Tag Archives: Discrimination

#87: Spanish Ice Cream

This is mark Joseph “young” blog entry #87, on the subject of Spanish Ice Cream.

My sister has what I call a facility for languages.  She was, for a time, a United Nations translator.  Before she finished high school, she sometimes dreamt in French.  When she worked in Taiwan, sometimes people speaking with her on the phone would use a word she did not know, and when she explained in Chinese that her vocabulary was limited because she was an American, they would argue with her that she could not be an American because she spoke Chinese too well.  Her Taiwanese-born husband told us that we should ask her, not him, about Chinese pronunciation, because he had what he called the equivalent of a “Brooklyn accent” and her pronunciation was much better.  She also knows smatterings of Italian and I don’t know what else.

I do not have that.  Our parents spoke French at the dinner table not because they were French (my father was Nth generation Southern) but because they wanted to be able to discuss things in front of the four children without our understanding them.  I took two years of French, but when I get mail in French I reply Je parle un tres petit peux de fran├žais, and ask if they can send again in English.  I have written several articles which have been translated into French, and I can’t read them.  I remember fewer than a dozen words of Romanian from my three-week concert tour there decades ago (thank-you, you’re welcome, what does this cost), but I never knew more than a score and don’t know the syntax or grammar at all despite being rather good at the linguistic side of languages.  I struggle with Koine Greek to teach New Testament, have picked up a bit of church, law, medical, and logic Latin, know probably less Hebrew than Romanian (and to quote a character in my wife’s favorite movie, “Who would ever bother with Romanian?”).  Most of the Spanish I know I learned from not watching Sesame Street when the kids were watching it–numbers through ten, open and closed–plus a few words that I’ve picked up in funny stories.  I use to tell people that I couldn’t speak enough Spanish to say “I don’t speak Spanish” in Spanish.

In short, I understand that some people have trouble learning a new language.  I certainly do.  Fortuitously I speak what is one of the most commonly spoken languages in the world, and the language of my homeland, quite fluently.

In Milwaukee, Wisconsin, Leon’s Frozen Custard, in the south side of the city since 1942, has gotten in serious public relations trouble for what on the surface seems a very foolish reason:  the owner does not permit his employees to speak to customers in any language other than English.  Hispanics and liberals called for a boycott, but current owner Ron Schneider has stuck to his guns.  Not all of his employees are bilingual, and he does not want customers to expect bilingual service.  That’s the simple response; there are a lot of other reasons why an employer might have such a policy.


The protestors are certainly correct that offering multilingual service is a competitive advantage.  I joke with the guy who is probably the best person for computers in the area, because he is co-owner of a small but busy shop that does mostly cellular phones plus computer equipment, and he genuinely is the only guy in the place who is not fluently bilingual (English and Spanish).  They hire no one out front who cannot deal with both the English-speaking customers who come from outside the small city because they know he’s the best and the local Latino population who come because they can ask questions and get answers without a language barrier.  It is an advantage for the store; it translates into a marketable skill for the potential employee.  I could not get a job there, even if I learned a lot more about computers and cell phones than I care to know.  Leon’s could attract more business by serving Spanish-speaking customers with Spanish-speaking employees.  That is a choice he makes.  On the other hand, he’s a landmark, and people in the suburbs drive into the city just to get his ice cream and sandwiches, and apparently hire him to cater weddings and parties.  More business is usually a good thing, but one weighs the costs against the gain in such questions.

The protestors are also right that they don’t have to buy ice cream there.  That’s a cost against benefit analysis, too, as their protest by boycott means they are sacrificing what some claim is the best food of that category in that area, accepting lower quality in the name of principle.  By the same token, though, doesn’t Leon’s have the right to establish the terms on which they will serve customers?  If they have to allow people to order in Spanish, why not Farsi?  Cantonese?  Japanese?  Russian?  Romanian?

If I were invited to sing in a Spanish-speaking church, I am not certain how I would handle that.  On the one hand, I am of the opinion that the lyrics to songs matter, and when I sing I want you to hear and understand the words.  On the other hand, I don’t think it would enhance the performance to have a translator standing next to me trying to repeat everything I sing in another language–even if he doesn’t disrupt my focus he’s going to be talking over the music.  I wouldn’t trust myself to try to sing a translated version of my lyrics–I might wind up calling myself a jelly donut, which does not put me in bad company but is still embarrassing.  You cannot expect everyone to speak every language, or do business in every language.  To do so is to demand that those who cannot speak multiple languages not be permitted to speak at all.

In this case, though, the argument is made that Leon’s already employs some bi-lingual servers; the rule is that those employees who could talk with customers in Spanish are not permitted to do so.  What possible reason could there be for that?

There are quite a few possible reasons, actually.  We’ll begin with the one advanced by Leon’s’ owner, that he does not want customers to expect to be able to order in Spanish.  Not all of his servers can understand an order in Spanish, and if someone comes to the window and no one is working who can take a Spanish order, that customer has to be chased away; and if that customer does not understand enough English to understand that they cannot help him, that slows the line.  On those days, the line is further slowed by the fact that there will be numerous customers in it who cannot be helped because the servers cannot understand what they are saying, the longer line moves more slowly with fewer sales, and people driving by are less likely to stop to queue onto a long line, which is more lost business.  If Leon’s cannot serve you in English, you become a problem for the business, because they can’t serve you every time you come, and you’re scaring away real business by taking space in the line.

Of course, some days some of the servers can speak Spanish.  Why not just let them do so on those days?  Apart fromn the fact already noted, it is clear that not all of the servers speak Spanish.  If some of the customers expect to do business in Spanish, that fouls the queue when they reach the window and have to wait for the bilingual server to be available to help them while the English-speaking server is now trying to find someone else in the line who wants to order in English without giving anyone the feeling that the service is unfair.  Service is now inefficient again.

There is also the problem of management.  I don’t know whether owner Schneider speaks Spanish, but he probably does not make it a requirement for his management staff to do so.  Even the best of employer-employee relationships are a bit adversarial; your employer might be a friend, but he is not a buddy, and he is watching to ensure that you do the job right.  Customer service is a vital part of any business, and particularly in the food industry.  If I’m running the store, I want to be able to understand what my employees are saying to my customers, and it is important to do so for a lot of reasons–easily illustrated by giving a few ideas of things I do not want to hear my employees saying to my customers.

  • You’re ugly, go away.
  • Hey, can I see you Friday night?  Great movie showing, and a hot girl like you shouldn’t sit home alone.
  • That’s the large cone; pay me for the small, and later you can make it up to me.
  • You don’t want to eat here.  The food here isn’t worth what they charge; you’re better off at the place down the street.
  • My boss is a jerk and the pay is a joke, I’m quitting just as soon as I can find another job.
  • I hate this place and everyone who works here.  By the way, the AR-15 assault rifle I ordered arrived yesterday.
  • They’re going to make the deposit at three-thirty, and that blonde girl will walk across the parking lot to the bank across the street; you can ambush her by the clothing drop.

You get the point–or do you?  Remember, the store is responsible for what its employees say to its customers.  To exercise that responsibility, the managers have to be able to understand what the employees are saying.  In order both to meet the demands of the protestors and protect the interests of the business, Leon’s would have to fire any employees, and particularly any managers, who are not fluently bilingual–a mistake for any business that has been running so long, because they undoubtedly have some excellent and trusted people working there who would be out of work, and would create a lot of disgruntled employees and former employees.

And what happens when the immigrant Middle Eastern population insists that they should be able to order in Farsi or Arabic?

I saw the list a few years ago; I believe that official government publications in these United States come in over a hundred languages.  Every court of law in New Jersey has a Spanish interpreter on staff, and in most jurisdictions they earn their money translating for defendants who do not adequately understand English.

In the Roman Empire, every province had its own language, and people spoke that language with each other locally, much like Italian neighborhoods of the last century and Hispanic neighborhoods today, but on a larger scale.  Yet business was usually conducted in the international language Greek, and legal proceedings generally in the official language Latin, and almost everyone was tri-lingual.  There’s nothing wrong with being multilingual, and there’s nothing wrong with offering multilingual customer service to attract customers who do not speak English.  However, when we attempt to force people who do not speak a foreign language to use it in their business transactions, we are being unfair to someone.  The customer can always find a merchant eager to accommodate his language requirements to make a sale.  The businessman can only work in the languages he knows.  It is therefore the choice of the business what languages will be spoken in their business transactions, and if the customer doesn’t like it he can bring an interpreter or shop somewhere else.

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#83: Help! I’m a Lesbian Trapped in a Man’s Body!

This is mark Joseph “young” blog entry #83, on the subject of Help!  I’m a Lesbian Trapped in a Man’s Body!

The new view of sexual identity has me examining myself, and wondering if I have been misunderstood all these decades.  I have always perceived myself to be a boy (well, I grew up to be a man, I think), but perhaps that’s only because in those years everyone assumed that if you had male, er, parts, you were male.  We did not then understand that you could really be one gender inside and a different sex on the outside.  Now, apparently, we do, and that might really change things for me.  I might be a girl.  I have the attestation of most of my peers in my elementary school, who repeatedly asserted that I was a girl:  I ran like a girl, fought like a girl, threw, batted, kicked, did everything like a girl.  And I liked to sing–how girly, to like music class.  I might have had a boy’s body, but I didn’t use it like a boy; I was obviously a girl hiding in a boy’s body, pretending to be a boy.

Yet even then, I was always attracted to girls.  Starting in second grade I had a terrible crush on Christina Newcomb (I’ve always wondered what became of her).  By fourth grade I was spending a lot of time at her house down by the brook on Broad Street up near Lambert’s Mill Road.  She was particularly fond of The Beatles, and had a stack of Beatles cards between three and four inches thick.  There were other girls who caught my attention before that, and many more thereafter–moving away from Scotch Plains separated us, although our relationship had fizzled by then.  No other boys were attracted to girls–in fifth grade they used to dare me to wait for her outside the school and try to kiss her, which is what I wanted to do anyway so I usually took that dare and listened to their peals of disgust when I succeeded (although at least as often she ran away laughing).

So then the conclusion is inescapable:  if I am a girl, as all the boys thought, I must be a lesbian.


I think this understanding might have changed my youth significantly–maybe not then, when people always thought that someone in a boy’s body was a boy, and to be a girl you had to have a girl’s body.  But Society has recognized, now, that this is not always the case, and the Girl Scouts of America are doing their level best to keep up with progress:  you can be a Girl Scout if you are a girl on the inside, even if you, like me, are trapped in a boy’s body.  I can’t tell you how much different my teen years might have been had I actually been able to go camping with the Girl Scouts instead of the Boy Scouts.  Not that I don’t treasure the hundreds of miles of canoeing and hiking, the places I saw and things I learned in scouts, but really, every Boy Scout I knew wished we could go camping with the girls.  I certainly saw advantages to the idea.

So I think were I that age today I would simply explain it to them.  I’m not really a boy, I’m a girl in a boy’s body, but I’m attracted to girls, so that makes me a lesbian.  Trapped in a boy’s body.  I should be allowed to be a Girl Scout.  From what I understand of their present policies, I think they would agree and let me go camping with the girls.  I think we would have a wonderful time–and since I am, after all, a lesbian, I can’t promise that other things wouldn’t happen on those camping trips, since I would be bound to find all those girls attractive, and particularly whoever wound up as my tent-mate.  She might find that she, too, is a lesbian, attracted to another girl, at least when the girl in question is trapped in a boy’s body.  I know some girls are uncomfortable, being naked around a lesbian, but it might be different if the lesbian has the body of a boy.

I won’t say more about that, because I’m sure there are millions of Boy Scouts wishing they had already thought of this.

I expect that some of the parents would object; parents can be so old-fashioned, insisting that their children be protected from such situations.  They don’t understand that the world has changed, that what you are on the outside is meaningless, it’s the person on the inside that counts, even for such matters as which bathroom you should use, which Scouting organizations you can join, for what social services you qualify, and everything else, really.  If I say I am a lesbian inside a man’s body, how can anyone argue with that?  It could well be the real me.

And if it would have gotten me into those Girl Scout tents, I could have been very comfortable with that idea.

Shame on me?  Is that because you think I’m mocking a very serious matter, that someone could be one gender inside and a different sex outside, and ought to be treated as the kind of person he or she supposes him- or herself to be?  Or is it because you actually do think that girls and boys are different because of biological and physiological characteristics defined by their bodies, and society needs to make that distinction for the protection of its girls and its boys?

I think those peers of mine were wrong, that I was never a girl at all, as much as I was different from them.  This business about really being the other gender on the inside has nothing to do with biology or psychology; it has everything to do with gender stereotypes.  We think some man might be a woman inside because his interests go in directions more common to women–because we have created definitions of male and female “personality types” and then tried to fit people into them.  We persuade people that they are really not the gender of their body’s sex because their character does not fit our stereotypes, and they believe us.  Boys will be boys and girls will be girls, and we need to recognize that the first difference is biological.  Otherwise we lose some basic structures of human interaction, and face some serious social problems.  From there, we need to understand that a man does not have to conform to what we think are manly traits, nor a woman to womanly traits, and understand that bodies are sexually defined but people are individuals.

Without that, talk of sexuality devolves into this kind of nonsense.

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#63: Equal Protection When Boy Meets Girl

This is mark Joseph “young” blog entry #63, on the subject of Equal Protection When Boy Meets Girl.

United States Supreme Court Justice Ruth Bader Ginsburg does not like the Roe v. Wade decision.

To many, that will sound like nonsense.  Ginsburg is the anchor of abortion rights on the United States Supreme Court, and Roe the seminal case which recognized, some would say created, such a right.  Yet Ginsburg does not disagree that there is such a right; she disagrees regarding the basis of that right, and thus with the reasoning of Roe which is its foundation.

Roe v. Wade is in essence a Right to Privacy case.  Beginning with Griswold v. Connecticutt, in which the court found that the state could not criminalize the act of teaching couples how to use contraceptives in the privacy of their own bedroom, the court inferred that the First Amendment protections of freedom of expression, Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protection against self-incrimination, implied a right to keep one’s personal matters private.  There were several intervening cases which extended that, and there have been others arising since Roe, but in Roe the argument was that the decision to have an abortion was a medical decision between a woman and her doctor, and as such was a private matter in which the government should not interfere without a very compelling interest.

Ginsburg disagrees.  That argument, she claims, makes a private and personal decision a matter to be discussed with a doctor–a paternalistic oversight that according to Ginsburg violates the fundamental right at stake.  She claims that a woman’s decision should be autonomous, something she decides without involving anyone she does not wish to involve.  She makes it an Equal Protection right, covered largely by the fifth through tenth amendments.  Her assertion is that a woman should have the autonomous right to decide whether to bear a child, unimpeded by any considerations including medical ones, because it is solely the woman’s problem.

Ginberg’s reasoning presents serious challenges for those who oppose abortion.  If her line were adopted, current efforts to regulate abortion providers and facilities would be unconstitutional.  As the decision stands, if abortion is a privacy right as a medical decision on the advice of a medical professional, it is completely reasonable for reasonable regulations of the medical profession to restrict access to abortions based on the government’s regulation of health care.  If it is an autonomous right under equal protection, then a woman in theory should be able to have a doctor or anyone she chooses perform one in the privacy of her own bedroom without any government involvement at all.  Yet Ginsburg’s position suffers from some other problems.  She believes she is defending the concept that a woman should be treated exactly as a man would be in the same circumstance, but (apart from the fact that men would not be in exactly the same circumstance) the treatment of men in this circumstance is already worse than the treatment of women, viewed from the perspective of individual autonomy and equal protection.

Ruth Bader Ginsburg official United States Supreme Court portrait.
Ruth Bader Ginsburg official United States Supreme Court portrait.

Let’s look at the situation:  boy meets girl.  We’ll call our girl Ruth, for Justice Ginsburg, and we’ll name the boy Tony, in memorium of the recent passing of her good friend, colleague, and adversary Justice Antonin Scalia.

Ruth and Tony meet, maybe at work, maybe at a party, maybe at school or in the neighborhood.  They like each other, and start seeing each other.  They find themselves attracted to each other.  Human physiology being designed to promote reproduction, at some point they have desires to have sex.  At this point they are just about equal, as far as reproductive rights are concerned.  Some argue that Tony is disadvantaged in that his drives are stronger than Ruth’s, but there aren’t many ways to test that.  Ruth might have more resistance to those drives because the consequences are more direct for her, but in essence it is within the power of each them them to choose, autonomously, not to engage in sex.  It is also within their power to choose, jointly, to risk a pregnancy.

Yes, Tony could rape Ruth; Tony could coerce Ruth by some other inducement.  Women are raped fairly often, usually by men, sometimes by women.  Men are also raped, by men and sometimes by women, but considerably less often–although more often than reported.  Men are more embarrassed about being raped than women are, and so less likely to report it; and they are taken less seriously when they do, partly because some people think a man can’t really be raped by a woman, and partly because men who have never been raped by a woman somehow think they would enjoy it.  Rape, though, is a separate issue:  anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.

If Ruth and Tony agree to engage in sex, suddenly the entire picture changes:  they no longer have equal reproductive rights.  A significant part of that is simply technological.  Either of them could have an operation rendering him or her permanently infertile, which is generally a drastic step few want to take and is a considerably more expensive and difficult (but ultimately more reliable) procedure for Ruth than for Tony.  Barring that, though, Tony is limited to the question of whether or not to use a condom–a prophylactic device with a rather high failure rate.  Ruth’s equivalent, a diaphram, is a bit more difficult to get (must be fitted by a gynecologist) but considerably more effective; she also has several other options.  Usually she would use spermicide (sometimes known as “foam”) with a diaphram, but she can also use hormone treatments, usually in pill form but sometimes as implants, that disrupt her ovulation cycle.  All of these options have varying probabilities of preventing conception; there are other options.  Intra-uterine devices (IUDs) usually reduce the chance of conception but also prevent or sometimes disrupt implantation, causing a spontaneous abortion–what in popular jargon is called a “miscarriage”, but at so early a stage that pregnancy was not suspected.  In all these ways, all the reproductive rights are on Ruth’s side:  if she chooses not to become pregnant, she has an arsenal of ways to prevent it.

However, young lovers are often careless.  Birth control is so unromantic, so non-spontaneous.  The young suffer from the illusion of invulnerability, that they are the heroes of their own stories and everything is going to work according to their expectations.  People have sex and don’t get pregnant; some couples try for unsuccessful years to have a baby.  A pregnancy is often a surprise, even for those who want it.  People take the risk, and Ruth and Tony might lose.  So now there is a baby on the way, as they say, and again Ruth’s reproductive rights are more than equal to Tony’s.  She can choose to carry the child to term, or to have an abortion.  He has no say in the matter, even if he is her husband.  She might include him in the decision, but it is her decision; she does not even need to inform him that there is a decision.  She can end the story right here.  He cannot.  He has no say about his own reproductive rights.  He cannot say, “I do not want to be the father of a child; terminate it.”  Nor can he say, “I want this baby, keep it.”  He does not, in that regard, have equal protection.

Maybe he does not care; maybe he figures it is her problem.  However, it is not just her problem–it is also his problem.  The inequities are not yet quite done.  If Ruth decides not to have an abortion–exercising her reproductive rights and overriding his–the child is born.  At that moment Ruth has yet another choice:  she can keep the child, committing herself to the difficulties and expenses of raising it, or she can absolve herself of all further responsibility, agreeing never to see the child again, by putting it up for adoption.  I do not want to minimize the agony of that choice, but it is her choice–it is not his choice, and he has no say in the matter.  His reproductive rights are not equally protected.

In most cases, if she chooses to surrender the child for adoption, he has no say in the matter; he cannot say it is his child and he wants to keep it.  That, though, is only half the problem.  If she decides that she wants to keep the child, she can sue him for child support–and indeed, if Ruth is poor enough that she files for public assistance from the state, most states will find Tony and force him to make child support payments, and jail him if he fails to do so.  It is his responsibility to support the child if she says it is.  He can claim that it is not his child–the tests can be expensive, but there is an avenue to avoid false claims–but we already agreed that it is his, so he is going to have to support it.  She had a choice; he has none.

So by all means, let’s think of abortion as an Equal Protection issue.  Men are not protected in this nearly as well as women.  A lot of things would have to change to get there.

In addition to web log posts with the Abortion, Discrimination, and Health Care tags, see also the articles Why Shouldn’t You Have Sex If You Aren’t Married?, and Was John Brown a Hero or a Villain?

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#62: Gender Issues and Seating Arrangements

This is mark Joseph “young” blog entry #62, on the subject of Gender Issues and Seating Arrangements.

A lawsuit has been filed against Israel’s El Al airline, alledging discrimination in relation to seating accommodation:  the airline asked a woman to move to a different seat to accommodate the religious considerations of an ultra-orthodox man seated beside her.  Apparently this happens sometimes.

I once read an interview with Freeman Dyson.  (I think it was him; I also read an interview with Gerard K. O’Neill, and I sometimes get some of the trivia confused.)  The interviewer asked him whether growing up he ever wondered why he was so smart.  He responded no, not exactly–or at least that’s not the way the question came to him.  What he wondered was why everyone else was so stupid.

I did not have that experience.  However, I am often surprised that things which seem obvious to me are completely obscure to other people.  I’m sure that’s a common perception of opinionated people–I know some opinionated people who don’t understand why other people disagree with them and conclude that those people are not intelligent, which is only sometimes true and rarely the reason.  I, though, am not talking about people disagreeing with my opinion; that happens all the time, and I have great respect for many people whose opinions are very different from mine, and find great value in discussing our disagreements.  Much is learned through this, even when neither of us change our views.  What I mean is that sometimes problems have what to me are obvious solutions, and yet the people for whom these are problems fail to recognize the solutions even after the problems become serious–like the present lawsuit, which El Al had to know would happen eventually.

So let’s look at the story.


The story is that Renee Rabinowitz was flying from New York to Jerusalem on El Al.  Rabinowitz is a Jewish woman, a NAZI Holocaust survivor, eighty-one years old.  She was seated beside a Jewish man.  The man, however, objected.  He was of one of Israel’s “ultra-orthodox” denominations (“sects” is such a biased word).  The Torah is understood to forbid any contact at all between any man and any woman not related to each other, even if that contact is accidental.  The man asked that the woman be moved to accommodate his religious beliefs.  The stewardess asked–Rabinowitz says pressured–her to change seats.

It is obviously a problem.  If the Israeli national airline, whose advertising says that they “are Israel”, is unable to accommodate the religious scruples of those Israelis who most strongly uphold the historic traditions of the national faith which long defined them as a people, how can anyone expect to have their religion respected in the wider world of commerce?  To hope that on a transatlantic flight adjacent seatmates would never accidently touch each other–it certainly defies the odds.  El Al is right to attempt to accommodate the request, and there is a sense in which the man is within his rights to make it.  Yet the situation is so riddled with problems that have obvious solutions that the outcome here should never have happened.

First, this apparently is not the first time El Al staff have asked women to move to accommodate the religious scruples of men, and there is no indication that they have ever asked men to move to accommodate the religious scruples of women.  The Israel Religious Action Center (a liberal advocacy group) was waiting for the right case for a lawsuit, which suggests that this has happened before, to the point that it at least implies a policy.  The lawsuit is certainly going to claim that the airline was aware of the potential problem.  That raises the first obvious solution:  why did the airline not ask passengers whether they had this specific concern?  Airlines ask whether you want first class, business class, or coach, often whether you want a window or an aisle seat, whether you have any specific dietary restrictions.  How much trouble would it be to include whether each passenger is male or female, and whether he or she has a religious objection to sitting next to someone of the opposite sex?  Not every airline in the world would, could, or should do that, but certainly El Al should already have been doing it, since they have already had the problem.  This simple policy would eliminate at least most of the complaints in this area.

But more directly, as it will undoubtedly happen again, the stewardess certainly handled the matter inappropriately, and so did the male passenger.  The way to accommodate a religious problem of this sort is to move the person who has the problem.  If I am seated next to someone who so reeks of smoke that it is aggravating my asthma, I seek to move; I don’t expect him to be incommoded for my problem.  The man certainly had a right to have his religious concerns respected, and on that basis to have the stewardess seek a more acceptable seat for him.  He did not have the right to inconvenience a fellow passenger who was a stranger on the basis of his religious liberty.

As I say, the solutions seem obvious to me.  I can only wonder why no one recognized them before the problem became a lawsuit.

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#52: The X-Files Sexism Debate

This is mark Joseph “young” blog entry #52, on the subject of The X-Files Sexism Debate.

A few days ago I published mark Joseph “young” web log post #49:  Duchovny, Anderson, Sexism, and the Free Market.  It created quite a stir on an IMDB thread where I had announced it, and it seemed that I should provide some kind of response–but the sheer volume of the posts there (which has undoubtedly grown since I wrote this) made it difficult to provide a comprehensive and orderly reply there, so I am writing another post here to address it.

Early in my writing career I learned two important truths that all aspiring writers need to grasp.

First, you are much more likely to hear from those who disagree with you or do not like what you are writing than from those who agree.  As long as you are “preaching to the choir” the choir will nod quietly and let you speak uninterrupted.  Get a few objectors in your audience, and you will hear the objections.  This is good, really.  Those negative responses are valuable.  Some of them are valuable because they give you insight into opposing views; others are valuable because they clearly misunderstood what you were saying, and so may indicate that you need to communicate your points better.  It may be that both of these benefits acrue to me from the comments posted, and for this I am grateful.  Thank you.

Second, there will always be people who will criticize what you wrote without having read it.  They will base their opinion on a title, or a comment from another reader, or their expectations of what you are likely to have said based on such information as they have obtained about you.  My advice is to ignore these people.  Gradually others will realize what their opinions are worth, and arguing with them will not help your position in the least–they do not know and do not care what you are saying, only what they have already concluded regarding what they think you meant.


The objections began with someone self-identified as alphabase17, who seemed to think that by asserting that the action of the producers was not sexist I was denying the existence of sexism in the world.  Perhaps I was unclear.  My point was actually that the sexism that was reflected in the situation was actually “in the world”, not in the producers.  Assuming arguendo that the facts are as they have been presented (more on that in a moment), the reason male actors are offered more than female actors is not because Hollywood producers are prejudiced, but because viewers are.  Both men and women want more to see male leads in their films and television shows, and so Hollywood produces more shows with male leads.  Over the decades as shows with female leads became more popular, more such shows were produced–but it is ratings that drive television, and the decision concerning what to pay an actor is ultimately a bottom-line decision:  will having this actor sell enough soap to pay that salary and still turn a profit?

Our poster alphabase17 asserts that we know the facts, but when those facts are stated they are the same incomplete facts I included in my article:  We know that at one point Anderson was offered half the salary that Duchovny was being paid.  We do not know what Duchovny was initially offered, and we do know that after negotiations were complete Anderson was being paid the same amount as Duchovny.  The way these negotiations work, of course, is that the producers approach the actor’s agent and say we’d like to have your client in our show and are offering X amount; the agent then says X is not enough, we want Z; the producers then say Z is too much, what about we settle at Y?  Eventually they agree on a number that is usually more than the original offer and less than the original response.  Our problem is that for Duchovny, we don’t know “X”, “Y”, or “Z”; for Anderson, we don’t know “X”, “Y”, or “Z” but we do know that her “X” is half of Duchovny’s “Y”, and her “Y” is the same as his.

Let’s be hypothetical, and extrapolate some thinking.  The numbers I’m using are intentionally unrealistic, for illustrative purposes.

    We’d like to launch a new X-Files.  We want Duchovny.  We can do the series without him, but we’d have to rethink it–whether to make it a reboot with a younger actor playing Mulder (like the 2009 Star Trek), or a next generation with a new lead agent taking Mulder’s job (like Star Trek:  The Next Generation), but we’ll take a hit–the show will be more popular if we have Duchovny as Mulder.  Let’s offer him a thousand an episode and see what his agent says.

    So the agent says no, make it ten thousand, and they dicker, and agree on five thousand.  Now they move to the next step.  If they didn’t have Duchovny, they probably wouldn’t want Anderson at all–if they’re replacing Mulder with a younger version, they’ll want a younger Scully, and if they’re moving to the next generation they won’t want Scully at all.

    Now that we have Duchovny for Mulder, we’ll want Anderson for Scully.  We can’t easily have a new actress play Scully, but we could replace Mulder’s partner with a new, younger, agent.  We’d rather have Anderson, but we have options.  Let’s offer Anderson twenty-five hundred, and see where that puts us.

    The agent thinks that’s a solid offer, but it’s his job to negotiate, so he inquires to find out what they’re paying Duchovny, and when he sees the five thousand figure he says, no, you’re going to pay Anderson as much.  They agree.

    Note that if the producers offered Anderson up front what they were paying Duchovny, her agent would reasonably have thought they were more desperate to get her than they were, and would have asked for more; then they would be in the position that Duchovny’s agent would insist that Anderson can’t be paid more than Duchovny, and the entire negotiation process would be in turmoil.  In a sense, they have to offer Anderson less than they’re paying Duchovny.  However, note in this hypothetical reconstruction, their initial offer to Anderson was greater than that to Duchovny, even though it was only half what they were paying him.  Note, too, that the producers expected to pay more than their initial offer.  Initial offers are almost always low-ball for that reason, and a low offer to Anderson meant Anderson’s agent could earn his commission by getting her more without having to demand that she be paid more than Duchovny.

No, we don’t know that this is an accurate reconstruction of the negotiations; the numbers are certainly not accurate.  However, the point that alphabase17 missed is that this is a plausible reconstruction precisely because we do not know what Duchovny was offered before he negotiated the agreed pay.  Comparing agreed pay to agreed pay, we find they are equal.  Comparing an initial offer to one against a final agreed salary of the other tells us nothing, because we do not have the initial offer to the one.  We can be pretty certain that whatever the number is for which Duchovny’s agent settled, it was more than the initial offer.

alphabase17 makes a valid point with this:

As to audience preferences, you offered no data to support the claim that “more viewers are more willing to spend more money to see male stars.”

I admit that to some degree my argument is circular, but it is not entirely so.  Television producers spend a lot of money trying to determine what viewers will watch.  There are people trying to sell them program ideas of all kinds, starring men, women, children, aliens, animals, and who knows what else.  They do audience reactions, surveys, ratings of what people actually do watch, sponsor interest, and much more, and they attempt to pick shows that will attract viewers–and if those shows fail to attract viewers competitively, they get cancelled.  The facts that more shows have male stars and that male actors get paid more than females are strong indicators that all this analysis points to viewer preference for male leads.  It has never been exclusively true–Lucille Ball was able to hold audiences in the fifties and sixties, Star Trek did a series with the wonderful Kate Mulgrew in the captain’s chair (I did not enjoy the series, but she was good), Cagney and Lacey held viewers to a police drama starring female detectives, and there have been many others–but even now more male-star series succeed than female-star series, and producers put their money where the probabilities favor success.

Maybe it’s wrong, but I think that in law it would be said that I’ve got a rebuttable presumption:  there is enough evidence that the statement is true that to contradict it would require proof.

I want to thank waslah for his contribution.  Mish4 (who specifically chose to criticize without reading the article) had said

Why I always expecting the best from a man when they always erase sexism and dismiss women’s serious complains (sic)?

waslah answered

…this comment is kind of sexist in it’s own right. It seems to suggest that all men are misogynists…and that’s a bunch of man hating, misandrist bullcrap.
(Ellipsis original)

waslah is correct, but he misses a critical point about progressivist philosophy:  for some reason, it is only discrimatory if the target is a “protected class”.  You can make prejudicial comments about straight white men without any fear of retribution, but the assumption is that any negative statement made about a woman, or a black, or a homosexual, is inherently discriminatory.  We see this even with Michelle Obama, who assumes that a short elderly white woman asking her, a tall black woman, to reach something on the top shelf in a Target department store reflects the white woman’s prejudice toward blacks, not a recognition of the advantage of height.  If I say that statistically women have less upper body strength than men (anatomically demonstrable) I’m being mysogynistic, because it doesn’t matter that it’s true, only that it can be taken as a negative statement about women (or a positive statement about men, which comes to the same thing); but if a woman says that all men are misogynists, even though that is demonstrably false (whether or not it applies to me specifically), that is not considered sexist because it is not a negative statement about women (or gays).  No, it does not make any sense, but it is the way the progressivists regard the matter.  It has something to do with the fact that our ancestors mistreated these groups, and so we, their descendants, must bear similar mistreatment.

Returning to alphabase17:

…I commented upon it [the Duchovny/Anderson pay discrepancy] on three websites and got a lot of ironic, belittling, condescending comments from men, and those champions of intellect claimed that of course the male deserves to be paid more than the female and that I know nothing about show business and that I must be a vile feminist and that people like me should be ashamed for finding sexism where there is none.

I certainly apologize if I came across that way.  There is nothing in what I said that I intended as a matter of what anyone “deserves”.  That’s a bit like saying that apples “deserve” to cost more than oranges because apples taste better, or are healthier for you, or something like that.  If apples cost more than oranges, it’s because the demand exceeds the supply.  If actors are paid more than actresses, it is because audiences want actors more than they want actresses.  I did not say that there was no sexism involved; I said that the sexism was in the audience, the culture generally, not in the bean counters trying to get as much as they can for the smallest possible expenditure.  They tried to lowball Anderson.  They probably tried to lowball Duchovny first, and they’ve undoubtedly had to negotiate with a lot of people, such as writers and directors, concerning how much everyone will be paid for this project.  Actors are not paid based on how hard they work; they’re paid based on how much audience they draw.

Pizza restaurants buy their ingredients and sell their pizzas.  As one chain likes to remind us, better ingredients make better pizza–but also more expensive pizza.  There are chains that never tell us they make good pizza, they tell us that they make it cheap.  A decision is being made by each restaurant, is it worth the extra money to buy the better cheese, the fresher spices, the more expensive tomatoes?  Will we be able to sell the pizza for enough more to cover the extra cost of making it, or will we make more money by making the cheaper pizza?  From the perspective of the television producers, actors aren’t employees paid for their work, they’re ingredients in a product, commodities bought and sold.  The question is, how cheaply can I buy this actor, and what’s the return on my investment?  Any sexism that goes into that is the sexism of, “What will the audience pay to see this man in the project, as opposed to that woman?”  It is an assessment of the attitudes of the consumers, finding those often to be sexist.

Many of the things I have said here have been said by others in the thread at IMDB; I have been working on this response for several days, and decided not to remove such points.  I will finish with a quote from nrkist2424, from what was the last post on the thread when I finished this.  It was a point I was considering making, but I had no numbers to support it.

[Gillian Anderson]’s pay outweighs the combined pay for all the returning character actors.  Are you concerned about that?

Indeed, if it really were about “equal pay for equal work”, there is a tremendous amount of disparity there.  I read a quote from an actor who said they paid him a lot of money to stand in the rain and drink coffee; the acting he did for free.  The lead actors do not work much harder than all the others on the set; they aren’t getting paid based on their work.  Their performances are being purchased according to an agreed price based on the resale value of those performances.

And in the end, Gillian Anderson was paid exactly the same thing as David Duchnovny, because the studio agreed that she was worth it when she asked.  That’s how negotiation works.

Again, I extend my thanks to all who read the previous article and provided feedback.  Your input has not gone unnoticed.

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#49: Duchovny, Anderson, Sexism, and the Free Market

This is mark Joseph “young” blog entry #49, on the subject of Duchovny, Anderson, Sexism, and the Free Market.

The scuttlebutt in the entertainment industry at the moment is that for the new X-Files revival, actress Gillian Anderson, who plays scientist/agent Dana Scully, was offered half the pay that was offered to actor David Duchovny, who plays agent Fox Mulder.  The outrage arises, that an actress (I’m sorry–“female actor”) would be paid only half as much as an actor (that is, a male actor) for the same work.  It screams that the wage gap is still a real issue, even in mostly liberal Hollywood.

No one can argue that Anderson isn’t every bit as good an actor as Duchovny.  She has more awards and more nominations, even in the “big” ones–Duchovny has two Golden Globes (the second in 2008 for Californication) to Anderson’s one, but she also has a Prime Time Emmy and a Screen Actors Guild (SAG) award.  Even supposing that the competition is stiffer for the male awards than the female ones, her credentials are impressive.

Yet in all the hullaballoo a few points are being overlooked.  So, what’s the real issue?


First, let’s be clear:  In the new revival X-Files miniseries Gillian Anderson is being paid the same amount as David Duchovny.  The complaint is that when they contacted her initially they offered her considerably less than they had agreed to pay him.  Of course, they did not contact her, and they did not contact him–they contacted her agent and his agent, and made offers, which the agents then negotiated to an agreed salary.  Further, we are not privy to any of this negotiation.  We do not know any of the numbers.  It might be that they offered Duchovny a half a million per episode and then settled for a million per episode, and then made the same half million per episode offer to Anderson and negotiated to the same million dollar mark.  The numbers might be much smaller than that; they might be larger.  No one is talking numbers, and no one is talking about the negotiation process.  However, clearly there was a negotiation process, because Anderson’s complaint was that they offered her half of what they were paying Duchovny, but she does not know what they initially offered Duchovny and she does know that her agent negotiated her the same pay before any filming was done.  Maybe that’s not the case; maybe they really did offer Duchovny twice what they offered Anderson.  Neither we nor she know that.

There is, though, a more fundamental issue here.

Star Trek:  The Next Generation was one of the great “ensemble dramas” of the eighties.  Hill Street Blues, L. A. Law, Dallas, and a number of others dotted primetime.  One of the things that distinguished this type of show from those of the sixties was that there was not really a “star”–that is, the original Star Trek was a vehicle starring William Shatner as Captain Jim Kirk, with Leonard Nimoy’s Spock and the other characters all in supporting roles.  Even when a particular episode was primarily about Spock, such as Amok Time, Kirk was the hero.  By contrast, in Next Generation there were entire episodes in which Patrick Stewart’s Captain Jean-Luc Picard was not on screen at all.  Yet when the first film was made, it was reported that Patrick Stewart was paid twelve million dollars to appear, and Brent Spiner (Commander Data) eight million, the two together making near as much as the other major members of the cast combined.  Sure, they had big roles in that film–but we don’t know to what degree they got paid more for the bigger roles versus were given the bigger roles because they were costing the studio more.  The latter is the more likely.  Studios negotiate with actors (through their agents) individually, and from the studio’s side the question is whether having this actor is worth the money in the sense that more people are likely to buy tickets if he is in the show than if he is not.  Presumably Paramount concluded that Michael Dorn (Lieutenant Worf) could be written out of the script if he wanted more than whatever they paid him, and Dorn agreed that he would rather work for that lesser amount than be dropped from the movie.  Picard and Data were vital characters; Riker, Crusher, Troi, La Forge, and others not so much.

So if we assume that 20th Century Fox actually did initially offer Duchovny more than they offered Anderson, the obvious conclusion is that they thought Duchovny was worth more to the show, or would demand more to be on it.  Further, there is evidence to support such a conclusion.  Duchovny had a starring role in the popular pay-cable series Californication for seven years, and since then has the lead in the police drama Aquarius.  Anderson has had a number of critically acclaimed roles–the National Theatre’s A Streetcar Named Desire, Great Expectations, Bleak House–but no leading roles in something primarily popular.  As important as she is to the X-Files franchise and as highly praised for her other work, her name does not sell as many tickets as his does.  The producers do not have the financial incentive to pay her as much, because they would not necessarily expect–or get–the same return on their investment.

Arguably, Duchovny has gotten popular leading roles and Anderson has been working in less prominent jobs because Hollywood favors leading roles for men.  Yes, it does–but not because Hollywood producers prefer men in leading roles.  It’s because of audience preferences.

Geena Davis played a powerfully compelling action hero in The Long Kiss Goodnight, and Samuel Jackson as the sidekick was every bit as entertaining in it as he was in Die Hard 3 alongside Bruce Willis.  Willis was the actor who made yet another sequel, because men prefer to see men in the action hero roles.  Meanwhile, women prefer hearthrob men in their romantic leads, from Rudolph Valentino to Matthew McConaughey.  The prejudices are not with the producers–they will attempt anything they believe will make money, without regard for names or quality or race or gender.  The track record, though, says that male leads draw bigger audiences, and so make more money, than female leads.  There are some women who buck the trend, get good roles and make them work, but most big roles go to men because that’s what audiences pay to see.

So there is indeed sexism in the video entertainment industry, but it’s not in the producers, not in the people who make the movies and television shows.  They pay for what they perceive themselves to be getting.  What they are getting is viewers, ticket purchasers, and what they are selling is what those viewers want to see.  If most of the world wants V-Neck sweaters, most clothing manufacturers are going to invest in V-Necks and avoid Turtlenecks.  When fast food purchasers move more toward healthy food, McDonalds shifts its emphasis away from burgers into chicken, salads, wraps, and yogurt.  Male actors get more money, in the main, because more viewers are more willing to spend more money to see them.  The sexism Gillian Anderson faces is not that of the people making The X-Files.  It’s the sexism of the people watching, who would pay more money to see David Duchovny than to see her.

Sure, there are people who will scream to high heaven that Gillian Anderson is the important person in the show.  Never mind that she was originally hired to be the sidekick to Duchovny’s starring role, instructed to stand slightly behind him so he would be prominent in most shots in the first season, she became the indispensible equal, for some even superior, partner.  Yet the numbers say that you, the viewers aggregately, pay more to see Duchovny than to see Anderson, even if some of you consider her the real star.  The producers are only trying to provide the product that will draw the most customers, the biggest audience, at the lowest total outlay.  As far as they are concerned, the fact that they might be paying a man more than a woman has nothing to do with gender and everything to do with spreadsheets.  It is, ultimately, what viewers are willing to buy that pays those salaries.  That’s where the prejudice is found.

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#48: Inequities in the Justice System

This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it.  It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced.  I shall attempt to keep them clear.  It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.


The story begins with a young man in his early twenties out for a walk on a late summer afternoon.  He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him.  The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything.  They asked him to identify himself, and he gave his name but was reluctant to tell more.  After some discussion he gave his address, and was told he was not permitted to leave until they had identified him.  They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here.  The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here.  The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police.  It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”.  At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars.  The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions.  The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner.  He was told he was under arrest for possession of marijuana.  The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here.  I did immediately, but then, I hit these problems in law school.  Still, I cannot believe that the police procedure here was so incredibly bad.  One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification.  You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers.  If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers.  In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability.  Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution.  The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese.  Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other.  That’s the problem of cross-cultural identification:  our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another.  The identification is already suspect.

However, even if that were not so, there is a much more significant problem.  You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread.  They don’t usually present the suspect to the witness and say, “Is this the guy?”  That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so.  We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population.  Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.”  The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory.  The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there.  By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene.  They have no idea who they are seeking.  Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw.  He made no claim of having seen him up close, or having recognized him from previous acquaintance.  He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street.  About the only information the witness gave the police was young white male, went that direction.  They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting.  That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause.  A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious.  Being a young white male is not suspicious.  Nothing was found on the suspect to connect him to this or any other crime.  The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion:  the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt.  The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect.  Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him.  They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there.  They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him.  They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender.  His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney.  He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these.  It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges.  The public defender application fee is not refundable.

No one apologized for the wrongful arrest.  In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again.  It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances.  After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime.  If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned.  The defendant was not a young black male; he was a young white male.  It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male.  It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately.  Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened.  Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism.  If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests.  If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

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#36: Ligation Litigation

This is mark Joseph “young” blog entry #36, on the subject of Ligation Litigation.

Let me begin with ideas that might not seem immediately on-topic.

You are certainly welcome to stay for supper.  You’re in luck–we do not often have a roast, but someone gave us this boneless pork loin, and it’s almost finished roasting…what’s that, you don’t eat pork?  Well, I’m very sorry.  Unfortunately, I roasted the carrots and potatoes and onions in the same pan, so if that’s a problem, I’m not sure what to say.

Maybe I could scrounge something up for my unexpected guest, but really, my extended hospitality is to share what I have, not what I don’t have.

Just relax, we’ll reach the hospital in a few minutes.  What?  Yes, I have morphine.  No, I can’t give you morphine; it would be illegal, for one thing.  A doctor has to say that you should have it.  Of course I care that you’re in pain, but I’m not going to risk my job to give you something that quite possibly you shouldn’t have.

Of course, I could give the morphine–I am certainly physically able to do so–but there are good reasons for me not to do so.

No, I’m not going to go deer hunting with you.  I know it’s legal; I know it’s even considered necessary:  in a world in which we have decimated the predator population we must also kill the prey animals or they will overpopulate and starve themselves.  Kill them if you wish, but please don’t ask me to be part of it.  I don’t really enjoy killing animals, and I do not want to become the kind of person who does.

I’ll have to think about whether I’ll eat your venison, and obviously I know that someone kills the meat I do eat, but it doesn’t have to be me.

Mercy Medical Center in Redding, California
Mercy Medical Center in Redding, California

Rebecca Chamorro, mother of a third child, is suing Mercy Medical Center in Redding, California, a two hundred sixty-seven bed hospital sponsored by the Sisters of Mercy of Auburn.  She claims that the hospital violated her rights by refusing to permit her doctor to perform a tubal ligation while delivering her third child by caesarean section.

The hospital claims that such an operation violates the “ERDs”, that is, the Ethical and Religious Directives for Catholic Health Care Services, a document of health care directives established by the United States Conference of Catholic Bishops.  The document bans abortions; I presume it also bans euthanasia, although I have not read it (being neither Catholic nor employed in a medical facility).  It lists these things as “intrinsically immoral”, and includes on that list direct sterilizations, certain prenatal genetic tests, and most forms of contraception.  The Catholic Church maintains that children are a gift from God, and participation in sexual relations is an open invitation to God to give that gift; therefore refusing the gift or misusing sex for something other than reproduction is an affront to God.

Obviously, you may disagree with the Roman Catholic Church.  Even many Christians of other denominations, including many (but not all) conservative Christians among the Evangelicals, the conservative Lutherans, and the Eastern Orthodox churches, allow many forms of birth control while remaining adamantly opposed to abortions and abortofacients.  That, though, is not the point.  The point is whether a Roman Catholic hospital should be forced to permit the use of its facilities and equipment for procedures it regards immoral.

The plaintiff’s primary argument is that the refusal to perform legal medical procedures is discriminatory.  There is a sense in which it is not–the same restrictions against tubal ligation also apply to vasectomies–but the argument is that pregnancies are unevenly discriminatory (much more of a burden on women than on men) and thus the refusal to assist in their prevention is unevenly discriminatory.  This, though, is founded on the premise that the hospital is a public institution offering a commercial service–and that’s not exactly true.

At one time all, or nearly all, hospitals were run by religious orders, most of them Roman Catholic.  The nursing staff of such hospitals were nuns–volunteers who devoted their lives to the service of others through the church, tending the sick, compensated essentially with room, board, and basic necessities.  Priests served as doctors, in a time when only a few went to university and those who did were doctors, lawyers, or priests, with some overlap.  People supported the hospitals with their gifts; patients were treated based on need.

Certainly the world has changed.  Hospital staff now includes many employees, most of them paid and not all of them Catholic, although many Catholic hospitals are still staffed in part by nuns and other volunteers.  Medicine is overseen by licensed physicians, because laws forbid the practice by those who do not have such licenses.  However, the mission has not changed, nor the motivation:  to help sick people heal.  These are non-profit hospitals, and the church runs them voluntarily to help the sick.

If you complained that I did not make something special for you as an unexpected dinner guest when you did not want to eat my roast pork, I would politely suggest you find somewhere else to eat.  If you complained that I did not give you morphine on the way to the hospital, I would tell you to talk to my lawyer.  If you complained that I was unwilling to go deer hunting with you, I would tell you to go–well, I wouldn’t, because I’m not like that, but it would put a serious damper on our friendship.

The Roman Catholic Church, of its own volition, offers medical care to persons in need.  They offer more charity care than most hospitals, although they welcome paying patients and insurance programs.  However, they are specific about what care they do–and do not–offer.  If you don’t like it, there are other hospitals.  If it is inconvenient for you to travel to a hospital that is willing to provide the services you desire–and note that this is in no sense an emergency situation here, it is not as if the hospital is refusing life-saving treatment to a patient brought in to the emergency room–then it is apparently inconvenient for you to get the elective procedure you desire.  That seems fairly straightforward to me.

I am concerned that any other answer ultimately becomes an imposition on the faith of the Roman Catholic Church, and indeed on other religiously-affiliated medical facilities (and many churches support these).  It is a small step from asserting that the hospital must permit sterilization procedures it find immoral to asserting the same about abortions; and if (or more likely when) it becomes legal, it is a small step beyond that to requiring hospitals to permit euthanasia in their facilities.

If that happens, I am fairly certain the Roman Catholic Church will close its many hospitals and look for some other way to help needy people.  A two hundred sixty-seven bed homeless shelter might be a great help.

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#24: Religious Liberty and Gay Rights: A Definitive Problem

This is mark Joseph “young” blog entry #24, on the subject of Religious Liberty and Gay Rights:  A Definitive Problem.

Christians today are being forced to recognize the marital unions of homosexual (and lesbian) couples as just as valid as those of heterosexuals, and even to participate in the celebration of those unions by providing services, from signing marriage licenses to baking wedding cakes and taking photographs.  Many Christians hold the view that homosexuals cannot legitimately be “married”, that homosexual relationships are an affront to God and to nature, and that it is an affront to our faith to be forced to participate–akin perhaps to insisting that Muslims and Jews participate in a feast at which a pig will be roasted and served to all the guests.  We ought to be excused from such offensive events.  Yet time and again the courts rule against us, despite the First Amendment to the Constitution which protects Americans from government intrusion into religious faith and practice.  It is confusing, at the least.  Why is this happening?

The answer is that over the past century or so the meanings of several critical words have changed just enough that our objections have been voided.  Three words in particular have taken altered definitions, and left Christians behind.

Of course the word marriage has changed meaning over time.  It comes into English through French from Latin, the Latin referring to a sexual relationship and thus, for the Romans at least, to an ongoing sexual relationship between a man and a woman.  The Romans were rather specific about this, and that definition came with the word into English thanks largely to the Roman Catholic Church.  A marriage, well into the early twentieth century, was a permanent commitment between a man and a woman with a view to producing and raising children; it was definitively a procreative relationship.


It was also primarily regulated by the church in most of the western world, even in the United States.  Marriage “licenses” were created originally to bypass “the banns” (we’ve discussed this before), the rule that required an intended marriage be announced publicly several weeks in advance of the wedding in the home region of the couple so that objections could be known in advance; the parties could in effect post a cash bond guaranteeing that there were no impediments to the marriage, and so marry more quickly or in a place where one or the other was a stranger.  They were optional, even through the early twentieth century–but they had become required first for interracial marriages, gradually for all marriages, and for the very telling purpose that the government wanted to regulate the number of mixed-race children and then additionally prevent incestuous marriages.  Marriage licenses were about regulating sex, and guaranteeing that a couple who had sex would thereafter be jointly responsible for the children produced by their act.

Several things happened in the twentieth century.  One had to do with the Federal Income Tax system, because someone decided that if a couple had children, or was trying to have children, that probably meant one of them (usually the woman) would not be working, and the income of the other would have to support both–and since the government wanted to encourage procreative relationships, such couples, identified by a legal “marriage”, were given a lower tax rate.

The second thing that happened was really many things.  Divorce law changed such that gradually it became easier for couples to separate.  Divorces being very messy cases, courts and legislatures tried to disentangle themselves from the mess by moving toward a system by which what had been presumptively permanent commitments now became readily dissolved.  Further, attitudes toward sex changed, and the judiciary took the view that it was inappropriate for government to regulate sexual activities outside those special cases in which it was likely that someone was being compromised (rape, incest, possibly prostitution).  That meant it did not matter whether someone’s sexual preferences were “aberrant”, as long as they were not abusive.  Any adult could have sex with any other adult, and the government would mind its own business if no one was being harmed.  There is still an issue as to whether anyone is being harmed in these relationships, but the government has decided that in most cases they aren’t even if they are, or at least that they assumed the risk that they would be harmed when they entered the relationship.

The upshot is that marriage is no longer defined as a permanent procreative relationship, but rather as a disolvable partnership between friends.  A critical element has been changed.

The word homosexual did not not exist in the nineteenth century.  Such men were called “sodomites”, and it had a very negative connotation.  Early in the twentieth century someone in the psychology field coined the new word to identify what was then regarded a psychological aberration for study and treatment.  The word itself was criticized as a nasty hybridization of a Greek prefix (homo, “same”) with a Latin root (sexual, “pertaining to gender”).


As attitudes about sex changed in the mid twentieth century, part of that was the notion that two persons engaging in sex were not hurting anyone and ought to be permitted to enjoy themselves.  This justified what had previously been called fornication but was now called free love, what had previously been called adultery but was now called having an affair, and, eventually, what had been called sodomy but was now called same-sex love.  What had been an unspeakable perversion in the nineteenth century by the dawn of the twenty-first was simply a different lifestyle.

However, the definitional change goes deeper than this.  This is not so simple as a different lifestyle.  It’s not like choosing whether or not to be a vegetarian, or deciding to join a convent, or moving to a farm.  Although science has produced not a shred of evidence that homosexuality is genetic, homosexuals have insisted that they are born that way, and that therefore they cannot really be classed as “men” and “women”, but instead are two more, different, sexes, that homosexual male is no more heterosexual male than heterosexual female.  The assertion is that they are a separate group, another sex, very much like a race.  With the most recent Supreme Court decisions, it seems that the law has agreed.

Therein lies the key problem, the reason our bakers and photographers and caterers and honeymoon hotels are all being told that they cannot refuse service to homosexual couples.  Under the law, it would be the same as excludng service to Blacks or Chinese because of their race.  We went through this in the sixties, as Whites–not just southern Whites, it happened also in Chicago–tried to segregate Blacks by legislation and private practice, when restaurants would not serve persons of color and school boards sent black students to their own schools.  It was an ugly time in that regard, and while we can argue to what degree racial discrimination has been ended (we’ve addressed that before, too) we can probably agree that things have improved from then, and that we do not want to go back to that.  However, the problem is that under law homosexuals are in essence the new Blacks, the group we are not permitted to segregate or exclude, not permitted to refuse to serve, because they are not ordinary men and women engaged in a disgusting sexual perversion, but newly-recognized genders whose different proclivities are ordinary for them and protected by law.

The upshot is that homosexuality is no longer defined as an aberrant sexual practice, but rather as a third (and fourth, and maybe fifth and we do not know how many more) sex, to be protected as women are protected, and any expression of a different attitude on the subject has legally been defined as discrimination.

One more word has changed its meaning significantly over the past century.  The word is wrong.

To say that the word wrong has changed its meaning is, well, wrong; it still retains most of the meanings it ever had.  The problem is that in jurisprudence the acceptable meaning of the word has shifted, and things which were once almost universally understood as “wrong” are not.  Not that this is news, nor even different–society has always been in flux concerning what it regards as wrong in the details.  However, there has been something of a fundamental shift, not a problem with what specific things are wrong but a problem with what constitutes “wrongness” itself.


Jonathan Haidt has studied morality, and has written rather persuasively that the kind of morality we have in “Western Educated Industrialized Rich Democratic” (acronym WEIRD) societies is based primarily on one of six fundamental moral values that the rest of the world, now and from time immemorial, shares.  For progressive liberals, the moral value that matters is dubbed “care/harm” (making the lives of others better, not worse), although they also recognize a “liberty/oppression” value (the primary value recognized by libertarians, individual autonomy).  There is a third value, “fairness/cheating”, recognized, to which we will return.

Conservatives recognize these values, but also recognize three others that are embraced by most of the rest of the world (outside WEIRD areas).  These are “loyalty/betrayal” (what makes it wrong to be a “traitor”), “authority/subversion” (respect and obedience within a hierarchy), and “sanctity/degradation” (the notion that some things, whether churches or flags or sports teams, deserve respect, and others are perversions deserving disgust).  Thus for most of the world, yes, it is wrong to hurt others, wrong to oppress, wrong to cheat, but it is also wrong to betray your own family, to disobey your leaders, and to disrespect your flag or other culturally identified artifacts of identity.  These meanings are not completely lost on people–when someone says, “That’s just wrong,” he is probably tapping into this notion of sanctity/degradation.  However, progressives are so far from these understandings of morality that many of them consider them the enemy, obstacles to what genuinely matters.

I said we would return to the “fairness/cheating” value, because it is universally held but at the same time it is expressed in two distinct ways.  For progressive liberals, “fairness” is about equality of outcome; the ideal for them is the socialist model, in which everyone gets everything he needs regardless of how much he is able to contribute.  For everyone else, “fairness” is about proportionality, that you reap as you sow, that people who work harder should earn more, people who contribute more to society should get more from it.  Thus for most of the world, it is “fair” for potentially procreative heterosexual couples who commit to long-term child-raising relationships to receive benefits which enable that which are not available to others (e.g., tax breaks), but for progressive liberals–and for the current United States legal system and that of other WEIRD countries–it is unfair for such couples to receive such benefits merely because they are giving society a future population.

Christians are thus stymied in finding an appropriate legitimately legal response to what a century ago would have been universally recognized as a complete perversion of the legal system, because over time the meanings of these three words have changed.  To have said then that recognition of a procreative union between two members of the same sex engaging in sexual relationships is a perversion of that which is inherently sacred would have made perfect sense.  Today the words “homosexual marriage is wrong” no longer mean that.  They mean something like, “It is unkind to allow members of one sex to have the same rights available to those of other sexes regarding temporary relational partnerships,” which is not something anyone believes.  To Christians, the old meaning is still the meaning; to the progressive liberals and their legal system in western countries, it is akin to saying that blacks cannot function as free people and need to be slaves.  The world has changed, and expects us to keep up.

Yet as we have also previously said, keeping up with the world is not always the right thing to do.

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#21: Genetic Counseling and Eugenics

This is mark Joseph “young” blog entry #21, on the subject of Genetic Counseling and Eugenics.

Quite a few years ago now I knew a girl, a childhood friend of my wife, who married a man with Crohn’s Disease.  Not long after the wedding she had a tubal ligation, and they bought a dog to pamper.  The explanation was that Crohn’s is genetic, and her husband did not want to bring a child into the world who would suffer what he had suffered.

This kind of decision is made all the time.  It is called genetic counseling, when medical professionals evaluate the probability that a couple will pass a genetic disease to their children.  Sickle cell anemia is one of the most common of such maladies, and many black families forego having children to stem its transmission.

People want babies.  It’s part of being human.  However, it is also part of being human that people want healthy babies.  Obstetricians have the highest malpractice insurance rates of all doctors, because imperfect babies are born and horrified parents want to blame someone with a lawsuit.  Modern technology has made it easier to have perfect babies.  The parents who might be carriers of sickle cell can have their unborn child tested in utero, and if the child has the disease, it can be aborted, never forced to live with the pain of this crippling disease.  The same can be done for Crohn’s Disease, Spina Bifida, Down Syndrome…or can it?

North Dakota Capitol Building
North Dakota Capitol Building

North Dakota has made it illegal to perform an abortion based on detected fetal abnormalities.  Ohio is likely to pass a similar law banning abortions performed because the unborn child has Down Syndrome.  To those who support abortion, these laws, described as acts to protect the handicapped, are outrageous impositions on a woman’s rights.  Yet there is something to the argument.

Although statistics are difficult to determine with any accuracy, everyone agrees that the majority–anywhere from sixty to ninety percent–of unborn children diagnosed prenatally with Down Syndrome are aborted in the United States, and that the estimated rate is higher in Europe where it might reach ninety-five percent.  Some parts of the world applaud this as a reasonable means of wiping out a genetic disease.  To some, the termination of pregnancy because the unborn child has a serious genetic defect is considered one of the best reasons for such a decision.

What, though, can be more discriminatory against the handicapped than killing them because of their handicap?

Oh, but wait:  an unborn child is not, under the law, a handicapped person; he is only a growth that has the potential to become a person.  He has no rights, and therefore killing him is not an act of discrimination against a handicapped child, but the excision of a deformed growth.  The rights of the handicapped, and the fact that they are killed almost routinely, are irrelevant.

This, though, might not be a position anyone wants to take.  After all, seven states–Arizona, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota–ban sex selective abortions as acts of gender discrimination.  It is against the law in those states to terminate an unborn female child because you wanted a son (or presumably to terminate a male because you wanted a daughter).  Arizona also bans abortions based on the race of the unborn child as being racially discriminatory.  To say that the unborn Down Syndrome child has no rights that can be protected from discriminatory abortion (that is, abortion based on the fact that the child will be born handicapped) is to say that the unborn daughter or son, or the unborn mixed race baby, has no rights and can be killed solely for being the wrong sex or the wrong race.

There is a degree to which the laws are irrelevant, like restrictions on job terminations:  you cannot fire an employee for attending a union organization meeting, or for being homosexual, or for reasons of race or religion–but you can fire an at-will employee for no reason at all, so you simply have to avoid saying that any of these factors led to the decision.  In the same way, a woman can terminate a pregnancy without giving a reason for doing so; she just cannot say that the reason is because of the gender, the race, or the genetic disability of the child.  In practical terms the only thing they limit is our ability to be frank about our motivations.

Even so, these laws force us to face a fundamental aspect of our attitude toward abortion.  Should a mother be able to decide that she wants to abort a child because the child’s medical condition will result in the child having a less than fully normal life?  Does that reflect a reasonable desire to protect the child from its own illness, or is it making a discriminatory value judgment that it would be better not to live than to live with such a handicap?  (How many handicapped-from-birth adults would rather never have been born than have been born handicapped?)  Is it reasonable to say that the health of the mother would be threatened by the birth of a handicapped child in a greater way than it would be by the birth of a normal child, or by an abortion?  If so, is it also reasonable to say that the health of the mother would be threatened by the birth of a daughter when she wanted a son, or a son when she wanted a daughter, or by a mixed-race child instead of a pure-race child?

We have stretched the concept of “health of the mother” far enough that it amounts to “I don’t want a child, and therefore it would be unhealthy for me to have one.”  How much further does it have to stretch to be, “I don’t want a handicapped child,” “a mixed-race child,” “a daughter”?  It seems to me that that is not a very far stretch at all–which means either we have already stretched it too far, or we have to accept that sex-selective abortions, abortions of the genetically handicapped, and race-based abortions are all as good a reason as any other, and do not constitute discrimination against a person, because there is no person here and the mother has been given the power to decide whether there will ever be one.

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