Wednesday, September 09, 2015

Analogies in Policy Discussions

George Panichas tries to formulate a parallel to the Kim Davis situation:

'Old Jim," as everyone knows him, has been responsible for issuing gun licenses for as long as his county job has existed. Jim is a well-liked, affable, and devoutly religious fellow who does his job efficiently and well; he rarely makes an error.

But Jim's religious commitments have created something of a problem. The tenets of his faith, he has discovered, prohibit the possession and use of guns by women. So recently, when several women have applied for licenses, as is consistent with their Second Amendment rights, Jim has refused to issue them. His freedom of religion, he believes, exempts him from doing what is contrary to his religious convictions, and he feels that the county cannot require him to act against these convictions.

The problem can be worked around so long as someone else can take over for Jim, but the county is small, and there often is no one available to step in - that is, no one who doesn't share Jim's beliefs. So the question of whether Jim can be forced to issue gun licenses is now before the county commissioners.

This is a horrible analogy, regardless of what side one takes on the subject; the analogy is both somewhat defective in itself and not adequate to the use Panichas wants to make of it. When Kim Davis started in her position, it was not only not legally required to issue licenses for same-sex marriages, it was illegal to do so; it then became not only legally permissible to do it but illegal not to do so. She didn't go into the job expecting to be put in this situation. Thus the analogy would require that what was legally counted as a right has changed on Old Jim; in particular, that people whom it was originally forbidden to issue gun licenses for are now guaranteed the right to receive them, creating for Old Jim a religious dilemma that did not originally exist. With gun licenses, the groups that clerks most commonly cannot issue gun licenses for are felons. The only change with regard to Second Amendment rights that could have the actual parallel would have to be that the US Supreme Court one day asserted that Second Amendment rights require that gun licenses be issued regardless of criminal record. And then Old Jim, who had been completely law-abiding before, would, to keep the relevant parallel, have to stop issuing gun licenses at all on the ground that he could not now do so in religious conscience, due to the change in requirement.

There is the double danger of analogies of this sort: that is, there is a danger on one side of simply rigging the conclusion into the analogy, and there is a danger on the other side of failing to get an appropriate analogy for the conclusion actually drawn. In this particular case, there are certain criteria an analogous situation would need to meet:

(1) It has to provide a similar case with regard to rights and religious conscience, in all relevant details.
(2) It has to be a case in which it is clear that right of religious conscience cannot legitimately be a reason for noncooperation.
(3) It has to be a case showing that this is so as a matter of principle rather than due to peculiar characteristics of the case.

The entirely artificial case of women and the Second Amendment seems to be chosen in order to get (2); nobody is going to be sympathetic with Old Jim's position on the rights of women, particularly when the right in question is explicitly enumerated in the Constitution. But (per (3)) what the argument actually requires is that it show that sympathy with Old Jim is irrelevant, that however sympathetic you yourself may be to him, or even if you agree with him, it's clear that he cannot legitimately refrain from giving out licenses. The analogy needs to establish that the point in question is a matter of principle, not a matter of whether we like or agree with the people trying to get the license or permit. The whole point of the argument is that the principle has to apply across the board, regardless of how nice or competent Old Jim is, regardless of whether we agree with Old Jim on the religious point or not, regardless of whether we sympathize with those applying for the license or not. Otherwise, it is a bad analogy for the argument that is being attempted, which has as its conclusion that "the constitutional rights of Americans are protected against infringements emanating from even the most deeply held religious beliefs".

This is a very, very strong conclusion. For instance, fugitive slave laws upheld the constitutional rights of slaveowners (there is no question whatsoever about this, as the right in the Constitution was quite explicit); they were sometimes not complied with by public officials for religious and moral reasons. That was illegitimate on Panichas's principle, a principle he claims is necessary for "a reasonable pluralistic democracy": religious scruple, however deeply felt, could not possibly trump the constitutional rights of slave-owners before the Thirteenth Amendment, and no public official could have legitimately refused to comply with fugitive slave laws on the grounds that doing so would violate their religion, because allowing this kind of precedent would endanger reasonable pluralistic democracy. We would, in fact, have to be "appalled" if such appeals to religious conscience were "allowed to impose inequitable and impermissible burdens" on the slave-owners who had lost their Constitutionally-protected property merely because their rights were out of favor with someone else's religion. Whatever one's view of this position, it is required by Panichas's conclusion; Panichas's conclusion, in short, is a very general conclusion that goes very far and wide beyond this particular case, or even this kind of case. But contrast the strength of this conclusion with the weakness of the analogy on which it is based: they are not actually commensurable. The analogy does not establish the conclusion that is drawn; it can't even really be said to motivate that particular conclusion rather than some much, much weaker and more qualified conclusion that someone might want to draw instead. It does not actually teach the lesson Panichas claims; it cannot possibly.

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