Lawrence vs. Texas on Personal Animus as Basis for Legislation: Is this a Critique of Expressionism?

Lawerence v. Texas found that personal animus is not a sufficient reason to justify regulation of an activity; a personal (preferential?) or moral judgment of an activity does not render it subject to government legislation.  

This finding seems to recall, and may be equivalent to, the idea of mine that the expressive function of the law ought to be of a lower priority than other legal functions, especially policy outcome.  In general, this principle on which this case was decided seems to me to be similar to the derision for the expressive function of political action that I have often articulated.

Constitutional Law of Gay Marriage and Function of Focus: Expressive, Symbolic, Virtue of Character

Some people who favor gay marriage--including top constitutional lawyers, who don't just favor it but believe it to be a constitutional imperative of required by justice--still take issue with the reasoning of the Obergefell decision.  It continues in a shaky line of vague, seemingly ad hoc jurisprudence, that is unnecessarily controversial and therefore sub-optimally/maximally legitimate.

Instead, they argue, of inventing/discovering/articulating a new right to a new or changed entity based on a new protected class, base the articulated/established right on the more settled law of sex discrimination.  This has the added benefit of according/cohering more with common sense: gay relationships are no worse or better than straight ones, cause it doesn't matter if one partners with a man or a woman, i.e. the person's sex doesn't matter/shouldn't matter/be relevant/is relevant.  

And while I have no knowledge at all about the legal path this case and preceding cases in the larger effort to get to this point, I can't help but wonder if the fact that the legal option actually pursued (other than tailored to Kennedy's prejudices) is related to the seemingly newly ascendant focus on symbolism and language and the expressive function of political acts.

Is there a connection between the focus on symbolism and language and the possible legal cases/paths of reasoning on gay marriage, i.e. the court could have legalized gay marriage nationwide using less controversial legal reasoning (sex discrimination) but which would not have out right made a case for gay people?

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They're focusing on the expressive function of the law

, but there's also the focus on the agents involved

and basing one's political position on prioritizing the ability to tell the virtuous from the vicious, or to express/communicate/show-illustrate/declare/call attention to for others the virtue (or otherwise) (or vicious character) of others.

Does Whether X is a Choice Matter to How It Should Be Legally Treated/Addressed?

Hoisted from the draft queue from 3/5/14:

Why does it matter whether or not a controversial potential subject of legislation is a choice or not?  For example, why does it matter whether homosexuality is a choice or not?

Plenty of people who support gay rights make the argument that they should not overly rely on their involuntary nature—that’s an empirical fact, and may change as new information comes to light or even if technology emerges that makes it changeable, rendering the choice to use it or not equivalent to the choice of whether or not to be gay.  What matters is whether or not it’s chosen, on this view, but whether or not it affects/harms others who haven’t chosen to be so affected/harmed.

***

But, on the alternate view, whether or not an action is a choice matters because criminal sanctions on inactivity are meant to reduce that activities rate of incidence.  

So if a certain behavior is not a choice, then those who embody/manifest/engage in it will persist in doing so regardless of the penalties they thereby suffer.  In such cases, when the demand for the activity in question is quite inelastic (so to speak), erecting and prosecuting a system of criminal punishment against the activity's participants is pointless and unlikely to result in a change in behavior, and therefore does not justify its cost—either financial, in terms of the resources taken from others devoted to this purpose, or moral, in terms of how the targeted individuals are treated.

***

Kant's 'ought implies can' seems relevant here: only if something is a choice do moral issues exist there.

For Sake of Liberty, Not Competing Values: Regulation

Hoisted from the draft queue from 3/6/14:

We pretty much take it for granted these days that regulation, a standard government regulation prohibiting some commercial activity under threat of financial or criminal penalty, impinges on liberty.

Those right of center argue that because of this such regulations are wrong. Those left of center generally concede that these regulations impinge on liberty but that they still might be justified by reference to other values, whose (force is stronger/weight is greater) in some instances.

On the other hand, I'd argue that many such regulations can be justified on grounds of liberty, without having to introduce other competing values.

Examples: trigger warning, nutritional information, anti-gay religious exemptions, etc.

This is a good demonstration of why I once called myself a libertarian and why I still have feelings for the label.

Conservatives' and Liberals' Moral Psychology

This is an old column but I came across when someone else things to it as part of a response to one of his current columns on ideological diversity.  It discusses how liberals give us to charity than conservatives and the implications of that, in the context of the public policy debate in which Liberals are widely agreed to be more generous public spending/public resources/public funds/the budget to the downtrodden.  

I've read/heard elsewhere that this finding disappears when you control for religion, so it's religion and not conservatism that makes people more charitable, and it's in religion and not liberalism that makes them less so. (check to see if this is in the column, and check to see if it's true)

More recently, it's been discussed some from the unearthing of a 1981 quote from Bernie Sanders that he does not believe in charity.

This might seem to accord with my analysis on liberals and conservatives and their differences on collective action problems: liberals favor coordinated solutions to collection action problems and conservatives don't, in general. 

Maybe this is because liberals overestimate/overprotect free-riding/action of unenlightened self interest, so they don't believe uncoordinated action can solve it, and maybe it's because liberals see themselves and those around them, who are also highly likely to be liberals, free-ride/act of unenlightened self-interest frequently/most of the time, i.e. that liberals free-ride/act on it unenlightened self-interest more than liberals do.

Maybe because they're less generous slash more vicious/less virtuous, or maybe it's because they have a different technical/positive view/belief, i.e. they believe and uncoordinated solution is less likely to happen, and are just taking the rational action rashly taking the action consistent with that belief.

Test both of those 

Maybe liberals just think that they don't have to do it, and it will even get done more efficiently by government.

The pros think they just should not have to do it.

Are they doing it out of defensive free-riding or initial free-riding?

Bleeding Heart Tightwads - NYTimes.com

Does the Duty of Charity Extend to Public Programs?

I was going back through a series of posts to connect a point made there to one I've made previously, when this made me think very clearly about a view very commonly espoused in arguments over any aspect of political economy:

"But mightn’t the Good Samaritan’s general attitude of generosity towards strangers induce him to support paternalism and the welfare state? I doubt it.First, an immediate response to an unmistakable need is quite a different matter from a programmatic purpose of bettering the human condition, and I don’t think the psychological motives of the two are very similar."

Many people hold this combination of positions: opposition what they call welfare programs or redistribution, those policies intended to reduce poverty and ameliorate its effects, accompanied by adherence to an ethical system, often religiously based, that affirms a duty to help others in need including strangers and the poor. They argue that private, voluntary charity is what this duty calls for, not a communal, government coordinated action intended to be a comprehensive solution; indeed, some argue that the obligatory nature of such a communal endeavor might even negate the generosity's moral worth.

National vs. State-level Policy, and Deontology

As a general matter, it seems to me that you can't rationally oppose a policy at the federal level for deontological reasons, but support the same policy at the state level.  In other words, you can't argue both that a certain policy unjustifiably violates people's rights when imposed upon an unwilling opponent by the federal government and that the same policy does not violate people's rights when imposed upon an unwilling opponent by a state government.