I wrote a piece in Salon about how cultural conservatives (but also everyone) aren’t serious about their process arguments when it comes to really anything, but in particular issues of gay inclusion in society. Certain cultural conservatives say, when it’s convenient for them, to use market and civil coercion — the battlefield of civil society — to discipline anti-gay bigotry. But then they project immeasurable amounts of spittle from their mouths when you do precisely that. It’s almost as if they just have preferences about what the culture should look like and adopt short-term process arguments that tend towards that aim.
Sadly, I was not able to point out what a joke hack Kevin Williamson is in the article because he only showed himself to be such a hack after I had submitted the piece. Nonetheless, writing in the money-losing National Review, he got all hot and bothered about it anyways.
Here is a list of things he said in response:
- Using market and civil coercion are the best way to punish unpleasant behavior.
- Bankrolling efforts to take marriage rights away from people who already have them on account of them being gay is not sufficiently unpleasant behavior to warrant this best form of punishment.
- He can’t articulate what would ever make something sufficiently unpleasant because no such abstract articulation would be adequate.
- Cool story about how he was legit against anti-sodomy laws. (Relevance unclear)
- Although he was legit against anti-sodomy laws, under his particular theory of constitutional jurisprudence, you should be able to have them. (Relevance unclear)
- A fellow named Adam Weinstein at Gawker has got him real mad because he said something about how you should jail people who aren’t down with preventing catastrophic climate change. (Relevance unclear)
Points 1 through 3 are the only points directly related to anything I have said, and they present exactly the kind of pathetic hand waving failure I keep pointing out. In short, we have an urging that you use market and civil coercion to punish people for X (1) and then a refusal to define what X is (3). Naturally, whenever anyone uses market and civil coercion to punish people, since you refuse to define X, you can just say “ah good try, but this was actually not-X” (2). If they ask you for clarification on what would count as X and therefore make it OK to use the market and civil coercion you keep telling them to use, your response is “sorry bro, too hard to say on account of infinite gradations and such” (3).
Everyone knows how this game plays out in practice. Whenever someone uses market and civil coercion to punish someone for anti-gay actions, those actions will never rise to X. Nothing will ever be sufficiently unpleasant to permit someone to use the market and civil mechanisms Williamson says they should use. Bankrolling an effort to get the state to use legal coercion against gays to take away the marriages they already have doesn’t count as sufficiently unpleasant behavior, it seems (Mozilla). Neither does suggesting they are disgusting and akin to criminals (Duck Dynasty). Anytime someone tries to use market and civil coercion against some particular anti-gay activity, they will be informed by judge Williamson that unfortunately the anti-gay activities in question just weren’t bad enough. Ad infinitum.
What’s so funny is that despite all of his deeply developed views on legal jurisprudence, Williamson does not appear to see that he is doing exactly what so-called conservative judges hate so much. He has articulated a rule for when to use market and civil coercion, but the rule amounts to an infinitely interpretable and vague test. He can’t quite set out the rule for how to know when it is OK to use coercion. He just has his gut feels about it. Conservative legal jurists hate this, which they refer to as “legal balancing” or “all factors considered tests” or “totality of the circumstances tests.” Why do they hate them? Because you can’t actually follow them and the judge can pretty much say whatever they want about any given case because the standards are so vague.
But this sort of procedural vagueness serves Williamson perfectly here. He gets to make-pretend that he, in principle, supports using market and civil coercion to discipline anti-gay behavior by pointing to his X test. And then, anytime anyone ever does it, he strokes his beard a bit, does some balancing, considers the totality of the circumstances in his impressionistic way, and then surprisingly comes out concluding that the effort to discipline the anti-gay activity was actually wrong, this time. Every time.