Getting Direct About the Politics Behind Kansas’s August Amendment

Walking around my Wichita neighborhood over the past couple of weeks, I’ve noticed something about the yard signs encouraging people to “Vote No” on the constitutional amendment to allow for the popular election of Kansas Supreme Court justices come August 4. (Until just the past three days, I hadn’t seen with my own eyes any “Vote Yes” yard signs, but I have now seen a couple.) These yard signs are, in their color, font, and design, basically identical to many of the “Vote No” yard signs I saw around my neighborhood four years ago, when the vote to change the language of the Kansas state constitution so as to eliminate any judicial support for abortion rights was decisively defeated. Just look and see:

 

 

 

 

 

 

 

 

 

 

 

 

Relatedly, over the past few weeks my home has received about a half-dozen mailers encouraging a no vote this August. (We’ve received exactly one “yes” flyer thus far.) Two of those mailers were particularly emphatic, insisting that this vote is about keeping the Kansas Supreme Court “fair and impartial” and preventing “billionaire political donors” from influencing the justices by paying for the political campaigns judicial candidate would have to run to win a spot on the Court. I’ve no doubt about the sincerity of those who created these messages, and the arguments they’re making are entirely valid. But the fact that both were mailed by Planned Parenthood Great Plains, an organization dedicated to preserving abortion rights in Kansas, is worth noting nonetheless.

My point is simple. On the surface, the constitutional referendum Kansans will vote on this August 4 is simply a question about changing one of the elements of our state’s constitutional structure, a merit-based structure that emerged over 80 years ago, was first adopted in Missouri—Kansas adopted it about in 1958—and was quickly adopted by many other states concerned about corruption in partisan election judicial-selection systems that were then common (though in recent decades has been rejected by voters in multiple states seeking greater democratic accountability from their justices as well). But substantively, this constitutional referendum is actually a vote about possible policy outcomes—and while that’s usually not being said by those most engaged in the campaign both for and against the referendum, I suspect that pretty much everyone paying attention already knows it.

Earlier this month, Amii Castle, a law professor at the University of Kansas, said this quiet part out loud, using the very words of some of the strongest Republican backers of the amendment—Kansas Attorney General Kris Kobach, and Kansas Senate President Ty Masterson—to show that this proposed amendment is rooted explicitly in the failure of the 2022 anti-abortion amendment, and the desire to get different judges on the Supreme Court so as to get different rulings regarding abortion rights in Kansas. Knowing that, why shouldn’t those who want to defend those rights campaign on the same terms as well?

Castle, though, received some push-back on social media and elsewhere for being so explicit, with some of those opposed to the amendment insisting that constitutional principles of judicial neutrality supposedly protected through Kansas’s current, somewhat complicated system of choosing Supreme Court justices (nomination by a judicial commission, appointment by governor, and retention elections at the conclusion of a judge’s term) are the paramount concern.

As someone who teaches the arguments over those constitutional principles, I respect the claims of those—including some former members of the Kansas Supreme Court itself—who believe that Kansas’s procedure for choosing justices is worth preserving simply on its own terms. But as someone who is also theoretically suspicious of most efforts to keep the messiness of electoral politics out of the judicial side of our government, I find myself rather more appreciative of those who choose instead to present the possible policy consequences of electing the members of the Supreme Court more directly

Does this mean that I don’t respect Kansas’s system for choosing Supreme Court justices? Not at all—I can see the civic virtues of the prioritization of professionalism and at least nominal nonpartisanship in our selection process. But I can also see its democratic flaws. For example, the fact that despite numerous contentious decisions over the nearly 70 years during which this system has been in place in our state, not a single Kansas state Supreme Court justice has ever lost their retention election, provides—at least to my mind—just as much evidence of the limitations of the democratic checks upon our appointed state justices as do Kansas’s gerrymandered congressional districts when it comes to questions of democratic representation.

Many might challenge me right here—in what sense should “democratic checks” or “democratic representation” be at all relevant to the judicial branch in the state of Kansas, or anywhere else? Isn’t the judicial branch supposed to be counter-majoritarian, a set of referees and umpires who are not playing the political games of democracy, but who rather are simply imposing the apolitical rules and processes of the majesty of the law?

Responding to that challenge would require me to get into the “theoretical suspicions” I referenced above. Specifically, my two-fold suspicions that 1) the emergence of the idea of an independent judiciary actually does not match the historical struggle toward creating a system wherein the democratic sovereignty of the people was both recognized as legitimate and hopefully made somewhat compatible with good government (it is worth noting that, originally, judicial elections were seen as a way of ensuring judicial independence, by allowing “the people,” rather than legislative, professional, or political elites, to choose who will administer the courts); and 2) that the actual practices of preserving judicial independence from the messy political reality of a people working through their governing structure so as to exercise that sovereignty don’t actually accomplish what people—many of them judges—think they do. (As one scholar put it pithily over 25 years ago, stating calmly what millions who have watched the Roberts court rule on voting rights, presidential immunity, and more over the past 15 years, "The assumption that independent judges use their freedom to decide impartially according to the law is contradicted by the empirical evidence.")

But rather than hauling out my legislative supremacist bona fides and rehearsing my radical small-d democratic recriminations about judicial review and unelected and unaccountable judges, etc., etc., let me take the more reasonable route. If I might have at one time taken a more burn-it-all-down position, age—and the lessons of Donald Trump’s presidency—have made me more sympathetic to finding ways to preserve the accomplishments of bourgeois constitutionalism, even as we need to focus radical critiques more directly to where changes to its legal and socio-economic structures are most needed. In the meantime, I agree that it’s important that we retain at least some belief in the supposedly non-partisan, supposedly apolitical character of the judiciary—what another scholar called the “secular religion of constitutionalism,” the faith that the “rule of law” will continue to work so long as we “believe it works.” The complicated, practical question is, to quote one more legal theorist, “when (if ever) does the cost of enabling judges to act upon their political preferences or attitudes by insulating them from democratic accountability exceed the benefits of protecting them from threats to their tenure that compromise their capacity to adhere to the rule of law?”

Viewed this way, the proposed amendment to be voted on in Kansas this August really comes down to a specific accounting of likely political costs. For me, that means that Kansas’s merit-based system for selecting judges has, simply for a variety of unpredictable historical, political, and sociological reasons—the occasional tendency of Kansans, as an unconscious counter to the overwhelming Republican majorities elected to the state legislature, to elect Democrats to the judicial-appointment-making governorship? the concentration of Kansas lawyers (and thus possible members of the Kansas Supreme Court Nominating Commission, or for that matter actual possible Supreme Court candidates) in a handful of more urban, actually growing Kansas counties? something else?—worked pretty well, insofar as protecting basic liberal rights are concerned. Hence, my appreciation of those who look at the campaign over this proposed amendment, like the makers of the yard signs I mentioned above, and see it in terms of the substantive political possibilities inseparable from it.

When defenders of the current system make it a matter of high principle—judicial impartiality!—I can’t help but want to dive into the relevant theoretical and historical arguments, and ask for evidence why I should believe that the highest court in our state judiciary somehow would be fundamentally broken by obliging it to operate like the state supreme courts of more of more than 20 other states. But if you just make it all about the politics which arguably are unavoidably interwoven into any judicial decision anyway? Then my vote—especially since the language of the amendment gives no guarantee that any hypothetical election system that our Republican legislature may set up would be non-partisan or based on particular districts, both of which are in my opinion good balancing tools when it comes to electing judges—is clear. And my bet is that, remembering 2022, the votes of most other Kansas will be the same.

Two Comments and Two Questions about Religious Liberty

[Cross-posted to By Common Consent] 

Last week I attended the "Kansas Summit for Religious Freedom," a gathering designed to provide representatives of multiple different faith traditions here in Wichita, KS–Christian, Judaic, Islamic, Buddhist, and more–to share thoughts about and perspectives on religious pluralism. [In the attached photo, from left to right: Rabbi Emeritus Michael A Davis, Congregation Emanu-El; Gehad Qaki, Islamic Society of Wichita; Senior Pastor Rev. Dr. Robin McGonigle, Riverside Christian Church (Disciples of Christ); Sriraman Kadambi, temple priest at the Hindu Temple of Greater Wichita (with his son, Srivas Kadambi, providing translation); and Micah Fries, Director of Programs, Multi-Faith Neighbors Network.] The theme of the gathering--which was primarily organized and paid for by the Church of Jesus Christ of Latter-day Saints, the Mormon church I belong to; the main sponsoring organization, the Religious Freedom Alliance Council, was founded in Provo, UT, and is led by BYU faculty and graduates--was "Religious Liberty and Human Flourishing." I appreciated much of what I heard there; it gave me some good things to think about. Unfortunately, the summit wasn't designed to allow for much audience interaction, so I came away with a couple of questions that I really would have liked to have heard some of the speakers discuss as well. So instead, I'll share them here.

The comments first. The presentation the event’s keynote speaker, Dr. Hannah Smith from BYU Law School, mostly covered data that I suspect many who are even just remotely interested in the topic of religious liberty, from whatever ideological perspective, has heard before: that regular participation in a religious community is one of the strongest variables that point towards human flourishing, such as levels of personal happiness, physical and mental health, social connection, etc. The data on this is voluminous (though as with anything, particularly anything that involves the social sciences, there is always contrary data as well). But what really struck me was her argument about how a strong defense of religious liberty contributes to the spread of these positive correlations across society.

Leave aside how exactly to define “religious liberty” (a contentious argument which Smith did not get into); let’s assume that however you define it, its presence will result in more religious believers and organizations exercising their liberty by expressing themselves more fully in more diverse ways. Presumably, that would mean—again, leaving aside exactly how theses expressions would be manifest in the context of actually existing religious organizations, many of which are not entirely friendly to doctrinal or theological diversity within their ranks—more religious institutions offering more religious visions to more ranges of religious perspectives and preferences. That would in turn mean greater levels of competition in the religious marketplace—and such competition will in its turn result in more religious institutions, and their members, necessarily involving themselves in the civic-strengthening work of discussion, engagement, compromise, moderation, and more.

I would have loved to discuss this more deeply with Dr. Smith. It’s a Madisonian framing that I’d never thought of before, one which presents religious diversity in terms of factions that will be obliged—because there are so many of them, thanks to the aforementioned liberty—to negotiates with, learn from, and adapt alongside other religious factions, thereby creating a kind of ongoing civic lesson to all involved in any of those religious organizations. It’s kind of an ingenious argument, though how exactly one is supposed to hold on to a utilitarian conceptualization of religious liberty while also holding on to doctrinal devotion to one’s own religious faction isn’t an easy question to answer, I think. It places the whole theologico-political problem on a liberal footing that I suspect at least few leaders of my own LDS Church, if they understood the implications of this philosophical shift, would have some real concerns about. But it’s a valuable intellectual framing of the problem of pluralism, nonetheless.

Less philosophically weighty, but much more pastoral and wise (perhaps for that reason), was a concluding address given my old friend James Fleetwood, a retired judge and a man I served as a counselor to in a bishopric a decade ago. Rather than touching on any of the contentious debates over or even definitions of religious liberty, Jim focused on the need to peacefully engage with others, and specifically on the Christian requirement, in his understanding, to treat all others’ belief systems with respect, so as to become the sort of people who can love another as God loves us. He organized these ideas primarily around the centrality of sacred spaces–temples, yes, but also mosques, synagogues, and more. Such spaces provide for the faithful with both connection and revivification; as such, the claim of religious groups to spaces of holiness must be respected as much as those making the claims themselves. Here I am expanding upon Jim’s ideas somewhat, but it seems to me that he was describing a more demanding obligation than just respecting “belief,” because sacred spaces are, well, spatial, and therefore social and political. Religious worship is not a merely intellectual exercise; it is a bodily one. Thus, seeking peace in the midst of pluralism involves real concrete acts of respect: sharing spaces, shared participation, and more. One of his lines will stay with me for a while, I think: “Respecting the reverence of others refines us.” If there could be a better summation of what any meeting about religious liberty ought to teach, I can’t think of it.

Okay, so much for comments; now the questions. 

First, a more general one, which again I really would have liked to have been able to talk with Dr. Smith about. If we are to understand that religious liberty will benefit society through her Madisonian model, then presumably it does so through enabling people to find greater numbers of ways to attach themselves to religious factions and organizations. But doesn’t that mean that anything which discourages people to attaching themselves to and engaging with others through religious factions and organizations is actually hurting the cause of religious liberty? Because if that’s the case, then there is a, perhaps small, but still very real problem here.

That problem, specifically, is that the concept of “religious liberty”—once more, however you want to define it—has over the past 25 years been broadly appropriated by, and therefore has become coded as supporting, politically conservative, anti-LGTBQ forces. It obviously doesn’t have to be this way, but both the polling data and the legal record provides good reason to acknowledge the reality of that association, or at least the perception of that association, the religious liberty movement’s involvement in fights over parents being able to shield their children from stories involving homosexual persons (Mahmoud v. Taylor) or over the legitimacy of licensed therapists being able to provide “conversion therapy” to gays and lesbians (Chiles v. Salazer) getting as much or more attention than the fights it has engaged in on behalf of minority religious groups. And that association is driving people away from religious participation—not a huge number of people, but the negative effect of religious bodies involving themselves with politically conservative causes is quite real.

Please note that I don’t see this as a “gotcha!” problem for religious liberty. Personally, I’m not a First Amendment absolutist, as I suspect most of those who presented at the summit were; on the contrary, I tend to see strong readings of the First Amendment as creating at least as many social problems as goods (Buckley v. Valeo, Snyder v. Phelps, Janus v. AFSCME, or National Socialist Party of America v. Village of Skokie, just to start). But still, there’s nothing flawed with the priority that many attach to religious liberty—including the new president of the LDS Church, Dallin H. Oaks. It’s a valid and important principle to defend. I would just like to see people wrestle with the costs of defending it, particularly when those costs include at least some degree of discouraging people from benefiting from the involvement they might have gained through association with religious organizations in the first place. (Of course, this is overwhelming a problem faced by socially conservative Christian churches, including Mormonism; more liberal Christian, Jewish, Islamic, and other religious bodies really don’t face this dilemma at all—which, unfortunately, too often means the former group gets to dominate the discussion when religious liberty comes up.)

Another question, tangentially related to the one above, but even more directly connected to matters of First Amendment interpretation. Lance Kinzer—a smart Kansas lawyer and former legislator whom I'd met and interacted with before—gave a presentation that dove deep into the details of various current and past court cases, on both the state and federal level, dealing with matters of religious liberty. A consistent through-line in his presentation was the problems which Employment Division v. Smith—a case which overturned previous First Amendment precedents and stipulated that the amendment’s guaranteed religious freedoms should not ever provide exceptions to “generally applicable” criminal or civil laws—has posed for religious organizations over the years. Specifically, he wanted to see the post-Smith standard of simply asking whether the government has a “rational basis” for imposing a possible burden on a religious body overturned, and to bring back the “strict scrutiny” rule for judging the constitutionality of any possible burden which essentially existed before that 1990 decision. 

That’s a position that I basically agree with—but it’s one that also presents some conservative defenders of religious liberty with an inconsistency.Specifically, multiple conservative churches (including my own LDS Church) have written a legal brief urging the Supreme Court, in the case Little v. Hecox, to refuse to grant the plaintiffs—transgender athletes who are suing the state of Idaho, arguing that a state law which denies transgender individuals the ability to complete in sports aligned with their gender identity is a violation of the right to be treated equally—a “quasi-suspect” classification. This is deep legal nerdery here, but to make it as simple as possible: past Supreme Court decisions, going back many decades, have articulated various categories of plaintiffs whose standing in American society are either more or less likely to trigger various standards of scrutiny when it comes to judging the impositions and restrictions of laws. For more than 70 years, race as consistently been labeled a “suspect class” and has thus been accorded “strict scrutiny,” with the result that laws which discriminate or burden citizens differently on the basis of race, whether intentionally or unintentionally, are almost always found unconstitutional. Gender, beginning about 50 years ago, has been labeled a “quasi-suspect” classification, which in practice means that laws which end up burdening people on the basis of gender are not as likely to be found unconstitutional as those which do so on the basis of race, but are more likely to be so found than those distinctions which merely have to pass the “rational basis” test.

I think advocates of religious liberty are correct to want to get back, broadly speaking, to that era of constitutional interpretation when the First Amendment freedoms guaranteed to religious bodies necessitate that laws which restrict or regulate churches and other religious organizations have to pass the strict scrutiny standard. But I also think that if churches ought to enjoy such projections from the state, that gender and sexual minorities—like trans individuals that want to compete in sports—ought to be able expect similar protection as well. That’s only consistent, right?

The LDS Church and other conservative religious groups navigate this inconsistency by pointing out that previous interpretations of the rights of churches has included their right to be exempt from laws that make it illegal to fire someone, under certain religious conditions, for being gay or transgender; the same goes for laws having to do with public accommodation or public aid. These interpretations would have to be rethought if the classification of those burdened by what is allowed under those exemptions were to change. They’re not wrong to point that out! Consistency on this point of law would obviously require a whole new set of balancing tests be worked out, probably over a long period of time, and I have no idea what such balancing tests might eventually look like. So it doesn’t surprise me that someone who makes religious liberty their primary concern would rather leave things as they are. But then, if you want to leave things as they are, then why the wish (a justifiable one, I think) to upset current legal balances by hoping for an overturning of Smith?

Point is, these are deeply complicated issues, and they invite a lot complicated trade-offs and difficult arguments. I wouldn’t expect every gathering of folks speaking on behalf of religious liberty to make room for a consideration of all this—but since this particular gathering, valuable and insightful as it was, really didn’t allow for any formal debate, so here I am, making my contribution to such here. Consider it an expression of gratitude for all the important ideas that were voiced by those who participated (at least I hope they see it that way.) I appreciated it being part of it very much!

What the Constitution Says About Parents, Public Schools, and Students' Gender, and What it Doesn't (Yet)

[An expanded version of a piece which appeared in the Wichita Eagle and elsewhere on February 27, 2024.]

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler--arguably the best-known journalist in Wichita, Kansas’s largest city-- picked a fight with Kansas’s Attorney General Kris Kobach--arguably the best-known politician in the whole state--over essentially this exact problem, and Kobach--who, despite his protestations, has never been retiring when it comes to defending his beliefs--picked back. Both of them drag multiple ancillary issues into their argument, but let’s focus on the legal heart of their dispute, and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies which allegedly require teachers of students who identify as trans or non-binary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents' right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights. (In response, two school districts publicly changed their policies, while four others continued to defend them.)

With the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: while a bill was proposed in the Kansas legislature last year that would have extended parental rights in this exact context, it lacked the support to make it out of committee, and as a result, these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: what is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century (and most of which rested upon substantive definitions of "privacy" as central to personal "liberty," a claim which Dodd v. Jackson Women's Health Organization, the anti-Roe v. Wade decision, may have unintentionally (?) declared invalid, interestingly enough) have established that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns, and privacy. Moreover, other cases insist that parents have to demonstrate a harm which “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies which had been locally and legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point—a 2022 federal district court decision which forbade Geary County’s USD 475 from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’s Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

So ultimately, what is being fought about is unsettled law. I suspect that Kobach, ultimately, will end up being found correct, or at least mostly correct, in his interpretation by the Supreme Court--partly because of the contemporary dominance socially conservative justices enjoy on the Court, but also partly because some of these policies can be legitimately interpreted as requiring public school teachers to purposefully hide information from or even lie to parents, and the case law supporting parental rights, stretching back long before the current make-up of the Supreme Court, will make that possibility very difficult to uphold. But in any case, for now Kobach's his letter reflects broad cultural assumptions rather than controlling constitutional principles. So round one, I think, has goes to Lefler.

Friendly Disagreements with Justice Stegall (A Continuing Series)

[This is an expanded version of a column of mine making the rounds here in Kansas; as usual, I pretentiously felt I needed more space to make my point entirely. Mea culpa.]

Kansas Supreme Court Justice Caleb Stegall and I have known each other for going on 20 years. We're not close friends; I think we’ve met in person four times at most. But all through those years--particularly in the early ones, before I found a permanent place here at Friends University and he found a permanent place on Kansas's highest court--we regularly shared ideas, and argued about ideas, and not-infrequently fiercely disagreed with each others' ideas. Thanks to all these online interactions we’ve come to know each other and, I think, like each other, despite our deep disagreements, perhaps because we can also see in each other some foundational beliefs and loves we share. I look back on the appreciation I wrote on him eight years ago, when Governor Brownback appointed him to his current position, and I don't think I'd change a word.

All of this is just to that when Caleb made the news recently for a letter he wrote to several faculty at KU Law, his alma mater, stating that he would not continue on as an adjunct teacher there, I was surprised. I wanted to understand his reasons for cutting those particular ties--and now, having read the letter, I think I do. As usual, though, I have questions about it, and a disagreement or two as well.

Two years ago, Caleb did another surprising thing: he publicly rebuked leading members of the Kansas Republican party--which he is a longtime member of--for orchestrating a successful vote against Carl Folsom III, a lawyer with a long career as a public defender on the state and federal level, whom Governor Laura Kelly had nominated to the Kansas Court of Appeals. It was, of course, just a partisan, party-line vote, but GOP leaders had claimed justification because Folsom had, as was his job, defended people charged with various crimes, some of them pretty horrible ones, and that was used to smear the nominee. This frustrated Stegall, and he called out those Republicans for failing to honor “the ideal of a public-spirited, deliberative, and reasoned engagement with others.” 

Now, my philosophical understanding of that ideal isn’t exactly the same as Caleb’s; as I've written before, classical liberal notions of open discussion depend, among other things, upon a degree of civic friendship, which in turn depend upon the maintenance of norms which many people today, for many different reasons (technological as well as ideological, historical as well as cultural), may rightly feel to have been rendered moot, over perhaps even entirely (or perhaps even justifiably) overturned. Much of our divergence here is likely reflective of what Caleb asserted in his letter as the imperative of "privileging individual character and merit above group characteristics"; leftist and communitarian that I am, I'm much more willing than he to consider how norms may be tied up with structural, collective, and historical realities which must be considered whenever one makes judgments in reference to individual rights or claims.  But whatever those particular philosophical disagreements, the liberal ideal he defends remains one which I--as a college professor and occasional pundit whose whole career is dependent upon communication, discussion, and engagement--I have great respect for as a crucial component of our civil society. And regardless, I admire how that ideal has guided Caleb's thoughts and actions over the years as well. 

So how does ideal come into play with his decision to end his teaching association with KU Law? On my reading, it turns on his concern that his old stomping grounds have shown “an institutional failure to cultivate the norms, habits, and skills necessary to the task of lawyering.” The precipitating cause of this concern of Caleb's was what he called the “bullying” response made by of certain members of the KU Law community (specifically, those associated with the school's Diversity, Equity, Inclusion, and Belonging Committee) when the conservative KU Law Federalist Society invited a speaker from the controversial Alliance Defending Freedom to campus. The bullying he mentions included calling student leaders of the club into a meeting to warn them against the invitation, and those students being subsequently labeled as facilitating hate speech by the aforementioned committee. (The speaking event went forward as planned, by the way, with accompanying protests; everyone's First Amendment rights were fully respected, or at least so it appears.)

Now in light of prioritizing engagement, Caleb is plainly correct that, like them or hate them, the ideas promulgated by ADF—which generally frame almost any advance in LGBTQ rights as an attack on religious freedom (consider the role they played in pushing forward a current lawsuit over the supposed potential interference which a Colorado law poses to those who do not wish to acknowledge the legality of same-sex marriage)—have long been present throughout Kansas’s legal environment, including at events sponsored by the Kansas Bar Association. Hence, discouraging students from confronting certain ideas—even those which, as Stegall admits, may be seen as “existentially threatening”—is probably not the best way to prepare Kansas’s future lawyers. Quoting Professor Richard Levy, a longtime KU Law faculty member, Stegall rightly makes the point that “if lawyers cannot talk to each other about difficult subjects on which they disagree, how can we expect anyone too?” That position seems consistent to me.

But I'm not sure how to square that consistency with his decision to separate himself from KU Law. I suppose that if in his considered judgment his alma mater really has caved into a kind of "authoritarianism" which threatens to "cripple a person's ability to critically engage with ideas or people with whom they disagree," then it might not be unreasonable to speak out against those developments by way of withdrawing from the institution. Perhaps we could understand that as a form of protest, or as the posing of a countervailing power as a way to pushing KU Law's leadership to take corrective action. (Caleb perhaps implies this, when he wrote in his letter that he is acting on this matter with a consciousness of others who may feel the same disgruntlement as he, but lack the "authority or security to speak up"--something which, as a state supreme court justice, he obviously is in full possession of.)  But still, in our present moment, it seems to me that remaining present exactly so as to continue to engage, as a colleague and friend, with those whom one disagrees—including disagreements over how to respond to the way some at KU Law may have dealt with an ideological disagreement!--is vital.

Last year, Caleb gave a wonderful address--which he quoted from in his letter to KU--that addressed in part the fact that the law can never be entirely disentangled from the arguments over the ethical concerns and procedural outcomes which always surround it. After sharing an old Jewish parable, he concluded that, in the midst of these quandaries, “heaven smiles mischievously down on us”--then added, “we can smile back, if we have the stomach for it.” It's entirely possible to read this passage--and I suspect this was Caleb's intention--as suggesting a criticism of KU for lacking the stomach to deal with serious, even "existential," disagreements. But by the same token, that line could be understood as a petard upon which Caleb has hung his own arguments. 

To be sure, every person’s stomach for dealing with disagreement is going to be different, and to repeat what I said above, I can certainly see withdrawing in the face of a disagreement as sometimes a productive way of engaging with it. It's not like anyone, I suspect, can entirely refuse to ever draw lines in the sand which they will never cross, or will always withdraw to one side of. So I take seriously Caleb’s reasoning for drawing his line here; I'm not in a position to say he did wrong, and I'm not in agreement with those with condescending takes on my friend's decision. But still, I must admit: it just doesn’t seem consistent to me with his own best arguments; it's not entirely like the smart and gleeful debater I've known over the years. No doubt, this will be something we can continue to disagree about as well.

Why I have a Pro-Choice Sign in my Front Yard (Even Though I Don't Call Myself That)

[The publication Current asked me to write up my thoughts about abortion; I ended up writing nearly 3000 words. A much, much shortened version of the essay below is available on their website this morning, but if you want to read the full thing, go for it. Cross-posted to By Common Consent.]

That sign is in our front yard, signalling our support for defeating the "Value Them Both" amendment on the ballot here in Kansas this August. If the amendment referendum succeeds, it would overturn a state supreme court decision which determined that the Kansas state constitution guarantees at least minimal abortion rights to Kansas women, thus allowing Kansans opposed to abortion rights to follow our neighboring states of Oklahoma and Missouri and push for a total abortion ban. The sign thus betokens a "pro-choice" position, even though I've never called myself that and think the language of individual "choice" when it comes to abortion is part of the whole problem. So why am I, some who was raised in a politically conservative (but not, as I later came to see, particularly ideological) Mormon home and thoroughly absorbed the repugnance of abortion which was communicated to me, taking this position all these years later? Well, that's a story, mostly having to do with what my wife and four daughters have taught me along the way.

When I say "repugnance," I really mean it. While my parents were never activists and anti-abortion literature didn't litter our home, the moral and even visual revulsion to the practice of abortion was invoked anytime the topic came up (which, in the late 1970s and early 1980s, during the death-rattle years of the Equal Rights Amendment--my church having played a major role in sealing its fate--was not infrequently). I can still call up in my memory a feverish image that somehow made its way into my brain when I was still a child: that of an abortion doctor plunging a huge butcher knife into a woman’s vagina, murdering the child in her womb. (I should note that the fact that some zealous opponents of abortion rights might point to procedures used in incredibly rare late-term abortions to insist upon the basic accuracy of that nightmarish image from decades ago has no effect on my thinking today; what I find most repugnant in 2022 is very different than it once was.)

Was it all just moral revulsion and distaste? No, there was some actual doctrine taught as well (emphasis on "some"). Mormon leaders over the decades have made multiple, if not numerous, statements regarding abortion, with some stipulating that “life begins when two germ cells unite to become one cell, bringing together twenty-three chromosomes from both the father and from the mother”--which would seem to suggest that Mormon doctrine teaches that life begins at the creation of human zygote--and others stipulating that a woman’s “right to choose what will or will not happen to her body” is fundamentally limited if “she behaves in such a way that a human fetus is conceived”--which would seem to suggest, in light of the previous declaration, that any sexual activity which results in the creation of a cell-multiplying zygote entails a mother’s complete responsibility to preserve that cell-multiplying life. In practice, however, none of these teachings were ever politically deployed throughout Mormonism in a theologically rigorous or ecclesiastically consistent way (which is not to say there haven’t been attempts to do so). In general though, the unarticulated presumption seems to have been (and still seems to be) that stating officially that “elective abortion for personal or social convenience is contrary to the will and the commandments of God” is sufficient, with no further elaboration or explanation regarding public matters being necessary. Repugnance at the idea of extinguishing “a cherished newborn baby,” complete with “beautiful eyes” and “little fingers” was perhaps assumed to do the rest.

It certainly did for me, for many years. The change in my opinions didn’t come at once, my movement away from being “pro-life” (a phrase I don’t remember particularly liking even in my most ardent phases) was a long process. Well into my 30s and 40s, articulating a set of reasons that could make sense of my youthful revulsion--even as I grew into a fuller understanding of the deep complexities of human sexuality, science, and sociality—remained hugely important to me, thus leading me blog about abortion and related topics repeatedly, in perhaps some increasingly strained ways.

During these years, for reasons that are probably similar to those of nearly every person who comes to think differently about the faith of their youth as they grow older, I became more and more doubtful that the statements of Mormon leaders, when not explicitly grounded in the scriptural canon, were necessarily the word of God and thus normative. For related reasons over the same time span, I came to recognize the scriptures as exceptionally complicated and thus not well-served by the proof-texts, just-so-stories, and tidy logical conclusions so unfortunately common in Mormondom (and pretty much every other Christian domination as well, to be fair), especially in regards to complicated claims regarding the pre-natal beginnings of meaningful life. And finally, officially non-Mormon (though unofficially, many conservative Mormon leaders and thinkers had been borrowing them for years) anti-abortion arguments, such as those dependent upon a religious invocation of natural law, became increasingly implausible to me; for example, I found the teleological demand to view a human zygote which may or may not implant itself in a woman’s uterine wall as equal in every way to a newborn baby simply unpersuasive, philosophically speaking. So what coherent articulation of anti-abortion belief did that leave me with, if I wasn’t to simply dismiss my original revulsions and intuitions as bankrupt, but neither found them well served by the simplistic affirmations of my leaders or many other anti-abortion thinkers? Well, one grounded in my long-standing contempt for philosophical individualism and capitalist commodification. Abortion, I came to believe, was a moral evil not primarily because of its harm to human lives (since 99% of abortions in the United States take place months before the life of the fetus in question stops being a matter of mere scientific principle and instead becomes an actionable reality), but rather because it was rooted in a socially harmful, choice-centric sense of disposability: a disconnect from both the anthropological fact and the civic ideal that our social relationships form a connection (as Edmund Burke said) between the living and the dead and the not yet born. Stanley Hauerwas’s essay “Abortion, Theologically Understood,” though I do not agree with all of it, made this point better than I ever could:

If you want to know who is destroying the babies of this country through abortion, look at privatization, which is learned in the economic arena. Under the veil of American privatization, we are encouraging people to believe in the same way that Andrew Carnegie believed. He thought that he had a right to his steel mills. In the same sense, people think that they have a right to their bodies. The body is then a piece of property in a capitalist sense. Unfortunately, that is antithetical to the way we Christians think that we have to share as members of the same body of Christ. So, you cannot separate these issues. If you think that you can be very concerned about abortion and not concerned about the privatization of American life generally, you are making a mistake.

I look today at the 15-year-old essay where I quoted Hauerwas, and I think the perspective it articulated (a perspective I tend to call “left conservative”) remains mostly sound. And yet I want to take much of it back nonetheless, because the animating force behind it—the admittedly simplistic yet still meaningful repugnance I felt when I first learned what abortion meant—has become deeply entwined other, more complicated and, I think, more mature intuitions. I’m particularly bothered by the way, in 2007, when our oldest daughter wasn’t yet 10 years old, I could write that those who defend abortion rights as necessary to the sexual freedom essential to individual personhood, who think it a matter of right to “enjoy sex without their futures or thoughts or relationships being messed up by any communitarian crap in any way, clearly have only ever had sex on the starship Enterprise's Holodeck.” I see the point I was trying to make in those passages, but still, that’s a sentence that could have only been written by a man woefully uninformed about the complications of sexual identity and expression, especially as experienced by women, one of whom he was married to and four of whom he was raising to adulthood. I hope I’ve repented of that presumption.

To be very plain: I now realize that to accept, even just implicitly, the notion that insofar as abortion is concerned there are only two types of pregnancies--those which result from violence, in which case abortion ought to be guaranteed to the violated woman, and those which didn’t result from violence, in which case abortion ought to be treated a perilous choice that needs to be weighed against principles of social responsibility and connection and regulated by the state accordingly--is really stupid, even if a coherent point can be found within it. Why is it really stupid? Because it’s a binary, and binaries practically always fail. Maybe that 16-year-old teen-ager’s, or that divorced woman’s, or that 42-year-old mother’s, sexual decisions were made entirely without violence. But were they made entirely without social pressure? Without religious expectations? Without bad information? Without forced compromises? Without conflicting socio-economic and cultural demands? As I’ve grown older, and watched my daughters grow and move into adulthood, and watched as my wife and I have moved into middle-age, the pressing and often painful complexities of marriage, sex, love, risk, desire, and children, the confusions and justifications and fears which attend all of them (as well as, of course, the many joys and surprises they bring), have simply become enormous to me. Add to that concerns about money, concerns about extended family, concerns about health (both mental and physical), and maybe most importantly, concerns about all the innumerable little assumptions and (mis)understandings amidst the ones we love which we navigate day after day after day. The result of all this is a heaviness—the same sort of heaviness I can remember feeling when I held our firstborn daughter, and felt the enormity which my wife and I had taken responsibility for.

Does that responsibility carry any kind of moral obligation to it? Of course it does! But that obligation cannot be extricated from all the other obligations that come with the complex existences we are all heirs to. Eventually, there came a point when I realized that the repugnance I feel at abortion is more than matched by my repugnance at the prospect that someone with the power of the state (and here I remember Elizabeth Bruenig’s sharp observation from several years ago: “penalty seems to be the only way those operating under the ‘pro-life’ banner feel comfortable expressing their commitment to life”) could approach any woman who has come to a moment of heavy decision-making regarding abortion in the midst of all of the above, looked her in the eye, and say: sorry, but we’ve decided that this choice should not be available to you.

So my intuitive sense of the wrongness of abortion hasn’t changed; that repugnance is still there, and it still guides my thinking. But it is no longer a solitary or supreme guide; there are too many other potential harms, manifest in too many other ways, for me to accept any longer that a pregnancy, insofar as the responsibility to the potential life which it may result in is concerned, is always of only two possible sorts. Between violent rape at one end, and mere (though is it ever actually “mere”?) convenience at the other, there is an immense amount of very murky road. Do my critical views about that individualistic, privatized, choice-centric mentality which treat all the connections in our lives as disposable still matter? Absolutely they do. But mostly today, they lead to me focus ever more on the response that millions of women have screamed, and continue to scream, at anti-abortion politicians who insist upon inserting their concerns into an enormously difficult and private decision, but whose concerns lead them to do exactly nothing in terms of compassionately responding to the enormous weight that women as human beings who can become pregnant and give birth experience every single day of their lives. What about supporting those connections? What about health care? What about maternal leave? What about reproductive assistance generally? What about educational and social and care-giving support? (Carolyn Homer’s list of what the “pro-life” label ought to include is an excellent rundown.) Again, while I do not agree with every implication of her language, the Catholic writer Leah Libresco Sargeant’s comments in The New York Times last week speak truthfully, I think:

Ruth Bader Ginsburg….made the case that abortion is really the price of admission to society we demand of women. And I think she's factually right. That's what we ask of women. We don't support women when they're pregnant, even with wanted pregnancies. We don't support parents nationwide. We place heavy burdens on parents who are most vulnerable. TANF, which is support for needy families, has been hollowed out. The child allowance didn't make it to parents who were the poorest. So it's true, you can look around and say, our culture has no room for the vulnerable. It doesn't have room for babies who are vulnerable, and it doesn't have room for women who are vulnerable. So abortion is a crutch that lets us navigate that hatred of dependence that's pervasive in our culture.

And now, millions of people who have worked very hard for decades on behalf of a simplistic defense of the unborn have kicked away that crutch. Bad decision, I say; very bad, all the way down.

Which is why, here at the end (for now, anyway) of this ongoing argument I've been with myself (and others) for years, we have the aforementioned sign in our front yard. The argument over abortion in the U.S., thanks to Roe v. Wade, Casey v. Planned Parenthood, and other Supreme Court cases, has for a half-century been utterly entwined with—and often served as a proxy for—debates over judicial power and the meaning of democracy. I have strong opinions about both of those debates, both nationally and in the context of our state constitution, and given that I have a profound distaste for undemocratically allowing unelected judges to make policy for the people, one might wonder why, all arguments over abortion aside, I don’t see Dobbs v. Jackson Women’s Health as a good decision, or Hodes & Nauser v. Schmidt (which articulated a very broad—much too broad, I think, especially given how many Republican politicians hypocritically misused it to justify opposition to vaccination policies during the pandemic—right to “bodily integrity” and thus abortion here in Kansas) as a bad one. The answer, of course, in line with everything I’ve written thus far, is that nothing happens without a surrounding context which weighs upon one’s choices.

I’ll freely admit that if Dobbs really does turn out, in the years to come, to have been just the first step in the expression of the Supreme Court’s determination to no longer involve itself in not just abortion legislation, but voter rights legislation, gerrymandering legislation, health care legislation, gun control legislation, etc., the time may come when I'll eat crow and call this a good decision, at least constitutionally speaking, because the ending of undemocratic judicial rule over the people's elected representatives will turn out to have been a very, very good thing. However, given that the Supreme Court involved itself in New York's century-old and widely supported gun laws literally just the day before Dobbs was handed down, I see no reason to believe the Court is suddenly turning away from screwing with democratically determined legislation. Rather, I conclude—as I think any remotely well-informed observer also must—that the Republican majority on the Court has, with Dobbs, achieved a long-standing and carefully developed (and financially well-supported) political aim, nothing more. That is an aim that will hurt women whose lives I want to make easier; preserving Hodes here in Kansas is, I think, not nearly as much a perhaps unavoidable concession to the individualistic, choice-centric assumptions of our current social order as it is an embrace of showing mutualist support to women who, in the absence of a radical change in the direction of solidarity and equality our economy and culture, are now facing potentially grave harms in their navigation of the heavy choices of family and health and life. (Also, please note that, despite claims to the contrary, Hodes has not “radically changed and expanded the landscape of abortion in Kansas,” unless you think that “landscape” is defined entirely by the ability to the state to be able to ban one particular rare second-trimester abortion procedure or impose prohibitively burdensome abortion clinic requirements; moreover, keep in mind that does the “Value Them Both” amendment really doesn’t appear to do anything of specific value for women’s choices at all anyway). Thus I say, to any Kansan who reads this: vote on no on August 2, please!

Abortion is, I believe, often (if not always and in every way) an evil. I also believe there are lots of evils in this world, some actual and some potential. Telling a pregnant person who might have to tragically confront--in all their diverse physical and economic and familial and occupational and religious and mental situations--a hideously difficult route through all these diverse evils (both real and potential) that they no longer have, and never should have had, a political or legal promise that one particular route will be available to them, no matter what their circumstances or what the science of what’s going on (or not yet going on, or no longer going on) inside their bodies at any point along their pregnancy, is simply repugnant to me. So yes, I changed my mind since I was a boy. If I was able to do so regarding same-sex marriage, I can do it regarding the necessity of abortion rights too.