Stateways v. Folkways; Alito v. Roberts

June 27, 2015
Posted by Jay Livingston

“Stateways cannot change folkways.”* Or can they? That’s an empirical question, and it figures briefly in two of the dissents in the Supreme Court’s gay-marriage decision yesterday.

Chief Justice Roberts (Dread Justice Roberts – except for an occasional Obamacare decision) and Justice Alito both dissented. Their arguments were mostly about the Constitution. But both also made stateways/folkways predictions about the effects the decision would have on public opinion.

Justice Roberts went sociologist Sumner one better. The law would change public opinion – but in the opposite direction.

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.   That ends today.   Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.  Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.              *        *        *        * Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs. [emphasis added]

Alito, on the other hand, thinks the Court’s decision will make gay marriage so widely accepted that those who oppose marriage equality will live in fear, able to “whisper their thoughts” only in the safe rooms of their houses.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.

Once you get past the whiny tone (poor little Sam Alito: “My ideas will be won’t be popular any more and people will make fun of me”), you have an empirical prediction. Those who “cling to old beliefs” will be persecuted. You know, like early Christians (or contemporary Christians if you believe Bill O’Reilly). 

For one of his predictions you have to define “marginalization” and “vilification” and get measures of them before and after yesterday’s decision — a difficult task, maybe an impossible one, though the question remains an empirical one. It will be easier to operationalize and get data on how often America’s governments, employers, and schools mistreat the anti-gay-marriage thought-whisperers.

If previous SCOTUS decisions are a guide, you have to lean towards Alito, at least as concerns public opinion. Patrick J. Egan at The Monkey Cage (here) created this chart showing trends in public opinion following decisions on interracial marriage and abortion. He also included opinion on marriage equality in the years leading up to yesterday’s decision.

In 1967, the year of the  Loving decision, supporters of interracial marriage were in the minority.** By the time of that decision, support had risen, and it continued to rise. The Court had, to paraphrase Roberts, “stolen the issue from the people,” But that decision did not “cast a cloud over interracial marriage,” nor did it “make a dramatic social change that much more difficult to accept.”  Much the opposite. But Roe v. Wade seems to have had little impact on public opinion.

Obergefell looks more like Loving than like Roe. Support for gay marriage has been on the increase and has already become the majority view. More important, the pro/anti differences are generational, as was the case with interracial marriage. The generations coming in are more liberal on this issue than are the generations exiting the population. Opposition to marriage equality will continue to fade, not because of persecution or because of “government, employers, and schools,” but because of heart disease, cancer, and respiratory illness.

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* What Sumner actually said was, “legislation cannot make mores.”* But he said it in a book called Folkways (1906), the meaning is nearly identical, and it sounds better than what he really said. For more on inaccurate quotes, see James Grossman’s blog post “Did They Really Say That?” (here).

 Grossman adds, “if you are of a mind to check ‘legislation cannot make mores,’ please note that if you do it through Google Books you are likely to be asked whether you really mean ‘legislation cannot make smores.’”

** The chart shows GSS data on “oppose ban” – 44%.  A Gallup poll from roughly the same time asking about “approval” for interracial marriage showed only about 20% approving.

Character or Structure – The David Brooks Temptation

June 26, 2015
Posted by Jay Livingston

I was on jury duty this week, and the greatest challenge for me was the David Brooks temptation. I found myself on the verge of using that experience to expound on the differences in generations on the great changes in culture and character that technology and history have brought.

I did my first tour of duty in the 1970s. Back then you were called for two weeks. Even if you served on a jury, after that trial ended, you went back to the main jury room. If you were lucky, you might be released after a week and a half. Now it’s two days.

What most struck me most this time was the atmosphere in the main room. Now, nobody talks. You’re in a large room with maybe two hundred people, and it’s quieter than a library. Some are reading newspapers or books, but most are on their latops, tablets, and phones. In the 1970s, it wasn’t just that there was no wi-fi, there was no air conditioning. Remember “12 Angry Men”? We’re in the same building. Then, you tried to find others to talk to. Now you try to find a seat near an electric outlet to connect your charger.

I started to feel nostalgic for the old system. People nowadays – all in their own narrow, solipsistic worlds, nearly incapable of ordinary face-to-face sociability. And so on.

But the explanation was much simpler. It was the two-day hitch. In the old system, social ties didn’t grow from strangers seeking out others in the main jury room. It happened when you went to a courtroom for voir dire. You were called down in groups of forty. The judge sketched out the case, and the lawyers interviewed the prospective jurors. From their questions, you learned more about the case, and you learned about your fellow jurors – neighborhood, occupation, family, education, hobbies. You heard what crimes they’d been a victim of.  When judge called a break for bathroom or lunch or some legal matter, you could find the people you had something in common with. And you could talk with anyone about the case, trying to guess what the trial would bring. If you weren’t selected for the jury, you went back to the main jury room, and you continued the conversations there. You formed a social circle that others could join.

This time, on my first day, there were only two calls for voir dire, the clerk as bingo-master spinning the drum with the name cards and calling out the names one by one. My second day, there were no calls. And that was it. I went home having had no conversations at all with any of my fellow jurors. (A woman seated behind me did say, “Can you watch my laptop for a second?” when she went to the bathroom, but I don’t count that as a conversation.)

I would love to have written 800 words here on how New York character had changed since the 1970s.  No more schmoozing. Instead we have iPads and iPhones and MacBooks destroying New York jury room culture – Apple taking over the Apple. People unable or afraid to talk to one another because of some subtle shift in our morals and manners. Maybe I’d even go for the full Brooks and add a few grafs telling you what’s really important in life.

But it was really a change in the structure. New York expanded the jury pool by eliminating most exemptions. Doctors, lawyers, politicians, judges – they all have to show up. As a result, jury service is two days instead of two weeks, and if you actually are called to a trial, once you are rejected for the jury or after the trial is over, you go home.

The old system was sort of like the pre-all-volunteer army. You get called up, and you’re thrown together with many kinds of people you’d never otherwise meet. It takes a chunk of time out of your life, but you wind up with some good stories to tell. Maybe we’ve lost something. But if we have lost valuable experiences, it’s because of a change in the rules, in the structure of how the institution is run, not a because of a change in our culture and character

YouThought So Too? I Had No Idea.

June 24, 2015
Posted by Jay Livingston

The governors of Virginia and South Carolina have now taken stands against the Confederate battle flag. So have honchos at Wal*Mart, Sears, Target, and NASCAR.

NASCAR! How could this cascade of reversals have happened so rapidly? Did these important people wake up one morning this week and say to themselves, “Gee, I never realized that there was anything racist about the Confederacy, and never realized that there was anything wrong with racism, till that kid killed nine Black people in a church,”?

My guess is that what’s going on is not a sudden enlightenment or even much of a change in views about the flag. To me it looks more like the process of “pluralistic ignorance.” What these people changed was not their ideas about the Confederacy or racism but their ideas about other people’s ideas about these matters. With pluralistic ignorance (a term coined by Floyd Allport nearly a century ago) everyone wants X but thinks that nobody else does. Then some outside factor makes it possible for people to choose X, and everyone does. Everyone is surprised – “Gee, I thought all you guys wanted Y, not X .” It looks like a rapid change in opinion, but it’s not.

A few years ago in places like Ireland and Europe, people were surprised at the success of new laws banning smoking in pubs and restaurants. Oh, the smokers will never stand for it. But it turned out that the smokers too were quite happy to have rooms with breathable air. It’s just that before the laws were passed, nobody knew that’s how other people felt because those people kept smoking. The same thing happened when New York City passed a pooper-scooper law. The law is unenforceable, people said; cops will never see the actual violation, only its aftermath. And do you really think that those selfish New Yorkers will sacrifice their own convenience for some vague public good? But the law was remarkably effective. As I said in this post from 2009,

Even before the new law, dog owners had probably thought that cleaning up after their dogs was the right thing to do, but since everyone else was leaving the stuff on the sidewalk, nobody wanted to be the only schmuck in New York to be picking up dog shit. In the same way that the no-smoking laws worked because smokers wanted to quit, the dog law in New York worked because dog owners really did agree that they should be cleaning up after their dogs. But prior to the law, none of them would speak or act on that idea.

In South Carolina and Georgia and Bentonville, Arkansas and elsewhere, the governors and the CEOs surely knew that the Confederacy was based on racist slavery; they just rarely thought about it. And if the matter did come up, as it did in a recent Supreme Court decision about license-plates, they probably assumed that most of their constituents and customers were happy with the flag and that the anti-flaggers were a cranky minority.

With the support for letting that flag fade into history, it looks now as though for quite a while, many Southerners have been uncomfortable with the blatant racism of the Confederacy and the post-Reconstruction era. But because nobody voiced that discomfort, everyone thought that other Southerners still clung to the old mentality. The murders in the Charleston church and the subsequent discussions about retiring the battle flag allowed Southerners to discover that their neighbors had always shared their misgivings about the old racism. And it allowed the retail giants to see that they weren’t going to lose a lot of money by not stocking the flag.

James Salter, 1925-2015

June 20, 2015
Posted by Jay Livingston

A Sport and a Pastime has long been one of my favorite novels. The author, James Salter, died yesterday. 

The novel was published in 1967. I don’t remember when I first read it – maybe in the 1970s. It had me at hello. Here are the opening sentences

September. It seems these luminous days will never end. The city, which was almost empty during August, now is filling up again. It is being replenished. The restaurants are all reopening, the shops. People are coming back from the country, the sea, the roads all jammed with cars. The station is very crowded. There are children, dogs, families with old pieces of luggage bound by straps.

Unmistakably Paris. The narrator is in the station and then on a train leaving the station.

Soon we are rushing along the valley of departure, the houses of the suburbs flashing by, ordinary streets, apartments, gardens, walls. The secret life of France into which one cannot penetrate, the life of photograph albums, uncles, names of dogs that have died.

Salter paints with quick brushstrokes, somehow finding the perfect details that convey the entire scene and an idea – that the narrator, an American, can never know this secret but ordinary France.  The names of dogs that have died.

At first, I was a bit hesitant to recommend this book to others, mostly because of the sex. Even the Times obituary is circumspect.

Controversy surrounded “A Sport and a Pastime,” a slender book dense with eroticism about an American expatriate’s affair with a young Frenchwoman. Their lovemaking is described at close range by a third party, a none too reliable narrator, in a story that has been called, among other things, “intensely transgressive.”

Any guesses as to what about the lovemaking was transgressive? OK. It was anal sex – in 1967 still a rarity for serious writers. Only Burroughs in Naked Lunch (1959) and Mailer in An American Dream (1965) come to mind, and they were using it to epater le bourgeois; these were exertions, deliberate attemps to be “transgressive.”  In A Sport and a Pastime, the anal sex is part of the love affair.

Strange that the Times is so prissy nearly three decades after they first decided the AIDS crises had made the phrase “anal sex” fit to print. I long ago abandoned my diffidence about recommending the book because of it.

The narrator presents more of a problem. His identity and his relation to the characters is ambiguous. We can trust him about what he sees out the window of the train. But how can he know what has gone on in the hotel rooms of the lovers (Philip Dean and Anne-Marie)? He makes no secret of his unreliability.

I am not telling the truth about Dean, I am inventing him. I am creating him out of my own inadequacies, you must always remember that.

But I confess, it’s mostly for the prose style that I reread this book.

Images of the towns. Sens. The famous cathedral which is reflected in the splendor of Canterbury itself rises over the icy river, over the still streets. . . . The little shops have grown close around it, cinemas, restaurants. Still, it cannot be touched. Beneath the noon sun the roof, which is typically Burgundian, gleams in the strange design of snakeskin, banded into diamonds, black and green, ocher, red. The sun splashes it like water. The brilliance seems to spread.

Snakeskin! I had looked at those roofs in Burgundy several times, but I had never really seen them.