Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 23, 2013

Some Thoughts on Political Psychology and a Couple of Questions for Tom

Reading Tom's thoughtful comment below is a pleasure. He takes each of Michael's and Rick's respective pieces, notes and elaborates on areas of agreement, and proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.

The tail end of Tom's post caught my eye: "In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples' efforts to live out their deep, pervasive commitments--but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, "aggressive and uncompromising," will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a "live and let live" approach that will protect traditional religious organizations' ability to maintain their identities."

Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your judgment? More specifically, what is the basis for the judgment that, as a predictive matter, a metaphorical cessation of hostilities on the substantive question of same-sex marriage will, as time goes on, result in a metaphorical cessation of hostilities on the substantive question of religious exemption? It seems to me that in order to reach that conclusion, one would have to believe certain other things, too--things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post. 

First, it seems to me that one would need to believe in a theory of what I'll call sympathetic reciprocity in politics (the word "sympathy" appears several times in Tom's comment), which might go something like this: in the realm of politics or policy-making, over the long-term, people remember and respect concessions, and they respond to those concessions with concessions of their own. They reward sympathy with sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi--a 'live and let live' ethic--by observing a policy of sympathetic reciprocity.

Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a 'live and let live' ethic for many issues of public concern; we do accept them for others; and the issues for which we do and do not accept such an ethic are relatively stable but always changing. But is the extent to which we accept such an ethic in turn dependent on a theory of sympathetic reciprocity--that is, on the extent to which those with whom we disagree have previously extended sympathy toward the policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a 'live and let live' ethic more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends--in sum, is it far more dependent on considerations of cultural and political power? I grant that this is a gloomier view than I think is at work in Tom's comment. I'm not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why--on what grounds--he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.  

Second, I wonder about the more specific question of the political psychology of what Tom has called 'the middle.' In theory, a legal right ought never to be compromised by political considerations, but in practice, rights are traded off all the time. Yet we would need an extremely acute sense of the middle's opinion of the strength and importance of the rights in conflict in order to predict with confidence whether the middle will believe that trade-offs of rights are warranted, and that a policy of 'live and let live' is justified. A policy of 'live and let live' was viable for, e.g., the Amish in Wisconsin v. Yoder in part because the common feeling (as perceived and articulated by the Court) was that an accommodation in that context could be bought cheaply. The Amish are a small minority that is largely invisible to the middle, and so the price of a 'live and let live' policy was low enough for the middle to display its magnanimous quality. In today's climate, when considerations of equality and nondiscrimination are at stake, I wonder whether the calculus is different: the middle may well believe that the right of exemption is purchased at a much dearer cost.

In fact, I do not have a reliable sense for just how strong a commitment the middle has to the legal right to same-sex marriage. Tolerance is not embrace. I also do not have a reliable sense for how powerfully committed the middle is to religious liberty. On the one hand, there are signs that Americans are increasingly disenchanted with religious freedom, that they believe the First Amendment protects too much, and that of the rights that it does protect, religious freedom is comparatively unimportant. On the other hand, that's only one survey, and, as I say, the degree of commitment of the middle to the legal right to same-sex marriage is also difficult to measure precisely.

The middle is in the middle for a reason: their support or opposition is middling. But there are different degrees of political support, and those gradations will be relevant to predictions about what the middle is likely to do when rights clash. The question I have for Tom on this front is: isn't the viability of the ‘live and let live’ strategy dependent on having a reliably accurate measure of the middle's views? Without that, one may be misled by an attractively upbeat, but perhaps overly sanguine (and how would we know?), political psychology that does not reflect the middle's sense of the world.


DeGirolami, Marc | Permalink


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The legality of abortion, contraception and sterilization happened amidst near universal acceptance of conscience protections for those practices. But it did not produce equilibrium for conscience. Legality eventually laid the groundwork for assaults on conscience. There was no threat of contraception or sterilization becoming illegal when states and now obamacare forced people to provide it in others' and their own insurance. And when ACOG demanded physicians assist or refer for abortions, Roe was supposedly "settled law." Conscience itself was supposed to be the compromise for legalizing abortion and contraception, as declared in Roe and Doe. But legalization simply becomes the new status quo. The "middle" is told they are entitled to force others to deliver what they have forgotten was once illegal. Then the new "compromise" is to impose a mandate but back off it slightly. A few years later that coercive regime is the new status quo, and the new compromise is to mandate most of the remaining zone of freedom.

Posted by: Matt Bowman | Jul 24, 2013 8:09:42 AM

I will venture no opinion on any theory of accommodation, but there are some assumptions or assertions about same-sex marriage within Marc’s questions that are incorrect.

Many might be considered part of the middle because they have disagreements with both points of view, their attitudes are exceptions to the presumed binary for/against bias of political discourse. They are uncertain, undecided, or unpersuaded by the hot rhetoric of the extremes. Some are just disinterested. There are many reasons to be in the middle.

It is certain that the middle does not need a strong commitment to any “legal right to same-sex marriage”, all that is necessary is a strong commitment to equality under the law. That I am confident exists.

Based upon what I read, most supporters of marriage equality also support accommodation of religious belief. The question is only how far accommodation should go. There are extremists on all matters, but accommodations similar to what already exist for racial and gender discrimination are appropriate; this is something most supporters of marriage equality support.

Laycock et al. seek more generous accommodations. Those remain in dispute because Laycockian exemptions are based on rationales that would also justify racial and gender discrimination; a cost that the middle will hopefully think too high.

A “live and let live” strategy vis-à-vis same-sex marriage is certainly viable; I doubt the middle would be less accommodating than are most supporters of marriage equality. As a general rule, if a “live-and let live strategy” was not viable, that would become clear pretty quickly. The very fact that the middle is in the middle makes their support of some flavor of compromise likely. Historically, it’s a safe bet.

sean s.

Posted by: sean samis | Jul 24, 2013 5:27:29 PM

Sean, your comment is confusing and, in parts, mistaken.

First, the body of your comment does not state any "assumptions or assertions" that I made in the post about same-sex marriage. I did not make any assumptions or assertions about same-sex marriage, so the post could not reflect them.

Second, what you actually say in much of the first part of your comment is consistent with my post. You say that the middle might be comprised of people with all sorts of views either about same-sex marriage itself or about the debate about same-sex marriage. I am glad that we agree. I added that it is difficult, but important, to measure the views of such people accurately, *if* one is making predictions about how they will behave as a political matter.

Third, I don't see why it is "necessary" for the middle to have a "strong commitment to equality under law" or why you are "confident that that exists." Why are you confident? Based on what evidence? You just got finished saying that the middle holds many different kinds of views.

Fourth, "based upon what I read" is precisely the sort of anecdotal claim of knowledge about the middle that is unreliable and not a strong basis upon which to make predictions. Based upon what I read, I am not confident in making predictions about the middle's views.

Fifth, you are mistaken about Professor Laycock's views.

Sixth, when you say, "a live and let live strategy is certainly viable" and that you "doubt" that the middle will be "less accommodating than are most supporters of marriage equality," that only adds an assertion of a conclusion about the matter under discussion.

Posted by: Marc DeGirolami | Jul 25, 2013 7:57:38 AM


I was not clear. Your post (in the penultimate para.) commented on the middle’s commitment to “the legal right to same-sex marriage”; that is not the issue in same-sex marriage, the issue is the right to equality under the law.

You wrote that “it is difficult, but important, to measure the views of such people accurately, *if* one is making predictions about how they will behave as a political matter.”

That is only true if the cost of such measurements is reasonable in proportion to the importance of the matter. And this assumes that the middle has defined and articulable views. I am not confident of the latter...

In this particular instance I think recognition of the concept of “rational ignorance” applies. Certainly those who want more precise information should set-out to collect it, but in the mean-time the rest of us need not sit by waiting for results which may or may not clarify the matter.

I did not say that it is necessary for the middle to have a strong commitment to equality under law, I said that all that is necessary to protect marriage equality and reasonable accommodations for religious objectors, just as that is all that is necessary to protect racial and gender equality with reasonable accommodation for religious objectors.

As I said at the beginning of my comment, I will venture no opinion on any theory of accommodation.

Anecdotal evidence is not invalid evidence, it is merely evidence that others (you in this instance) cannot evaluate. You may lack confidence, but that does not make my confidence invalid. One’s lack of confidence does not imply that others are wrong to act on their own anecdotal knowledge. That is why we hire experts and experienced people: for their anecdotal knowledge.

If you are not confident about making predictions, then so be it. But your lack of confidence cuts both ways; it inclines you to no action nor resistance to action. After all, to hesitate is to predict that hesitation is safe, which is not always true.

Finally, the “robust exceptions” sought by Laycock would, if applied to race or gender provide a religious right to discriminate on those bases in situations where now such discrimination is forbidden. If you disagree, then are you willing to say that no accommodations beyond those offered to racial and gender discrimination are required?

sean s.

Posted by: sean samis | Jul 26, 2013 9:16:23 AM

Sean, your comment again makes no sense and is again wrong in parts. But it in turn makes no sense for me to continue to respond as we are extremely unlikely to agree about anything.

Posted by: Marc DeGirolami | Jul 26, 2013 12:00:38 PM