The Liberal International Order

A monopolist enjoys a bigger profit than would a competitive supplier of the same items by restricting the supply in order to charge a higher price. This assumes that he can increase the price by more than the reduction in his sales, but I will skip these economic details in order to get to my point.

Monopoly is good for the producer and bad for the consumer. Monopoly is generally impossible without help from government to restrict competition. The United States has flourished economically, in part, because we have chosen the competitive model—the level playing field of commerce—as the social and economic model we aim for domestically and promote internationally. Many other nations have also embraced this model and our leadership in promoting it. We extend and promote the rule of law on which a level playing field is built through the Bretton Woods Institutions created after World War II (the IMF, World Bank and World Trade Organization) and other international bodies and agreements. Our leadership in promoting these values is now in jeopardy for a variety of reasons that include our aggressive use (and misuse) of our military power and our unilateralism.

Chas Freedman is the most articulate champion I know of, of the wise use of American diplomacy to promote the above and other values that have characterized our country’s governance. Chas was Nixon’s interpreter during the President’s first trip to China in 1972. His three decades as a U.S. diplomat included Ambassadorship to Saudi Arabia during Operations Desert Shield and Desert Storm and a term as Assistant Secretary of Defense for International Security Affairs. The following challenge to the United States is taken from his latest book American’s Continuing Misadventures in the Middle East and was contained in his August 29, 2012 address to the American Foreign Service Association’s Adair Memorial Lecture at the American University School of International Service, Washington D. C. He enumerates the conditions for our continued (or restored) leadership of the liberal international order that has served us and the world so well. Chas concentrates more wisdom into fewer words than anyone I know:

“Americans believe that societies that respect the rule of law and rely upon democratic debate to make decisions are more prosperous, successful, and stable than those that do not. Recent efforts to impose our freedoms on others by force have reminded us that they can be spread only by our setting an example that others see as worthy of emulation. Freedom cannot be sustained if we ourselves violate its principles. This means that we must respect the right of others to make their own choices as long as these do not harm us. It also presupposes a contest of ideas. Our ideas will not prosper unless we maintain solidarity with others who value and also practice them.

“That is why a first priority of American diplomacy must now be to re-forge the unity of the Atlantic community behind the concept of the rule of law. This cannot be done unless we confront and correct our own lapses from the great traditions of our republic. To re-empower our diplomacy by inspiring others to look to our leadership, we much restore our respect for our Bill of Rights as well as our deference to the dignity of the individual both at home and abroad. Let me be specific.

“We must revive the Fourth Amendment’s ban of search and seizures of persons, houses, papers, and other personal effects without probable cause. No more ‘extraordinary rendition.’ No more universal electronic eavesdropping, warrantless seizure of paper and electronic records at the border, and intrusive inspection of anything and everything in the possession of passengers using public transportation.

“We must reinstate the Fifth Amendment’s protections against deprivation ‘of life, liberty, or property, without due process of law.’ No more suspension of habeas corpus or executive branch assertions of a right to detain or even kill people, including American citizens, without charge or trail.

“We must return to respect for the Sixth Amendment’s guarantee of the right of anyone accused of a crime to be informed of the charges and confronted with the witnesses against him and to be represented by a lawyer. No more ‘secret evidence.’

“We must reinstate the Eighth Amendment’s prohibition of ‘cruel and unusual punishments,’ including torture, and we must reaffirm our adherence to the several Geneva Conventions. We Americans can have no credibility as advocates for human rights if we do not practice what we preach.

“In short, the path to renewed effectiveness in American diplomacy lies not just in wise and dexterous statecraft and the professionalization of those who implement it abroad. It rests on the rebuilding of credibility through the rediscovery of the values that made our country great.”

Balancing Religious Freedom and Civil Rights

The adoption last week of Indiana’s Religious Freedom Restoration Act (RFRA) has set off a loud public debate about religious freedom and civil rights. The debate is over the best balance between our cherished beliefs in both religious freedom and civil rights, which includes tolerance of those with religious beliefs different than ours. A standard formulation of the scope of individual freedom is that it is our right to live and do as we like as long as it does not infringe on the rights of others to do the same. How we should put meat on those bones is the essence of ongoing, serious public debate.

I have blogged on this challenging topic a number of times starting with the following in November 2008: https://wcoats.wordpress.com/2008/11/11/church-and-state-in-america/ and followed in April 2010 by: https://wcoats.wordpress.com/2010/04/18/when-values-clash/

and in August 2013: https://wcoats.wordpress.com/2013/08/30/liberty-and-the-overly-prescriptive-state/

and in December 2013: https://wcoats.wordpress.com/2013/12/20/more-on-the-balance-between-the-public-and-private-sectors/

and most recently in February 2014: https://wcoats.wordpress.com/2014/02/28/arizona-and-religious-and-person-liberty/

Indiana’s RFRA is similar but not identical to the law of the same name signed into law by President Clinton in 1993 with overwhelming bipartisan support. These laws and other efforts to balance religious and other individual freedoms against the expectation of tolerance are based on the First Amendment to the US Constitution reproduced below (the first item in the Bill of Rights) and the guarantee of equal protection under the law contained in the Fourteenth Amendment adopted after the Civil War, in part to remove discrimination against African Americans. Success in establishing a good balance is critical to a healthy, vibrant and free civil society and depends more on social attitudes than on laws. David Brooks provides an insightful and balanced discussion of this issue: http://www.nytimes.com/2015/03/31/opinion/david-brooks-religious-liberty-and-equality.html?_r=4

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First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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It is quite beyond my limited legal knowledge to tease out exactly what the Indiana law provided (it has already been amended to address the fears that it was an excuse for discrimination). Much has been written on the subject, some of it uninformative and/or inflammatory, others wise and insightful. I would like instead to outline the spirit and attitude of a proper balance between religious freedom and civil rights that makes sense to me.

Most of us assume that our freedom to believe what we choose and to express those beliefs publicly includes what some others might disagree with or consider “wrong” or obnoxious, such as racial prejudice. Freedom of speech means nothing if not the right to state what most of us consider wrong. The right to say stupid or repugnant things should never be confused with accepting or encouraging such views. Particular condemnation should be directed to those who use their freedom of speech purposely to offend rather than to defend their beliefs. The best defense against bigotry, whether racist or homophobic, is to use our freedom of speech to counter such views and to promote the virtues of respect, diversity, and tolerance of alternative beliefs (as long as they do not limit our own). In short, building broadly shared attitudes of respect toward the rights of our fellow men (and women) are necessary for the maintenance of a decent, free society.

What might this mean in practice? In my private life I should never have to associate with people I don’t like. I should not have to invite them into my home or my club. It was absolutely right that the Boy Scouts of America were allowed to exclude gays and that we were allowed verbally to attack them for such misguided behavior. They are gradually coming around to a more enlightened policy with better long run results than if forced by law to open up to members they did not want. Churches are quite rightly not forced to accept members that do not embrace their beliefs or otherwise satisfy whatever their membership requirements are.

The above examples are obvious. The difficulties begin to arise when we move outside our homes and private groups. Aside from the obvious question of why two lesbians in Texas insisted on the services of a photographer for their wedding who refused to accept their request (were they looking for a fight or the best photographer), I think any service provider should be free to choose their customers just as customers are free to choose where to shop. While mafia dons and other murderers and bad people have a right to legal representation, why should a particular objecting lawyer be required to provide it?

Should a Christian bookstore be required to sell the bible or whatever to atheists or Jews? For starters it would be quite contrary to their goals and evangelical nature to refuse to do so, but should they have the choice? Should Muslims be required to touch and serve pork or should Mormons be required to tend the cocktail and coffee bars of their employers? Once again it is hard to see why this is raised to the level of public policy. If a Mormon doesn’t want to serve alcohol (though it wasn’t a problem for the Mormon owned Marriot Hotel to do so), she doesn’t have to and shouldn’t work for a bar. For larger operations, such as restaurants with a bar, it is not that difficult for the manager to assign employees to tasks that respect their religious or ethical beliefs. The free market, profit motive would lead employers to do just that.

For many, the pace of progress against discrimination in the more public sphere of commerce and certainly in government bodies was not fast enough leading to the adoption of the 1964 Civil Rights Act, which outlawed discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; but exempted private clubs and the renting of the bed room in my basement. If you are open for business to the general public you are not allowed to discriminate on the above bases. The LGBT community has been working to add sexual orientation to the above list, something that was missing in the original Indiana RFRA law.

The recent Hobby Lobby decision of the Supreme Court (Burwell v. Hobby Lobby) concerned the mandate in Obama Care for employers to provide government specified contraceptives as part of the employee health plans. The Christian family owners objected to the mandatory inclusion in the list of what is often called the morning after pill. Raising wages sufficient to compensate employees for the cost of buying their own insurance would sacrifice the tax exception (i.e., subsidy) of employee provided health insurance. The Court ruled to allow closely held for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest. Such exemptions are allowed for churches and directly religious organizations but this was the first time that the Court has recognized a for-profit corporation’s claim of religious belief.

This whole situation has more objectionable parts than I can count. First, it is bad policy to give a tax break for employer offered health insurance. For one thing, tying heath insurance to ones employer makes it more difficult for employees to change jobs and increases the cost to them of losing a job. Second, it is outrageous that the federal government is dictating the list of contraceptives that an insurance policy must provide and that everyone must have such policies. This is before we get to the issue of which, if any, private companies should be exempt from such requirements and for what reasons. Such micro management of our lives by the government has gone way too far and makes the balancing of rights I have been discussing much more complicated and difficult. A tradition of polite accommodation of differences generally trumps efforts to spell it all out in law.

Marriage equality, i.e., extending the same right to marry enjoyed by heterosexual couples, takes away no rights from traditional couples other than perhaps to be spared the anger/horror/sadness over something someone else is doing. Get over it. Having to serve LGBT couples commercially does not imply agreeing or disagreeing with their status. Fortunately society is moving rapidly to accept the virtue of extending the institution of marriage to LGBT couples. If marriage is a good thing for loving committed couples, it should be available to all such couples. Those people and religious groups that continue to disapprove are free to as long as they do not deprive others of their freedoms and rights.