Ethical Issues Raised by the Harper's Open Letter: Proportionate punishment, legitimacy, groupthink and 'persuasive boomerang'

Earlier this week, 150 high-profile authors, commentators and scholars signed an open letter in Harper’s magazine claiming that “open debate and toleration of differences” are under attack. Signatories included JK Rowling, Margaret Atwood, Stephen Pinker, Gloria Steinem and Noam Chomsky.

While prefacing their comments with support for current racial and social justice movements, the signatories argue there has been a weakening of the norms of open debate in favour of dogma, coercion and ideological conformity. They perceive

an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.

Sackings, investigations and withdrawn words

The letter’s signing by Rowling comes in the wake of widespread backlash against her controversial comments on transgender issues and womanhood. Actor Daniel Radcliffe (“Harry Potter” himself) joined a chorus of disapproval of her comments, arguing they erased “the identity and dignity of transgender people”. Employees at Rowling’s publisher subsequently refused to work on her forthcoming book.

The Harper’s letter invoked similar cases of what it saw as punitive overreactions to unpopular views, suggesting they formed part of a larger trend:

Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes.

The reference to editors being fired is perhaps the most well-known recent incident. Last month, the New York Times published an opinion piece by Republican Senator Tom Cotton calling for the military to provide an “overwhelming show of force” to restore order in US cities during the protests over the killing of George Floyd.

The piece’s publication attracted immediate criticism for promoting hate and putting black journalists in danger. In response, the editorial page editor emphasised the newspaper’s longstanding commitment to open debate and argued the public would be better equipped to push back against the senator’s policy if it heard his view. This defence failed, and within days he resigned.

Push-back against push-back

Perhaps unsurprisingly, the Harper’s letter has received spirited critique. Some commentators noted past cases where the signatories had themselves been censorious. Others argued that any perceived threat was overblown.

Indeed, the link the open letter draws between a repressive government and an intolerant society may seem a long bow to draw. There is a world of difference between the legal prohibition of speech and a wave of collective outrage on Twitter.

Yet, it is nevertheless worth considering whether important ethical goods—including those commonly invoked in free speech arguments—are threatened in a culture of outrage, deplatforming and cancelling.

Some speech requires consequences, but which speech?

Almost everyone would agree some types of speech are beyond the pale. Racial slurs don’t deserve careful listening and consideration. They require “calling out”, social censure and efforts at minimising harm.

Rather than objecting to outrage per se, the Harper’s letter asserts there is a broadening in the scope of views that attract punitive responses. This seems plausible. In recent scholarly work on the tensions between censorship and academic freedom on university campuses, both sides of the dispute acknowledge that in the current environment virtually all utterances offend someone.

Yet, perhaps there are good reasons for this broadening of scope. In each of the cases raised in the letter, there were seemingly sensible reasons for applying social sanctions. These included judgements that:

• the speech was morally wrongful.
• the speech was gravely offensive.
• the speech was intrinsically harmful or would have seriously worrying consequences. It was “unhelpful”, “harmful”, “damaging” or “divisive”.

For someone who is genuinely concerned that speech is wrong in these ways, it will seem not just morally permissible to take action against the speaker. It will feel obligatory.

Caution about consequences

But several concerns arise when we attach punitive consequences to people’s speech based on its perceived moral wrongfulness (as opposed to simply arguing it is mistaken or false).

First, claims of moral wrongfulness in a debate assume immediate urgency and distract from the debate itself. For example, let’s say in a debate about immigration, one person says something that offends another. Discussion of the original issue (immigration) will be bracketed until the issue of moral wrongdoing (the perceived slight or offence) is resolved.

Second (except in obvious cases), claims about wrongfulness, offensiveness and harmfulness are all open to debate. As John Stuart Mill once observed:

The usefulness of an opinion is itself a matter of opinion: as disputable, as open to discussion, and requiring discussion as much, as the opinion itself.

Third, allegations of wrongdoing create heat. Few people respond constructively to allegations of wrongdoing. They often retaliate in kind, escalating the conflict. They stop treating us as opponents, and start treating us as enemies.

In a less politicised environment, a contentious claim might be treated as a contribution to a debate to be considered on its merits. But in our current climate, the same claim creates only angry allegations flying in both directions. As a result, the claim isn’t considered or debated.

Should this worry us?

If we think a person’s view is wrong and immoral, we might suppose there is no great loss about a debate being derailed and the person sanctioned. But there are genuine ethical concerns here.

First, even if we think harmful or offensive speech deserves punishment or silencing, we still need to make sure the punishment fits the crime. For example, in a given case, calling out speech as intolerant, tone deaf or racist, and withdrawing one’s support for a person, might be clearly justified. But stronger consequences like personal abuse, continued hounding, doxing, enforcing social ostracism, refusing to work with the speaker (if they are a colleague), demanding their removal from their position, or issuing threats may be quite inappropriate—and even wrongfully harmful themselves.

Similarly, once we start moving to the harsher types of punishment, what we might call ‘rule of law’ considerations become increasingly relevant. These require that norms be clear and proscriptive, and that the process of guilt finding is done impartially and with procedural safeguards. Without attention to such matters, abuse of power can occur, and a chilling and anxiety-ridden climate can ensue. One of the core ethical attractions of cancel culture lies in its ability to create consequences and accountability for wrongdoers. But as we all know, those wielding coercive power and issuing punishments to ensure accountability must themselves be accountable in how they use that power. Otherwise fears of mob rule, arbitrary power and bullying arise.

Second, public deliberation is a critical source of legitimacy. The fact that different views are widely heard and inclusively considered provides a reason for accepting collective decisions. This can happen in a local way, where a family, group or team discusses a matter. Even if they don’t resolve their disagreements, a constructive deliberation where everyone’s views are considered may still help the group move forward consensually. But inclusive deliberation is also important for maintaining the legitimacy of larger institutions. Democracy itself assumes citizens can hear different arguments, evidence and perspectives. If significant parts of the political spectrum are no longer tolerated in public discourse, then social institutions lose this important type of legitimacy.

Third, listening to others with different opinions, and engaging with them, can help us understand their views and develop more informed versions of our own positions. On the flip side, being consistently outraged by opposing viewpoints provides a ready reason not to consider them. Indeed, we currently have a surfeit of challenges that we can level at a view we dislike—by saying it is offensive, harmful, unhelpful, ‘dog-whistling’, said in bad faith, driven by ulterior motives, ‘punching down’, ‘drowning out other voices’ or suffers guilt by association. Use of these easily available options can entirely remove the hard work of trying to understand—and then to interrogate and perhaps refute—our opponents’ arguments. When used in a pervasive and widespread fashion, such challenges feed directly into major concerns with political tribalism, confirmation bias, group-think and group polarisation effects.

Fourth, shaming people can cause a “persuasive boomerang” to occur. When people feel others are trying to control them, they can become even more attached to the view others are trying to combat. Perversely, our actions can encourage the very belief we are trying to eliminate.

None of these concerns categorically rule out attaching punishing consequences to hateful or harmful speech. But they do imply the open letter has a point worth serious attention. Seeing mistaken views as intolerable speech carries genuine ethical costs.

The Ethics of Argument

Argument is everywhere. From the kitchen table to the boardroom to the highest echelons of power, we all use argument to persuade, investigate new ideas, and make collective decisions.

Unfortunately, we often fail to consider the ethics of arguing. This makes it perilously easy to mistreat others — a critical concern in personal relationships, workplace decision-making and political deliberation.

The norms of argument

Everyone understands there are basic norms we should follow when arguing. Logic and commonsense dictate that, when deliberating with others, we should be open to their views. We should listen carefully and try to understand their reasoning. And while we can’t all be Socrates, we should do our best to respond to their thoughts with clear, rational and relevant arguments.

Since the time of Plato, these norms have been defended on “epistemic” grounds. This means the norms are valuable because they promote knowledge, insight and self-understanding. What “critical thinking” is to internal thought processes, these “norms of argument” are to interpersonal discussion and deliberation.

Why ‘ethical’ arguing is important

In a recent article, I contend that these norms of argument are also morally important.

Sometimes this is obvious. For example, norms of argument can overlap with commonsense ethical principles, like honesty. Deliberately misrepresenting a person’s view is wrong because it involves knowingly saying something false.

More importantly, but less obviously, being reasonable and open-minded ensures we treat our partners in argument in a consensual and reciprocal way. During arguments, people open themselves up to attaining worthwhile benefits, like understanding and truth. If we don’t “play by the rules”, we can frustrate this pursuit.

Worse, if we change their minds by misleading or bamboozling them, this can amount to the serious wrongs of manipulation or intimidation.

Instead, obeying the norms of argument shows respect for our partners in argument as intelligent, rational individuals. It acknowledges they can change their minds based on reason. This matters because rationality is an important part of people’s humanity. Being “endowed with reason” is lauded in the Universal Declaration of Human Rights to support its fundamental claim that humans are born free and equal in dignity and rights.

Obeying the norms of argument also has good effects on our character. Staying open-minded and genuinely considering contrary views helps us learn more about our own beliefs. As philosopher John Stuart Mill observed, He who knows only his own side of the case knows little of that. This open-mindedness helps us combat the moral perils of bias and groupthink.

What’s more, the norms of argument aren’t just good for individuals, they are also good for groups. They allow conflicts and collective decisions to be approached in a respectful, inclusive way, rather than forcing an agreement or escalating the conflict.

Indeed, arguments can make collectives. Two arguers, over time, can collectively achieve a shared intellectual creation. As partners in argument, they define terms, acknowledge areas of shared agreement, and mutually explore each other’s reasons. They do something together.

All these moral stakes accord with our everyday experiences of arguing. Many of us have enjoyed the sense of respect when our views have been welcomed, heard and seriously considered. And all of us know what it feels like to have our ideas dismissed, misrepresented or caricatured.

Why we have trouble arguing calmly

Unfortunately, being logical, reasonable and open-minded is easier said than done. When we argue with others, their arguments will inevitably call into question our beliefs, values, experience and competence.

These challenges are not easy to face calmly, especially if the topic is one we care about. This is because we like to think of ourselves as effective and capable, rather than mistaken or misguided. We also care about our social standing and like to project confidence. And we might worry that acknowledging an opponent's valid points might betray our social identity, and let down our 'tribe'. 

In addition, we suffer from confirmation bias, so we actively avoid evidence that we are wrong.

Finally, we may have material stakes riding on the argument’s outcome. After all, one of the main reasons we engage in argument is to get our way. We want to convince others to do what we want and follow our lead.

All this means that when someone challenges our convictions, we are psychologically predisposed to hit back hard.

Worse still, our capacity to evaluate whether our opponents are obeying the norms of argument is poor. All the psychological processes mentioned above don’t just make it hard to argue calmly and reasonably. They also trick us into mistakenly thinking our opponents are being illogical, making us feel as if it’s them, and not us, who’s failing to argue properly.

How should we navigate the moral complexity of arguing?

Arguing morally isn’t easy, but here are five tips to help:

1. Avoid thinking that when someone starts up an argument, they are mounting an attack. To borrow Oscar Wilde, there is only one thing in the world worse than being argued with, and that is not being argued with. Reasoned argument acknowledges a person’s rationality, and that their opinion matters.
2. There is always more going on in any argument than who wins and who loses. In particular, the relationship between the two arguers can be at stake. Often, the real prize is demonstrating respect, even as we disagree.
3. Don’t be too quick to judge your opponent’s standards of argument. There’s a good chance you’ll succumb to “defensive reasoning”, where you’ll use all your intelligence to find fault with their views, instead of genuinely reflecting on what they are saying. Instead, try and work with them to clarify their reasoning.
4. Never assume that others aren’t open to intelligent argument. History is littered with examples of people genuinely changing their minds, even in the most high stakes environments imaginable.
5. It’s possible for both sides to “lose” an argument. The recently announced inquiry into question time in Australian Parliament provides a telling example. Even as the government and opposition strive to “win” during this daily show of political theatre, the net effect of their appalling standards is that everyone’s reputation suffers.

The upshot

There is a saying in applied ethics that the worst ethical decisions you’ll ever make are the ones you don’t recognise as ethical decisions.

So, when you find yourself in the thick of argument, do your best to remember what’s morally at stake.

Otherwise, there’s a risk you might lose a lot more than you win.

Notes

An earlier version of this article was published in The Conversation as: ‘Actually, it’s okay to disagree. Here are 5 ways we can argue better’. If readers are interested in following up the ideas here in greater detail, the hyperlink in the above piece goes to the article (‘The Ethics of Arguing’ Inquiry) homepage at Taylor & Francis Online. Unfortunately (for those without an academic institutional affiliation), the article itself is behind a paywall. However, this link will provide full access for the first fifty readers to use it. Please feel free to do so!

The threats and promises of multidimensional legitimacy

‘Multidimensional legitimacy’ is the idea that there are an array of distinct dimensions on which an institution (or instrument like a law or code) might gain or lose legitimacy. In my recent writings on the subject, I’ve focused on normative legitimacy. On this understanding, legitimacy refers to objective legitimacy—that is, the presence of specific qualities that provide subjects with good moral reasons to respect and support the institution. I’ve explored this topic in recent publications in The Oxford Journal of Legal Studies ((2018a), considering copyright law), Law and Philosophy ((2018b), considering human rights), and in The Journal of Business Ethics ((2019), considering institutional codes of ethics). But the idea of multidimensional legitimacy also has a descriptive inflection, where it refers to subjective legitimacy—that is, the presence of specific qualities that tend to encourage actual people to respect and support the institution.

Either way, the idea isn’t particularly new or particularly controversial. After all, many moral theories intrinsically capture multiple dimensions of legitimacy. For example, Locke’s influential social contract theory developed in his 1690 Second Treatise of Government initially focuses on natural rights and correlative duties (‘substantive’ legitimacy). Yet because the unilateral protection of these rights creates inevitable risks of coercive violence, Locke appealed to contractual devices (employing ‘rule of law’, ‘fairness’ and ‘consent’ legitimacy), and went on to recommend democratic and deliberative legislative bodies (implicating ‘process’ and ‘decision-making’ legitimacy).

Multidimensional legitimacy is also well-known from a sociological perspective. A famous example is Max Weber’s tripartite position on state legitimacy, considering rational, traditional and charismatic legitimacy.

Yet even if the idea of multidimensional legitimacy is not new, many intriguing questions remain about what dimensions should be included in any multidimensional legitimacy framework, which elements are reducible to one of the others, and how trade-offs and compromises can be appropriately managed.

By way of quick illustration, my current (though still evolving) view includes ten distinct dimensions of legitimacy:

1. It works: Functional legitimacy.
2. It’s right: Substantive legitimacy.
3. It’s reasonable: Fairness legitimacy.
4. It’s predictable and followable: Rule of law legitimacy.
5. It’s ours: Communitarian legitimacy.
6. It respects us: Autonomy legitimacy.
7. I agreed: Consent legitimacy.
8. I trust: Transmission legitimacy.
9. We debated: Process legitimacy.
10. We decided: Decision-making legitimacy.

In my work, I’ve generally focused on the positives created by multidimensional legitimacy. For the ability of people to develop several distinct lines of legitimacy for their institutions or laws has real value. Perhaps most importantly, it allows us to create scope for agreement when initially agreement seems hard to come by. Even if we disagree on the substance of the collective action we should perform, perhaps we can come to agree on the process by which the decision will be made, on key features that any solution will have to include, or on certain outcomes that we should ensure. Through such mechanisms, we can develop widespread support that previously seemed impossible. This support can be important intrinsically, when it creates the conditions for consent to collective actions or rules, when it deescalates conflicts, or when it allows participants to show mutual moral respect to others, even as they disagree. And it is important instrumentally, as it increases the efficacy of social institutions and systems of rules through improved compliance and buy-in. In so doing, the effective pursuit of multidimensional legitimacy can create wide assent even in the face of a strong diversity of substantive views. If we think that diversity is generally a good thing, morally and epistemically, then multidimensional legitimacy helps us manage and maintain that diversity.

Yet I want to briefly raise here the worry that there is a darker side to multidimensional legitimacy. For there are ways that having multiple distinct routes to legitimacy can create less desirable outcomes.

One concern is that we might become too perfectionist about legitimacy, aiming for full legitimacy on each dimension. This pursuit might be distracting, costly and time-consuming. But it might also foment unnecessary controversy. Cass Sunstein (1996) rightly lauds what he calls ‘incompletely theorised agreements’—where shared agreement on a way forward should not be threatened by the desire to ensure unanimity on the reasons why that way forward is ultimately justified. Indeed, the tendency to appeal to various forms of legitimacy may even escalate conflicts, by allowing new grievances to be brought into a dispute, frustrating resolution of the original issue (Glasl, 1999).

The pursuit of multidimensional perfection might also raise the standards for legitimacy beyond what is actually feasible by fallible humans and their institutions. Ten sources of legitimacy means ten potential lines of critique—and it will be a rare alignment of the planets when an institution is immune from critique on any dimension. If our moral standards are too demanding, then the best may become the enemy of the good.

But perhaps the main worry I have with multidimensional legitimacy is that it can work to entrench already polarised political views. Multidimensional legitimacy empowers the capacity of cooperative agents who want to find a way forward together despite their deep disagreements. But it also empowers the capacity for those who want to resist a collective way forward by allowing them to find new reasons to disagree. For when there is disagreement on the substance of what law or policy we should have, commentators and leaders can be tempted to reach for alternative sources of legitimacy not as a way of securing more widespread assent, but instead as a means of selecting lines of argument that further cement their position.

Consider, for example, controversies about the rightful strength and scope of international law and governance (see Bodansky (1999) for an earlier like-minded treatment). Those sceptical about international law can appeal to communitarian legitimacy (‘It’s not our way of doing things.’), transmission legitimacy (‘It comes from a source captured by international elites.’), process legitimacy (‘Most citizens don’t even know how international law is formed.’) and decision-making legitimacy (‘We didn’t vote for it.’)

Meanwhile, those sympathetic to international law will stress functional legitimacy (‘This is critically necessary to deal with urgent and potentially catastrophic global problems.’), rule of law legitimacy (‘We need to protect against might-makes-right arbitrary power in international affairs.’), substantive legitimacy (‘It’s the morally right thing to do.) and fairness legitimacy (‘It appropriately shares the burdens and goods of collective endeavours and resources.’)

These different lines of argument may all be valid on their own terms, and worthy of serious consideration. After all, that is the very point of multidimensional legitimacy—the awareness that there are different and irreducible qualities that provide genuine moral reasons for or against an institution, policy or law. But with the current state of political deliberation, commentators and leaders can be tempted to exclusively focus on the sources of legitimacy that support their view. If a commentator is, for example, against the Paris Climate Agreement, then the lines of argument noted above give them an enormous amount to validly critique—so much, indeed, that they might never get around to explicitly confronting whether they agree that harmful climate change is likely and—if so—what should be done about it. By adopting and focusing explicitly and repeatedly on certain legitimacy dimensions, to the exclusion of all others, each side can create echo-chambers of partisan agreement.

Ultimately, the ability to appeal to multiple routes to legitimacy empowers groups that possess internal disagreements, but share a commitment to cooperation and equal respect, to find ways forward that everyone can potentially respect and support. Unfortunately, there are also darker sides to multidimensional legitimacy, and we will sometimes need to be aware of the worrying ways it may contribute to conflict escalation or group polarisation effects.

References

Bodansky, Daniel. 1999. “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?” American Journal of International Law 93, no. 3: 596-624.

Breakey, Hugh. 2018a. “Deliberate, Principled, Self-Interested Law Breaking: The Ethics of Digital ‘Piracy’.” Oxford Journal of Legal Studies 3, no. 4: 676-705.

Breakey, Hugh. 2018b. “It’s Right, It Fits, We Debated, We Decided, I Agree, It’s Ours, and It Works: The Gathering Confluence of Human Rights Legitimacy.” Law and Philosophy 37, no. 1: 1-28.

Breakey, Hugh. 2019. “Harnessing Multi-Dimensional Legitimacy for Codes of Ethics: A Staged Approach.” Journal of Business Ethics Forthcoming.

Glasl, Friedrich. 1999. Confronting Conflict. Gloucestershire: Hawthorn.

Sunstein, Cass R. 1996. Legal Reasoning and Political Conflict. New York: Oxford University Press.

Should religious bakers be able to conscientiously object to making wedding cakes for gay marriages?

One of the main sticking points in the gay marriage debate is the question of how freedom of religion should be protected for devout religious people who do not want to participate in, or personally craft their goods for involvement in, same sex weddings. In this blog post, I want to think through some of the arguments and issues involved in allowing bakers (and florists, etc.) to refuse goods and services to gay weddings, on the basis of a religious conscientious objection.

Normal cases of conscientious objection

Let’s begin by recalling some standard cases of conscientious objection. There are two well-known areas where conscientious objection is specifically allowed in law in many countries. The first case is where a soldier, perhaps one drafted into the war effort, refuses service (especially active combat service) on the basis of a conscientious objection against fighting in the war. The second case occurs where a doctor, usually on the basis of religious beliefs about the sanctity of human life from conception, refuses to take part in performing an abortion.

A few points are worth nothing. First, in the usual cases, the conscientious objector is not objecting to performing an action that implicates them indirectly in some larger activity with which they have moral concerns. Rather, their moral concerns attach directly to the action they themselves are being asked to perform. The soldier is being put in a situation where he might have to actually kill enemy combatants. The doctor is being asked to perform the abortion herself, or to have it performed on her professional authority.

Second, given the convictions of the conscientious objector, the actions in question are very serious moral evils, even mortal sins. Given their beliefs, both objectors would consider the action in question to be the most heinous of crimes – murder.

Third, even when conscientious objection is protected in law, it may still involve the objector playing some role in the performance of a larger activity. The soldier may still be required to play a non-combat role in supporting the war effort. The doctor may still be legally required to let the patient know of the availability of medical options for terminating the pregnancy, and perhaps to refer the patient to another doctor willing to perform the operation.

Do these qualities also appear in the gay marriage issue? Consider civil marriage celebrants who have religious convictions against gay marriage. If such celebrants are allowed to conscientiously object, then the third issue will not really arise, provided there are plenty of other celebrants happy to perform the role. (This condition may not be fulfilled in rural settings.) I am a bit dubious about whether the second condition really applies – as to whether performing the wedding would be a grave moral sin. It is plainly not in the same category as murder. But there is no question that the first condition applies. The civil marriage celebrant is not merely being implicated in the wedding. They are taking part in it and it is happening under their authority. They are – quite literally – performing the wedding. For this reason, it seems to me reasonable enough to create a dedicated category of religious civil celebrants, and allow them to only perform marriages with which they are comfortable. (This policy is already a part of the main legislative proposals being put forward, and I will presume that any legislation following a YES result would include it.)

But what about bakers and florists? In these cases, the above-noted qualities of conscientious objection don’t apply. While bakers and florists may use their creativity and skill to infuse their work, their role is still only one part of the larger marriage ceremony. They create (perhaps bespoke) goods and services for the wedding, but they are at most indirectly implicated in it, and any sentiments expressed in their work are an expression of their customer, and not their own.

Still, while this may show us that use of the term ‘conscientious objection’ is not very apt in this case, that alone does not demonstrate that bakers and florists cannot be allowed to refuse service.

Existing exceptions for religious organizations

Religious institutions like churches, religiously-run schools and religious organizations have many powers to make decisions on the basis of their religious convictions, and to avoid the anti-discrimination laws that a normal business must accept. (This does not allow morally awful types of discrimination, of course, like race-based discrimination.)

But private, profit-seeking organizations like bakeries and florists are unlike officially designated religious organizations in lots of ways. For example, a religious organization’s beliefs and convictions can be known, and publicly expressed, ahead of time. This means that those seeking services need not be subject to rejection and moral posturing by service-providers at the point of sale. It means that those who disagree morally with the religious organization’s stance are free to make their own informed decisions about interacting with it and using its services. And it means that the religious organization’s hypocrisy on any of its standards can be called out.

The situation is very different for individual service-providers, if they are able to pick and choose which customers they serve. Indeed, if at any time they decide to relax their standards (perhaps for a very profitable service), or to change their policy for profit-related motives, there is no mechanism to prevent their doing so. Their decision-making can be entirely arbitrary.

Again, this does not show that bakers and florists should not be entitled to turn away those seeking their services, but it does show why it is quite reasonable to think that religious institutions should be allowed to discriminate, on a consistent and good faith understanding of their convictions, but that ordinary shop-keepers should not.

No easy answers?
One of the things that makes this issue difficult to sort out is that there are obvious cases where it seems wrong – and where it seems right – to refuse service on the basis of personal convictions.

An example where forced complicity in the action is odious would be a Jewish baker asked to bake a cake commemorating Hitler’s birthday for the local white supremacists. Another might be a florist being asked to send valentine’s day wishes and special floral arrangements to a man’s wife – and his girlfriend.

Equally, there are cases where a service- or goods-provider refusing service on the basis of their deeply-held beliefs is plainly awful. Being refused service on the basis of one’s race is the obvious example here. Worse still, if such practices were widespread, then they impact directly on any number of human rights, because of the way most developed countries rely on the market to deliver services and goods that provide substance to our rights.

But a few questions…

There are a few parts of this concern for conscientiously objecting bakers that I find a bit puzzling. These may not manage to show that they should not be protected in law, but I think they do illustrate that the practice is not innocuous from a social and moral point of view.

Consistency

Why aren’t bakers already refusing other irreligious weddings? (Such as baking wedding cakes for atheists, heretics and fornicators?) In fact, why aren’t their deeply-held religious beliefs appearing in myriad other places in their business practice?

If we can use the examples of Christians for a moment, think of everything Jesus said about the problems with the rich and the need to help the poor. This issue directly impacts on the nature of profit-seeking enterprises and the work they do, and who they do it with. It puzzles me that conscientious objection is suddenly becoming a serious political concern in the context of gay marriage, when – if religiously-based refusal of service really warrants legal protection – we would routinely see it in myriad other economic contexts.

Universality

Why is this issue  only being spoken about in terms of small business owners? Surely, if it is to be a legally enshrined right for business-owners to refuse service for religious reasons, then the same considerations will impact on employees (both those serving customers, and those performing the work) and property/venue owners (who may own the building, with the baker leasing the property). These people are just as likely to be religious as anyone else – but what happens when they find that their work or property is being used to provide services with which they harbor deep religious disagreements? Or even if they find that their work or property is being used to refuse services, on grounds they find objectionable on social justice grounds? Will these groups inherit the same entitlements to refuse consent as business-owners? And what happens in the inevitable case where these entitlements clash, and we have disagreements between venue-owners, business-owners, and employees?

I think we are owed a detailed explanation of how religious-based refusals will work in the context of overlapping claims of employers, business-owners, employees, shareholders and property/venue owners, at least in any cases where they can reasonably complain that they are being forced to be complicit in an activity with which they have a good faith disagreement.

Reciprocity

In recent months, conservatives have been alarmed at several ways in which conservative advocates and positions are being treated in various arenas, such as cable channels refusing to play political advertisements advocating for the NO vote, or venue owners refusing to allow conservative organizations or speakers to hire their venues. Conservatives have also criticized sporting institutions, professional bodies and large corporations for intruding into politics when they advocate a YES vote. Sometimes, there has even been pressure for conservative/religious corporate executives and others to resign because of activist campaigns against them, and there have been successful campaigns and boycotts against companies on the basis of their non-progressive positions.

There are many different moral concerns implicated in each of these issues – but there is something they have in common: they inject political decision-making into arenas that are usually somewhat quarantined from such partisanship. In some cases, this is not very serious, such as footy teams coming out with a particular stance. But in others, it is very serious, such as campaigns trying to pressure organizations into sacking an employee.

Giving bakers and florists the license to refuse service does much the same thing. If it is okay for bakers to refuse service because they don’t want to be complicit in gay weddings, then surely that gives us good reason to think that cable providers or venue-owners should be entitled to refuse conservatives – and not even on the basis of threats of boycotts, but just because they have conscientious objections to their property and work being enrolled in the service of political positions to which they object.

Ultimately, what is good for bakers will be good for a whole range of industries. If designing, baking and writing the desired words counts as a free speech issue for bakers, then the same argument will apply for advertising platforms, sign-writers, search engines, cable television providers, function rooms, industrial printers, and more. If conservatives think it is wrong, unfair and socially damaging for all of these institutions to refuse services to those using them for conservative practices, then surely the same must be true for bakers and florists acting on the same principle.

‘Civic tolerance’
In making the above-noted complaints against discriminatory decision-making in the market, conservatives (in my view) rightly draw attention to how much we all rely on a level of neutrality from all sorts of service providers to make sure that our rights to services, travel, employment and speech are genuinely realized.

We could express this by appeal to a notion of ‘civic tolerance’. A citizen displays civic tolerance when they say:

“I disagree with your speech, action or practice, and I reserve my right to speak out against it, and to perform different actions in my own life. But I acknowledge that your speech, and your actions, and your practices, are bound to have material requirements, and that you will need various goods and services to perform them. (These may include: A venue to hire for you to speak at. A printing press to print your words. A television channel to play your paid political advertisements. A taxi to take you to your event.) Part of my tolerance of our political differences will be to treat you equally to all my other patrons, clients or customers, when it comes to the performance of my professional or business roles.”

It seems to me that this spirit of civic tolerance is an often-unnoticed and uncredited source of social harmony, equal respect, and the realization of human rights. It is a cultural norm against being a busybody or an extreme partisan, against a world where each of us are judged upon our personal and political views and impeded on that basis, and against a zero-sum vision of society as an endless contest against the other, where every available measure should be employed against those who think differently to undermine their power and silence their voices. Civic tolerance prevents us from being forced to live our lives in identity-based bubbles, where we only interact with people like us, because everyone else will subject us to their moralizing judgments before they decide whether to treat us as ordinary customers or clients. As such, it is a virtue that gives us space and freedom to live our own lives.

If I am right about this, then it turns out that ensuring conscientious objections for bakers is not very conservative at all. In fact, the desire of bakers to interject their own judgments about others’ practices into the provision of goods and services is one symptom of a much larger social movement (at least as prominent on the left as on the right side of politics) that is pressing back against traditional civic norms.

But even if it is morally worrying, does that mean it should be illegal?
If everything I have said here is on the right track, then we should be wary about the increasing practice of those on both sides of politics to inject their religious, moral and political views into ordinary civic, professional and commercial practices (except in the most vivid cases).

But does this mean I have made a case for such actions to be illegal – for the force of law to prevent their occurrence? It does not. To argue that something is immoral or socially damaging is not to show it should be prohibited in law.

But it does, I think, suggest that we should be wary about thinking about gay marriage in exceptional terms. It is not a unique area, walled off from the rest of the world. Countless types of goods and services provide us with the resources we need to act on, and speak about, our values. The provision of many of those goods and services conceivably could be refused by those who do not want to see their work playing a role in practices with which they disagree. If we are worried when this practice is used against those who share our religious or political persuasion, then we should be just as alert when it is used against others with whom we disagree. Having a consistent law that applies across the board ensures that we are not legislating one rule for us, and another for everyone else: a sure sign of injustice.

 

(This post is one in a series, looking at the arguments in the gay marriage debate.)

Gay marriage: ‘We should not even be having this debate!’

The argument that political debate on gay marriage is harmful, and should therefore be avoided or at least minimized, has been voiced by a number of those on the YES side, including at the very highest levels of government, and it remains an ongoing feature of the popular public discussion.

These arguments were initially made in the particular context of the conservative side of politics aiming to undertake a plebiscite on gay marriage. And in that context it was true both that the plebiscite was not legally necessary, and that it was a process that was bound to increase the visibility and heat of any ensuing debate. (As it unquestionably has, with ample vitriol, if not violence, on both sides.)

But many of the statements made on this matter – both at the time and since – have a quite general application, in the sense of bringing into question whether it is wrong for us to be having a dedicated public debate about this issue at all. For example, such arguments would apply to making an election issue out of the topic.

No doubt there are cases when the harmfulness of political speech does indeed provide strong reasons for shutting down debate on a topic. Hate speech constraints are a well-known example, and history furnishes no shortage of links between vicious racist speech and ensuing ethnic violence.

Yet any arguments for avoiding public debate on an issue must consider the moral costs of such a policy. In my view, there are deep ethical concerns with the argument that, on the basis of concerns with potential harms, we should avoid having a political debate about issues like gay marriage.

Let’s get clear about the principle at work here

Most often when this assertion is made, it is unclear what the deeper principle is that underlies its specific application in this case. In other words, if the argument against popular political discussion works in this case, then there must be other cases where it will also work, because there is some underlying principle that tells us when and how popular political discussion should be rightly avoided.

My attempt to give a sympathetic account of the underlying principle is as follows:

In cases where experts agree that popular discussion of a particular political issue will be damaging to a particular class of vulnerable people, we have a strong reason to avoid that debate.

Now I need to stress that this is just my attempt to portray the general principle. A YES proponent might actually have something subtler in mind. But this principle will give us something to start with, and may help us devise an improved one in due course.

Some questions. Actually, lots of questions.

If something like the above principle is meant to justify calls to avoid debate, then an array of serious moral questions arise.

Question 1: How strong is this ‘strong reason’?

It’s pretty straightforward that the above considerations do create at least some reason to avoid a public debate, in the sense of not starting one unnecessarily. If there is widespread support for a policy across all major parties, or if a government that announced the policy as part of their election promises, and then was voted into power with a sufficient majority to legislate that policy, then it makes no sense to start up a debate that would carry serious costs, and with little benefit. The legislation should just be completed in a quick and expeditious matter.

But it is very different to say the reasons are strong enough to actively discourage a public debate that is already occurring – or to say that we should avoid discussion on an issue where there are large-scale (and passionately held) divisions across the voting population, for example, in a case where polls indicate that about a third of the population disagrees with the majority opinion.

Question 2: Who are the experts on whether harms will occur?

The principle above, if it were to be rigorously followed, would place an awfully large amount of political power in the hands of the ‘experts’ who make judgments about the harms involved. After all, they will be effectively empowered to decide which issues are to be quarantined from normal democratic deliberation.

Presumably these experts will be professionals (like psychologists or psychiatrists), or academics with the relevant specialities. Naturally, most of what these experts say would be accurate and evidence-based. But universities and professions are subject to the same frailties (moral and cognitive) as every human institution – especially once that institution is granted political power. I do not think one needs to be excessively cynical about human behaviour to think that there are serious worries with this arrangement. Whether or not power corrupts, there can be little doubt that it attracts the corrupt.

Question 3: Who are the experts who decide who will count as vulnerable?

The same concerns will arise for the question of who gets to count as vulnerable – and who gets to make that assessment. But the situation here is worse than with the prior question. In this case, the questions are less about strict sciences like psychology, and more about evaluations about the moral significance of different sorts of vulnerability. Apart from some really obvious cases, this is something that different political philosophies are bound to see differently. (Consider: do all vulnerabilities count? What if it turns out that some white supremacists are extremely defensive and emotionally vulnerable? Should we care? Or not?)

Furthermore, some philosophies may even wonder why we should focus on vulnerable people at all. Maybe all speech that can have significant harms should be discouraged and avoided – even if those harms would befall people who are not otherwise considered vulnerable, such as people who agree with the majority position on an issue. But making this modification to the above principle would greatly expand its application, placing even more power in the hands of experts.

Question 4: Is this a special case?

Perhaps it might be responded that it is okay to avoid debate in the special cases where the issue is a morally straightforward one, about which no reasonable person can really have any qualms or questions. But as I am hoping to show with this blog series, on the issue of gay marriage, there are certainly concerns that a reasonable person may at least want to raise, and get considered on the merits. Now I think that considering these arguments on the merits gives us very powerful reasons to legislate in favour of gay marriage. But that is a claim about the end results of a critical discussion. It is very different from the claim that we do not even need a critical discussion.

Perhaps instead it might be objected that we do not need public discussion in the special cases when the issue is really just a question of equality before the law, and of fundamental human rights. But there may in fact be arguments – such as the ones I have already made this blog series – that (at least initially) challenge whether the issue really is one of equality and fundamental rights. Shutting down the debate on these issues will shut down any possibility of debate on whether this is an issue on which we should in fact be shutting down debate. In other words, following this debate-avoiding principle on an issue also shuts down the meta-debate about whether this is an issue that should be subject to the principle.

Moreover, even if the issue is unquestionably about fundamental rights and equalities, that doesn’t necessarily tell us whether other important rights and freedoms are implicated in the policy change, and how these should be managed, and what compromises might need to be implemented. Again, we would need public debate to think through, and sort out, these issues.

Question 5: Why aren’t other things done to avoid the potential harms?

Suppose it was beyond dispute that an aggressive, divisive political dispute on a given issue would create substantial harms on vulnerable people. It may also be true that this result could be avoided by paying attention to other parts of the social context and political situation. For example, if one wanted to improve the tone of political discussion in order to bring down the level of divisive heat and anger, then political parties and activist groups could make either bilateral or even unilateral commitments to improve their own behaviour in such discussions. They could try to live up – with self-restraint, discipline and dignity – to a code of conduct that eschews any use of language the other side might find derogatory, and that tries to listen and respond carefully to other’s viewpoints. Events could be organized with like-minded discussants from the other side of the debate, where polite, reasonable and adult discussion could be exemplified. 

No doubt this sounds fanciful, and it is probably impossible to imagine parliamentary question time in Australia without our political leaders booing and hooting at each other like unruly children. But the underlying point remains true. A whole array of social behaviours and practices lead to any given social outcome. To say that A leads to B may be true. But it may also be true that A only leads to B in the context of background social conditions X, Y and Z. And it may be that if we really cared about B, and thought that B was an outcome of over-riding importance that we needed to avoid, then we should be bringing X, Y and Z into the discussion as well. (If that means we have to impose kindergarten-level codes of conduct on our political leaders when they engage in formal debate, then so be it, I say.)

Question 6: How are decisions to be made if they are not to be publicly discussed?

This is perhaps the most significant query. Once the experts have had their say about what counts as a harm, and what counts as a vulnerable person, and everyone has agreed that having a discussion would be too costly (or maybe this judgment is also made by the experts?), how on earth is the actual decision to be made? It cannot be to simply make no decision, and to leave things as they are, because, a) leaving things as they are itself constitutes making a decision, and, b) the entire point of the YES argument in this context is to change the existing law.

Perhaps the idea is that the decision-making will still occur by the parliament or the reigning political party, but without any significant public discussion. But I struggle to believe that anyone would accept this line of argument unless they knew they already had the numbers at the time they voiced it. It is also perplexing why we should solve the issue by appeal to elected leaders, given that a key part of the justification for respecting democracy is – at minimum – that the voters have been sufficiently informed about the leaders’ political views on the relevant issues. More thoroughgoing justifications for democracy can even include appeals to public deliberation itself – exactly the property that the above principle aims to shut down.

Conclusion

The key point here is that the arguments for shutting down public discussion look – on their face at least – to be profoundly undemocratic, and therefore to have serious implications in terms of procedural justice, public accountability, the legitimacy of law, and the human rights of communities to political participation and self-determination.

To be sure, the above arguments are not definitive, and it may be that a principle can be fashioned that avoids these moral concerns, and that shows that decision-making on the gay marriage issue (and other similar issues) should be protected from popular political discussion. But I submit that this argument has not been made. Until it is, I think it is premature to assert that this is a discussion we should not even be having.

(This post is one in a series, looking at the arguments in the gay marriage debate.)

Slippery slopes in the gay marriage debate

One of the increasingly common concerns voiced in the gay marriage debate is one of unintended consequences and – in particular – slippery slopes. The thrust of slippery slope arguments is that a policy change (that may seem okay if it is just considered in isolation) will actually lead over time to a dire situation, and that it will be difficult for us to prevent this slide into catastrophe.

We often hear commentators scoffing at these arguments, as if they were nothing more than a sneaky rhetorical ploy. And sometimes it is true that an appeal to a slippery slope argument is the last resort of a debater who has becoming convinced that the argument cannot be won on its merits alone.

But the fact remains that there is nothing intrinsically wrong with these arguments. Slippery slope arguments can be true, valid and even decisive. Public policies do have unintended consequences in the short term, and can lead to situations that are not easy to avoid or undo. To find out whether a given slippery slope argument is fallacious, it must be analysed on the merits.

In this post, I intend to do just that, and to consider the merits of the slippery slope argument, and its application in the context of gay marriage.

The slippery slope argument

Making a slippery slope argument involves justifying three separate premises.

1. Having made this policy change, further changes will subsequently occur, perhaps with or without explicit political decision-making or electoral control;
2. It will be difficult to stop those changes, or reverse the policy, at a later point.
3. These further changes will lead to a dire situation.

If these three premises can be vindicated, then the slippery slope argument is both valid and sound.

The ‘dire situation’

Sometimes it turns out that the slippery slope argument falters at Premise 3. A social change may gradually occur whereby the ‘dire situation’ – from the new perspective, caused in part by the original change – actually doesn’t look so bad after all.

It is true that this can sometimes be a worry, and that new practices may normalize behaviour that should have remained morally concerning. But there are countless examples where the reverse turns out to be true, and when society plainly improves because of what it has learned and re-thought on the basis of the initial policy change.

For example, when the rights of man were first declared in America and France in the eighteenth century, some wondered where such declarations might lead – Votes for the poor? Votes for those in minority religions? Votes for colonized people? Votes for women? Those who warned of the slippery slope to universal suffrage (voting rights for all adults) turned out to be absolutely right. The more that the franchise was extended to responsible, rational adults, the more it seemed reasonable and fair to extend it to the remaining groups of responsible, rational adults.

In this case, even though the slippery slope warnings turned out to be true, nowadays the idea of universal suffrage is a consensus moral position, held across the political spectrum. Having arrived at the ‘dire situation’, the entire citizenry has decided that not only is the situation not dire at all – but it is a very good thing, and indeed something of a profound achievement by our civilization.

Why won’t we be able to stop at a sensible place?
Premise 2 is usually where the argument is at its weakest. If the slippery slope argument is to convince people who would otherwise allow the policy change to happen, then it needs to function in a context where, a) many would agree that the change itself is okay, but, b) they are deeply worried about the prospect of the dire situation.

But if that really is the case, then it is hard to see why this very fact will not make it possible to stop the changes at an appropriate point in the future. This is why most slippery slope arguments made in the context of democratic decision-making are seriously flawed. If there is a sizable amount of the voting population that is happy about the current policy change, but is worried about the dire situation, then why can’t electoral pressure be used to draw a line at the point where the majority of the electorate believe things have gone too far?

In some cases, the proponent of the slippery slope argument may have something very important to say here. They may be able to point out that the policy change actually shifts the manner in which future political decisions will be made, or that the policy change will shift enormous amounts of power (political power, media power, social power or – in the scariest situation – raw military power) in such a way as to dramatically alter whether it will be possible to slow, stop or reverse course in the future.

Consider a policy change that redraws voting districts, where any future decisions about this issue would be made by leaders elected on the basis of those new districts. In this case, the policy change in question alters the context in which future decision-making takes place, making future changes more likely, even as they make it harder for an opposition group to get into power and reverse course.

Another example would be a practice of appeasement against a military aggressor – where by the time it becomes clear that the military aggressor cannot be appeased, the opportunity to prevent their consolidation of power has been lost.

This does mean that slippery slope arguments are always sound in these contexts – but it does mean they should be taken very seriously.

However, I submit that the vote to give same sex couples the power to legally wed is not analogous to these sorts of examples. It does not mark a shift in the nature of political decision-making in any way that will make it difficult for future majorities to respond to policy changes happening in other areas, such as in education, or with respect to free speech or freedom of religion. In each of these cases, and on each of these issues, electoral majorities have proved to be pretty good at getting their way in the end. They have political representation, access to a free press, the capability to mount social media campaigns, and so on.

In other words, I agree it is possible that the change in allowing same sex marriage will have some undesirable future consequences in some context or other. This is true of gay marriage, because it is true of absolutely all changes in law – and indeed of all decisions not to change the law when the social/political/economic context is itself changing. Unintended consequences are just a brute fact about human societies and social decision-making.

However, the legal change to empower same-sex marriage will not alter the ways in which future electorates will be able to give effect to their views about what is, and what is not, socially desirable. If undesirable policies do arise in terms of future education, free speech or freedom of religion, then the electorate will be in a position to do something about it.

For this reason, I think we have good reason to reject slippery slope arguments on this matter, at least and until a persuasive case can be given that shows specifically how the three above-noted premises (and Premise 2 in particular) can be justified.

One final problem with slippery slope arguments
One final concern with slippery slope arguments may not be that they are false or untrue. To the contrary, they may be valid and sound – but still not be sufficient to sway our decision-making on the matter. Howso?

Simply, the slippery slope argument does not make the case for the original issue go away. It just adds an extra consideration to the mix. Even if valid, there is no guarantee that the risks of the slippery slope are morally more important than the initial policy change itself.

So there are two reasons debaters dislike slippery slope arguments being used by their opponents. One is because it can take a lot of time to work through all the new factual and moral claims that would be required to vindicate (or rebut) the slippery slope argument. And in most cases, the result is unlikely to be anything more definitive than assessing the balancing of probabilities one way or the other.

But the other reason slippery slope arguments are problematic is that they distract attention from the central issue at hand. It is one thing to demand that decision-makers pay heed to potential knock-on consequences and other risks. But it is another for those concerns to so dominate the discussion that people wind up somehow forgetting that the law will also have direct and immediate consequences.

In this case, the main, direct effect of the law is that it will empower a certain group of couples in committed and loving relations to formalize and celebrate their love and commitment in just the same way as other couples in their society do. That is the one change we can absolutely guarantee will happen. While it is worth taking slippery slope arguments seriously enough to consider them on the merits, it is never worth losing sight of the actual direct change that will occur, and the justice and legitimacy that may reside in that change.

(This post is one in a series, looking at the arguments in the gay marriage debate.)