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Don’t Let the Dugout Make the Call

THESE principles are technically non-partisan. I write specifically to conservatives for two reasons. First, because I’m a conservative myself. Second, because my thoughts are especially relevant to the challenge facing conservatives in the wake of the terrorism in Charlottesville.

Dear Conservatives,

When you formulate a response to current events, or ponder whether to critique or commend a politician, please do so (as much as possible) without regard to the prevailing narrative from the left. I ask this for two reasons.

First, your principles demand it. Your philosophy is about justice, not political expediency. You aspire to call balls and strikes. The screams from one dugout or the other do not change the location of the pitch (no matter how uncouth the screams). First call the pitch, then issue a warning to the benches.

Second (and it’s a distant second), honest commentary is actually good for your party. Mincing words or selecting alternative facts in service to a narrative (or a person) can secure short-term political power. If the cost of electoral victory is the political credibility that is necessary to govern or the moral authority that is necessary to unite, the cost is too high. An authentically conservative party can help heal this country (and salve the social disintegration that has fueled the alt-right). Majority control of the federal government achieved through sacrificed principles cannot.

I say this as a staunch opponent to the progressive agenda. I say this knowing that much of what is said in the media grossly misunderstands, misconstrues, and maligns conservatives of every stripe. But what does it matter if political adversaries say unfair things about us, if even fair coverage would reveal hypocrisy and sycophancy?

We have a great opportunity. The only hope the alt-right has in political viability lies in conservative acquiescence. The left cannot stop the alt-right—it thrives on their opposition. We, however, can bury them, and in the same excavation can lay the foundations of a conservative revival.

If we have the courage.


The Declaration of Independents

HAVING long felt that, as a Republican, I could never vote for Donald Trump, the withdrawals of his last two opponents caused me, along with many other Republicans, to face the music.  When widespread refusal to vote for your own party is a likely guarantee that the other party will win, a voter needs to have very good reasons for their decision – a fully formed theory of why they should want their party to lose, not just simple distaste for their nominee expressed by some quotation and punctuated #NeverTrump.

As a result, I started to make a list of the actual reasons I could never support Donald Trump.  And, as it started taking shape over the last couple of days, it began to look a lot like the “train of abuses” ascribed to King George III in the Declaration of Independence.  So, I decided to use Mr. Jefferson’s inimitable document as a template for my own explanation of why I am, for this presidential election at least, officially an Independent.

Declaration of Independents

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with one another, and to assume among the voters of the earth, the separate and equal station to which the Constitution entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all candidates are not created equal, but that they are endowed by their identity as Republicans with certain responsibilities, that among these are respect for the right to life, devotion to liberty under the Constitution, regard for all people, and the pursuit of peace.—That to enforce these responsibilities, platforms are instituted among parties, deriving their just powers from the consent of the delegates,–that whenever any Nominee becomes destructive of these ends, it is the Right of the Voters to alter or abolish him, and to support a new candidate, standing on such principles and proffering policies in such form, as to them shall seem most likely to effect their Safety and Happiness.  Prudence, indeed, will dictate that Parties long established should not abandon a Nominee for light and transient causes; and accordingly all experience hath shewn that voters are most disposed to suffer, while evils are sufferable, than to right themselves by refusing to adhere to the candidate they have nominated.  But, when a long train of abuses and usurpations, pursuing invariable the same Object evinces a design to reduce them to unquestioning party support at the expense of principle, it is their right, it is their duty, to throw off said Nominee, in the interest of their Party’s future security.  Such has been the patient sufferance of these Voters, and such is now the necessity which constrains them to undermine their Nominee.  This history of the present Nominee of the Republican Party is a history of repeated injuries and usurpations, all having in direct object the permanent subjugation of conservative voters in the name of unity but, in fact, out of fear of other parties and other peoples.  To prove this, let Facts be submitted to a candid world.

He has supported the slaughter of women and children in violation of the Laws of War and, when challenged by the assertion that American Troops would deny such commands, responded, “They won’t refuse. They’re not gonna refuse me. Believe me.”

He has endangered the safety of these United States and the free world, by opining that the defense of the Korean Peninsula should fall to Japan and South Korea.

He has insulted our allies and provoked our enemies.

He has proven incapable of responding with grace to even the silliest of slights, displaying obsessions with insults from decades past, and demonstrating a complete incapacity to conduct Foreign Relations.

He has excited domestic insurrections among our political events, and has encouraged violence against people who share not his views.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither; selecting only blunt implements of war for these purposes—the building of walls and the martial enforcement of law.

He has encouraged vulgarity in our political discourse, seeking to exploit and enflame the passions of our people, instead of guiding them.

He has repeatedly ignored our Entreaties to reveal even the simplest specifications of his policies, painting them only in the broadest of strokes—assuring us only that their results will be Fantastic, but distrusting us with the capacity to evaluate their particulars.

He has avowed an intent to use executive authority in a manner foreign to our Constitution, and imitative of our Sitting President.

He has shewn incompetency in the selection of Judges.

He has demonstrated a disposition unfit for the leader of a Party which respects human dignity, openly mocking the disabled.

He has breathed life into moribund accusations of the Other Party regarding a Republican “War on Women,” by treating women with contempt; exhibiting the basest stereotypes of misogyny by promoting the idea that their rationality is held hostage by their physiology, and that their professional success is a function only of their beauty.

He has promulgated the following falsehoods:

That he is self-funding his campaign;

That he is capable of selecting the “best people,” hiring instead men of Violence, bearing convictions repugnant to the Republican Party;

That he adheres to the Christian religion;

That he supports reducing the tax burden of each of these Voters;

That he opposes an increase in the minimum wage;

That he will reduce the budget deficit in the national government, promoting instead an additional ruinous stimulus.

All these are accompanied by continuous false statements made off-the-cuff, which may be lies outright or mere negligent falsehoods which, though innocent, convey a comfort with Ignorance and a total disregard for the Truth.

In every stage of these Primaries we have petitioned our Party and our Fellow Voters for redress in the most humble terms: our repeated Petitions have been answered only by an inchoate tempest of rage against the “establishment.”

Nor have We been wanting in attentions to our Trumpist bretheren.  We have warned them from time to time of attempts by their Front-Runner to stretch the image of our party beyond recognition.  We have reminded them of the circumstances of our Party’s founding, of its situation in Congress, and of the empty Seat in the Supreme Court.  We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably stymie authentic conservatism in this Nation.  They too have been deaf to the voice of justice and of consanguinity, being inundated with a wave of righteous anger that now threatens the only hope of its true abatement.  We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of all mankind, including the People of Mexico, Enemies in War, in Peace Friends.

We, therefore, the Voters of the Republican Party, in Constitutional Principles Assembled, appealing to the Long-Term good of the Nation and our Party for the rectitude of our intentions, solemnly publish and declare, That these Voters are, and of Right ought to be a Free and Independent Constituency, and that all political connection between them and the Nominee of the Republican Party is and ought to be totally dissolved; and that as a Free and Independent Constituency they have full Power to select candidates, cast ballots, and do all other Acts and Things which Independent Voters may of right do.  And, for the support of this Declaration, with a firm reliance on the continuance of Conservative Principles, we mutually pledge to each other our time, our energy, and our sacred Honor.

The Confirmation Controversy is a Construct, and one Counterfactual Crushes It


JUSTICE SCALIA’s recent passing has predictably occasioned an impassioned public debate about how and when his replacement should be nominated and confirmed.  The true nature of the debate, however, has been regrettably obfuscated by the language of Senator McConnell’s initial statement on the matter.  McConnell appeared to approve a categorical rejection of any Obama nominee, and claimed that “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”  This justification inspired Democratic ire and, at first blush, the indignation seems justified.  The Senate may constitutionally decline to confirm a nominee, but an up-front refusal to consider a nominee looks like a dereliction of that duty (no matter what past senators from either side of the aisle have said or done).   But, there is a much simpler way to approach this situation which totally diffuses the drama—one that should appeal to my lawyerly friends and that is conspicuously absent from most discussions of this controversy:  the counterfactual.

Imagine for a moment that the President nominated Robert P. George.  Does anyone really think that the Republican leadership would refuse to allow that nomination to go to the floor?  McConnell’s resistance would go up in smoke.  Republicans would leap to approve a conservative candidate, especially given the uncertainty of the upcoming election, since they cannot even trust their own frontrunner to furnish a solid nominee.

So, McConnell’s position is, ultimately, a “shorthand” (as a smart friend of mine said) for the traditional one:  Republicans and Democrats both reject any nominee who, in their estimation, will not faithfully interpret the Constitution.  Republicans just also assume that an Obama nominee won’t satisfy this standard, and therefore seek to assure their base that they won’t confirm an ‘unfit’ appointee.

Is McConnell’s statement ultimately unhelpful, hyper-partisan rhetoric?  Absolutely.  As a Republican, I desperately wish that the Party would have expressed its position on Scalia’s replacement in different terms.  But does this position actually implicate some unconstitutional theory of the Senate’s role in confirming nominees, or represent a position that is practically distinct from what the Democrats would do if the tables were turned?  Not by a mile.

Can we all please calm down now?

We Need Forms to Function

MUCH has happened since I last wrote.  Or, I should say, since I last posted.  I’ve written something about nearly all of the momentous events of the last year but, for one reason or another, left all unpublished.

But, today I saw the above picture.  It reminded me of a recurring theme in our society’s continuing dialogue about the organizing principles of our society—marriage, family, church, government—and even ourselves—gender, sexuality (ethnicity?).

This theme is the thought that aberration can imply the non-existence of an ideal.  So, in the above picture, the family is defined by the emotional bond of a family (which exists) and nothing more because, if we define family by blood relation, adopted people cannot be a part of a family.  Now, does it make perfect sense to call an adopted child family, instead of, say, friend? Absolutely.  This is because we live in an imperfect world where parents die or are unable to care for their children.  So, “family” can be opened to include the aberration of orphanage.  But, the fact that we can respond in this way does not mean that it is “incorrect” to conceive of a family in its natural sense—people connected generationally by procreation.

Yet, we make this mistake repeatedly.  Perhaps the most common objection raised to a definition of marriage that involves the union of men and women through procreation is that ‘we let infertile people marry.’  Yeah, we do.  But infertility is not how people are meant to be.  Accommodating what should not be does not change what should be.

The same error arises in discussions of gender and sexuality.  Intersex persons, it is said, rebut distinctions in this area.  Why?  Do we say that someone born with a mental disability rebuts the idea of a healthy brain, such that no one can be described as either healthy or mentally ill?  Now, of course, we still affirm the full humanity of people who are born with a disability, just as an infertile person is a spouse and an adopted child is family.  But the fact that such arrangements exist do not force us to discard the concepts of humanity, marriage, or family—including definitions that rely on a natural ideal.*

Why do we allow them to?  Why is a family a “collection of individuals who care for each other,” why is a marriage an “act[] of self-definition” (Obergefell), why are we so unable to define “humanity” or “person” when we discuss abortion or euthanasia that we don’t even bother to try?  Because we don’t believe in forms.  No, I’m not saying everyone should be a full-blown Platonist (but there are far worse things one could be).  But, I am saying that we must realize that it is possible for a thing to have meaning outside of itself, and for that meaning to include a standard—a standard that is not tarnished when the thing itself defects.

Are these standards difficult (or impossible) to fully describe?  Certainly.  The mental health example above seems like a good one—I doubt that anyone is totally healthy upstairs, and I am certain that no one is capable of defining perfect mental balance or complete mental imbalance.  Similar things may be said of gender, such that it takes serious and careful thought when we affirm distinctions and organize society around them.  Our history in doing so is littered with failure.  But, now that we have essentially admitted defeat by rejecting even the possibility that things have natures which generate standards (because we are too defective to figure them out perfectly—how meta is that?), our past failures will pale in comparison to our future ones.  The only ones worse off than the men in the Cave staring at the shadows are the ones who shut their eyes.  We need forms to function.


*Please note:  I recognize that there are plenty of other reasons that one could object to rigid gender distinctions, a heterosexual definition of marriage, or whatever else.  I do not purport to address them here.  I am concerned, however, with this deep error that presents us from ever getting to those reasons.

How Popular Feminism Betrayed Women

BEFORE explaining what the argument in this post is, I would like to point out a few things that it is not.  First, this post is not a critique of feminism generally.  Gender inequality and injustice are real, and some of the progress in these areas is attributable to the feminist movement.  This is factually undeniable, whether or not one’s ultimate perception of the movement is positive.  There are, I am sure, myriad principled versions of feminism that would withstand the critique I offer here.  That’s fine:   this discussion is limited to a sort of feminism that pervades popular culture and discussions with peers, a version whose definition is more often assumed than defined.  It is the consequences of this assumption that I intend to explore.  Second, this post is not written by a woman.  It is, in fact, the creation of a man.  If I say something that appears to be incorrect, insensitive, or oversimplified through the absence of a female perspective, please remedy this deficiency by providing me with yours.  I’ll admit that this article includes some assumptions about male and female behavior.  I think they are reasonable and defensible, and I invoke them for the purpose of defending meaningful gender equality.  You may see things differently, however, and I would be happy to learn from you.  Third, while this post will posit that some notion of gender roles is essential for the maintenance of equality, it does not suggest that this notion should be the reincarnation of older roles to which some oppression can be ascribed.  The project of actually defining these roles requires more time and expertise than I can muster today.  Nor do I suggest that roles = rules.  In my mind, roles are ideals to be encouraged for the purpose of promoting human flourishing, not rules to be imposed by society on individuals.

The aspect of feminism that is at issue here is what I will call “popular feminism,” and is exemplified by this picture:


Or, as Queen Bey said:   “Feminist: the person who believes in the social, political, and economic equality of the sexes.”


The latter definition can be frustrating because, of course, it should be a foregone conclusion  that women should enjoy “social, political, and economic equality.”  The obvious appeal of this definition (and the fact that most of my generation assumes it) makes it seem manifestly irrational to be anything but a “feminist.”  Why does anyone drag their feet?  The key, of course, is the assumption underlying the meaning of “equality.”  Rather than legal or teleological or even substantive equality, popular feminism seeks equality through existential egalitarianism, resting on  the simple premise is that there is no essential gender differentiation—each woman (or, more accurately, each person) is whoever “the hell” she conceives herself to be.  Or, to paraphrase Laverne Cox, ‘biology is not destiny.’

This sounds nice!  Previously, gender roles have been used to subjugate women and relegate them to the margins of society (provided you take the home to be the margin rather than the center, a presumption that is open to serious question).  The solution, then, must be to eliminate gender distinctions altogether.  If we just commit to saying that we’re all equal in that we are undifferentiated (or, differentiated only as far as our own choices take us), we will finally have real equality.

This is a tragic deception because, in eliminating essential distinctions in role, popular feminism has convinced women that their equality can only be assessed in gender-neutral terms like income or power.  Certain essentially feminine capacities, like childbearing, are only valuable to the extent that they contribute to a gender neutral index of success, like personal fulfillment.  And, for this characterization, I’m not merely relying on my potentially jaundiced male perspective, this is the position Justice Ginsburg articulated in her Gonzales v. Carhart dissent.  Arguing for the importance of access to partial birth abortion, Justice Ginsburg said of women that “Their ability to realize their full potential . . . is intimately connected ‘to their ability to control their reproductive lives.'”  In order to “enjoy equal citizenship stature,” a woman must be able “to determine her life’s course,” which requires the ability to avoid pregnancy.  Equal capacity to compete in the professional workplace or, more generally, to actualize one’s self-conception is the baseline of equality, according to Justice Ginsburg (or, more importantly, Queen Bey).

But, the problem is, that perceiving childbearing as an obstacle to full potential rather than an indispensible aspect of the feminine effectively ensures inequality be telling women “you will not be equal as long as you are unequal in gender-neutral terms” but then setting a standard in which they must compete with men on terms that are not gender neutral (that is to say, on the terms of reality).  This reality is that, no matter how free women are to control their reproduction, most will at some point have children.  This means that most, on average, will make less money and wield less professional power than men, simply by virtue of the time that they are unable to dedicate to professions.  Particular women are more than equal  to the tasks of modern business and politics, but women will never be equal to the time (excepting a “final solution”).  I know many women that are or soon will be incredibly successful.  (I could probably fill a binder with the names of these women.)  But the realities of nature ensure that women as a gender will be continually underrepresented, so long as gender-neutral criteria are used for evaluation and governance.  This holds in other areas: the reality is that, no matter how steadfastly some women choose to devote themselves to sports or martial arts (I know many that could run circles around me), there will be more men that do so and, if evaluated in gender neutral terms, there will be more men that do so with success.  In this way, the wholesale eradication of gender roles effectively guarantees the continued subordination of women.  Popular feminism has cast as an obstacle that which makes women equal (or, heck, arguably better) than men.  (Seriously, I challenge any of you to point to anything a man has done in the last hundred years that is cooler than bringing a new life into the world – something that women accomplish with remarkable frequency.)  If equality is to be achieved by eradicating essential gender distinctions, the only possible avenue for success is a final solution: actually eradicating one gender.  This solution would create actual equality by flouting the intractable differences between the genders imposed by nature and, thus, allow a women to “be whoever the hell she wants to be” without interference.  My opinion on this solution’s appeal is biased, so I won’t offer it.

The cooperative path to equality, then, lies not in the abolition of distinctions, it lies in their affirmation.  Women are equal to men because their difference from men provides values that are irreplaceable and irreproducible beyond the feminine.  For women to enjoy an equal status, society must be taught that these aspects of the feminine are real and that they are worth valuing and encouraging.  Rather than positing something about women that is worth valuing, popular feminism has simply told women “there’s nothing special about you or anyone, just know that you can be as good as a man if you want to.”  This is true enough about particular women:  politics, society, and economics should allow women to participate as they choose on equal terms with men, and women that choose to do so are equal to the task.  Biology is not destiny in the particular or comprehensive sense.  But to say that gender equality must be assessed for all women after subtracting the inherent values of femininity is the pinnacle of betrayal—it’s like asking someone to write the Declaration of Independence with Arabic Numerals.  Not all women are the same.  Neither are all men identical.  We should be very careful before constructing ideas about gender that pigeonhole persons.  But, on the other hand, we must be equally careful before deconstructing ideas about gender so completely that we are deprived of the social riches, personal fulfillment, and cooperative equality that can be enjoyed through their exploration and affirmation.  The equality of gender is realized in allowing each to be what they ought, not in assuming that all are “flawless” so long as they get to be “whatever the hell they want.”


Dueling Scarecrows

YESTERDAY, Patrick Henry College held its semesterly “Faith and Reason Day.”  The controversial lecture, delivered by Stephen Baskerville, has generated some scathing criticism from students and alumni.  I do not write to comment on the merits of the lecture as a whole or the portions discussed below.  I just feel the need to point out the irony that arises when someone criticizes the argument of another while utilizing equally poor reasoning.  If you wish to argue that someone’s work is of “poor quality” and demonstrates that they should not be employed as a professor, please do what you claim that they cannot:  construe their paper as logically as possible and *then* discredit it with contrary facts or analysis.  Straw men are very fun to destroy, but the internet is getting so full of the hay dust that my allergies are acting up.

For the reader’s convenience, I’m including the entire blog post by Kate Kane at QueerPHC with three of my own observations interspersed.  The original post had pictures (one chart and several photos of the text of the lecture).  I’ve removed them for easier reading.  If you want to see them, check out the original.

Patrick Henry College Professor Says ‘Homosexual Activists’ Were ‘Integral’ to Rise of Nazism

Posted on September 13, 2013 by Kate Kane

In a so-called Faith & Reason lecture delivered to the entire student body today, Patrick Henry College Professor Stephen Baskerville claimed that “homosexual activists” played an integral role in the rise of Nazism.

I find it hard to understand how any academic could retain any shred of self-respect after implying that the Nazis and queer people were bosom buddies. This chart, for example, lays out the various triangular Nazi concentration camp badges that were used to categorize Jews, sexual offenders (which were primarily gay men), the Romani people, and those who were mentally ill, among many others. 

This quote was only one of many similarly inaccurate and deeply offensive statements delivered in the course of the lecture, the text of which is about 25 pages. Baskerville, who has made a career of railing against the “divorce regime” after a messy divorce in his own past, warned the student body against adopting a “theology of resentment.” 

The article’s title, of course, focuses on the (always) inflammatory association of homosexual activists with Nazism.  And, it’s true that Baskerville made the statement.  The argument of the paper, however, had little to do with Nazism and nothing to do with the factual accuracy of that single statement.  Nor did the statement mean, as Kane interprets it, that he was  “implying that the Nazis and queer people were bosom buddies.”  She’s right in claiming that Baskerville would have no credibility as an academic if he seriously made that implication.  That, however, was neither said nor implied.  It is well known that several of the Nazi higher-ups were homosexual despite the Nazi’s systematic persecution of homosexual persons.  There has been scholarly debate on what to make of this since the 40s.  Most reach the conclusion that the Nazi’s were astoundingly oppressive to homosexual persons but a few managed to escape that ire by virtue of their position (and not the other way around).  This conclusion would counter Baskerville’s – but by no means does his statement carry the expansive meaning Kane imposes.  Knee-jerk reactions are not uncommon whenever anyone or anything is associated with Nazism.  Understand, however, that neither Kane’s construction of his phrase nor her discussion of Nazi persecution actually reaches his assertion.  His assertion may be factually inaccurate – and probably should not have been casually included – but Kane’s criticism misses its point.  (Really, this sort of thing will probably never go away until people learn that you can’t associate anyone with Nazis and get away with it unless that comparison is actually the entire subject of your research.  But, I digress.)

He also said that the AIDS epidemic has been exacerbated by “sexual ideologues, who sabotage effective campaigns for abstinence and fidelity in favor of ideologically inspired but useless condom distributions, resulting in further spread of the disease and millions of needless deaths.”

Yes, you read that correctly. Distributing condoms spreads AIDS. 

This sort of lying and misinformation is malicious and irresponsible. If someone chooses to be abstinent, that’s their business, but they shouldn’t be made to feel as though they literally deserve death if they choose to be sexually active.

I can’t see how Kane herself “read that correctly.”  Nowhere does Baskerville imply that the spreading of AIDS is a result of condom distribution.  Baskerville simply argued that focusing on this means of prevention has been ineffective, not that condom distribution affirmatively spreads AIDS.  Again, that statement would be laughably false – but that statement was never made or implied.  The merit of abstinence as a means of prevention is, of course, hotly disputed.  But, if you wish to criticize his reasoning, please do respect the distinction between exacerbation and causality – it is an important one.

Baskerville spews classic MRA and queer panic rhetoric for much of the lecture. He puts words like “rape” and domestic “violence” and “child abuse” in quotation marks, to suggest that straight cis men and fathers are being persecuted in a witch hunt full of supposedly false accusations.

Now, there is much that could be said about the discussion of criminalization in the paper.  I think Kane is probably right when she suggests that this section seemed to describe a “witch hunt.”  However, the point being made when the above terms were included in quotation marks was absolutely not related to minimizing their seriousness.  Rather, he made the important argument that those terms signify acts which every rational person should strongly oppose.  Yet, those terms are now beginning to include meanings which the average person would not anticipate.  Since one does not want to be seen as defending, rationalizing, or minimizing things like rape, violence, or child abuse, it is very uncommon for the expansive meaning of these terms to be scrutinized.  Maybe their expanse is warranted by our experience, as it is true that more constrained definitions imply a higher burden of proof in areas where evidence is difficult to obtain. The point, however, is the way certain inflammatory words can be used to control public discourse and policy.  That such terms might have been instrumentalized is a possibility that should inspire contemplation and, if necessary, counterargument, not summary dismissal as “spewed MRA and queer panic rhetoric.”

I’d like to say that I’m surprised that these sorts of comments are coming from a PHC leader, but I went to school there for four years. I heard rape victims referred to as manipulating liars, I was told that children’s rights was a ploy to take children away from their parents, and feminists were dismissed as ugly people who couldn’t get dates. So no, it doesn’t surprise me that a PHC professor would say these things, or that he would be met with thunderous applause.

But I do wish that Patrick Henry College valued reputable academic research and healthy discourse over demagoguery and targeted attacks. That Baskerville is even employed at PHC, given the poor quality of his research and rhetoric, let alone allowed to represent the college in a campus-wide lecture given to the entire student body, shows how little the school respects academic disciplines and its own students. 

The depth and fairness of discussion at PHC with regard to matters of sexuality is, as Kane suggests, insufficient.  Baskerville is, in some sense, working to correct this, as a serious attempt to understand these issues would also require students to read the arguments of different sides.  For instance, though PHC’s government faculty is critical of Marx, students read Marx.  Perhaps this lecture will lead students to be exposed to voices that have been heretofore absent from the conversation.  This result might at least be salutary, whether one agrees with the substance of the instigating lecture or not.  At any rate, my concern here is to see that, if a person or group is accused of valuing “demagoguery and targeted attacks” instead of “reputable academic research and healthy discourse,” that the accusation is substantiated by the latter rather than the former.

Why LJF is Wrong about Romeike v. Holder

ON April 23, the Sixth Circuit Court of Appeals will hear oral argument in Romeike v. Holder, a case in which a German homeschooling family seeks asylum in the United States.  The Home School Legal Defense Association, my employer, is representing the Romeikes, and has embarked on an awareness campaign in an attempt to convince the justice department to drop the case.  In response to this campaign, Libby Anne at Love, Joy, Feminism (LJF) released a blog post asserting that both the campaign and HSLDA’s legal arguments are false and hypocritical.  The post is long and detailed, so I’m going to reproduce it in full, providing a paragraph-by-paragraph commentary.  Their quotes are indented, and all the emphasis therein is original.

Why HSLDA is Wrong about Romeike v. Holder

…introduction omitted…

Before I get into the Romeike case, let me start with a quick legal outline. Under current U.S. law, “persons who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion” are eligible for asylum in the U.S. Upon arriving in the U.S., asylum-seekers file a petition for asylum. The petition is first seen in the Immigration Court, where an immigration judge rules upon it. Then, either the petitioner or the government may appeal the decision made by the immigration judge to the Board of Immigration Appeals. After the Board of Immigration Appeals issues its decision, a few specific types of cases, asylum among them, may be appealed to the federal circuit overseeing the jurisdiction where the petitioner lives (in the Romeike case, it’s the 6th circuit).

Now on to the Romeike case. German parents Uwe and Hannelore Romeike decided to homeschool their children because of concerns that the German public school system taught bad values and approved of witchcraft. Faced with fines, imprisonment, and the loss of custody of their children in the only European country where homeschooling is banned outright, the family fled to the United States in 2008. On January 26, 2010, an immigration judge granted the Romeikes asylum. The immigration judge held that the Romeike’s were “members of a particular social group” and concluded that they would face persecution for their religious beliefs should they be returned to Germany.

On May 4, 2012, the Board of Immigration Appeals overruled the immigration judge and denied the Romeikes asylum. The Board of Immigration Appeals needed to answer these questions: (1) Have the Romeikes suffered persecution? (2) If they did suffer persecution, was it because of their religion? (3) Alternatively, if they did suffer persecution, was it because of their membership in a particular social group? The Board of Immigration Appeals answered no to all these questions. First, it wasn’t persecution because the anti-homeschooling law was one of general application (not meant to target a specific group, but rather something that applied evenly across the board). Next, because there were secular reasons for the compulsory attendance law, even if it had been deemed persecution it wouldn’t have been persecution suffered because of their religion. Finally, the Board of Immigration Appeals found that German homeschoolers are not a particular social group within the meaning of the act. To be a social group, there must be “social visibility” and “particularity.” Homeschoolers are simply too “amorphous” to constitute a social group eligible for protection under the asylum law.

This is a fair summary of the BIA’s opinion.  LJF fails to observe, however, that almost all of the findings that the board made in reaching these conclusions were contrary to law.  Federal law and regulations provide, “Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.”  The BIA is limited to reviewing the facts found by the Immigration Judge.  In so doing, the BIA must defer to those findings unless it determines that they are “clearly erroneous.”  If the BIA makes such a determination, it may reach a different conclusion (based on substantial evidence from other facts found by the Immigration Judge) or it may remand the case back to the Immigration Judge.  Those are the only options.  When the Board “answered no to all these questions,” it did so by making its own findings of fact and by contradicting the Immigration Judge without a showing of clear error.  HSLDA’s reply brief identifies eleven such findings which appear in the government’s brief (in other words, even the government is aware that the BIA made its own findings and identifies them as such).  So, as a matter of law, the BIA’s conclusions are improper.  In a moment, we’ll get to why they’re also just plain wrong.

The Board of Immigration Appeals decision has now been appealed to the 6th Circuit. At issue again will be whether the Romeikes are being persecuted due to their religious belief or if they are being persecuted because they are a member of a particular social group.

The Religious Freedom Argument:

Note that asylum law does not depend on American constitutional rights. Just because you have a right under the American constitution, that does not mean you will receive asylum because your home country does not recognize that right. A prime example is the right to free speech. European countries tend to have a much narrower range of protections for speech, strongly limiting hate speech. Germany, for instance, forbids anyone from advocating for the Nazi party. Such a law would not survive a constitutional challenge in the United States. However, you cannot receive asylum in the United States if you are a Nazi sympathizer in Germany. This is because such a law would not be seen as “persecution” within the meaning of the asylum statute. Just as the Board of Immigration Appeals found that the Romeikes were not being persecuted because the compulsory attendance law was a law of general applicability to all Germans, no matter their religion or political beliefs, even so a generic “no hate speech” law under which pro-Nazi advocacy was banned would similarly not provide grounds for asylum.

This is true—American constitutional law does not determine whether an applicant deserves asylum.  Constitutional law does have a place in the analysis, however, when it comes to determining whether a particular practice should be considered “so fundamental to one’s identity or conscience that it should not be required to be changed.”  (This is one of the inquiries which immigration courts undertake when determining whether there is a particular social group at play.  More on that later.)

How do you determine whether a government’s actions constitute persecution? You (gasp!) look at international law. For all the time and energy it spends lambasting international bodies and rights treaties, it is surprising that HSLDA is relying on international law for its arguments. When HSLDA goes bonkers over the Department of Justice’s assertion that homeschooling is not a fundamental human right, they are really complaining that the Department of Justice doesn’t think homeschooling is protected by international law. The Department of Justice’s assertion has nothing whatsoever to do with an analysis of rights protected under American law. But really, HSLDA and their followers have no one to blame but themselves for the supposed lack of development in international law—they have been fighting any American involvement in the development of international law for decades.

This is inaccurate for two reasons.  One is simple:  HSLDA does not harbor a general antipathy toward international law or human rights treaties.  HSLDA has certainly made concerted efforts to prevent the ratification of some treaties, but they are all treaties of a particular type:  they do not deal with the conduct of nations, they deal with the internal matter of how nations treat their own citizens.  HSLDA takes the position that elected American legislators should make law for American citizens, so it routinely opposes treaties which include subject matter that is currently controlled by state law.  HSLDA would like to see the role of international law expand in its proper sphere—the law of asylum being an excellent example.

I alluded to the second reason above.  The Justice Department actually does not address our arguments about whether international law protects the right to homeschool because it believes that those issues were not properly preserved for appeal.  The government does assert, however, that parents’ desire to educate their children in accord with their values is not sufficiently fundamental to their “identity or conscience” such that it “should not be required to be changed.”  In previous federal cases, courts have looked to American constitutional law to make such determinations.  For instance, in Al-Ghorbani v. Holder, the Sixth Circuit quoted  Loving v. Virginia (a landmark U.S. Supreme Court case) to observe that marriage is a fundamental right and, consequently, that “Persons who are forbidden to marry, or those who oppose discriminatory restrictions on marriage, may therefore constitute a particular social group.”  In arguing that homeschoolers cannot constitute a particular social group, the government denies the fundamental right of parents to direct the education of their children.  This argument does have implications for American constitutional law.  Cases like Pierce v. Society of Sisters and Wisconsin v. Yoder stand for the importance of parents’ constitutional right to provide education in accord with their religious convictions to their children.  More recent cases, like Troxel v. Granville, have called into question the Court’s willingness to treat parents’ rights as fundamental.  That makes this case very important.

HSLDA contends that Germany’s compulsory attendance law is per se a religious liberty violation because its goal is the integration of minorities and avoidance of parallel societies. HSLDA is famously involved in all kinds of hyper-conservative political activities, and it’s amusing that the same populace known for their xenophobia and dislike of multiculturalism should now be upset with Germany for trying to encourage homogeneity within the populace. Germany’s policy is also little different than what occurred in the United States during the late 19th century, when public education was seen as a means to “Americanize” the millions of children immigrating every year.

Actually, HSLDA also invokes the trend in the late 19th century and early 20th century to “Americanize” children through education to criticize Germany’s objective here.  HSLDA stands for the proposition that parents, not the state, should be the primary influence in the lives of their children.  In the 1920s, Oregon attempted to compel all children to attend public school with the same objective, to prevent “the development of religiously or philosophically motivated ‘parallel societies.’”  (Those are the German Federal Constitutional Court’s words describing the justification for banning homeschooling.)  In response to Oregon’s law, the U.S. Supreme Court wrote,

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.  The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

In another case, Meyer v. Nebraska, Nebraska outlawed instruction in all languages except English in order to ensure that German immigrant children would assimilate.  The Supreme Court reached a similar holding, finding the law unconstitutional.

HSLDA, far from “xenophobia and dislike of multiculturalism,” affirms both of these holdings as cornerstones of constitutional liberty.  HSLDA is not against tolerance and pluralism.  HSLDA stands against state-imposed tolerance (which is nonsensical, see my earlier post), and State imposed homogeneity.  Ironically, the policy of Germany is against multiculturalism because it is trying to “counteract…parallel societies.”  HSLDA is simply defending the liberty of parents to teach their children in accord with their faith.  Germany is attempting to “standardize its children,” thereby reducing the endurance of minority cultures and perspectives in the hope that, by exposing all children to the same curriculum in the same schoolhouse, everyone will find common ground.  Finding common ground is a good thing.  Doing so with the coercive power of the state under the threat of fines or imprisonment is not.  HSLDA opposes Germany’s policy just as it opposes the attempts to “Americanize” immigrant children at the turn of the 20th century.

Be that as it may, the 6th Circuit should not see the compulsory attendance law as an attack on religious liberty. Germany is not out to smother any particular religious group or even all religious groups—its goal is a shared experience. In light of the problems Germany has had with the large number of Turkish immigrants not assimilating, it’s not difficult to see that the Romeike’s have just found themselves at odds with a law of general application. After all, under our own 1st amendment jurisprudence, laws of general applicability are not seen as violations of religious liberty.

First, this rests on the illegal “finding” of the BIA, in contradiction to the Immigration Judge’s finding that the law was based on “animus and vitriol” toward religious homeschoolers.  Second, even if this finding of fact is proper, Germany does not get off the hook because one of its goals is creating “a shared experience.”  To qualify for asylum, the Romeikes need only show that “one central reason” for the policy is Germany’s desire to “overcome a characteristic” of the Romeikes which is “fundamental to their identity or conscience.”  (See Al-Ghorbani and Khalili v. Holder)  Germany has identified homeschooling as a characteristic which leads to the “development of religiously and philosophically motivated parallel societies,” and it has elected to use its criminal law to eliminate that characteristic.  This satisfies the law of asylum, even if Germany has additional benign goals.  (I could also note that the last sentence from LJF mischaracterizes American law.  Laws must be “neutral” and “of general applicability.”  If a law is directed to suppressing a First Amendment freedom it is still unconstitutional, even if it applies to everyone equally.  The Oregon law in Pierce applied equally to everyone, but that did not save it in the Court’s eyes.)

Note also the kind of precedent HSLDA’s argument would set. If homeschooling were sufficient to grant you asylum in the U.S., what other laws of general applicability in other countries could get you asylum here? Remember my Nazi advocacy example? That would be the tip of the iceberg. What about countries where private gun ownership is barred? or countries where wearing the burka in public is banned? This would mean a complete transformation in the way the Department of Justice handles asylum cases.

This is entirely false.  First, the evidence on the record shows that the law is selectively enforced and that homeschoolers receive disproportionate punishment.  The BIA illegally ignored these findings by the Immigration Judge without a showing of clear error.  This law is actually not fairly applied in Germany.

Even if it was entirely general, our argument is limited in two ways that are completely consistent with existing precedent and, therefore, would only grant asylum to German homeschoolers.  First, persons fleeing from the application of general laws have already attained asylum.  Perkovic v. INS.  The question of persecution is always a question of motive.  It’s true, the vast majority of generally applicable laws will not rise to the level of persecution.  Most generally applicable laws are targeted at people with whom the “government has a legitimate bone to pick.”  (Perkovic)  However, we’re dealing with a situation in Germany that is unique.  In this rare case, the nation enacting the law has explicitly stated its motive—counteracting parallel societies—and that motive is inconsistent with international human rights law.  The definition of persecution is “the infliction of harm or suffering by the government…to overcome a characteristic of the victim.”  When the characteristic in question is legitimately criminal, then there’s no persecution.  When that characteristic is a person’s religious exercise or something that “should not be required to be changed,” that is persecution on account of religion or membership in a particular social group.

So, there’s no likelihood that this will open up a Pandora’s Box of asylum claims.  For instance, if Germany had enacted the same law but (a) truly enforced it uniformly and (b) did so with the only purpose of ensuring quality education or something unrelated to suppressing religiously motivated parallel societies, the Romeikes would not have a case.  Such a law would be unconstitutional in the U.S., but it would not be grounds for asylum.  HSLDA is not suggesting, and the argument does not imply, that all violations of human rights or constitutional liberties give rise to asylum claims.  The rule of this case, should the court decide in our favor, would simply reaffirm the existing definition of persecution—the infliction of harm for the purpose of overcoming a characteristic which should not be changed.  (Note—the LJF article mentions the potential for laws about wearing burkas to give rise to asylum claims.  Interestingly, this has happened twice already.  See Fatin v. INS and Yadegar-Sargis v. INS.)

The Social Group Argument:

HSLDA also argues, alternatively, that German homeschoolers are a particular social group and that hence the Romeikes are being persecuted because of their inclusion in that group. This also seems to be a losing argument, because social groups must share “immutable characteristics.” “Immutable characteristics” is a term typically found in Equal Protection law and commonly refers to things like race or gender. HSLDA and its ilk has fought against expanding Equal Protection to include other characteristics such as sexual orientation, but now—since it suits them—they would like this phrase to be broadened to include “homeschooling,” because homeschooling is “fundamental to [asylum-seekers’] individual identities or consciences.” The Department of Justice rightly contends that homeschooling is not an immutable characteristic because you can simply stop homeschooling.

HSLDA has responded in its brief that courts have never required people to simply stop being religious. Well . . . yes, but HSLDA is combining two separate grounds for asylum. You can be granted asylum because you were persecuted due to your religious beliefs OR you can be granted asylum because you were persecuted due to your membership in a particular social group, i.e. because of your immutable characteristics.Obviously, “particular social group” was meant to capture things like tribal affiliation, not actions like homeschooling. Once again, what HSLDA wants is a transformation of Department of Justice procedures regarding asylum cases.

This is incorrect.  In explaining previous paragraphs I already pointed out that the “immutability” requirement of particular social groups can be satisfied by characteristics which “cannot be changed” (like race or gender) or “should not be required to be changed” that are central to one’s identity and conscience.  HSLDA’s arguments about Equal Protection have nothing to do with their stance on this.  The 14th Amendment arguments about sexual orientation concern the original intent of those who wrote and ratified that document.  The asylum law arguments about the fundamental character of homeschooling depend on existing court rulings.  Federal courts have already identified certain matters of conscience which one could simply “stop” doing, like homeschooling, but that one should not have to stop doing.  These include the above examples of a woman’s refusal to comply with the “Islamic female dress code.”  Such refusal is fundamental to a woman’s identity and conscience, even though she could just stop doing it.  The Romeikes believe that they must instruct their children in a particular way.  They could “simply stop.”  They should not be required to do so, according to international law.  They meet the legal standard.

Concluding Thoughts:

Finally, a word about the meme going around (perpetuated by HSLDA), asking why Obama wants to give 11 million undocumented immigrants “amnesty” while seeking to deport the Romeike family.obama wants to

First, Obama himself is not the one making any decisions about the Romeike family. (And remember that the family was first granted asylum when Obama was in office, not Bush.) That is an agency decision made by people who are career attorneys within Department of Justice. Administrations come and go, but these career attorneys stay. Second, under the existing law, the Romeikes should be deported. The administration is simply enforcing the law as to the Romeikes based on what the law currently says, just as the administration has done with the record number of immigrants it has deported over the past several years, not creating new laws or changing existing ones.

This is true enough.  The point is not that HSLDA believes that President Obama is working personally to deport the Romeike family.  The point is that the administration is actively seeking their deportation, and that administration is responsible to the President—the same President who is supporting widespread amnesty.  The article also correctly observes that the Romeikes were granted asylum during Bush’s presidency.  The appeal to the BIA is a discretionary appeal—someone at the DOJ is attempting to have the Immigration Judge’s initial determination reversed.

As I’ve argued, “existing law” requires granting the Romeikes asylum rather than deporting them.  HSLDA is opposing arguments from the administration which would result in a poor application of the law.  HSLDA has never accused the administration of “creating new laws” or “changing existing ones.”  Rather, HSLDA thinks that the legal arguments being made here are both incorrect and dangerous.

HSLDA would whine and complain if Obama used his prosecutorial discretion to not enforce the law against the illegal immigrants currently being deported. But now, for the Romeikes, HSLDA is asking for an exception to the rules. Why? Because HSLDA likes these illegal immigrants. You will not see HSLDA and its hyper-conservative supporters wanting the Obama administration to show this kind of compassion to the millions of individuals who came to the United States due to the poverty and violence in their home countries. Let those people find a life somewhere else, the fundamentalists working at HSLDA would say. Well, the Romeikes can find a life somewhere else too—almost anywhere else in Europe but Germany.

There is no evidence to support the callous disposition which the author attributes to HSLDA.  HSLDA isn’t asking for an exception or drawing lines between good and bad immigrants.   I’ve spoken with the attorney arguing the case, and he wants America to be a haven of liberty for all those who are persecuted abroad.  The key distinction is whether someone attempts to enter our country in conformity to our existing laws.  The Romeikes have done so.  Many millions of other immigrants have not.

First, if we could fix the immigration system so that the Romeikes could simply and easily move to the U.S. legally without having to apply for asylum, this problem would go away. And which side is generally against immigration reform?

HSLDA would like to see immigration reform, especially reform which would allow the Romeikes and other persecuted refugees to enter more easily.  In fact, they’re currently working with the government on a nonpartisan basis to this end.  The fact that so many millions of people want to come here legally but cannot is a tragedy.

Second, because of the ease with which people can move from one country to another within the European Union, the Romeikes could have simply moved to France or Switzerland or Austria, where homeschooling is legal. Instead, HSLDA attorney Mike Donnelly encouraged the Romeikes to move to the U.S. and apply for asylum, possibly with the intent of starting a court battle and having homeschooling declared a human right. in other wise, the Romeikes are being used as a political playing piece by HSLDA, the homeschool lobby, and conservative political hacks.

This is a baseless charge.  HSLDA has always believed that current U.S. law should grant the Romeikes asylum.  They are not a “political playing piece” and HSLDA is not a group of “conservative political hacks.”

sarah could beThird, the Romeikes are not at risk of being put on a plane to Germany and arrested on arrival. Their children are not in danger of being taken from them. The image above is deliberately communicating a falsehood. If their request for asylum is rejected, the Romeikes can go to any country which will accept them as immigrants—or any country in the EU—and will be given a time period in which to make these arrangements.

This is false.  The final agency determination reached by the BIA said, “The applicants are ordered removed from the United States to Germany.”  The Romeikes have already been subjected to legal sanctions in Germany, which would likely increase upon their return as a result of their flight.  Authorities have already informed them that they could lose custody of their children.  This photo is factually accurate.

Fourth, it is my position that whether or not homeschooling should be legal in Germany ought to be up to Germany. If the German people want to make homeschooling legal, great! But if they want to mandate that children must attend a formal school (public or private), I don’t have a problem with that. It’s their country, their constitution, their laws.

HSLDA champions the rights of nations to make their own laws.  This permeates their position on international law, which I explained above.  HSLDA simply argues that if a nation chooses to make a law which constitutes persecution within the meaning of our law, people who flee that nation should be granted asylum.  HSLDA is not trying to get Germany’s law declared invalid in the International Court of Justice.  HSLDA is trying to secure asylum for the Romeikes in the Sixth Circuit Court of Appeals.

Fifth, I remember HSLDA talking about threats to German homeschoolers way back when I was a little girl, and I am firmly convinced that HSLDA is using the Romeike case, as it has used German cases before, to keep U.S. homeschoolers in a state of fear and keep them coming back to HSLDA to buy their legal insurance. Whether or not homeschooling is legal in Germany has absolutely no effect on whether it is legal in the U.S.

This is not fear-mongering.  The connection between the government’s arguments and American constitutional law is subtle, but it is very real.  HSLDA is concerned with protecting the liberty of parents in America and of those who seek asylum from persecution abroad, not with stirring fears for financial advantage.

Sixth and finally, see this interesting fact checking article for more information for refuting bad arguments and information out there about the Romeike case.

As far as that article goes with respect to the legal issues in this case, my post here is sufficient to answer them.  Inasmuch as it deals with issues that are not specific to Romeike, I do not have sufficient knowledge to address them at this time.

Please comment if you have questions about this important legal issue.