Her theory, memorialized in Grutter v. Bollinger, 539 U.S. 306 (2003), holds that race is a valid factor for colleges to consider, so long as the term serves as a proxy for diversity in student background. The notion is that different people create diversity; diversity is a valuable resource to any college; and it’s hard to spot diversity from a paper application, except with reference to race. It’s hard to deny this argument — at least, it’s hard to deny the first three steps, especially if we believe that cultural mixing is, even to conservatives, a good thing.

Indeed, if we take Justice O’Connor at her word, the problem with her argument is that it’s too right. It substantially unmoors the concept of affirmative action from the transient need to correct for past injustices, and connects it to something far more permanent: the need for colleges to train citizens, rather than just thinkers. Effectively, by mooting the historical justification, her argument renders the sunset provision an irrelevant concession compelled less by the logic of the case, than by political reality. O’Connor’s promise to end affirmative action speaks to a blemish she, in the same opinion, manages to eradicate.

The real danger, then, is that today’s Supreme Court takes her at her word, and overlooks the real value of diversity in student background. An adverse decision, ending affirmative action, will compel colleges to design a new way to select for student quality and diversity — probably by taking long looks at each individual student, demanding more substantial student submissions, and otherwise further complicating an already complicated process — or lead them take one of two easy ways out. Colleges could simply stop selecting for diversity, and grow to tolerate cultural homogeneity in higher education. Or they could find another proxy for diversity, one that might be equally offensive, but won’t invite strict legal scrutiny. Like income.

The story does not have an especially happy ending (at least from a human, secular standpoint). Eleazar is tortured to death, then an entire family of brothers after him. But the story of Antiochus IV Epiphanes, and Eleazar, remains a remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.

There are relatively few instances in recorded modern western history when government has insisted on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience.

Indeed. Per Paulsen, forcing an employer to subsidize their employees’ contraception violates religious conscience as surely as commanding a Jew to eat pork. It’s this kind of tortured logic, and apparent conviction that a democratically-elected leader is out to “get” the faithful as surely as an ancient despot, that together signal a religious lobby that’s overplayed its hand. Paulsen’s legal argument is worse, still:

The legal case against the Obama HHS policy was (and remains) shooting-fish-in-a-barrel easy. The policy violates the First Amendment’s Free Exercise of Religion clause, under any interpretation. It is not neutral toward religion, exempts some religious employers and not others, and vests government bureaucrats with broad discretion as to who will be exempted. Even more clearly, the policy violates the “Religious Freedom Restoration Act” of 1993, a federal super-statute that protects religious liberty and applies to the operation of all other federal laws unless a new law explicitly removes itself from RFRA’s requirements. Under RFRA, any federal law or regulation that burdens the exercise of religious convictions must give way to such beliefs, unless justified by a “compelling” interest that can be achieved in no other way. The contraception cram-down cannot possibly pass such a stringent legal test: what makes compulsory contraception, paid for by religious groups, “compelling”? How can it be so important, given other exemptions from the requirement?

The critical legal error duplicates the flaw in the historical analogy: the parallel isn’t to a king commanding his Jewish subjects to eat pork. It’s to a king commanding all of his subjects to provide their household servants with a living wage suitable to buy — if the servants so choose — pork, and preserving the new rule of general application over isolated Jewish objections. HHS’ expanded coverage allows American women to take home more of their paycheck, and spend less on drugs that are either an incident of modern life, part of modern reproductive medicine, or now-standard treatment for regular gynecological conditions (“the Pill” is more than prophylaxis — it’s regularly used as medicine for hormonal imbalances). “Discrimination” against the faithful occurs only insofar as they’re asked to contribute, with the rest of society, to expanding this new coverage to a majority of the workforce. Viewed from this perspective, the burden on religious expression occurs only through the attenuated connection between employer and employee, and only as an incident to otherwise valid and rational regulation, falling squarely into the rule of Employment Division v. Smith, 494 U.S. 872 (1990) (holding that religious belief — here, in the transcendental qualities of peyote — cannot defeat a general rule barring drug use by state employees).

HHS’ expanded coverage requires employers to take no immoral act, other than forfeiting their right manipulate the scope of insurance coverage to control the private moral choices of their non-clerical employees. It makes a full 50% of the population freer, happier, and healthier — but cuts one of the few remaining tethers the religious elites use to control the rest of us. That’s what this fight is really about.

As I’ve written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason – they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.

But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters’ views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.

The point on the presumptive validity of tradition is well-taken; indeed, as we’ve noted before, tradition serves as evidence that a certain practice probably used to work. But we’ve also noted, to answer the author’s narrow conception of when tradition should change, that proof of a new, superior value system is probably too high of a standard for the rejection of tradition. Moreover, it’s not one that we’ve followed. Popular rule was, at the time of its institutionalization in the American Constitution, an unproven system; we had no reason to expect that republican democracy would work for a country as large as the United States, but were impelled to the experiment by a conviction that Europe’s tradition of monarchy simply no longer served. Tradition deserves its due, but its presumption of validity does not deserve to endure until something better comes along.

Separately, we’re handed a populist argument for tradition — that:

The myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers.

No, for several reasons. First, the author’s example fails on its face: the Bill of Rights was enacted wholly by an educated, upper-class elite, acting uniformly against the tradition of the previous millennia of human history. Mankind had at that point no history of institutionalized religious freedom, and yet we have the First Amendment; and to the extent that the Bill of Rights was meant to secure the rights of Englishmen, to which the colonists felt themselves entitled, it secured those rights through the novel concept of a government ordained by law and by men, rather than by God. “An insular number of lawyers” crafted the American system, with the ratification of the colonists, after a prolonged, top-down publicity campaign. Our government is the product of hard-won knowledge, thought, and rigorous debate — not simple homespun wisdom.

Further, it’s true that judges gave us Dred Scott. But that blight on American history was emphatically a defense of the status quo – of Southern tradition, but tradition nonetheless And later judges gave us, in anti-populist top-down fashion, Brown v. Board of Education. Any defense of tradition against its sudden modification by “elite” lawyers must contend with this example, among others, or risk entirely dodging the part of the debate that makes it interesting in the first place.

Finally, query whether “traditional values” can actually claim a populist provenance at all. Many modern religious traditions were the creations of elites, ignored by them but imposed on the people, like (for example) the much-eroded “tradition” against divorce. Others were roundly proclaimed, but rarely followed. Abortion is controversial today only because it’s never been talked about openly until the modern era; the practice dates at least to Roman times, where (extremely dangerous) chemical abortions were regularly practiced among the nobility. Maybe that’s not an argument against the moral value of tradition, but it’s proof that viewing tradition as the result of generations of trial and error doesn’t quite hold up.

Modernity requires us to square practices designed for insular, homogeneous communities with an increasingly interconnected and diverse world. Conservatives like RedState would see us abdicate this duty, close our eyes, and pretend to live in an idyllic past that never actually existed. But, it’s good to see that the author is at least consistent: reflexive opposition to a liberating society is the conservatives’ proudest tradition, even if it’s not one that’s served them well.

Conservatives question the sample selection, so to make it truly resonate, let’s adjust the conclusion: people of faith of an age with or younger than the generation currently leading the country universally view the use of contraception as either a private choice, or a regular incident of daily life. Arnold’s Sea of Faith has either receded, or adjusted to accommodate individuals more comfortable with their sexuality, while religious leadership lags well behind in similar social progress.

If we’re seeing an opening divide between a “protestant” population more willing to chart their own course within the loose confines of their faith, and a “catholic” clergy insistent on an increasingly irrelevant, outdated orthodoxy, the time to use the divide, to increase the liberty of the majority and push back bigotry, is precisely now.

When John F. Kennedy first ran for the presidency, he took the podium to explain to a curious nation how he, though Catholic, had moved well past 14th century sensibilities, and would not feel bound to follow the policy or moral advice of St. Peter’s heir. (This was an honestly-felt tenet of anti-Catholic sentiment at the time.) Fifty years later, modern fundamentalists scramble to show their adherence to the orthodoxy of the religious elites, paying tribute along the way to everyone from Jerry Falwell to the USCCB. Somewhere along the line, something went wrong — giving President Obama, and religious Democrats, a chance to make a compelling case for personal faith and personal religion, and a belief system that validates meaningful theology, rather than a medieval morality that no-one even followed in the first place.

First, Mr. Santorum appears alone in his belief that God can confer rights on men without mediation through some secular power structure. The Magna Carta itself — from which the rights of Englishmen so cherished by the Founders derive — was drafted to secure to the people, through the crown, rights recognized by God. And Catholic theology plainly holds that Christ’s law can only be discharged through human intermediaries. Even if God creates rights, man administers them.

Separately, Santorum’s conclusion that the creation of separate, government rights somehow dilutes rights of a more permanent basis lacks foundation in American law. The Constitution creates certain rights which the people may not abridge — including, per the Supreme Court and contrary to Santorum’s particularly deranged philosophy, the right to accessible contraception — but these are inherent in the document, based on the theory that the Founders pre-committed us to certain non-derogable rights. As legally permanent, these rights exist on the highest plane of American law. On a lower plane are those created or destroyed with regularity by the Congress: the superstructure built steadily above the “floor” provided by the Constitution. These include, for example, welfare rights, and other “new property” concerns, but go so far as to include various remedial vehicles that exist to discharge other fundamental rights, or to fulfill promises made by the Founders but not brought by them to completion. Among others, the right to discharge debts by bankruptcy is contemplated by the Constitution, but not accomplished by the document itself. If the legislative creation of similar rights consistent with the structure and intent of the Constitution somehow dilutes the whole, the compact cannot be administered without accomplishing its own destruction. Dividing constitutional concepts between the sacred rights created by the Constitution, and profane rights created by constitutional process but somehow inimical to it, simply does not make sense.

This is especially so if the Constitution is itself divinely inspired — as believed by Mormons, and specifically, by devotees of the mad Skousen — since all legislative creations of the constitutional process should share in that grace. But this notion of some latter-day divinity of government is separately problematic. If constitutional rights are made and handed down by God, disputes over government automatically become disputes over religion, investing average political debates with eschatological and doctrinal baggage detrimental to the larger society. (Such magnifying rhetoric explains, for example, how quickly the debate over healthcare reform became a debate over “tyranny.”) The Constitution is emphatically a document for us all, written “to define the liberty of all, not to mandate our own moral code.” If constitutional debates can be resolved by reference to private, factional, or sectarian morality, rather than catholic concepts belonging to all Americans, we have abandoned the notion of a Constitution and a country for all citizens. Though this is, probably, exactly what Rick Santorum has in mind.

Julia’s reader questions whether self-described rationalists erroneously prefer to subvert rather than follow tradition whenever possible, rather than whenever wise — resulting in something like the counterculture fallacy, where social groups attempting to cultivate a unique identity reflexively reject cultural norms, thus creating the very type of static, predictable identity they fled in the first place.

To answer the charge, Julia correctly notes that tradition is, by its very nature, bound up with a strong, countervailing selection pressure favoring the status quo. Thus, even though a tradition’s duration is strong evidence that it was, at some time, probably a good idea, unless updated and checked against dynamic social norms, a practice’s longevity alone is not proof of its continuing validity. If self-styled rational actors appear to avoid tradition, then, it’s only because they more forcefully “update” with new information.

This of course is something we’ve bumped up against before on this site, and something that comes up often in law, where the question of how to value tradition — if at all — functionally determines one’s approach to constitutional decisionmaking. There, reflexive trust for tradition famously ossified into the concept of constitutional “originalism,” where a legal tradition’s antiquity defines its merit, not merely because older concepts often derive from the founding generation, but because the conflation of antiquity with merit serves as an easy, objective way to decide close cases. Rarely will you see the debate broken out more clearly than in Justice Scalia’s famous colloquy with Justice Brennan in Burnham v. Superior Court, 495 U.S. 604 (1990) (analysis). Concurring in the judgment, Justice Brennan makes Julia’s very point, that “tradition is salient not in the sense that practices of the past are automatically reasonable today,” but only to the extent that they have some separate systemic value. The rational jurist will focus almost exclusively on that separate value, resulting in a fundamentally different decisionmaking style, and therefore producing an above-average number of conflicts with more tradition-bound judges.

The same process could explain why, at the personal level, rationality may appear to result in an over-correction away from tradition: deference to tradition is simply so prevalent that, once you abandon the practice, your worldview changes dramatically. But like Julia’s reader, I wonder whether over-selection of subversive cultural choices is in fact a by-product of any movement that conspicuously defines itself as different from the rest. As a matter of human nature, we sometimes prefer identities externally consistent with others to those internally consistent with ourselves (pick any show about “fitting in” to see what I mean, like, oh, I don’t know, Mean Girls or My Fair Lady). My answer — and I suspect Julia’s, too — is that those attempting to make rational life choices must first, and before all other things, be honest with themselves about what they want. That may mean adopting or buying into cultural norms that others might find outdated. But just as it’s not anti-feminist to choose to become a stay-at-home mom, it can’t be anti-rationalist to hew to other traditions (monogamy over polyamory/promiscuity?), provided either choice is made, genuinely, to make you and no-one else happy over the long-term. Sometimes, naturally, the value of a traditional practice only becomes apparent in its absence.

Second, and more importantly, the Ninth Circuit Court of Appeals sustained Judge Vaughn Walker’s decision of August 2010 striking down, as unconstitutional, California voters’ attempt to end gay marriage in their state (styled Proposition 8). Perry v. Brown follows the tradition of Romer v. Evans, 517 U.S. 620 (1996), the last comparable gay rights case to reach the Supreme Court, where a six-judge majority threw out a Colorado provision which purported to invalidate city- and community-level ordinances prohibiting discrimination against gay citizens. Circuit Judge Reinhardt quoted Romer to build on this sentiment, in his opinion for the 2-1 panel:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. [. . . .] The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

Slip op. at 5. Set against this background, Perry‘s holding reinstating gay marriage as a constitutionally protected right in California seems a garden-variety exercise of judicial review. It is, after all, settled law that “we don’t like them” fails to provide a rational basis to strip an otherwise inoffensive class of important rights. But because Perry will likely proceed to the Supreme Court, and to meet the opening conservative criticism, some interesting points about the Perry decision:

• Perry applies rational-basis review: this is as-expected, since homosexuals are not yet a protected class, and reflects the highest possible deference to the people. (Shockingly, Maggie Gallagher appears not to understand this point.) The benefit for plaintiffs is that, although the Court declined to recognize homosexuals as a protected class, they conclude that even indulging in every favorable inference in favor of the peoples’ basis for enacting Proposition 8, the measure fails a basic test of rationality.
• That puts Kennedy in a bind: For Prop 8 proponents, that should sting a little. But it also opens up the possibility for the Supreme Court to reverse, and hold that rational basis review requires broader deference than the Ninth Circuit offered. Interestingly, that would be a hard argument for Justice Kennedy to make. He was the author of the opinion in Romer that held that animus is never “rational,” meaning that, to reverse Perry, he’d have to reverse himself, or weasel his way out of his own logic.
• Threshold issues didn’t matter: contrary to our predictions, the Ninth Circuit disposed of the standing issue summarily.
• The Court is protecting itself: Judge Reinhardt very carefully limits the scope of his holding to the peculiar case of California, where gay marriage was a constitutional guarantee (if only due to the California Supreme Court) before the voters wiped it out. By focusing on the negative nature of Prop 8, the Court avoids (it says) making any argument that could suggest a positive case for gay marriage in those states lacking a pre-existing constitutional right. Slip op. at 6.
• The Court is protecting Judge Walker: the lower court’s decision became a cause célèbre for its extensive factual findings, setting out the value of marriage to gay and straight couples alike, and the motivations behind the enactment of Prop 8. But some legal commentators have questioned whether it won’t be all too easy for higher courts to disregard Walker’s finding, as falling outside the bounds of the traditional types of trial facts to which we afford great deference. Perry compromises, by narrowing the universe of relevant facts, before finding the subset of relevant facts worthy of deference. Slip op. at 32. The effect is to sully Judge Walker’s larger opus, but guarantee that the Supreme Court can’t use Walker’s factual findings against him to (say) order retrial.

The second point dominates the rest, and indicates that this could be an easy (even a 6-3) win for gay marriage advocates. But since, as written, the decision doesn’t declare a positive right to gay marriage, it won’t guarantee nationwide recognition of gay marriage. Even if it will usher in a landslide of parallel litigation designed to settle that very issue.

Call it “trickle-down values,” built on the assumption that, for some reason, the rich lead more stable, wholesome, and moral lives. And challenge it if you like, but it’s hard to argue with Murray’s numbers (even if his causal inference, that wealth breeds responsibility and not vice versa, remains vulnerable). The broader point, that we should do something about our increasingly divided nation, holds up. Pace Republicans, but President Obama’s “class warfare” is a symptom, not a cause of, an inequality issue that’s gone unacknowledged for too long. If conservatives need a case like Murray’s to interest them in uniting the country, so be it.

Separately, though, I would question whether the rich couldn’t also stand to learn something substantive — not just cultural — from the rest of the country.

As conservatives instruct Americans to remember to live within their means, they simultaneously prop up a financial system predicated on hyper-leveraged finance, imaginary money (the “Synthetic CDO”), selfish exploitation (if “the Magnetar Trade” doesn’t qualify as actionable fraud, it’s at least bad citizenship), and simple irresponsibility. As a former lawyer for top financial institutions, I can now tell you, of course without naming names, that some banks’ trading practices betray an almost shocking level of recklessness. There’s one bank that executed billion-dollar trades, but never kept track of their paperwork, meaning no-one at the bank knew, at any point prior to the credit crisis, what they owed or how to mitigate losses once the bottom fell out. And this apparently isn’t abnormal. If the 1% statistically stand as role models for private morality, their public morality, sense of civic duty, and responsibility to the larger society are all easily eclipsed by the average soldier. Or that soldier’s family, living paycheck to paycheck and enduring the absence of a family member as he (or she) fights their country’s wars.

*      *      *      *      *

Astonished with America at the turn of the 18th century, Alexis de Tocqueville famously of us, “there is no class here.” Consistent with their broader approach to “American exceptionalism,” so many Republicans would treat that as a static fact, inherent in the nation, unchangeable. But it’s high time to acknowledge that past victories are triumphs to live up to, not laurels to rest on. Rich and poor alike have a lot to learn from each other about being good citizens.

The notion of the legislator as a small-scale Cincinnatus, taking up the reins of power as needed but retiring thereafter to his farm, is an ideal realized by Texas, where it’s ingrained in the constitution, but approximated by many other states. (Only ten states have true, full-time legislatures, though at least in New York, the most effective legislators treat their positions as full-time.) And especially in Texas, it’s proved an unmitigated disaster. Ordinary men and women simply cannot be expected to both manage independent lives, and keep up with the realities of governing large-scale polities in the increasingly complex modern era.

Just so, it’s impractical to expect the legislator’s function to be discharged competently by laymen. That’s the theory of a recent lawsuit against the state of Colorado’s process of budgeting-by-referendum, where, plaintiffs contend, taxpayers seem unwilling to either vote the legislature the money it needs to do its job, or allow cutbacks on state obligations (like the PTA in that Simpsons episode). To no-one’s surprise, the motivating goal of modern Republicanism — to “starve the beast” — just doesn’t work, at least in Colorado.

These distinct problems are bound together by a common solution: better ethics rules, and renewed respect for the work of diligent, professional, educated politicians. Government corruption, and the disproportionate influence of lobbyists, are both true threats to American democracy. But ending the profession of civil service, or trading representative for direct government, are both extreme overreactions, akin to killing a patient to cure their cancer. I’ve had the pleasure to work for several politicians who modeled the values of true civil service, working twenty hour days, eschewing high-dollar contributions, and rigorously enforcing a true separation between the work of government and the work of politics. We need to encourage these kinds of servants, and put them in positions of power where they can make a difference, rather than relegating them to the role of the insurgent reformer.

That process starts with reversing Citizens United‘s narrow view of corruption — where only payments directly to the politician, rather than through intermediaries, evidence regulable misconduct — continues with genuine ethics reform, and ends with an electorate that recognizes and values talent in its elected officials, rather than condemning it as “elitism.”

The concept I use to address some of these questions is “error deflection,” a term borrowed from one of my favorite law school professors. It starts by accepting that we act (always) on the basis of imperfect information, and that, especially with hard decisions, mistakes will often result. (“Bad facts make bad law.”)

Accepting the possibility of error, we change the question from “what should I do?” to, “accepting that I may be wrong, how would I like to be wrong?” Mistakes often have consequences, but they’ll always have different consequences. Choices effect results, in success or in error.

This has the effect of changing a question from one about possibilities, to one about values. For example, many choices are intrinsically about risk: do you preserve the status quo, or try to make it better? Error deflection in these cases is all about you. Do you take chances to build a better world? Or is what you have worth defending, and too valuable to potentially lose?

Others, especially in politics, reduce to questions about worldview. The presumption of innocence is nothing more than a conscious choice to always deflect the risk of error in a verdict towards liberty over safety. If we’re going to be wrong, we’d rather free a murderer than jail Valjean. Similarly, the liberal case in national security chooses to deflect error towards the open society. We’d rather take a 1% risk of a terrorist attack than accept the fact (or, 100% likelihood) of a society that profiles on the basis of race. And we don’t believe the ethical calculus of the presumption of innocence alters just because the magnitudes of risk increase across the board. True, freeing a terrorist is a horrifying prospect; but torturing an innocent man, and keeping him from his family until the “cessation of hostilities” is pretty bad too.

The concept works especially well with murky probabilities. Pretend that anthropogenic global warming is a 50% theory — it’s equally likely, in other words, that mankind is or isn’t affecting the climate. We shouldn’t be paralyzed by indecision, because the question of whether to do something about it, once recast, is easy. A 50% chance of human annihilation is worse than a 50% chance of trying to avoid it and failing, no matter how much it costs Exxon. (This is the case I made a few years ago. I’m just updating it for new readers.)

And, error deflection can be romantic! Should you call the girl? Well, it depends. Would you rather know, or always wonder? (And here’s a song all about error deflection: Fires in France, “Love is Strong.”)

Finally, what about the cases where success is impossible? Well, if you have nothing to lose, you might as well try. Sometimes you have to roll the hard six.

(Photo credit to this person.)