know about it, that would not justify his use of deadly force against the shoplifter.  Obviously.

So those are the main facts as I understand the case.  I need to know more to say more, except for two comments:

1.  Al Sharpton's claim that the release of the store video was a 'smear' of Brown is absurd on the face of it.  One cannot smear someone with facts. To smear is to slander.  It is to damage, or attempt to damage, a person's reputation by making false accusations. Sharpton is employing the often effective leftist tactic of linguistic hijacking.  A semantic vehicle with a clear meaning is 'hijacked' and piloted to some leftist destination.   The truth about a person can be damaging to his reputation.  But if you cannot distinguish between damaging truths and damaging falsehoods, then you are as willfully stupid as the race hustler Sharpton.

2. The governor of Missouri, Jay Nixon, called for "a vigorous prosecution"  in the case and to "do everything we can to achieve justice for [Brown's] family." These statements sink to a Sharptonian level of (willful?) stupidity.  For one thing, Wilson cannot be prosecuted for the killing of Brown until it has been determined that Wilson should be charged in the killing of Brown.  

That Wilson killed Brown is a fact.  But that he should be charged with a crime in the killing is a separate question.  Only after a charge has been lodged can the judicial process begin with prosecution and defense.

Second, talk of achieving justice for Brown's family  not only presupposes that Wilson has been indicted, it begs the question of his guilt: it assumes he is guilty of a crime.  More fundamentally, talk of achieving justice for one party alone makes no sense.  The aim of criminal proceeding is to arrive at a just outcome for both parties.

Suppose Wilson is indicted and tried.  Either he is found guilty or found not guilty of the charge or charges brought against him.  If he is found guilty, and is in fact guilty, then there is justice for both the perpetrator and the victim and his family  If he is found not guilty, and he is in fact not guilty, then the same: there is justice for both the perpetrator and the victim and his family.  Therefore, to speak of achieving justice for one of the parties alone makes no  sense.

People don't understand this because they think that the victim or his family must be somehow compensated for his or their loss.  But that is not the purpose of a criminal trial.  It is too bad that the young black man died, but the purpose of a criminal trial is not to assuage the pain of such a loss.  The purpose is simply to determine whether a person charged with a crime is guilty of it.

Why has the Left ‘Gone Ballistic’ over Hobby Lobby?

It is hard for many of us to understand why so many leftists have worked themselves up into a frothing frenzy over the 5-4 SCOTUS Hobby Lobby decision, a frenzy that in the notable cases of Nancy Pelosi and Hillary Clinton has spilled over into shameless  lying.  But even among those lefties who are not lying about the decision, and who understand what it was and just how narrow and circumscribed it was, there are those who are still going nuts over it.  Why?

The upshot of the decision was that closely-held, for-profit companies such as Hobby Lobby may not be coerced by the government into providing exactly four, count 'em, four, abortion-inducing contraceptives for its employees in violation of the religious beliefs of the proprietors of the company. That's it!

(Parenthetical Terminological Observation:  There is an interesting terminological question here that perhaps only philosophers could get excited over, namely: how can a substance or device that destroys a fertilized egg, a conceptus, be legitimately referred to as contraceptive?  A genuine contraceptive device, such as a diaphragm, prevents conception, prevents the coming into being of a conceptus.  Contraception comes too late once there is a fertilized ovum on the scene.  'Abortifacient contraceptive' is a contradictio in adjecto.  Call me a pedant if you like, but what you call pedantry, I call precision.  One ought to insist on precision in these matters  if one is serious and intellectually honest.)

My question again:  why the liberal-left frenzy over such a narrow and reasonable Supreme Court decision, one that did not involve the interpretation of the Constitution, but the mere construction of a statute, i.e., the interpretation of an existing law?  (And of course, the decision did not first introduce the notion that corporations may be viewed as persons!)

Megan McArdle provides some real insight in her piece, Who's the Real Hobby Lobby Bully?

She makes three main points.

1. The first point is that ". . . while the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts."

First a quibble.  It is not correct to imply that it is only the religious right that views religion as an essential component of human experience; almost all conservatives do, religious and nonreligious.  I gave an example the other day of the distinguished Australian philosopher David M. Armstrong who, while an atheist and a naturalist, had the greatest respect for religion and considered it an essential part of human experience.

Well, could religion be reasonably viewed as a hobby?  Obviously not.  It cuts too deep.  Religion addresses the ultimate questions, the questions as to why we exist, what we exist for, and how we ought to live.  It purports to provide meaning to an otherwise meaningless existence.  Religions make total claims on the lives of their adherents, and those who take their religion seriously apply it to every aspect of their lives: it is not something that can be hived off from the rest of one's life like a hobby.

It is because of this total claim that religions make to provide ultimate understanding, meaning, and directives for action that puts it at odds with the totalizing and the fully totalitarian state.  The ever-expanding, all-controlling centralized state will brook no competitors when it comes to the provision of the worldview that will guide and structure our lives.  This is why hostility to religion is inscribed into the very essence of the Left.  In fact, I would go so far as to say that there cannot really be a religious Left: those on the Left who are 'religious' live as if leftism is their real religion.

I would reformulate McArdle's first point as follows.  The Left has no understanding of religion and no appreciation of it.  They see it as a tissue of superstitions and prejudices that contributes nothing to human flourishing.  They want it suppressed, or else marginalized: driven from the public square into the realm of the merely private.

That the SCOTUS majority took religion seriously is therefore part of what drives leftists crazy.

2. McArdle's second point has to do with negative and positive rights and the role of the state.  A positive right is a right to be provided with something, and a negative right is a right to not having something taken away.  Thus my right to life is a negative right, a right that generates in others the duty to refrain from killing me among other things.  The right to free speech is also a negative right: it induces in the government the duty not to prevent me from publishing my thoughts on this  weblog, say.  But I have no positive right to be provided with the equipment necessary to publish a weblog.  I have the negative right to acquire such equipment, but not the positive right to have it provided for me by any person or by the state.

Now suppose you think that people have the positive right to health care or health care insurance and that this includes the right to be provided with abortifacients or even with abortions. Then the crunch comes inevitably.  There is no positive right to an abortion, we conservatives say, and besides, abortion is a grave moral evil.  If the state forces corporations like Hobby Lobby to provide abortions or abortifacients, then it violates the considered moral views of conservatives.  It forces them to to support what they consider to be a grave moral evil. 

People have the legal right to buy and use the contraceptives they want.  But they don't have the right to use the coercive power of the state to force others to pay for them when the contraceptives in question violate the religious beliefs of those who are forced to pay for them.  To a conservative that is obvious.

But it riles up lefties who hold that (i) religion is a purely private matter that must be kept private; (ii) there is a positive right to health care; (iii) abortion is purely a matter of a woman's reproductive health.

3. McArdle's third point has to do with the Left's destruction of civil society.  I would put it like this.  The Left aims to eliminate the buffering elements of civil society lying  between the naked individual and the state. These elements include the family, private charities, businesses, service organizations and voluntary associations of all kinds.  As they wither away, the state assumes more of their jobs.  The state can wear the monstrous aspect of Leviathan or that of the benevolent nanny whose multiple tits are so many spigots supplying panem et circenses to the increasingly less self-reliant masses.  To cite just one example, the Obama  administration promotes ever-increasing food stamp dependency to citizens and illegal aliens alike under the mendacious SNAP acronym thereby disincentivizing relief and charitable efforts at the local level while further straining an already strapped Federal treasury. A trifecta of stupidity and corruption, if you will: the infantilizing of the populace who now needs federal help in feeding itself; the fiscal irresponsibility of adding to the national debt; the assault on the institutions of civil society out of naked lust for ever more centralized power in the hands of the Dems, the left wing party. (Not that the Repubs are conservative.)

From the foregoing one can see just how deep the culture war goes.  It is a struggle over the nature of religion, its role in human flourishing, and its place in society.  It is a battle over the nature of rights.  It is a war over the size and scope and role of government, the limits if any on state power, and the state's relation to the individual and to the institutions of civil society.

In one sense, Alan Dershowitz was right to refer to the Hobby Lobby decision as "monumentally insignificant."  In another sense wrong: the furor over it lays bare the deep philosophical conflicts that divide us.

On Blaming the Victim

A reader wants my thoughts regarding the following hypothetical scenarios.

I own a modestly nice car, say, a 2014 Honda Accord with some bells and whistles. I treat it fairly well, ensuring that it receives in a timely fashion all of the required maintenance. I get it washed and waxed with pride. The one deficiency I have is that I park my car with some indiscretion. I am not that vigilant with locking my doors. You warn me that this is a mistake. I counter by saying that there are other cars that are more valuable, say BMWs and Audis and that I don't park my car in so-called 'bad areas.' Nonetheless, to my foolish shock and surprise, my car is stolen one day. Could it then be said that I am at least partially responsible for having my car stolen?

Yes, you are partially responsible, and the thief is partially responsible, but his part is larger than yours.  You are the victim of the crime and he is the perpetrator. I blame both of you for the crime, loading the lion's share of the blame upon the perpetrator.  But I blame you too, and in blaming you, I blame the victim.  Clearly, it is right, proper, and  just to blame the victim within limits and subject to qualifications.

This is why the accusation, "You are blaming the victim!" cuts little ice with me.  In some, but not all, situations some judicious blaming of the victim is perfectly appropriate.  People who cannot see this are in many cases  victims of their own political correctness and ought to be blamed for not using their faculties and thus for being victims of their own self-induced political correctness.  This is a sort of meta-level blaming of the victim.

We ought to distinguish the legal, the moral, and the prudential aspects of the situation.  I will set the legal questions aside since in the above scenario the victim hasn't done anything legally wrong.  (In related scenarios, however, the victim would probably be criminally negligent under the law, e.g,  you leave your child in the car, keys in ignition, engine running, while you enter a convenience store for a cup of coffee, and your child is abducted.)

The prudential and moral aspects alone interest me.  But before I explain the difference, let's consider my reader's second scenario.

If we say yes, then I wish to change the elements of our hypothetical scenario in attempts to pump some uncomfortable intuitions. Say instead of owning a modestly nice car, I own a modestly nice female body. I treat it fairly well, making sure I go to the doctor in a timely manner and go to the spa. However, I lack vigilance with myself and drink a lot at frat parties. You warn me that this is not wise. I counter by saying that there are other women more foolish than I and that I don't frequent 'bad places.' Yet, to my foolish shock and surprise, some abuse occurs. Could it be said that I am then at least partially responsible for the abuse? 
 
Yes, of course.
 
Contemporary sentiment is that there is no one to blame for sexual assault except for the perpetrator. And while I agree that the perpetrators are primarily the culpable ones, I also think that there must be some level of personal responsibility that must be practiced. I don't think it terribly offensive for us to encourage women to exercise a healthy level of skepticism of one's fellow human being, yet feminists will cry foul, that we are punishing women for the potential crimes of others when we say it is their responsibility to not party or dress a certain way or hang out with a certain crowd or drink themselves to oblivion, that we should focus our efforts on disciplining the would-be perpetrators with more education.
My reader obviously has his head screwed on Right (which fact is also part of the explanation of why he reads my weblog in the first place).  I agree entirely with what he says.  I would only add to it.
 
What the attractive young woman does when she 'struts her stuff' in dangerous precincts is both imprudent and immoral.  I don't need to explain why it is imprudent.  It is immoral because she is tempting others to commit immoral acts.  Of course, if she ends up being raped, the lion's share of the moral blame lands on the rapist.  But it would be absurd to suggest that she bears no moral responsibility for the rape.  She did something morally wrong: she tempted testosterone-crazed drunken frat boys to have their way with her when she knows what such animals are like.  (They didn't call  the John Belushi flick Animal House for nothing. And look what happened to him: he rode the Speedball Express to Kingdom Come.) The principle here, one probably admitting of exceptions, is something like this: 
 
(P) It is morally wrong to suborn immoral behavior.
 
'Suborn' is most often used in legal contexts, but as the hyperlinked definition shows, it has a broader meaning extendible to the moral sphere.  Surely, it is in general morally wrong to tempt, entice, persuade people to commit immoral acts. 
 
If you reject (P), what would you be maintaining? That it is morally acceptable to suborn immoral behavior?  That is is morally obligatory to suborn such behavior?  That the subornation of immoral behavior is morally neutral?  None of the above, say I.
 
If you have moral sense, you will accept (P).  Unfortunately, moral sense is in short supply in these benighted times.  Can we blame this one on liberals too?
 
My points are made even more forcefully, and more elegantly, in the first two articles below, especially the second.
 
UPDATE:  Seldom Seen Slim writes,
 
Nice post. I was wondering whether you are wanting to talk more about soliciting rather than suborning in Principle P.  http://definitions.uslegal.com/c/criminal-solicitation/
 
BV:  The examples given above are not examples of solicitation as per the definition to which you linked.  The well-endowed but scantily-clad female who advertises her charms in dangerous precincts is not soliciting the crime of rape or any other crime against her person.  The definition also implies that solicitation must be between a person A and some other person B.  But if a person acts in such a way as to tempt another to commit a crime, there needn't be any particular person who is being tempted.
 
Let's consider another example.  I withdraw a large sum of money from an outdoor ATM machine at night in a bad part of town and then walk down the street ostentatiously counting my wad.  I don't see that that foolish behavior would count as solicitation by the above definition.  After all, I don't want to be robbed, and there is no specific person I am persuading to rob me.  But if I offer you $10,000 to kill my wife so that I can collect on a life insurance policy, then that is a clear case of solicitation, as per the definition, whether or not you agree to attempt the dastardly deed and whether or not you succeed.
 
The problem with suborning is that many educated speakers understand it to mean bribing someone  to say something false under oath. Bribing is crucial to suborning. A material element of the criminal charge is your use of corrupt or illegal inducements (e.g., a bribe) to bring about a perjury. If you merely "tempt, entice, [rhetorically] persuade people to commit immoral acts" (your terms), you are not suborning, though you may be soliciting immoral/criminal behavior.
 
BV:  So you are saying that the offer of a bribe is essential to subornation?  If memory serves, however, in the impeachment proceedings against Bill Clinton, one of the charges was subornation of perjury.  Was it alleged that Clinton offered a bribe to the person or persons he attempted to persuade to perjure themselves?  I'm just asking.  And what exactly is a bribe in the eyes of the law?  A monetary inducement only? 
 
In any case, I thought I made it clear that I was not talking above about the law but about morality.  I linked to a dictionary definition of 'suborn' that is broader than a legal definition.  But it may be that 'suborn' is not the best word for what I am trying to convey.
 
As a principle about suborning, I don't think there is anything controversial about (P)–but it has a pretty narrow scope. If you replace (P) with a much broader solicitation principle, to include things like tempting and speaking in favor, it's not clear to me at least that (P) will fly without a lot of qualification.
 
BV:  The sort of counterexample to (P) that occurred to me was what goes on in a 'sting' operation by an undercover law enforcement agent.
 
"Tempting" has always puzzled me. If I put you in a position where it would be easy for you to embezzle a large sum of money, have I tempted you or just shown my faith in your honesty? And if you choose to steal the money, what blame should attach to me because of your (unsuspected) bad character? Am I to be blamed for not acting on the assumption that you will turn into a thief if given the chance? Similarly for the lady who dresses in a sexy outfit and gets attacked. Why are we blaming her because some men have no self-control or decency?
 
BV:  Now that is a good  point.  You leave the bank vault open with me nearby while you go out for lunch.  Are you tempting me to steal or evincing faith in my honesty?  Well, if you don't know me, or don't know me well, then you ought to bear some moral responsibility for my pilfering of the pelf.  But if you knew me very well and knew that I was hitherto always honest, then I think very little or perhaps no blame would attach to you.
 
The case of the sexually attractive and scantily-clad female who advertises her endowments around people she doesn't know is relevantly different.  She knows what men in general are like and knows that her behavior is risky and yet she does it anyway.  I say she bears some of the blame for the abuse she experiences. 
 
Suppose I know that Jack is an alcoholic and I ply him with strong drink at my Thanskgiving feast.  He drives off drunk and slaughters a family of four.  Do I bear some moral responsibility for the slaughter?  Of course I do.  But suppose I don't know Tom, but in good faith I sell him a gun, having no reason to suspect him of criminal intent, but Tom then kills his wife using the gun I sold him.  Am I to any degree morally responsible for the crime?  No, not to any degree.

Robert Paul Wolff’s Misunderstanding of the Hobby Lobby Decision

Professor Wolff of The Philosopher's Stone writes,

When we got back to our apartment, I turned on my computer to check the news, and learned of the pair of decisions handed down by the Supreme Court.  That both decisions are disastrous goes without saying, but I think they have quite different significances.

The Hobby Lobby decision granting to certain businesses the legal right to claim protection of their "religious beliefs" against The Affordable Care Act is by any measure the more grotesque of the two, and Justice Ginsburg is clearly correct in warning that the majority has opened the door to an endless series of meretricious claims of conscience by those fictional persons we call corporations.  Only someone with Marx's mordant satirical bent could fully appreciate the decision to confer personhood on corporations while robbing actual persons of the elementary right to medical protection.

I beg to differ.  First of all, the SCOTUS decision in Burwell v. Hobby Lobby was not that personhood is to be conferred on corporations.  That had already been settled by the Dictionary Act enacted in 1871.  Here we read:

The Dictionary Act states that “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”12

The question the court had to decide was whether closely held, for-profit corporations are persons under the Religious Freedom and Restoration Act . "RFRA states that “[the] Government shall not substantially burden a person’s exercise of religion.”3 (Ibid.)

If Hobby Lobby is forced by the government to provide abortifacients to its employees, and Hobby Lobby is a person in the eyes of the law, then the government's Affordable Care Act mandate is in violation of the Religious Freedom and Restoration Act.  For it would substantially burden Hobby Lobby's proprietors' exercise of religion if they were forced to violate their own consciences by providing the means of what they believe to be murder to their employees.  So the precise question that had to be decided was whether Hobby Lobby is a person in the eyes of the law.  The question was NOT whether corporations are persons in the eyes of the law.  Wolff is wrong if he thinks otherwise.

Note that the issue here is not constitutional but statutory: the issue has solely to do with the interpretation and application of a law, RFRA.  As Alan Dershowitz explains (starting at 7:52), it has to do merely with the "construction of a statute."

Not only was the SCOTUS decision not a decision to confer personhood on corporations, it also does not entail "robbing actual persons of the elementary right to medical protection."  And this, even if (i) there is a positive right to be given medical treatments, drugs, appliances, and whatnot, and (ii) abortion is a purely medical procedure that affects no person other than a pregnant woman.  See Dershowitz. 

Political Lawlessness Viewed Philosophically at Twilight

It is twilight time for a great nation.  One indication is the rise of political lawlessness.*

Should  this trouble the philosopher? Before he is a citizen, the philosopher is a "spectator of all time and existence" in a marvellous phrase that comes down to us from Plato's Republic (486a).  The rise and fall of great nations is just more grist for the philosopher's mill.  His true homeland is nothing so paltry as a particular nation, even one as exceptional as the USA, and his fate as a truth-seeker cannot be tied to its fate.  Like the heavenly Jerusalem, the heavenly Athens is not bound to a geographical location.

National decline is not just grist for the philosopher's mill, however, it is also perhaps a condition of understanding as Hegel suggests in the penultimate paragraph of the preface to  The Philosophy of Right:

When philosophy paints its grey on grey, then has a shape of life grown old.  By philosophy's grey on grey it cannot be rejuvenated but only understood.  The owl of Minerva spreads its wings only at the falling of the dusk.

Daughter of Jupiter, Minerva in the mythology of the Greeks is the goddess of wisdom.  And the nocturnal owl is one of its ancient symbols.  The meaning of the Hegelian trope is that understanding, insight, and wisdom  arise when the object to be understood has played itself out, when it has actualized and thus exhausted its potentialities, and now faces only decline.

When a shape of life has grown old, philosophy paints its grey on grey.  The allusion is to Goethe's Faust wherein Mephisto says

Grau, teurer Freund, ist alle Theorie,
Und grün des Lebens goldner Baum.

Grey, dear friend, is all theory
And green the golden tree of life.

Philosophy is grey, a "bloodless ballet of categories" (F. H. Bradley) and its object is grey — no longer green and full of life.  And so philosophy paints its grey concepts on the grey object, in this case America on the wane.   The object must be either dead or moribund before it can be fully understood.  Hegel in his famous saying re-animates and gives a new meaning to the Platonic "To philosophize is to learn how to die."

In these waning days of a great republic, the owl of Minerva takes flight.  What we lose in vitality we gain in wisdom.

The consolations of philosophy are many.

But as citizens we fight on.  For the wise philosopher knows that he can live his vocation only in certain political conditions.

______________

*See Angelo M. Codevilla, Lawlessness, Large and Small

Judgmentalism, Moral Judgment, Moral Relativism, and God

This from a reader:

I still read your blog conscientiously, but sometimes stare at your words in ignorant awe.

I have a question for you this morning which may be of interest. In a recent conversation with someone who described himself as a "gay" Christian (or is it a Christian "gay" ?), I gave reasons for observing that "gay Christian" is an oxymoron. My interlocutor said I must not be judgmental and justified his position by the saying, “You have your way, I have my way. As for the right way, it does not exist.” I made no headway with my argument that a belief in moral relativism is incompatible with a belief in God. If God is the incontestable ground of moral absolutes, it seems to me you can't have one without the other. Am I on the right track ?

Thank you for reading.  Several points in response.

1. Can one be a Christian and a homosexual?  I don't see why not, as long as one does not practice one's homosexuality.  So I don't see that 'gay Christian' is an oxymoron.  (AsI am using 'practice,' a homosexual man who succumbs to temptation and has sexual intercourse with a man on an occasion or two, while believing it to be immoral, is not practicing his homosexuality.  The occasional exercise of a disposition does not constitute a practice.)

2. To be judgmental is to be hypercritical, captious, cavilling, fault-finding, etc.  One ought to avoid being judgmental.  But it is a mistake to confuse making moral judgments with being judgmental. I condemn the behavior of Ponzi-schemers like Bernie Madoff.  That is a moral judgment.  (And if you refuse to condemn it, I condemn your refusal to condemn.)   But it would be an egregious misuse of language to say that I am being judgmental in issuing  either condemnation.  

3. If your friend thinks it is wrong to make moral judgments, ask him whether he thinks it is morally wrong.  If he says yes, then point out that he has just made a moral judgment; he has made the moral judgment that making moral judgments is morally wrong. 

4. Then ask him whether (a) he is OK with contradicting himself, or (b) makes an exception for the meta assertion that making moral judgments is morally wrong, or (c) thinks that both the meta judgment and first-order moral judgments (e.g., sodomy is morally wrong) are all morally wrong.  (C) is  a logically consistent position, although rejectable for other reasons.

5. He might of course say that 'must not' in 'must not be judgmental' is not to be construed morally, but in some other way.  Press him on how it is to be construed. 

6. Is moral relativism compatible with theism?  No.  If the God of the Christian faith exists, then there are absolute (objective) moral truths.  This is quite clear if you reflect on the nature of the Christian God.  It is not clear, however, that the arrow of entailment runs in the opposite direction.  A Christian could affirm that it does, but he needn't. Either way, moral relativism and theism are logically inconsistent.

7.  A further point.  When your friend 'went relativistic' on you, there was nothing unusual about that.  Alethic and moral relativism in most people are not  thought-through positions, but simply ways  of avoiding further discussion and the hard thinking necessary to get clear on these matters.  It is a form of 'psychic insulation':  "You can't teach me anything, because it's all relative."

8.  A final point.  That there are moral absolutes leaves open what they are.  While moral relativism is easily dismissed, especially if one is a theist, it is considerably less easy to say what the moral absolutes are, even if one is a theist.  So there is no call to be dogmatic.  One can, and I think ought to, combine anti-relativism with fallibilism.

Related: To Oppose Relativism is not to Embrace Dogmatism

William Sloane Coffin on Morality and Legislation

An old Powerblogs post written 28 March 2005

Coffin on Morality and Legislation

William Sloane Coffin has this to say on p. 56 of Credo (Louisville: Westminster John Knox Press, 2004): "We cannot legislate morality, only the conditions conducive to morality."  To combine three serious mistakes in one short sentence is quite a trick.

First, since we do legislate morality, it follows that we can.

Second, if Coffin is saying that we ought not legislate morality, then he is saying that we ought not have laws, since all laws legislate morality.

Third, it is false that we can legislate the conditions conducive to morality. Among the conditions of morality (moral behavior) are freedom of the will and knowledge of right and wrong and of their difference. Obviously these things fall outside of the scope of legislation. What Coffin wants to say is that we can only legislate certain conditions external to the agent, which, if they were to obtain, would lead to morally correct behavior. Well, nothing can lead to, in the sense of determine, morally correct behavior since free will is involved; but I grant that if everyone had a well-paying job that would reduce the incidence of crime. Unfortunately, the government cannot legislate jobs into existence.

In the same paragraph, we read this amazing sentence: "Economics are [sic] not a science; they [sic] are only politics in disguise." Is this to say that economic phenomena (buying, selling, bartering, etc.) are really political phenomena? That is obviously false: there could be economic phenomena even if there were no state (polis). Is it to say that economics as the study of economic phenomena is really just political science? That too is plainly false. Perhaps Coffin is merely making the trivial point that economic pronouncements are liable to be influenced by political considerations. If that is what he means, he should say it instead of saying something idiotic.

I am sorry to have to report that his book is filled with similar nonsense.

Related: Pseudo-Intellectual Tripe from William Sloane Coffin

Liberals’ Uneasy Relationship with the Rule of Law

Liberals are for the rule of law when it suits their collectivist, big government agenda, but only then.  Peter Berkowitz:

The left-liberal mindset endemic on the college faculties and law schools where Barack Obama’s political sensibilities were forged holds that morals and politics are subject to a universal reason to which the left-liberal sensibility is uniquely attuned. This conceit receives expression in a faith that the left-liberal brain trust can embody complex public policy in general rules and regulations, which can then be administered smoothly by well-educated bureaucrats and adjudicated impartially by empathetic judges.

At the same time, the left-liberal mind rebels against established authorities, hierarchies, and formalities that constrain its ability to pursue the people’s good and social justice — at least as it understands them.

Often enough, this rebellion turns against laws duly enacted by left-liberals themselves. Obamacare and the Iran nuclear deal are now demonstrating the destabilizing consequences of governing in accordance with a love-hate relationship toward the law.

An outstanding piece of analysis.  Read it all.

The Zimmerman Verdict and the ‘Planetary’ Difference Between Left and Right

The significance of the Zimmerman trial is that it is emblematic of the deep and ever-deepening racial divide in this country despite the successes of the civil rights movement of the '50s and '60s and the increasing participation of blacks in all institutions of our society, a participation culminating in the election of a black president in 2008 and his re-election in 2012.  Deeper than the racial divide, however, is the left-right divide with the latter fueling the former.  I call it 'planetary' because it is as if conservatives and leftists have no common ground and inhabit different planets.

Let's look at two examples.

On Sunday morning, in a short post entitled Justice Denied, Robert Paul Wolff writes, "I awoke this morning to learn that the Florida jury acquitted George Zimmerman.  Is there anyone on the face of the earth who believes that, had the race of Zimmerman and Martin been reversed, the verdict would have been the same?"

Despite the foolishness of what he posted on Sunday morning, Professor Wolff is not some two-bit cyberpunk with a blog.  I used to have a high opinion of him, on the basis of two books of his I read.  One of them is The Autonomy of Reason: A Commentary on Kant's Groundwork of the Metaphysics of Morals (Harper & Row, 1973).  The flyleaf of my copy bears the annotation, "I first read this book in the fall of 1980.  It is an excellent study!"  I was teaching a graduate seminar on Kant and found Wolff's book extremely useful.  The other book I have read is his In Defense of Anarchism which I also found impressive.  In November of 2009 I wrote three long entries about the anarchism book.  They can be found in my Anarchism category.

Now in what sense was justice denied?  The state's case against Zimmerman was so weak as to be nonexistent. So justice was served by his acquittal.  Had Zimmerman been found guilty of second-degree murder, that would have been the height of injustice.  That ought to be perfectly obvious to anyone who followed the trial.  So justice was not denied to Zimmerman.  He was justly treated. 

If Wolff means anything, he means that justice was denied to Trayvon Martin.  But if that is what he means, then he doesn't understand the purpose of a criminal trial. The purpose of a criminal proceeding is not to secure justice for the victim.  If that were the purpose, then every defendant would have to be found guilty.  For in every acquittal there is no justice for the victim, or victims as in the O. J. Simpson case. 

A criminal trial can issue in the correct result whether or not justice is achieved for the victim.  If the correct result is an acquittal, then of course there is no justice for the victim in that trial.  But if the correct result is a conviction, then there is, per accidens, justice for the victim in that trial.  The main point, however, is that a criminal trial is not about seeking justice for the victim, but about making sure that the accused is not wrongly convicted. 

The glory of our system of justice is the (defeasible) presumption of innocence:  the accused is presumed innocent until proven guilty.  This presumption of innocence puts the burden of proof in a criminal trial where it belongs, on the state.  The prosecution must prove that the defendant is guilty beyond a reasonable doubt; the defense is under no obligation to prove that the defendant is innocent.  In a criminal proceeding all the defense has to do is raise a reasonable doubt as to the guilt of the accused.

It is of course deeply unfortunate that Trayvon Martin died young of a gunshot wound.  But he brought about that result himself by recklessly attacking a man who then, naturally, defended himself against Martin's deadly attack using deadly force.  Zimmerman did nothing legally impermissible. 

I wonder if Wolff thinks that Martin would have received justice if Zimmerman had been wrongly convicted.  I hope not.  Again, the crucial point here is that the purpose of a murder trial is not to secure justice for the victim, but to see if the  accused is first of all a killer, and then whether he is a murderer.   There is no doubt that Zimmerman killed Martin.  The question is whether or not the killing was legally justifiable.  And indeed it was found to be legally justifiable. 

If Zimmerman had been black and Martin Hispanic would the verdict have been the same? Yes.  Why not?  O. J. Simpson is black and the two people he slaughtered (Ron Goldman and Nicole Brown Simpson) were white, and yet O. J. was acquitted.

My second example is Roger L. Simon.  He thinks, as I do, that Zimmerman should never have been charged.  But he goes a step further when he writes:

Congratulations to the jury for not acceding to this tremendous pressure and delivering the only conceivable honest verdict. This case should never have been brought to trial. It was, quite literally, the first American Stalinist “show trial.” There was, virtually, no evidence to convict George Zimmerman. It was a great day for justice that this travesty was finally brought to a halt.

We all know Al Sharpton, the execrable race baiter of Tawana Brawley and Crown Heights, agitated publicly for this trial more than anyone else. But he most likely would not have succeeded had it not been for Obama’s tacit support. As far as I know this is unprecedented in our history (a president involving himself in a trial of this nature).

Looks like we have a nice little 'conversation' about race going here.  Too bad the conversants live on different planets. 

On the Zimmerman Acquittal

A. W. e-mails and I comment:

I know you've been following this case. I must say I'm impressed by the outcome. Even though I believed that Z's account of the events was consistent and that the prosecution's case was incredibly weak, I was expecting the all-female jury to cave in to the pressure and declare him guilty or, at least, to come back with a lesser charge.

MavPhil:  That's  what I was expecting: a cave-in by the female jurors and a manslaughter conviction.  So I was extremely pleased that justice was done.   The state had no case whatsoever as became very clear early on from the testimony of the state's own witnesses.  Objectively speaking, it was all over after John Good's cross-examination by the magnificent Mark O'Mara.  He impressed the hell out of me: calm, clear, respectful, logical, thorough, low-keyed, bluster-free.  A patient, relentless, digger for the truth.  Good was impressive as well. That segment of the trial made me very proud of our system.

Zimmerman should not have been charged in the first place, and initially he wasn't.  It was only after the race-baiters got wind of the story that local law enforcement buckled under national pressure.  Among the race-baiters was our very own hopelessly inept president, Barack  Obama, with his irresponsible remark to the effect that if he had a son, he would look like Trayvon Martin.  Here again we have Obama meddling in a local matter just as he did before about four summers ago in the Henry Gates affair

So was the trial about race or not? 

Objectively,  the case had nothing to do with race.  Objectively, the case was about the use of deadly force to repel an attack of deadly force.  A very fit young man physically assaults an obese, out-of-shape older man.  The older guy ends up on the ground with the younger guy on top of him doing the 'pound and ground,' slamming the older man's head into the pavement and telling him that tonight he will die.  Now is it legally permissible to use deadly force in a situation like this, a situation in which one is about to be killed or suffer grave bodily harm?  Yes, the law allows the use of deadly force in such a situation. Note that we are not talking about morality here, but about legality.  Whatever one's moral intuitions or moral theories, there is a hard fact about what the law permits, and that is not in dispute.  The only question is whether on that particular evening George Zimmerman was indeed fighting for his life. 

The defense team made a very strong case that he was on the bottom fighting for his life against the strapping youth who thought of him as a  "creepy-ass cracker."  The defense didn't have to make that strong case; all it had to do was show that the above was a likely scenario in order to raise a reasonable doubt about Zimmerman's guilt.  In a criminal proceeding the probative standard is set very high, and rightly so.  The accused is presumed innocent and the burden of proof rests on the prosecution to show that the accused is guilty of the crime charged beyond a reasonable doubt.  But the defense succeeded in doing both: it showed that Zimmerman  was not guilty beyond a reasonable doubt and, as O'Mara remarked after the trial, it proved that he was innocent.

So, objectively, the case had nothing to do with race.  The racial veneer was superadded by the race-baiters of the Left so that they could use this trial to further their own political agenda.  Among the race-baiters are the editors at the New York Times who decided that Zimmerman was a 'white Hispanic.'  They would never refer to Obama as a white black even though he is half-white and half-black.  They applied the 'white Hispanic' appellation in order to inject race into a non-racial case.  If both parties to the dispute were black or both Hispanic we wouldn't have heard about it.  Meanwhile, blacks are killing blacks in record numbers in Chicago and other places.

 

The Left is raging at the moment. They say young blacks aren't safe anymore. But, were they before this single incident? I haven't heard a single word about the dozens of young blacks who are murdered by other blacks every year. All I hear is a lot of moralizing about poverty, racism and gun legislation from upper-middle class people who live in 95% white communities and have never seen a gun in their lives.

 

I think it's something else. Maybe it's the realization that they're not so powerful. That their enormous govt.-approved media campaign to portray this as a racially motivated murder of a kid was not enough convince a jury of six women (which, by the way, included a black hispanic lady). That they could not only notice the absence of racist armed vigilantes on the hunt and young harmless children walking home, but also act accordingly.  Maybe it's too much for them, even after six years of getting everything they wanted.

MavPhil:  I basically agree with you.  Let the leftist loons rage.  It is music to my ears and blog-fodder for my blog.  We conservatives are going to have a lot of fun exposing their contemptible lies and inanities. 

Morality, Religion, Law

The positive law codifies moral judgments the chief vehicle of which is religion.  Attacks on religion therefore tend to undermine morality, and with it, the rule of law and respect for the rule of law.  Is this thesis supportable?

Religion could be kept private  and out of the public square.  Many think that it should be.  But law can't:  the whole point of law is to set forth prescriptions and proscriptions for the behavior of citizens, especially in their relations to one another. The suggestion that religion be relegated to the private sphere is not incoherent.  The suggestion that law be so relegated surely is.

Law, however, presupposes morality: the positive law is largely a codification of our moral judgments as to the permissible, the impermissible, and the obligatory. We have laws against drunk driving, for example, because of our antecedent conviction that it is morally wrong to act in ways that needlessly endanger ourselves and others.  The legal rests on the moral: legal normativity is grounded in moral normativity.  If a law is genuinely normative, then it derives that normativity from a sound moral basis; otherwise the law is merely the say-so of legislators and not deserving of respect, though it might be something to fear.  But while the legal rests on the moral, it must not be conflated with it.  One proof of this is that laws can be morally evaluated.  Morally sane people have no trouble  pronouncing certain laws immoral.  One thinks of the Nuremberg Laws of the Third Reich. It would be no defense of these laws to insist that they were legal and enacted according to all the relevant protocols of the judicial system then and there in effect.   'Illegal law' is a contradition in terms.  'Immoral law' is not.  The positive law is subject to moral evaluation.

Now the chief vehicle of morality for most people is and has been for centuries religion.  The Ten Commandments, for example, are to be found in the Old Testament, and are at the ethical center of both Judaism and Christianity.  There is much more to both religions than their respective ethical teachings, and there is much more to their ethical teachings than the Decalogue; but the latter is surely at the center of the ethical doctrine of  both religions.

Attacks on religion, therefore, are indirect attacks on the morality of which religion is the vehicle, as well as indirect attacks on the law that codifies the morality.  

Consider drunk driving again.  It is illegal.  And it ought to be: its legal impermissibility is morally defensible.  To mount  a moral defense of the law you have to argue from some moral principle or principles.  Ultimately you will be arguing from "Thou shalt not kill,"  one of the Ten Commandments.  Because we judge it immoral to  take innocent human life, we also judge it immoral (thought not as immoral) to recklessly endanger human life as drunk drivers do.

"But couldn't one keep the moral prohibitions against killing, stealing, lying, etc. as a basis of public policy while relegating the religious 'packaging' to the private sphere?"

There are two questions here.  The deeper one concerns the foundation of morality.  To put it graphically, can the normativity of Judeo-Christian ethics survive the death of God?  That may not be the best way to frame the question, but it conveys its flavor.  My present concern, however, is with a less deep question:  Does it make sense to attack the main means for the majority of people to acquire moral formation and guidance?

You know what my answer is.