An Open Response to BYU Prof Randy Bott

BYU religion professor Randy Bott has an editorial in BYU’s Daily Universe this week. He asks: What is a right?

His answer: Whatever it is, it isn’t health care.

Professor Bott begins by confessing that he takes a “narrow view of ‘rights.’”[1] According to Bott, “a ‘right’ is something that is granted mortals by God.” Unfortunately, that is not a very helpful definition. What rights, specifically, does God grant? (And which does he not?)

Professor Bott never expressly states that he is addressing the health care debate. In fact, he goes out of his way to avoid politics: “I will let others argue the political definitions and ramifications,” he says. But I don’t know how to interpret his second paragraph as anything but a statement on the health care debate. He quotes former LDS Church president Joseph F. Smith as follows:

Men and women ought not to be willing to receive charity unless they are compelled to do so to keep from suffering ... It is a bad thing for men to think the world owes them a living, and all they have to do is to beg or steal to get it. When it comes to this class of people I am very much of the mind expressed once by Dr. Johnson, when a beggar came to him and asked alms and insisted that the doctor should be generous in helping him, “for,” said he, “doctor, you know that I must live.” But the doctor said, “I don’t see the least necessity for it.” When a man becomes a parasite, living upon the charity of his friends, I confess it is hard to see the necessity for him to live. He is no good to anyone. I speak this way only of such as are able-bodied, such as have their faculties and can devote these to some industry, to some useful labor. I don’t refer to the cripple, to those who are enfeebled by age, because I look at them in an entirely different light; there is a necessity for them to live, and there is a necessity for us to assist such, but there is no great need in this world for men and women who are able to work and will not work” (Conference Report April 1898, pp 48-49).

I’m going to set aside the issue of whether President Smith’s anecdote conforms with the scriptural injunctions to “not suffer that the beggar putteth up his petition to you in vain, and turn him out to perish,” and to refrain from saying that “[t]he man has brought upon himself his misery; therefore I will stay my hand, and will not give unto him of my food, nor impart unto him of my substance that he may not suffer, for his punishments are just” (Mosiah 4:16-17). I’m also going to disregard the presumptuous inference that Dr. Johnson, President Smith, Randy Bott, me, or any other fallible human being is qualified to judge who the “parasites” are.

While it’s simply implausible to interpret Professor Bott’s remarks as referring to anything but the health care debate[2], it appears that his understanding of it is rather uninformed. Contrary to his assertion, the proposed health care reforms would not create a legal right to health care in the same sense that one has a right to freedom of speech, to marry, to practice one’s religion, and so forth. Rather, the “rights” rhetoric reflects the moral view that people—hard-working people—should not have to lose their home or enter bankruptcy in order to receive life-saving treatments, but should be able to purchase affordable and reliable health insurance.

Randy Bott’s “sweat of the brow” argument is particularly off-base in the health care debate. Even under our current health care system, when someone contracts a serious illness, the cost of his treatment frequently exceeds the amount of money that he has paid into the system. (That’s the whole point of insurance: to guard against unexpected, exorbitant expenses that one cannot pay for out-of-pocket.) In other words, the patient receives more than the “sweat of his brow” would justify, thanks to the subsidies of other policy holders—the sweat of their brows, so to speak. Unfortunately, however, for each dollar of “sweat” that we pay into these companies, a significant portion is put toward lining executives’ pockets or covering inefficient administrative expenses, many of which are associated with a fundamentally antisocial activity: figuring out how to deny insurance claims.

Bott’s argument is misguided for another reason: those who are currently uninsured, those who have insurance but are not adequately covered, and those who are insured but cannot afford their premiums and copays, are not “parasites.” They are not “idle” people who believe that they are “entitled to certain privileges” or that “the world owes [them] a living.” In large part, they are ordinary, hard-working Americans who nonetheless are suffering under the weight of a broken system.[3] The problem is simply that no matter how hard they work, it will never be enough. Health care premiums are rising several times faster than wages.

Professor Bott apparently does not appreciate that, as a result of the health care system’s inefficiencies, many have already been forced to accept his solution: “expecting little or nothing.” (His words.)[4]

But this isn’t about politics, remember. As Professor Bott reminds us, it’s about our souls: “I marvel that so many who fought so valiantly in the war in the pre-earth life for the privilege of ‘work[ing] out your own salvation with fear and trembling’ (see Philippians 2:12) seem so willing to turn over to the government or anyone else the growth that come from fulfilling God’s program of growth toward exaltation through work.”

Professor Bott misses the point. The problem is that our health care system already has too much “fear and trembling.” We need less—not more—suffering.

---

[1] The scare quotes on “right” are an apparent necessity. Four out of the six times Bott uses the word, he does so with unnecessary quotation marks.

[2] The other current focal point of rights rhetoric is the LGBT movement. For some reason, I doubt that Bott would apply his “sweat of the brow,” you-get-what-you-earn approach in that context. God knows the LGBT community has worked hard to secure equal rights.

[3] Professor Bott apparently anticipated this argument, and responds as follows: “How restricting and debilitating the belief that you are a helpless puppet being yanked around by some evil puppeteer and strictly at the mercy of a cruel, uncaring world.”

[4] Did Professor Bott advise the GOP on its alternative health care proposal?

A New Era of LDS-LGBT Relations?

I know, I know—I’m a couple days late on this one. On Tuesday night, LDS PR spokesman Michael Otterson announced the LDS Church’s support for pending LGBT nondiscrimination measures in Salt Lake City. Addressing the Salt Lake City Council, Mr. Otterson made the following remarks (please forgive the lengthy excerpt):

Like most of America, our community in Salt Lake City is comprised of citizens of different faiths and values, different races and cultures, different political views and divergent demographics. Across America and around the world, diverse communities such as ours are wrestling with complex social and moral questions. People often feel strongly about such issues. Sometimes they feel so strongly that the ways in which they relate to one another seem to strain the fabric of our society, especially where the interests of one group seem to collide with the interests of another.

The issues before you tonight are the right of people to have a roof over their heads and the right to work without being discriminated against. But, importantly, the ordinances also attempt to balance vital issues of religious freedom.  In essence, the Church agrees with the approach which Mayor Becker is taking on this matter.

In drafting these ordinances, the city has granted common-sense rights that should be available to everyone, while safeguarding the crucial rights of religious organizations, for example, in their hiring of people whose lives are in harmony with their tenets, or when providing housing for their university students and others that preserve religious requirements.

The Church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage. They are also entirely consistent with the Church’s prior position on these matters. The Church remains unequivocally committed to defending the bedrock foundation of marriage between a man and a woman.

I represent a church that believes in human dignity, in treating others with respect even when we disagree—in fact, especially when we disagree. The Church’s past statements are on the public record for all to see. In these comments and in our actions, we try to follow what Jesus Christ taught. Our language will always be respectful and acknowledge those who differ, but will also be clear on matters that we feel are of great consequence to our society.  Thank you.

As the SL Tribune reported: “Hours after the LDS Church announced its support Tuesday night of proposed Salt Lake City ordinances aimed at protecting gay and transgender residents from discrimination in housing and employment, the City Council unanimously approved the measures.”

So does the Church read my blog, or what? Well, probably not.

I am pleased with the change in rhetoric and the Church’s willingness to affirmatively support a gay-rights bill. As I wrote a few weeks ago, “Despite its stated position that it does not object to certain rights being extended to same-sex couples, the LDS Church does not appear ever to have actually supported any ‘compromise’ legislation.” I’m glad that statement is no longer accurate.

On Wednesday, Elder Jeffrey R. Holland expressed openness to the idea of extending the protections statewide:

The LDS Church’s unexpected endorsement of two Salt Lake City gay-rights measures has many observers wondering if another surprise could follow: a friendlier reception in the 2010 Legislature for such protections statewide.

Even an LDS apostle—continuing the string of stunners—thinks Salt Lake City’s ordinances could be a model.

“Anything good is shareable,” Elder Jeffrey R. Holland said in an interview Wednesday, referring to Salt Lake City’s new policy aimed at protecting gay and transgender residents from discrimination.

He praised the efforts of Mormon officials and gay-rights leaders who sat down to discuss the issue before the church’s endorsement.

“Everybody ought to have the freedom to frame the statutes the way they want,” he said. “But at least the process and the good will and working at it, certainly that could be modeled anywhere and even elements of the statute.”

Okay, that’s not a resounding endorsement of a statewide bill, but it’s something.

I was also pleased to read that “Mormon officials and gay-rights leaders  . . . sat down to discuss the issue before the church’s endorsement.” This suggests a willingness to compromise, to come to the bargaining table in good faith, and to work out a solution that respects the interests of both parties.

It will be interesting to see how this move is received by the faithful. I don’t expect a sea change, but up until now, the tacit understanding among many Mormons has been that gay rights measures, in any form, are automatically suspect. I hope that by taking a stand in Salt Lake City, the Church can send a message to its members far and wide that there are certain “common-sense rights that should be available to everyone.”

Another BYU snafu: Women’s Research Institute gets “streamlined”

A few days ago, BYU posted a below-the-radar “press release” on its website, announcing the dissolution of the Women’s Research Institute. (The press, however, seems to have not been aware of the announcement until alerted by bloggers.) As various unnamed WRI faculty affiliates wrote at SquareTwo,

The Institute was the seed-bed for several important new institutions at BYU.  For example, Women’s Services and Resources, specifically tasked with providing important gender-related information to female students, was developed from the Women’s Research Institute in 1992.  Women’s Conference was overseen by the Women’s Research Institute from 1984 to 1989, when oversight was transferred to the Relief Society of the Church and the President’s Office of BYU.  The WRI continued to edit collections of speeches from the conference, resulting in edited volumes from 1989-1994.  “During the Institute’s 1993 annual retreat, it was proposed that the Faculty Women’s Association be organized to build upon the Institute’s accomplishments and expand support for female faculty.”  . . .

Within the period 2006-2008, over 132 publications resulted from faculty research projects funded by the Women’s Research Institute.  In addition, the WRI has been a member of the National Council for Research on Women since 2003. . . .

The elimination of the WRI was expressed as a “streamlining and strengthening” of BYU programs in the area of women’s studies.  While the Women’s Studies Minor is to be housed in the Sociology Department (i.e., an interdisciplinary major housed in a disciplinary department), there will no longer be coordinated facilitation at BYU of research and scholarly dialogue concerning women, apart from one university-wide faculty research award and the transfer from the WRI of a small amount of research money for research on women to be given out by the university’s Office of Research and Creative Activities. Within the last twenty years of record-keeping, no other university in the country has eliminated its center of research concerning women.  We hope the anomaly of this move on the part of BYU will not be misinterpreted by those who erroneously believe that the LDS Church is not a friend to women and does not consider women's issues to be important.  Only time will tell if the envisioned strengthening will in fact take place at BYU. (Emphasis added)

Obviously, this is an unfortunate decision. While I doubt that BYU will reconsider, it’s important that BYU students, BYU alumni, and other interested persons speak out. To get involved, please join our facebook group. You may also write to BYU’s Daily Universe here.

Here are some other resources:

• Demise of the BYU Women’s Research Institute, by Ariel (AHLDuke’s wife) at Weightier Matters
• Shutting Down BYU’s Women’s Research Institute, by Elisa, guest-posting at FMH
• Save the Women’s Research Institute!, by mraynes, at Exponent II
• BYU to Fold its Women’s Research Institute, Salt Lake Tribune
• BYU Cuts Women’s Research Institute, Deseret News.
• Women’s Research Institute to be Dissolved, Daily Universe

What happened in Maine?

Yesterday, Maine voters voted to overturn its same-sex marriage law. As of this morning, with 87% of the precincts reporting, Yes on 1 had more than a 5-point lead.

This comes as a bit of a surprise . . . but maybe it shouldn’t. The pre-election polls had Maine voters split just about evenly on Question 1. No on 1 did pretty well in urban areas, but not-so-well in rural areas. Maine is more secular in some respects, but it’s not Massachusetts.

But then, same-sex marriage has generally gone over well in New England. And unlike Massachusetts and Connecticut, Maine legalized SSM in about as non-threatening a way as possible. Not only was it legislatively enacted (rather than judicially), it expressly affirmed religious freedom and provided for religious exemptions (see my previous post here). That churches would not have been obligated to recognize or perform gay marriages was stated on the ballot. In other words, it’s less likely that people who voted for Question 1 did so out of fear for their own rights.

Over the past couple months, No on 1 has been much better funded and better organized than Yes on 1. This wasn’t California—gay marriage advocates weren’t blindsided by conservative (mainly Mormon) money and manpower. Yes on 1 was downright amateurish in comparison to Yes on 8, and No on 1 was bound and determined to prevent a repeat of Prop 8. Yet it appears that Question 1 passed by a wider margin (if only slightly) than Prop 8.

I think the demise of SSM in Maine forces progressives to concede that their problem is deeper and broader than they may have hoped. Yes, Americans are becoming more accepting of same-sex couples, but this is primarily a generational phenomenon. In other words, those who are already firmly against gay rights are unlikely to change their minds—but their children and grandchildren are more likely to be accepting. The generational trend certainly favors gays; it suggests that, at some point down the road, acceptance will be the norm. However, I think we need to come to terms with the fact that it’s going to be a long road. (Recall that the post-Civil War amendments had been on the books for nearly a century before we saw Brown v. Board, the Civil Rights Act of 1964, or the Voting Rights Act.)

My thought is that progressives will have to be content with state-by-state, incremental reforms. Last night, voters in Washington and Kalamazoo sided with the LGBT community. A majority of Americans support civil unions. Let’s start there. We can’t expect that there’s going to be a huge watershed event in the near future—a Brown v. Board for gay rights, if you will. In fact, if you ask me, federal lawsuits are only going to set the movement back at this point. The Supreme Court is currently more conservative than it has been at any time in the last century.

Taking things slow may not be the most desirable course, but I think it’s the most practical option.

Update on Same-Sex Marriage and Related Issues

There’s a lot currently going down in the LGBT rights/SSM arena. Here’s a quick run-down:

• Tomorrow is election day! Voters will weigh in on three gay rights measures around the country:
  • Perhaps the most significant of these is Maine’s Question 1. The initiative proposes to overturn the statute that legalized same-sex marriage in Maine, which was passed in May. The polls have voters split fairly evenly on the issue, but Nate Silver pegs the chances of Question 1 passing at about 5-to-2. If Question 1 fails, it will be the first time American voters have sided with same-sex couples in a gay marriage initiative.
  • We also have Washington’s Referendum 71, which would preserve Washington’s “everything but marriage” civil unions law. Protect Marriage Washington has released some . . . interesting ads. Here’s one that incorporates some pictures from the Gospel Art Picture Kit. A recent poll shows R71 in the lead.
  • The third vote is admittedly of a smaller scale. It pertains to a Kalamazoo, Michigan ordinance barring discrimination in housing, employment, and public accommodations on the basis of sexual orientation or gender identity. The City Commission approved the ordinance unanimously, but voters will decide its ultimate fate.
• In addition, there are three jurisdictions currently considering same-sex marriage legislation: New Jersey, New York, and the District of Columbia (see this NY Times editorial). Sitting New York Governor David Paterson has signaled that he hopes and expects to sign a SSM bill into law within the coming weeks, but the State Senate has been stalling. Meanwhile, the Alliance Defense Fund (a Christian organization) is fighting a legal battle to prevent New York state agencies from recognizing same-sex marriages performed in other states.
• Back in July, Massachusetts brought a constitutional challenge to the Defense of Marriage Act. The Department of Justice has filed a motion to dismiss the suit . . . even though the Obama administration claims to support the repeal of DOMA. (Interestingly, Massachusetts has invoked the Tenth Amendment, arguing that DOMA infringes upon its sovereignty. I have to wonder how the “Tenthers” feel about this.)
• Back out on the West Coast, a legal challenge to Proposition 8 is moving forward in federal court. A couple weeks ago, Judge Vaughn Walker denied Prop 8 supporters’ summary judgment motion. I think the lawsuit is premature, but we’ll see what happens at trial.

A “Compromise” on Gay Marriage? (Part II): Legislative Gay Marriage

In addressing BYU-Idaho students, the main thrust of Elder Oaks’ message was that religious liberties are under attack. But what if LGBT rights (including same-sex marriage) could be achieved without infringing upon the constitutional rights of religious organizations and people? Oaks asserts that “the most desirable condition for the effective exercise of God-given moral agency is a condition of maximum freedom and responsibility.” If gay rights could be implemented without affecting religious rights, would not that bring us closer to “a condition of maximum freedom and responsibility”?

Of the States in which gay marriage has been implemented judicially (Massachusetts, Connecticut, California, Iowa), California went the furthest and provided the most protection to gays and lesbians. Nonetheless, many legal scholars agreed that it would not have threatened religious liberties.

But there is something to be said for taking a legislative, rather than judicial, approach to effectuating gay rights and legalizing same-sex marriage (as Maine and New Hampshire have done). Indeed, persuasive conservative arguments can be made in favor of legislative gay marriage. I will discuss two such arguments in this post (these arguments are just as applicable to legislative proposals that would protect rights other than marriage).

For one, whereas judicial decisions almost inevitably “constitutionalize” gay rights, legislation does not. Nate Oman, who opposes same-sex marriage as a matter of social policy, argues that conservatives nonetheless ought to support same-sex marriage legislation. He states:

In the long term, I suspect that social conservatives have lost the culture on this one. . . . The danger is that the political momentum created by this cultural force will result in the constitutionalization of the issue. Why does that matter? Because once gay marriage is enshrined in constitutional law, religious freedom and free speech no longer act as trumps. Rather, they become competing constitutional concerns that must be weighed against the constitutional values enshrined in rights to gay marriage. In other words, a constitutional resolution of the issue leaves religious institutions and social conservatives in a much more vulnerable position.

If we accept, as Oman does, that same-sex marriage is an inevitability—and a recent Pew survey suggests that it is—then legalizing it legislatively should make the most sense to social conservatives who are worried about the protection of religious liberties.

Secondly, whereas judicial decisions are sweeping, legislation can more easily be tailored to balance competing interests. While I consider Justice Scalia’s dissent in Lawrence v. Texas to mostly be an immature rant, he does make a valid point about the virtues of legislative solutions to social issues (yes, I am aware that Scalia made this point in the context of an argument against gay marriage):

One of the benefits of leaving regulation of this matter to the people [i.e., the legislatures] rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.

Scalia made a similar point in his Casey dissent: Roe v. Wade made legal compromise on the issue of abortion all but impossible.

In short, fine-tuning and compromise are more easily achieved in legislatures than in courts. Maine demonstrated that this could be done in the context of gay marriage: Maine’s statute expressly affirmed religious freedoms even as it legalized same-sex marriage.

But if conservatives are unwilling to seriously consider LGBT-friendly legislation (as recently happened in Utah), then gay rights proponents have no choice but to take to the courts.

If Elder Oaks is serious about “contribut[ing] to the reasoned discussion and compromise that is essential in a pluralistic society,” I think it’s about time he and others (i.e., the Church) take seriously legislative proposals that would provide greater legal protection for gays and lesbians (up to and including the right to marry). Not only would this be in their best interests, it would also show that they are willing to practice what they preach.

A “Compromise” on Gay Marriage? (Part I): Civil Unions and Other Gay Rights

In his recent address to students at BYU-Idaho, Elder Dallin H. Oaks made the following statement:

[R]eligious persons will often be most persuasive in political discourse by framing arguments and positions in ways that are respectful of those who do not share their religious beliefs and that contribute to the reasoned discussion and compromise that is essential in a pluralistic society.

My question is this: To what extent is the LDS Church open to “compromise” on the issue of gay marriage?

In evaluating this issue, I will discuss two types of “compromise” relative to same-sex marriage: (1) recognition of civil unions and other non-marital gay rights; and (2) recognition of legislative, rather than judicially-enforced and constitutionally-mandated, marriage rights. In this post, I will analyze the Church’s position on civil unions and other rights short of marriage. In my next post, I will discuss the virtues of legalizing gay marriage through legislative, rather than judicial, means.

* * *

While the Church is unambiguously opposed to same-sex marriage, what about civil unions and other “lesser” gay rights (e.g., sexual autonomy, freedom from employment discrimination)?

Immediately after Proposition 8 passed, Elder L. Whitney Clayton reportedly stated that the Church does not oppose civil unions or domestic partnerships. According to The Divine Institution of Marriage, an essay posted to the LDS Newsroom in August 2008,

The Church does not object to rights (already established in California) regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the family or the constitutional rights of churches and their adherents to administer and practice their religion free from government interference.

However, statements such as these must be weighed against other public remarks that Church leaders have made. In the Oaks/Wickman “same-gender attraction” interview, Elder Wickman said,

One way to think of marriage is as a bundle of rights associated with what it means for two people to be married. What the First Presidency has done is express its support of marriage and for that bundle of rights belonging to a man and a woman. The First Presidency hasn’t expressed itself concerning any specific right. It really doesn’t matter what you call it. If you have some legally sanctioned relationship with the bundle of legal rights traditionally belonging to marriage and governing authority has slapped a label on it, whether it is civil union or domestic partnership or whatever label it’s given, it is nonetheless tantamount to marriage. That is something to which our doctrine simply requires us to speak out and say, “That is not right. That’s not appropriate.”

Similarly, in his address to Evergreen, Elder Hafen did not confine his remarks to the narrow right of marriage, but spoke critically of gay rights generally:

Gay rights do not claim to satisfy society’s enormous interest in its children.  On the contrary, in a key early Supreme Court opinion in 1986, Justice Harry Blackmun argued that the Constitution should protect gay sexual rights “not because they contribute to the general public welfare but because they form so central a part of an individual’s life,” including one’s “right to differ as to things that touch the heart of the existing order.” The Court’s 2003 majority opinion striking down state criminal laws against same-gender sexual conduct accepted Justice Blackmun’s view, basing its rationale on the personal “autonomy” or freedom rights of consenting adults, not on any benefit of that conduct to society.

Consistent with Wickman’s and Hafen’s remarks, in his BYU-Idaho address Elder Oaks described the “newly alleged ‘civil right’ of same-gender couples to enjoy the privileges of marriage” as merely one example of “newly asserted human rights” that threaten religious liberties. Elder Oaks has also expressed concern over hate crimes laws (the House recently voted to expand federal hate crimes law to encompass crimes committed on the basis of sexual orientation). (See here for a lengthy refutation of conservative objections to the legislation.)

Tellingly (if unsurprisingly), Equality Utah’s request that the Church support the Common Ground Initiative was met with silence, and the Initiative never got off the ground in Utah’s legislature. Additionally, Mormons have recently fought civil unions legislation in Illinois and Hawaii (it appears, however, that in each case the efforts were organized by local leaders acting independently of Salt Lake City; in the case of Illinois, Church headquarters expressly denied its involvement).

Despite its stated position that it does not object to certain rights being extended to same-sex couples, the LDS Church does not appear ever to have actually supported any “compromise” legislation. Furthermore, various church leaders have spoken critically of “lesser” gay rights (i.e., those that are not tantamount to marriage).