Pragmatic politics focused on the public interest for those uncomfortable with America's two-party system and its way of doing politics. Considering the interface of politics with psychology, cognitive science, social behavior, morality and history.
Etiquette
DP Etiquette
First rule: Don't be a jackass.
Other rules: Do not attack or insult people you disagree with. Engage with facts, logic and beliefs. Out of respect for others, please provide some sources for the facts and truths you rely on if you are asked for that. If emotion is getting out of hand, get it back in hand. To limit dehumanizing people, don't call people or whole groups of people disrespectful names, e.g., stupid, dumb or liar. Insulting people is counterproductive to rational discussion. Insult makes people angry and defensive. All points of view are welcome, right, center, left and elsewhere. Just disagree, but don't be belligerent or reject inconvenient facts, truths or defensible reasoning.
Friday, December 4, 2015
Objectively defining the public interest
IVN published a Dissident Politics article on how to objectively define the concept of the public interest and why it matters. The point is to create an intellectual framework or political ideology that is broad enough to limit the tendency of narrower ideologies, e.g., liberalism, conservatism, socialism or laissez-faire capitalism to unconsciously distort fact and logic so that they conform to narrower ideological constraints. The article is here.
Tuesday, November 24, 2015
Political principles for objective politics
Dissident Politics published an article at Daily Kos on the ideology needed to make politics more objective than it now is. The article is here and reproduced below.
Incoherent politics
At one time, politics and political rhetoric more or less
made sense most of the time. Or, at least it that’s what it seemed. In the
1990’s, that was true less often and by the early 2000’s politics and political
rhetoric appeared to be incoherent nearly all the time. That was from a mostly
objective, open-minded point of view.
From subjective liberal democrat and conservative republican
contemporary viewpoints, their own side mostly makes sense, while the
opposition sounds more and more incoherent at best, and stupid, lunatic and/or
treasonous at worst. How independents, about 43% of Americans according
to one poll, see both sides today is unclear. Since independents
self-identify as independent it probably isn’t much different than how the two
sides see each other.
Casting about in liberal, conservative, socialist,
capitalist and religious theory or ideology for insight shed no light why
politics seemed so incoherent. Other factors, such as corruption of politics by
special interest money, or sacrifice of the public interest in service to the
two-party system (the press-media included) didn’t really explain the situation
either. All of those factors seemed to be secondary to something else. In other
words, neither political, economic or religious theory nor a subverted
political system offered a convincing basis for an explanation.
Failed ideologies
The sources of mainstream theory completely contradict each
other despite being held in the highest esteem by their supporters. In addition,
different partisan factions looking at the same issue usually
see vastly different facts and their common sense usually arrives at
opposite or incompatible policy choices. Simply dismissing the two-party system,
including the press-media, as corrupt and/or inept does not explain that
situation. What passes for acceptable facts, rhetoric and logic among the
partisans in some factions but not others has to be based on inexplicable hysteria/dementia
or something else.
The biology of being human
Looking outside the authoritative sources that drive
mainstream political opinion provides the answer. Over the last 40 years or so,
social and biological sciences have figured out enough of the biology of human
cognition to reasonably explain the situation. It turns out that humans
are mostly irrational or subjective about how they see reality and apply
logic or common sense to what they see. Reasoning or objectivity is much less
influential and usually not involved. When humans do apply reason to issues or
situations, the point of the exercise is to find the best reasons why somebody
else ought to join us in our judgment, not to critically assess the
accuracy or logical coherence of our own perceptions of reality and beliefs.
In addition to intuitive-subjective dominance, human
intuition in politics operates in a personal moral framework. Politics and
policy choices are constrained by morality based on the values of conservative
and liberal ideology and how those moral
frameworks affect reasoning and perceptions of reality or facts. Social science
research indicates that personal ideology is a key driver of false
fact beliefs and presenting ideologues real facts has limited capacity to
affect personal opinions. When faced with facts or logic that undermines
personal belief, humans tend to look for support, while rejecting or ignoring
disconfirming evidence. It all happens fast and unconsciously.
This happens all the time in politics and real life. People
who deny that anthropogenic climate change is real or caused by humans reject
the science and/or scientists who support it. People who distrust vaccines as
dangerous and refuse to get their kids vaccinated do the about the same thing.
Facts and logic that undercuts personal morals or beliefs are routinely
downplayed or rejected.
Given the way the human mind works as a spin machine, it
raises two fundamental questions. First, is it better to rationally understand
the way the world really is or how we want it to be? Second, is there a better
way to approach politics despite our innate unconscious biological urges to
distort fact and logic in the name of personal ideology or morals?
Fact and logic is better than fantasy and illogic
Most ideologues of any political, economic or religious
persuasion would argue that they do base their politics on facts and logic. There
is an implied, if not explicit, consensus that fact- and logic-based politics
is better than false fact- and biased logic-based politics. Even without the
implicit consensus, the first question’s answer is that fact- and logic-based
politics is better. People who disagree are wrong from an objective point of
view.
An affirmative answer to the second question becomes apparent
if one (i) accepts the foregoing description of the biology of subjective politics
and (ii) prefers reality over fantasy. Political beliefs are common sense and
unconscious intuitive moral judgments that come with standard political
ideologies. Since ideological morals or values bend fact and logic to their
dictates, objective politics necessarily has to be based on political ideology
or morals that are designed to minimize unconscious distortion of facts and
logic.
Three morals for objectivity
The simplest set of objective morals or political principle that accomplishes the
goal of minimizing distortion is to accept the ideology of (1) fidelity to
unbiased fact and (2) fidelity to unbiased logic, (3) in service to a broadly
but objectively
defined public interest. The broad public interest definition is needed to
minimize the inevitable fact and logic distortion that narrow ideologies such
as liberalism, conservatism, capitalism or socialism generates. No existing
political, economic or religious theory is based on the modern understanding of
the biology of human cognition and that, coupled with ideologies not based on
that understanding, serve to make politics incoherent, inefficient and
relatively corrupt. No prior theory of politics could be based on modern
cognitive science because that knowledge did not exist until now.
Obviously, asking people to switch to a political ideology
or moral framework based on fact, logic and serving the public interest asks a
quite a lot. Conservatives will reject it as creeping socialism or worse and
defend the conservative values, e.g., anti-government, low regulation
sentiment, that made America great. Liberals would similarly reject it and
defend the liberal values, e.g., the social safety net, that made America
great.
However, for people who see the two-party system and its
business as usual as incoherent, inept or corrupt, this proposal to base
politics on the reality of human biology should be of some interest. If nothing
else, it represents the first fundamentally new approach to politics in at
least the last millennium or two. Think of the proposal as objective politics
v. 2.0, with everything that has gone before as subjective politics v. 1.0.
Tuesday, November 17, 2015
The ideology of terror
IVN published a Dissident Politics article on the ideology and logic that underpinned the recent attack on civilians in Paris. The article included this:
If the Paris tragedy inspires in some of us who mourn a moment of reflection, and a better understanding of the limited capacity of the human mind to see reality and think rationally about it, then the lives in Paris were not lost in vain.
Better understanding of this human frailty cannot change what happened. But, it can open minds and that helps to see people and what they do in new ways. Something in that better understanding might point to a better solution.
The solution may be slow, messy and painful. And, it may be too late to affect this particular brand of terror. Despite that, it just might be a path without war, if not now, then in the future.
The article is here.
If the Paris tragedy inspires in some of us who mourn a moment of reflection, and a better understanding of the limited capacity of the human mind to see reality and think rationally about it, then the lives in Paris were not lost in vain.
Better understanding of this human frailty cannot change what happened. But, it can open minds and that helps to see people and what they do in new ways. Something in that better understanding might point to a better solution.
The solution may be slow, messy and painful. And, it may be too late to affect this particular brand of terror. Despite that, it just might be a path without war, if not now, then in the future.
The article is here.
Monday, November 16, 2015
Free speech: Quotes & commentary
These quotes and comments on free speech in politics show some of the historical and legal bases that built and support the ongoing vacuous emptiness of modern American politics. Commentary on how some modern commentators see free speech in politics.
Both truth or facts and common sense in politics are mostly subjective because the ideologies that filter reality and common sense are mostly subjective. In other words, liberalism, conservatism, capitalism, socialism and Christianity are all largely based on subjective political, economic or religious principles, dogma or morals.
What passes for fact and logic as seen through one ideological lens, e.g., liberalism or socialism, often looks like lies or deceit and irrational or incoherent nonsense as seen through another lens, e.g., conservatism or capitalism. Because of that, it is difficult, if not impossible, to craft laws intended to limit political spin or false speech. In essence, almost everything is spin or false speech from one ideological point of view or another.
Nothing here is intended to advocate any law limiting free speech. Instead, the point of this post is to simply point out the unspun reality of how little respect unbiased facts and logic receive in our two-party system. It is no wonder that the American people are generally misinformed and distrustful of both government and political opposition. In view of all the misinformation, conscious or not, there is a very good reason for distrust.
The U.S. Supreme Court in Thomas v. Collins, 323 U.S. 516, 545 (1945), arguing that a Texas state law that required labor organizers to register with the state before making a public speech to enlist support for a labor union, a lawful activity, violated Collins' First Amendment free speech rights. The court makes it very clear that protected speech includes protection for lies. It it were otherwise, people would not need to be their own watchman for truth.
“Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee. . . . Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”
Matt Levine writing in November 2015 for BloombergView about the legality of lying to the public in politics. He contrasted that with the illegality of lying to investors for commercial profit. The former is know as constitutionally protected free political speech. The latter is criminal fraud.
“As former — and maybe reformed — elected officials, we know how much politicians like to talk about good news: tax breaks, infrastructure improvements, job growth announcements. But they are far less interested in talking about the bad news and hard choices on the horizon as the federal debt continues on an unsustainable upward path. Politicians don’t see big constituencies for that kind of news, and no special interests score them on whether they discuss it with voters. Even the close cousin of bad news — blunt talk — is usually avoided in politics.”
Former New Hampshire republican U.S. senator Judd Gregg and former Indiana democratic U.S. senator Evan Bayh writing for Roll Call in February 2015 on the need for blunt talk about the federal budget in the face of future debt projections. This suggests that politicians avoid honest talk to the American people because their personal incentives are aligned to reward deceit. Avoiding bad news and blunt talk punishes politicians. That clearly implies that deceiving the public rewards politicians much more than it damages them. In turn, that implies that politicians work first and foremost for themselves and second (or maybe third behind special interests with money) for the public interest.
Both truth or facts and common sense in politics are mostly subjective because the ideologies that filter reality and common sense are mostly subjective. In other words, liberalism, conservatism, capitalism, socialism and Christianity are all largely based on subjective political, economic or religious principles, dogma or morals.
What passes for fact and logic as seen through one ideological lens, e.g., liberalism or socialism, often looks like lies or deceit and irrational or incoherent nonsense as seen through another lens, e.g., conservatism or capitalism. Because of that, it is difficult, if not impossible, to craft laws intended to limit political spin or false speech. In essence, almost everything is spin or false speech from one ideological point of view or another.
Nothing here is intended to advocate any law limiting free speech. Instead, the point of this post is to simply point out the unspun reality of how little respect unbiased facts and logic receive in our two-party system. It is no wonder that the American people are generally misinformed and distrustful of both government and political opposition. In view of all the misinformation, conscious or not, there is a very good reason for distrust.
Federal courts and free speech
“But it
cannot be the duty, because it is not the right, of the state to protect the
public against false doctrine. The very purpose of the First Amendment is to
foreclose public authority from assuming a guardianship of the public mind
through regulating the press, speech, and religion. In this field, every person
must be his own watchman for truth, because the forefathers did not trust any
government to separate the true from the false for us.”The U.S. Supreme Court in Thomas v. Collins, 323 U.S. 516, 545 (1945), arguing that a Texas state law that required labor organizers to register with the state before making a public speech to enlist support for a labor union, a lawful activity, violated Collins' First Amendment free speech rights. The court makes it very clear that protected speech includes protection for lies. It it were otherwise, people would not need to be their own watchman for truth.
“Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee. . . . Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”
The U.S. Supreme Court in United States v. Alvarez, 567 U.S. 656, 2012 in finding that the Stolen Valor Act, which made it a crime to falsely claim receipt of military
decorations or medals, was an unconstitutional violation of the defendant's free speech rights. Defendant Alvarez plead guilty to falsely claiming that he had
received the Medal of Honor, but his admittedly false claim was protected on First Amendment free speech grounds.
Commentary on free speech
“It's totally legal
to lie! People lie in private all the time, of
course, it is no problem. But it is also fine to lie to the public. . . .
. It is even conceivable that sometimes columnists lie to the public.
Lying to the public is the American way. . . . If you run a campaign of thoroughgoing falsehood that tricks people into
voting for you, journalists will say mean things about you, and that
will be the full extent of the consequences. . . . [On the other hand, there is a man] who allegedly sent some fake tweets about some stocks, making him a total profit of $97. He faces 25 years in prison.” Matt Levine writing in November 2015 for BloombergView about the legality of lying to the public in politics. He contrasted that with the illegality of lying to investors for commercial profit. The former is know as constitutionally protected free political speech. The latter is criminal fraud.
“After the primaries are over,
politicians need the independent voters to win and woo them with attention in
November. But once they have their victory or -- to use the vernacular -- get
what they want, independent voters are forgotten as quickly as a one-night
stand. Democratic and Republican office holders are beholden to their base
supporters, the special interests who donate time and money to them and the
parties that control both candidate selection and the agenda.”
Linda Killian writing in The Atlantic in February 2012 about how candidates would treat independent voters in the 2012 November elections.
“Politicians break their promises and modify their positions all the
time, of course. They BS us about their opinions and carefully craft
identities that are palatable to the average voter. When a person enters
this political universe, we need accept that most of the things we hear
are, at best, poetic truths. But, yet, there is still a big difference
between BSing and lying– though the latter is . . . . pardonable if you happen to be lying for the cause.”
David Harsanyi writing for The Federalist in February 2015 arguing that president Obama was a liar about his position on same-sex marriage, which the president allegedly falsely portrayed to the public as an evolution in his personal opinion. The article attempts to explain the murky, probably non-existent, difference between apparently acceptable BSing in politics and unacceptable lying.
“As former — and maybe reformed — elected officials, we know how much politicians like to talk about good news: tax breaks, infrastructure improvements, job growth announcements. But they are far less interested in talking about the bad news and hard choices on the horizon as the federal debt continues on an unsustainable upward path. Politicians don’t see big constituencies for that kind of news, and no special interests score them on whether they discuss it with voters. Even the close cousin of bad news — blunt talk — is usually avoided in politics.”
Former New Hampshire republican U.S. senator Judd Gregg and former Indiana democratic U.S. senator Evan Bayh writing for Roll Call in February 2015 on the need for blunt talk about the federal budget in the face of future debt projections. This suggests that politicians avoid honest talk to the American people because their personal incentives are aligned to reward deceit. Avoiding bad news and blunt talk punishes politicians. That clearly implies that deceiving the public rewards politicians much more than it damages them. In turn, that implies that politicians work first and foremost for themselves and second (or maybe third behind special interests with money) for the public interest.
Sunday, November 15, 2015
An objective framework to analyze conflicting personal rights and freedoms
Many, possibly most, liberal vs. conservative disagreements include differences of opinion about how a law, policy or Supreme Court decision affects personal freedoms. Press coverage of these subjective ideological disputes is poor or even detrimental to the public interest because it tends to simply mirror the unresolvable, one-sided partisan arguments and their biased basis in reality.
Although it may be entertaining, that kind of subjective press coverage sheds no light on the reality of how individual rights conflicts actually affect specific rights, e.g., freedom of speech vs. a right to equal protection of law. Mainstream and partisan press coverage never includes an objective analytic framework in which rights and freedoms conflict situations can be rationally explained and understood.
IVN has published two Dissident Politics articles that dealt with analyzing conflicting personal rights and freedoms after the Supreme Court's June 2015 Obergefell vs. Hodges decision extended the fundamental right to marriage to same-sex couples. The first article examined the impacts of the exercise of the right of same-sex couples to marry in the context of freedom of religion and the second analyzed rights conflicts in the context of commerce. The two analyses were different because the rights involved were different and because positive and negative impacts on rights differed in differing ways for different groups of affected Americans.
For both analyses, Dissident Politics relied on essentially the same analytic framework to assess personal rights and freedom impacts. The analysis is based on the following four-step protocol:
Following that protocol provides the information needed to reasonably assess (i) the reality of how such conflicts actually affect various groups of people, (ii) approximately how many people are included in relevant affected groups and (iii) impacts on the broader public interest.
Although this analytic framework is not perfectly objective, it is much more objective, complete, nuanced and balanced than the fragmented and usually one-sided content that the mainstream media, e.g., the New York Times or the Wall Street Journal, conveys to the American people. Relative to the generally harmful content that the partisan-biased media provides, e.g., the National Review or The Federalist, this framework constitutes a far better way to assess rights and freedoms conflicts.
The framework should be applicable to assessing conflicts in all rights and freedoms contexts, e.g., from gun control and abortion laws to equal protection of law rights in commerce. For example, it can be used to analyze damage to personal privacy rights in the context of government surveillance for national security. That issue is likely to become more urgent in the wake of the recent terrorist attacks on civilians in Paris. This protocol also works for analyzing conflicts between laws, freedom of speech and equal protection rights. Different conflicts and impacts exist in states that have laws banning discrimination in commerce on the basis of sexual orientation compared to states with no such anti-discrimination laws.
Although it may be entertaining, that kind of subjective press coverage sheds no light on the reality of how individual rights conflicts actually affect specific rights, e.g., freedom of speech vs. a right to equal protection of law. Mainstream and partisan press coverage never includes an objective analytic framework in which rights and freedoms conflict situations can be rationally explained and understood.
IVN has published two Dissident Politics articles that dealt with analyzing conflicting personal rights and freedoms after the Supreme Court's June 2015 Obergefell vs. Hodges decision extended the fundamental right to marriage to same-sex couples. The first article examined the impacts of the exercise of the right of same-sex couples to marry in the context of freedom of religion and the second analyzed rights conflicts in the context of commerce. The two analyses were different because the rights involved were different and because positive and negative impacts on rights differed in differing ways for different groups of affected Americans.
For both analyses, Dissident Politics relied on essentially the same analytic framework to assess personal rights and freedom impacts. The analysis is based on the following four-step protocol:
(1) Considering whether each affected freedom or right is constitutionally fundamental;
(2) determining whether (i) impacts are high, moderate, low or none-negligible, (ii) impacts are positive (freedom-expanding and/or easier
or less costly to exercise) or negative, and (iii) the approximate
number of people in major relevant groups; (3) considering current and projected
public opinion; and (4) assessing whether an overall net freedom gain or loss best
serves the public interest based on objectively balancing all
significant competing considerations and interests.
Following that protocol provides the information needed to reasonably assess (i) the reality of how such conflicts actually affect various groups of people, (ii) approximately how many people are included in relevant affected groups and (iii) impacts on the broader public interest.
Although this analytic framework is not perfectly objective, it is much more objective, complete, nuanced and balanced than the fragmented and usually one-sided content that the mainstream media, e.g., the New York Times or the Wall Street Journal, conveys to the American people. Relative to the generally harmful content that the partisan-biased media provides, e.g., the National Review or The Federalist, this framework constitutes a far better way to assess rights and freedoms conflicts.
The framework should be applicable to assessing conflicts in all rights and freedoms contexts, e.g., from gun control and abortion laws to equal protection of law rights in commerce. For example, it can be used to analyze damage to personal privacy rights in the context of government surveillance for national security. That issue is likely to become more urgent in the wake of the recent terrorist attacks on civilians in Paris. This protocol also works for analyzing conflicts between laws, freedom of speech and equal protection rights. Different conflicts and impacts exist in states that have laws banning discrimination in commerce on the basis of sexual orientation compared to states with no such anti-discrimination laws.
Thursday, November 12, 2015
The press and free speech: More harmful than not?
IVN has published a Dissident Politics article on the press, freedom of speech and the usually big differences in the content of reporting on various issues, people and events in politics. The article raises the question of whether the situation constitutes a net benefit or service to the public interest in view of the vast differences in content reported from different sources. The article is here.
Sunday, November 8, 2015
Impacts on freedom of same-sex marriage in commerce
IVN published a Dissident Politics
article on conflicts when same-sex marriage rights arise in commerce.
From an objective pint of view, conflicts in the context of commerce are
different than conflicts in the context of religion. In either context,
burdens on personal freedoms that same-sex marriage opponents typically
claim are rarely as severe as rhetoric from media sources opposed to
same-sex marriage claim.
The exception is for burden on the economic freedom of a few people who bitterly oppose same-sex marriage and live in one of the 22 states that have laws that outlaw discrimination against people on the basis of their sexual orientation. The article is here.
IVN previously published a related Dissident Politics article that describes the impacts of the June 2015 Obergefell v. Hodges Supreme Court decision in the context of religion. The Obergefell decision extended the fundamental right of marriage to same-sex couples across America. The IVN article is here.
Estimates of the size of major American groups that could be affected by the exercise of SSM rights in the economic or commercial context are based on the following data and assumptions:
The exception is for burden on the economic freedom of a few people who bitterly oppose same-sex marriage and live in one of the 22 states that have laws that outlaw discrimination against people on the basis of their sexual orientation. The article is here.
IVN previously published a related Dissident Politics article that describes the impacts of the June 2015 Obergefell v. Hodges Supreme Court decision in the context of religion. The Obergefell decision extended the fundamental right of marriage to same-sex couples across America. The IVN article is here.
SSM and rights impacts in commerce
Impacts of the exercise of rights associated with same-sex marriage (SSM) in commerce differ from impacts on personal freedoms in the context of religion. Data
and assumptions for various groups affected by exercise of SSM rights
in the commercial context are shown below.Estimates of the size of major American groups that could be affected by the exercise of SSM rights in the economic or commercial context are based on the following data and assumptions:
1. About 321
million total U.S. residents, consisting of about 310 million citizens
(Americans) and about 11
million non-citizens (3.5% of all residents)
2. About 77% of Americans are adults, about 239 million, and
about 23% are
under 18
3. About 3.8%
of adult Americans, about 9 million, self-identify as LGBT (assume that
nearly all LGBT support legalized SSM (> 98% assumed)), and about 230
million are heterosexual adults
4. About 77%
of adult Americans, about 184 million, identify with a religious faith or
group, while about 55 million identify with no religious faith or group
5. About 55%
of adult Americans, about 135 million, favor legalized SSM, while 45% or
about 104 million oppose SSM (this assumes that all of the 6% of Americans who
have no opinion are in opposition to SSM but refuse to say so in polls - 39%
of adult Americans oppose SSM based on recent data)
6. About
27.9 million small businesses and about 18,500 businesses with
> 500 employees; about 27.9 million total businesses (27.9 + 0.0185);
79% have 1 employee, about 22.0 million single owners (27.9 x 0.79);
about 40 million total business owners (22.0 single owners + 17.6
million co-owners (27.9 x .21 = 5.86 million businesses with more than 1
owner (assumes an average of 3 owners/business = 17.6 million (5.86 x
3)); ignore shareholders as owners of publicly traded companies
7. About 59%
of adult Americans (and here)
about 141 million (239 x 0.59), are in America’s work force (ignores
military and workers 16 or 17 years old),
which includes 40 million business owners and 101 million employees; 55%
pro-SSM (76 million; 141 x 0.55; 22 proSSM million owners (40 x .55)
& 56 million proSSM employees (101 x .55)),
45% anti-SSM (63 million; 141 x 0.45; 18 million antiSSM owners (40 x
.45) & 45 million antiSSM employees (101 x .45)), 77% religious (109
million; 141 x 0.77),
23% non-religious (32 million; 141 x 0.23), 96.2% heterosexual (136
million;
141 x 0.962), 3.8% LGBT (5 million; 141 x 0.038);
8. About 41% of adult Americans, about 98 million (239 x
0.41), are not in America’s work force
9.
About 1% of owner and employee SSM opponents, about 1 million
(141 x 0.01), are "hard" opponents who insist on discriminating against
same-sex
couples in marriage-related commerce; the hard opponent estimate is
probably at least 100-fold too high; the 1% estimate is based on (i) no
data and (ii) rare anecdotal reports
of hard opposition; 99% of employer and employee SSM opponents, about 1
million
are "soft" opponents who are unwilling to overtly
discriminate in commerce, about 140 million (141 x 0.99)
10. About 142
million people reside in the 22
states and D.C. that have laws banning discrimination in commerce
based on
sexual orientation (not based on discrimination against SSM ): (HI 1.4
million; WA 7.0;
OR 4.0; CA 38.8; NV 2.8; UT 2.9; CO 5.4; NM 2.1; MN 5.5; WI 5.8; IA 3.1;
IL
12.8; NY 19.7; VT 0.6; NH 1.3; ME 1.3; MA 6.7; RI 1.1; CT 3.6; NJ 8.9;
DE 0.9; MD
5.9; DC 0.7); 44% (0.44) of all U.S. residents (142 ÷ 321) reside in states that have laws banning discrimination in commerce
based on
sexual orientation; 56% (0.56)
of all people reside in states with no comparable anti-discrimination law
Base numbers:
Base numbers:
239 million adults
9 million LGBT: 239 x .038 (assumes 0.98 support SSM = 8.8)
230 million heterosexual: 96.2% hetero: 239 x .962 = 230
184 million religious adults: 77%: 239 x .77 = 184.0
55 million not religious: 23%: 239 x .23 =55
135 million favor SSM (55%): 9 (LGBT) + (230 x .55)(hetero)
104 million oppose SSM (45%): 0 (LGBT) + (230 x .45)(hetero)
239 million adults
9 million LGBT - 3.8% - 239 x .038 (0.98 support SSM = 8.8)
230 million heterosexual adults - 96.2% - 239 x .962
184 million religious adults - 77% - 239 x .77
55 million not religious - 23% - 239 x .23
135 million favor SSM - 55% - 9 (LGBT) + (230 x .55)(hetero) = 135.5
104 million oppose SSM - 45% - 0 (LGBT) + (230 x .45)(hetero) = 103.5
Assumptions and legal context
Assumption
1: Overt acts that generate legal liability for discrimination against
sexual orientation in commerce, e.g., refusing marriage-related service
to same-sex couples, are the same as the acts of discrimination against
exercise of SSM rights in commerce. Because of that the law does not
distinguish liability for discrimination based on exercise of religious
or free speech rights from discrimination against sexual orientation
and/or exercise of SSM rights.
Assumption 2: There is no, or at
worst, a negligible burden on exercise of SSM rights in the commercial
context because (i) very few same-sex couples are refused same-sex
marriage-related commercial service (no burden), or (ii) for the few who
are refused service, they can easily find another vendor who will
provide service (negligible burden).
1. heterosexual or LGBT proSSM business owner - any state = 40 x .55 = 22 million
2. heterosexual or LGBT proSSM employee, pro-SSM business - any state = 101 x .55 = 56 million
3. heterosexual or LGBT proSSM employee, anti-SSM business - any state = 101 x .45 = 45 million
States with law that bans discrimination in commerce based on sexual orientation (44% of all owners and employees):
4. religious soft antiSSM business owner = 40 x .77 x .99 x .44 = 13.4 million
5. religious hard antiSSM business owner = 40 x .77 x .01 x .44 = 0.1 million
6. religious soft antiSSM employee = 101 x .77 x .99 x .44 = 34 million
7. religious hard antiSSM employee = 101 x .77 x .01 x .44 = 0.3 million
8. non-religious soft antiSSM business owner = 40 x .23 x .99 x .44 = 4 million
9. non-religious hard antiSSM business owner = 40 x .23 x .01 x .44 = 0.04 million
10. non-religious soft antiSSM employee = 101 x .23 x .99 x .44 = 10.1 million
11. non-religious hard antiSSM employee = 101 x .23 x .01 x .44 = 0.1 million
12. religious and non-religious LGBT owner = 40 x .44 x .038 = 0.7 million
13. religious and non-religious LGBT employee, proSSM business = 101 x .44 x .038 x .55 =
.93 million
14. religious and non-religious LGBT employee, antiSSM business = 101 x .44 x .038 x .45 =
.76 million
States with no law that bans discrimination in commerce based on sexual orientation; businesses in these states can legally refuse to serve customers based on their sexual orientation, including refusal to serve same-sex couples in SSM-related commercial transactions (56% of all owners and employees):
15. religious soft antiSSM business owner = 40 x .77 x .99 x .56 = 17.1 million
16. religious hard antiSSM business owner = 40 x .77 x .01 x .56 = 0.17 million
17. religious soft antiSSM employee = 101 x .77 x .99 x .56 = 43.1 million
18. religious hard antiSSM employee = 101 x .77 x .01 x .56 = 0.44 million
19. non-religious soft antiSSM business owner = 40 x .23 x .99 x .56 = 5.1 million
20. non-religious hard antiSSM business owner = 40 x .23 x .01 x .56 = 0.05 million
21. non-religious soft antiSSM employee = 101 x .23 x .99 x .56 = 12.9 million
22. non-religious hard antiSSM employee = 101 x .23 x .01 x .56 = 0.13 million
23. religious and non-religious LGBT owner = 40 x .56 x .038 = 0.85 million
24. religious and non-religious LGBT employee, proSSM business = 101 x .56 x .038 x .55 =
1.2 million
25. religious and non-religious LGBT employee, antiSSM business = 101 x .56 x .038 x .45 =
0.97 million
Red text = negative freedom or rights impact; black text = no or negligible rights impact
Group* Personal freedom impacts
Assumption 3: The analysis does not consider intensity of personal
beliefs, e.g., a strong personal belief that absolute economic freedom (laissez
faire capitalism) and/or freedom of speech are completely inviolate. Weighing
of freedoms in that way introduces subjectivity into the analysis.
That makes the analysis less objective and therefore not useful for understanding
how conflicts could actually affect various groups of Americans.
Context: There is no federal law that bans discrimination against
LGBT Americans in commerce. About 69% of Americans favor
nondiscrimination laws to protect LGBT people against discrimination in
workplaces, housing and public accommodation. Despite majority public sentiment,
businesses in the 28 states with no law that bans discrimination in commerce
based on sexual orientation can legally refuse to serve customers based on
their sexual orientation and/or their exercise of marriage-related SSM rights.
Those states include about 56% of all Americans, including business owners and employees.
Context: The impact of Obergefell is likely to change for different
groups over time. For example, some local or state governments may begin to
discriminate against antiSSM businesses, e.g., in
airports. However, the legality of such discrimination is an open question
due to, e.g., conflicts with first amendment speech rights in commerce. The
situation is evolving (here,
here,
here,
here).
States are constitutionally allowed to pass legislation that prohibits
discrimination against same-sex couples in commerce, but no state is compelled
to do so. Assuming that some socially liberal states do pass legislation
prohibiting discrimination in commerce, the added economic impact of Obergefell would be negative for opponents,
but mostly neutral for supporters. By the same token, socially conservative
states that choose to support same-sex commercial discrimination by law would
impose negative impacts on SSM supporters, but have little impact positive or
negative on SSM opponents.
Context: This analysis focuses on assessing constitutional rights
impacts associated with exercise of SSM rights in commerce. Other arguments
are ignored, e.g., (i) God supports or opposes same-sex marriage or a
non-heterosexual lifestyle or family, (ii) marriage is only for procreation or (iii)
American civilization will collapse because the heterosexual family unit is necessary
for any civilized society to exist. Those are subjective, often religion-based
or religious-like personal faith-based arguments. Science (or objectivity) vs.
religion (subjectivity) “debates” rarely or never resolve (here,
here, here).
People will simply believe whatever they want or what their religion teaches
them. Trying to take on such subjective arguments sheds little light in any
meaningful way and therefore was not part of this analysis. Despite the
complexities, some meaningful conclusions can be drawn.
Group sizes (all groups are heterosexual unless stated otherwise):
0. unemployed adults - any state = 239 x .41 = 98 million 1. heterosexual or LGBT proSSM business owner - any state = 40 x .55 = 22 million
2. heterosexual or LGBT proSSM employee, pro-SSM business - any state = 101 x .55 = 56 million
3. heterosexual or LGBT proSSM employee, anti-SSM business - any state = 101 x .45 = 45 million
States with law that bans discrimination in commerce based on sexual orientation (44% of all owners and employees):
4. religious soft antiSSM business owner = 40 x .77 x .99 x .44 = 13.4 million
5. religious hard antiSSM business owner = 40 x .77 x .01 x .44 = 0.1 million
6. religious soft antiSSM employee = 101 x .77 x .99 x .44 = 34 million
7. religious hard antiSSM employee = 101 x .77 x .01 x .44 = 0.3 million
8. non-religious soft antiSSM business owner = 40 x .23 x .99 x .44 = 4 million
9. non-religious hard antiSSM business owner = 40 x .23 x .01 x .44 = 0.04 million
10. non-religious soft antiSSM employee = 101 x .23 x .99 x .44 = 10.1 million
11. non-religious hard antiSSM employee = 101 x .23 x .01 x .44 = 0.1 million
12. religious and non-religious LGBT owner = 40 x .44 x .038 = 0.7 million
13. religious and non-religious LGBT employee, proSSM business = 101 x .44 x .038 x .55 =
.93 million
14. religious and non-religious LGBT employee, antiSSM business = 101 x .44 x .038 x .45 =
.76 million
States with no law that bans discrimination in commerce based on sexual orientation; businesses in these states can legally refuse to serve customers based on their sexual orientation, including refusal to serve same-sex couples in SSM-related commercial transactions (56% of all owners and employees):
15. religious soft antiSSM business owner = 40 x .77 x .99 x .56 = 17.1 million
16. religious hard antiSSM business owner = 40 x .77 x .01 x .56 = 0.17 million
17. religious soft antiSSM employee = 101 x .77 x .99 x .56 = 43.1 million
18. religious hard antiSSM employee = 101 x .77 x .01 x .56 = 0.44 million
19. non-religious soft antiSSM business owner = 40 x .23 x .99 x .56 = 5.1 million
20. non-religious hard antiSSM business owner = 40 x .23 x .01 x .56 = 0.05 million
21. non-religious soft antiSSM employee = 101 x .23 x .99 x .56 = 12.9 million
22. non-religious hard antiSSM employee = 101 x .23 x .01 x .56 = 0.13 million
23. religious and non-religious LGBT owner = 40 x .56 x .038 = 0.85 million
24. religious and non-religious LGBT employee, proSSM business = 101 x .56 x .038 x .55 =
1.2 million
25. religious and non-religious LGBT employee, antiSSM business = 101 x .56 x .038 x .45 =
0.97 million
Red text = negative freedom or rights impact; black text = no or negligible rights impact
Groups are heterosexual unless otherwise noted as mixed or LGBT
Group* Personal freedom impacts
0. all unemployed adults - any state none econ, speech, religion, s.o., SSM
98 million; includes both heterosexual and LGBT people; all unemployed people are free to do business where they wish without regard to their own or the business' proSSM or antiSSM beliefs or policies; impacts on s.o. and SSM rights apply only to unemployed LGBT adults and any positive or negative impacts are negligible at most; Assumption: impacts of exercise of SSM-related rights in commerce on religious freedom in this and all other groups are assumed to be none (or negligible) because personal religious freedoms are exercised primarily in places of worship and the home or private settings and not in commerce or commercial workplaces
1. proSSM owner - any state none-low econ;
none speech, religion, s.o., SSM
22 million; includes both heterosexual and LGBT business owners; no appreciable rights impacts in commerce - owners are free to act as they wish and say what they want without liability for illegal discrimination; discrimination (legal or not) from other businesses and customers can occur
98 million; includes both heterosexual and LGBT people; all unemployed people are free to do business where they wish without regard to their own or the business' proSSM or antiSSM beliefs or policies; impacts on s.o. and SSM rights apply only to unemployed LGBT adults and any positive or negative impacts are negligible at most; Assumption: impacts of exercise of SSM-related rights in commerce on religious freedom in this and all other groups are assumed to be none (or negligible) because personal religious freedoms are exercised primarily in places of worship and the home or private settings and not in commerce or commercial workplaces
1. proSSM owner - any state none-low econ;
none speech, religion, s.o., SSM
22 million; includes both heterosexual and LGBT business owners; no appreciable rights impacts in commerce - owners are free to act as they wish and say what they want without liability for illegal discrimination; discrimination (legal or not) from other businesses and customers can occur
2. proSSM employee, pro-SSM bsn - any state none-low econ, s.o.;
none speech, religion, SSM
56 million; includes both heterosexual and LGBT employees; rights impacts in commerce are not from law or the Obergefell decision; negative rights impacts can arise from discrimination, legal or not, from antiSSM businesses, business owners or employees who discriminate against acts or speech in support of SSM or non-heterosexual s.o.; proSSM employees are free to act as they wish without liability for illegal discrimination under the law
3. proSSM employee, anti-SSM
bsn - any state none-moderate
econ, speech, s.o.;
none religion, SSM
45 million;
proSSM employees in antiSSM businesses can face discrimination for their
religious or secular acts or speech in support of SSM or non-heterosexual s.o.; on the
job discrimination, legal or not, includes potential burdens on speech and s.o. rights of proSSM employees, which can be
sufficient to compel an employee to leave their job, a moderate negative impact
on economic, speech and s.o.
States with law against discrimination
based on sexual orientation
4. religious soft antiSSM owner low econ, speech; none religion
13 million; Assumption: s.o. and SSM rights do not apply to this or any other heterosexual group; "soft" s.o. and/or SSM opposition results in no overt acts that incur legal liability under anti-s.o. discrimination law and therefore economic and speech impacts are low despite owner's opposition to exercise of SSM-related rights in commerce; speech impact is low because (i) to the extent that services or goods contain speech, e.g., decorations for a same-sex wedding cake or photos of a same-sex wedding, (ii) that kind of speech is not extensive, and (iii) same-sex customers are a small fraction of the clientele provided in normal commerce and can usually be legally avoided, e.g., "I can't be your wedding photographer because I am busy that day" or "we are too busy to make your wedding cake in the days before you need it"; Assumption: some degree of lying to or deceiving customers in many or most commercial transactions is common or routine and not considered a significant burden on any personal freedom - puffery, which can be exaggerated claims of being too busy to serve a customer, is legal in commerce and therefore declining a customer for a legal reason will not incur legal liability for unlawful discrimination against a customer based on their s.o.
13 million; Assumption: s.o. and SSM rights do not apply to this or any other heterosexual group; "soft" s.o. and/or SSM opposition results in no overt acts that incur legal liability under anti-s.o. discrimination law and therefore economic and speech impacts are low despite owner's opposition to exercise of SSM-related rights in commerce; speech impact is low because (i) to the extent that services or goods contain speech, e.g., decorations for a same-sex wedding cake or photos of a same-sex wedding, (ii) that kind of speech is not extensive, and (iii) same-sex customers are a small fraction of the clientele provided in normal commerce and can usually be legally avoided, e.g., "I can't be your wedding photographer because I am busy that day" or "we are too busy to make your wedding cake in the days before you need it"; Assumption: some degree of lying to or deceiving customers in many or most commercial transactions is common or routine and not considered a significant burden on any personal freedom - puffery, which can be exaggerated claims of being too busy to serve a customer, is legal in commerce and therefore declining a customer for a legal reason will not incur legal liability for unlawful discrimination against a customer based on their s.o.
5. religious hard antiSSM owner moderate-high econ; none-low speech;
none religion
0.1 million; compared to any other group, this group suffers the highest negative personal freedom impacts from the exercise of SSM-related rights in commerce - the severity of impacts depend in part on how state law is enforced - fines or restrictions on business can be great enough to bankrupt a business that overtly discriminates against same-sex couples who exercise SSM rights in commerce; Assumption: this group size is an estimate based on no published data; hard SSM opponents refuse to serve same-sex couples in SSM-related commercial transactions despite state law banning discrimination on the basis of s.o.; this group is small in part due to economic and social pressures that tend to discourage overt discrimination, e.g., from loss of customers and/or from gaining a reputation as intolerant or a bigot; legal liability arises from discrimination based on s.o., not based on exercise of SSM rights (the acts that incur legal liability are the same, i.e., refusal to provide service or sell goods related to SSM); burdens on speech and religion are none to low because anti-SSM oral speech does not incur liability for discrimination
6. religious soft antiSSM employee none-low econ, speech; none religion
0.1 million; compared to any other group, this group suffers the highest negative personal freedom impacts from the exercise of SSM-related rights in commerce - the severity of impacts depend in part on how state law is enforced - fines or restrictions on business can be great enough to bankrupt a business that overtly discriminates against same-sex couples who exercise SSM rights in commerce; Assumption: this group size is an estimate based on no published data; hard SSM opponents refuse to serve same-sex couples in SSM-related commercial transactions despite state law banning discrimination on the basis of s.o.; this group is small in part due to economic and social pressures that tend to discourage overt discrimination, e.g., from loss of customers and/or from gaining a reputation as intolerant or a bigot; legal liability arises from discrimination based on s.o., not based on exercise of SSM rights (the acts that incur legal liability are the same, i.e., refusal to provide service or sell goods related to SSM); burdens on speech and religion are none to low because anti-SSM oral speech does not incur liability for discrimination
6. religious soft antiSSM employee none-low econ, speech; none religion
34 million;
impacts on economic freedom for employees are lower than owner impacts
because employees are free to change jobs without closing, selling or changing their business --
employees can choose to work with employers or businesses that are at
least quietly accommodating of their opposition to
SSM
7. religious hard antiSSM employee low-moderate econ; low speech;
none religion
7. religious hard antiSSM employee low-moderate econ; low speech;
none religion
0.3 million; negative economic impacts on hard antiSSM employees are generally higher than impacts on soft antiSSM employees - hard SSM opponents may need to change jobs to find work with an accommodating business; antiSSM speech does not generate legal liability, but can force an antiSSM employee in a proSSM business to change jobs - the net impact on speech is low at most because antiSSM speech constitutes a tiny fraction (less than 0.01%) of all legal free speech topics
8. non-religious soft antiSSM owner low econ, speech;
none religion
4 million;
burdens on economic freedom and speech are low for the reasons
described for group 4; there is no burden on freedom of religion because
these people are not religious and have no religious freedom to burden
9. non-religious hard antiSSM owner moderate-high econ; low speech; none religion
9. non-religious hard antiSSM owner moderate-high econ; low speech; none religion
0.04 million;
economic freedom burden is as described for group 5; speech burden is
as described for group 4; freedom of religion burden is as for group 8
10. non-religious soft antiSSM employee none-low econ, speech; none religion
10. non-religious soft antiSSM employee none-low econ, speech; none religion
10 million; burden levels are as described for relevant groups described above
11. non-religious hard antiSSM employee low-moderate econ; none-low speech;
none religion
11. non-religious hard antiSSM employee low-moderate econ; none-low speech;
none religion
0.1 million; burden levels are as described for relevant groups described above
12. religious and non-religious LGBT owner none econ, speech, religion, s.o., SSM
0.7 million;
at most, there are negligible rights burdens on these owners -- customers
can refuse to use such businesses and other businesses can subtly
discriminate against LGBT business owners, but LGBT owners are free to
conduct commerce with customers and businesses that do not discriminate against them or their businesses due to antiSSM sentiment; burden levels for other freedoms are as described for relevant groups described above
13. religious and non-religious LGBT employee
13. religious and non-religious LGBT employee
pro-SSM bsn none econ, speech,
religion, s.o., SSM
0.9 million; burden levels are as described for group 12
14. religious and non-religious LGBT employee
anti-SSM bsn none-moderate econ, speech, s.o.;
none SSM, religion
0.9 million; burden levels are as described for group 12
14. religious and non-religious LGBT employee
anti-SSM bsn none-moderate econ, speech, s.o.;
none SSM, religion
0.8 million;
depending on how state laws are enforced, LGBT employees may be subject
to on the job discrimination that causes them to change jobs or that causes loss
of income or promotion opportunities; Assumption: antiSSM businesses can subtly discriminate against LGBT employees without incurring legal liability; speech burden on LGBT employees can come from a
business work environment that discourages overt support for SSM rights in
commerce or on the job; burden levels on SSM and religious freedoms are
as described for group 12
States with no law against sexual
orientation discrimination
15. religious soft antiSSM owner none econ, speech,
religion
17 million;
business owners can discriminate against same-sex couples or SSM-related transactions in
commerce based on s.o. or SSM-related rights without affecting any of their own
rights - there is no applicable state or federal law that burdens
any relevant right; all rights impacts are none or negligible; customers can choose to patronize the business based on its formal or informal antiSSM policies, but customer choices do not affect the owner's rights; rights impacts are
none or negligible
16. religious hard antiSSM owner none econ, speech, religion
16. religious hard antiSSM owner none econ, speech, religion
0.2 million;
business owners can subtly or overtly discriminate against
same-sex couples in commerce based on s.o. or SSM rights without
affecting any of their own rights because because there is no applicable
state or federal law that burdens any relevant right; such businesses
may lose some customers, while attracting new ones, but that has no
impact on owner's exercise of personal freedoms; rights impacts are
none or negligible
17. religious soft antiSSM employee none-low econ, speech, religion
17. religious soft antiSSM employee none-low econ, speech, religion
43 million;
religious antiSSM employees working for proSSM businesses can face
discrimination from proSSM owners and some of these employees may change
jobs because of their work situation to work for a business that accomodates the employee's opposition to SSM; rights burdens are not compelled
by law or the Obergefell decision, but manifests potential discrimination by proSSM businesses against soft antiSSM employees; evidence of discrimination by proSSM businesses against antiSSM employees is scarce so this form of discrimination is likely very rare
18. religious hard antiSSM employee none-low econ, speech, religion
18. religious hard antiSSM employee none-low econ, speech, religion
0.4 million; burden levels on SSM and religious freedoms are
as described for group 17
19. non-religious soft antiSSM
owner none econ, speech religion
5 million; burden levels are as described for group 15
20. non-religious hard antiSSM owner none econ, speech, religion
20. non-religious hard antiSSM owner none econ, speech, religion
0.05 million; burden levels are as described for group 16
21. non-religious soft antiSSM employee none-low econ, speech; none religion
13 million; this situation is not compelled by law or the Obergefell decision, but manifests discrimination by proSSM businesses against soft antiSSM employees as described for group 17
21. non-religious soft antiSSM employee none-low econ, speech; none religion
13 million; this situation is not compelled by law or the Obergefell decision, but manifests discrimination by proSSM businesses against soft antiSSM employees as described for group 17
22. non-religious hard antiSSM employee none-low econ, speech; none religion
0.1 million; this situation is not compelled
by law or the Obergefell decision, but manifests discrimination by proSSM businesses against hard antiSSM employees as described for group 17
23. any LGBT owner none-low econ;
none religion, speech, s.o., SSM
0.9 million; Assumption: all LGBT business owners are proSSM; discrimination and impacts on personal freedoms are not compelled by law or the Obergefell decision; discrimination can come from antiSSM businesses that discriminate against LGBT business owners or their businesses; customers are free to patronize or boycott LGBT businesses based on their opposition to or support for SSM rights - those customer choices do not affect any rights of LGBT business owners
none religion, speech, s.o., SSM
0.9 million; Assumption: all LGBT business owners are proSSM; discrimination and impacts on personal freedoms are not compelled by law or the Obergefell decision; discrimination can come from antiSSM businesses that discriminate against LGBT business owners or their businesses; customers are free to patronize or boycott LGBT businesses based on their opposition to or support for SSM rights - those customer choices do not affect any rights of LGBT business owners
24. any LGBT employee, proSSM bsn none econ, speech, religion, s.o., SSM
1 million; Assumption: proSSM businesses are assumed to not discriminate against LGBT workers
on the basis of their exercise of their rights or their s.o. status
25. any LGBT employee, antiSSM bsn none-moderate econ, speech, s.o.;
none religion, SSM
1 million; this situation is not compelled by law or the Obergefell decision; discrimination
arises from antiSSM businesses or their employees against LGBT employees; on the job discrimination against s.o. or proSSM speech can be sufficient to compel a LGBT employee to change jobs, a moderate impact on economic, speech and s.o. freedoms
25. any LGBT employee, antiSSM bsn none-moderate econ, speech, s.o.;
none religion, SSM
1 million; this situation is not compelled by law or the Obergefell decision; discrimination
arises from antiSSM businesses or their employees against LGBT employees; on the job discrimination against s.o. or proSSM speech can be sufficient to compel a LGBT employee to change jobs, a moderate impact on economic, speech and s.o. freedoms
* All groups except LGBT are heterosexual; heterosexuals
experience no impacts on exercise of personal SSM or s.o. rights
** Abbreviations:
proSSM = SSM supporter; antiSSM = SSM
opponent
owner = business owner; bsn - business or
company; econ - freedom of economic activity
s.o. = rights related to sexual orientation
soft = unwilling to break law, change or
abandon business or move to another state, e.g., a state with no
anti-discrimination law, due to opposition to SSM
hard = willing to overtly or subtly break law
(discriminate against LGBT employees, refuse to hire LGBT employees or refuse
to do business with same-sex couples relative to SSM rights), change or abandon
business or move to another state due to opposition to SSM)
Explanation of rights impact assessments
All unemployed adults (group 0) are free to do business
where they wish without regard to their own or the business' known or unknown proSSM
or antiSSM beliefs or policies. For this group, s.o. and SSM rights apply only
to unemployed LGBT adults. ProSSM business owners (group 1), are considered to
experience no or negligible rights impacts in commerce. Business owners are
free to act as they wish and say what they want without liability for illegal
discrimination under the law. This ignores discrimination (legal or not) from
other businesses and customers that can arise, but that is considered to rarely
or never rise to more than a negligible rights burden on proSSM owners. That
judgment call, like all the impacts assignments described here, is open to
debate.
ProSSM employees working in proSSM businesses in any state
(group 2) are considered to experience none to low economic, speech, s.o. and
SSM rights impacts in commerce. Those impacts are not from law or the Obergefell decision, but arise from
discrimination (legal or not) from other businesses and customers. These employees
are free to act as they wish and say what they want without liability for
illegal discrimination in any state.
Impacts on economic and speech freedoms for proSSM employees
in antiSSM businesses (group 3) can be more pronounced due to on the job
discrimination. This form of discrimination arises from personal biases against
s.o. or SSM rights (or from biases in favor of s.o. and SSM rights in other
groups), and not from any state law or the Obergefell
decision. Distinguishing freedom impacts from laws compared to impacts from personal
bias is important. Overall freedom impacts in different groups can come almost
as much or more from personal animosities between s.o. and SSM rights supporters
and opponents, and not from rights impacts from any law or the Obergefell decision. Discrimination
against disfavored groups or tribes is a normal human trait that is at least
hundreds, if not thousands, of years old. Many or most people will discriminate
to some degree against people they disagree with and are in a position to
negatively impact, which includes negative impacts on freedoms.
This aspect of human behavior complicates analysis of how
exercising SSM rights in commerce affects other rights. In states with laws
banning workplace discrimination on the basis of s.o., both human bias and laws
together can affect freedoms. That makes it hard or impossible to separate
impacts of law from human animosity toward people or groups they disagree with.
In states with no applicable law, impacts on freedoms are presumably due more
to animosity toward disfavored people than anything else.
An important indirect effect of the Obergefell decision is that people in four groups experience
moderate to high negative impacts on economic freedom in states that have laws
banning workplace discrimination on the basis of s.o., i.e., “hard” antiSSM
business owners and employees (groups 5, 7, 9, 11), who refuse to provide
SSM-related services in commerce despite state laws banning discrimination
against s.o. in commerce. A very high estimate is that about 540,000 people are
in these four groups (assumes 1% of SSM opponents are hard and 99% are “soft”
opponents and unwilling to break state laws). Based on the rarity of cases
where a business refuses to provide service related to SSM rights, these four
groups are probably at least about 100-fold smaller, i.e., about 5,400
Americans or fewer. The impact of Obergefell
on these Americans is indirect because hard SSM opponents choose to
discriminate against exercise of SSM rights in commerce but that defiance of
SSM rights generates potentially crippling legal liability for discriminating
on the basis of illegal s.o. discrimination.
The counterparts to groups 5, 7, 9 and 11, i.e., groups 16,
18, 20 and 22 (up to about 0.57 million hard SSM opponents), experience lower
levels of negative impacts on their freedoms because there is no state law that
generates liability for illegal s.o. discrimination in commerce. The negative
impacts for SSM opponents in these groups are based almost exclusively on
hypothetical discrimination by proSSM business owners and employees who choose
to punish hard SSM opponents. Reports of that kind of discrimination are rare
to non-existent in private sector commerce. The concern may be more of an issue
for government
employees. In other words, Obergefell
and the new SSM rights it created, exert essentially no negative freedom
impacts on hard SSM opponents in commerce in the 28 states that allow discrimination
in commerce against people based on their s.o.
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