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Dipika Jain[2]

Abstract:

On July 2, 2009, the Delhi High Court read down Chapter XVI, Section 377 of the Indian Penal Code.  Prior to the Court’s ruling, Section 377 criminalized sexual activity “against the order of nature,”[3] and served primarily as a vehicle for criminal sanction of male homosexual activity.  The 150 year old law, which could impose as harsh a penalty as life imprisonment for violations, had been challenged by public interest litigation for a decade.    In its historic judgment, the Delhi High Court found that the provision violated Article 14 and 21 of the Indian Constitution, which provides for the equality of all Indian citizens and the right to live with dignity.

The reading down of Section 377 by the Delhi High Court is a pivotal moment in Indian history. Submissions made in the judgment as well as other studies have shown that anti- homosexuality laws largely impact the LGBT community in two ways: (i) anti- sodomy laws affect the relationship of sexual minorities with law enforcement agencies, leading to differential treatment; and (ii) these laws directly (and adversely) affect individual notions of self-esteem, self-worth and play a major role in social and familial acceptance and respect. Thus, the Centre for Health Law, Ethics and Technology (CHLET) at Jindal Global Law School undertook an empirical study to assess the impact of the judgment on the queer community in Delhi and to especially evaluate (i) whether, after decriminalization, members of sexual minorities have felt any difference in the treatment they receive from law enforcement officials, and (ii) whether they believe that they have achieved a greater level of respect and acceptance, from society as well as from their own families.

The research conducted for this study consists mostly of personal interviews with members of the LGBT community. This impact assessment is the first of its kind in India and, apart from providing valuable first-hand accounts of LGBT life pre- and post-decriminalization of homosexuality. Researchers interacted with individuals belonging to different sexual minorities who described their lives before and after July 2, 2009. The findings of the interviews are consistent with similar studies in other countries, such as South Africa, the United States, Canada, and Australia. These studies show that decriminalization consistently leads to a rise in the level of social acceptance and, more importantly, self-acceptance of sexual minorities.

The findings of this report clearly show that the Delhi High Court judgment has positively impacted the LGBT community and has improved the quality of life of sexual minorities. However, greater efforts must be made, and strategies must be formulated in order to truly integrate the LGBT community into Indian society, eliminate stigma and discrimination, and award them the same opportunities as those available to other citizens.

 1.      Introduction

In a culmination of decades of legal challenges to Section 377, the Naz Foundation, an NGO in India, filed a writ petition in the Delhi High Court attacking the law’s constitutional validity.[4] This Section penalized crimes amounting to “unnatural offences”, which had the effect of criminalizing consensual sexual intercourse between adults, even when conducted in private.[5]

The petitioner argued that Section 377 infringed upon Articles 14[6], 15[7], 19[8] and 21[9] of the Indian Constitution. They also argued that the Section should only criminalize non-consensual penile, non-vaginal sex and penile, non-vaginal sex involving minors.

In its landmark judgment, delivered on July 2, 2009[10], the Delhi High Court ruled that Section 377 of the Indian Penal Code violated a number of fundamental rights, including the right to privacy and right to dignity under the fundamental right to life and liberty (Article 21), the right to equality (Article 14), and prohibition of discrimination on grounds of sex (Article 15). The case has been appealed to the Supreme Court of India and the judgment is pending.

In order to assess the real impact of the High Court judgment on the lives of the LGBT community in Delhi, the Centre for Health Law, Ethics and Technology at Jindal Global Law School has undertaken a qualitative empirical study. The study was undertaken from February 2011 to October 2011.

This study is the first of its kind in India to assess the impact of the judgment on the lives of sexual minorities. Similar studies have been undertaken in different countries such as Australia,[11] North America,[12] and South Africa.[13]

2.      Research Questions

The two main research questions were:

(1) Whether the judgment has had any perceived (positive) impact on the enforcement of rights and upholding of dignity of the LGBT community in Delhi? Whether the attitude of the law enforcement agencies in Delhi, especially the police, has been perceived to change towards the LGBT community since July 2009?

(2) Whether the judgment has resulted in any greater social acceptance of the homosexuals, the transgenders and hijras[14]? In other words, whether there has been a visible reduction in social discrimination and greater acceptance by the family?

3.      Methodology

The main aim of the study was to find answers to the research questions and obtain insight into the daily lives of people from the LGBT community, before and after the Delhi High Court judgment. The study followed a qualitative research approach, involving semi-structured interviews as the primary method of data collection. In-depth, semi-structured, face-to-face individual interviews were conducted over a period of six months. Thirty-two randomly selected respondents were interviewed. The respondents were mainly recruited through two Delhi-based organizations working on sexual minority issues: Love Life Society Delhi[15] and Aide et Action India[16]. The participants consisted of individuals from diverse groups including MSMs, hijras[17], kothis[18] and MSM outreach workers, all from different parts of Delhi. The participation in the study was absolutely voluntary. All participants were informed that they could withdraw from the study at any point if they became uncomfortable. Each respondent was asked open-ended questions in the interviews. Each interview usually lasted from 30 to 45 minutes. In order to set the participants at ease, the interviews were informal and absolutely confidential in nature. The interviews focused on self-perception of the participants with regard to the study questions as the research conducted was exploratory in its approach.

Most participants wanted the interviews to be confidential and were not comfortable with video or audio recording. Hence, written notes were taken during the interview in Hindi and English and were later translated to English. After all the interviews were conducted, each participant was contacted for a second time to confirm their consent to be a part of the study, and their interviews were read back to them in the language that they were most comfortable in (predominantly Hindi).

All thirty-two interviews were carefully analyzed to avoid any discrepancies in data or in the findings, results, and conclusion.

4.      Finding and Analysis

The study arrived at four main findings: increased self-confidence within the stakeholder groups; reduction in harassment by state actors; increased societal acceptance; and increased familial acceptance.

i. Increased Self-Acceptance and Confidence

Within the stakeholder groups, most people noticed a change after the Delhi High Court judgment. They claimed to feel improvements in self-awareness, self- acceptance, self-confidence and emotional security after the judgment. The judgment has empowered them, enabling them to defend themselves and fight for their rights, even against law enforcement and state authorities. The majority of respondents felt more confident and fearless while dealing with the police and with public harassment, since they now had the support of the law and their behavior was no longer criminal. One of the respondents said:

 â€œThere is a difference. There is a lot of change. Now we feel braver and can speak up for our rights, even against the police. We are not scared of them like before.”

After the judgment, many respondents took comfort in the knowledge that their natural homosexual or bisexual tendencies were not “wrong” as the law earlier made them out to be. Before Section 377 was read down, the fact that their behavior was considered criminal in nature only added to the confusion and uncertainty they were already experiencing while trying to understand and accept their sexuality. One respondent said:

“I feel a lot braver now, after the judgment. I can face the police with courage now that I am not doing anything wrong in the eyes of the law.”

Some respondents also reported that they could now argue with the police since they know that “there is no Section 377 in the law books any more”. Technically, the section is still in the law books and criminalizes non-consensual penile, non-vaginal sex and penile, non-vaginal sex involving minors. However, because the section did not apply to the homosexual community after the judgment, it was perceived by a respondent that the section was not in the law books. Another respondent said:

“Police still trouble me, they know that I am gay and they make fun of me and laugh. But I have become braver now and can stand up for myself.”

Another respondent said:

“We have more courage and confidence now. It should be decriminalized all over India because there has been a change.”

Thus, it is evident from the interviews that the decriminalization of homosexuality has led to increased self-confidence and self-acceptance among the respondents and has consequently made them stronger and more assertive.

Various studies have outlined the negative impacts of laws that criminalize homosexuality on the gay community. Professor Ryan Goodman, for instance, conducted a study on the impact of sodomy laws on the gay community in South Africa.[19] He conducted extensive field research on the impact of sodomy laws, and found that they created an environment where homosexuals were constantly being subjected to widespread harassment. This atmosphere of dispersed surveillance created a sense of illegality in the very identity of homosexuals. Such an atmosphere also served to perpetuate and reinforce public disapproval and disgust at the notion of homosexuality, and led the public to view members of the gay community as abhorrent or diseased.[20]

Professor Goodman found that while the sodomy laws did not serve the ultimate purpose of forcing individuals to conform to recognized “heterosexual” societal norms, the laws severely impacted the self-esteem, self-worth, and personal identities of homosexuals.[21]  The laws also greatly affected the relationship of homosexuals with other members of society, due to the public disapproval that was generated. He identified seven ways in which the self-esteem and self-worth of homosexuals eroded, namely through (i) self-reflection; (ii) self-reflection through the family; (iii) verbal assessment and disputes; (iv) residential zones and migrations; (v) restricted public places; (vi) restricted movements and gestures; (vii) “safe” places; and (viii) conflicts with law enforcement agencies and state authorities.[22]

This study illustrates the extent to which sodomy laws and the legal criminalization of homosexuality can affect the very identity of individuals through various aspects of their lives.[23]

Similarly, after the ban on homosexuality in the military in Canada was lifted in 1992, a study was undertaken to study the effect of the same in the military. The final report stated that after the ban was lifted, there was a significant reduction in the number of reported cases of assault.[24]

Other studies, in keeping with Prof Goodman’s study, show that sodomy laws criminalizing homosexuality have the same effect worldwide: they reduce the status of homosexuals to “unapprehended felons” and create an atmosphere where discrimination is encouraged in different spheres of life. This was further confirmed by the interviews in Delhi undertaken for this study.

ii. Reduction in Police Harassment

The effect of criminal sanctions against homosexual behavior include violence against homosexuals, blackmail, police intimidation and entrapment, reluctance by homosexual men to report rapes or other crimes for the fear of implications with homosexual activity, adverse psychological effects, which may even result in suicide, and the inability to acknowledge and express sexual preferences without fear of social discrimination, stigmatization and ridicule.[25]

Most respondents said that the police were generally abusive towards them, verbally and physically, often interrogating them without any specific reason. From the interviews, it appears that police harassment has reduced significantly among MSM, outreach workers, but only to a small extent among the hijra and kothi groups. The responses from the latter group were varied. The kothi continue to face harassment at the hands of the police. One respondent stated:

“The problem is that the police very often arrest without any reason and accuse and charge us under false sections. This creates a lot of tension in our lives and especially amongst our families.”

Another respondent, a program coordinator with a well-known NGO, was not optimistic about any change following the judgment. He said:

“After the judgment, police harassment has not reduced much. Four to five months ago, my friend and I were in his car. We were not doing anything. The police came and started knocking on the door of the car because the car had been parked on the side. They accused us of having sex.”

However, on a more optimistic note, another respondent stated;

“Police does not trouble me as much after the judgment as they did earlier. The media supports us.”

Some respondents stated that police often misused their power and tried to sexually exploit them, but there has been a decrease in incidents of sexual harassment after the judgment. One respondent said:

“Police supported us only when we rendered sex services to them. Otherwise they troubled us and they would even snatch our belongings. After judgment, such harassments have definitely reduced”.

Another respondent was more optimistic and stated:

“There is also a lot of positive change in police behavior. Generally, there is a lot more awareness about who we are, which is the reason harassment has reduced and acceptance is gradually increasing.”

One of the respondents offered an extremely optimistic response:

“There has been a difference in the last two years. People respect me more. I live with my Guruji[26] now. I left my family ten years ago. I have even complained to the police by calling the control room and they did come to help me. The police have definitely started respecting us after the judgment.”

Some respondents also claimed that the while police harassment has abated in a few areas in Delhi, it is still very high in some areas. One respondent stated:

“Some police officers harass and some do not. But the awareness has increased and I am braver now after the judgment…  Except for a few places like ISBT[27] and Azadpur, things have improved a lot.”

The fact that homosexuality is no longer a punishable offense, coupled with increased awareness and assertiveness of people belonging to the LGBT community has resulted in a positive change where the gay community is more confident, aware and even able to negotiate with the police. For instance, one respondent said;

“Police harassment still continues, but now we have the law on our side.”

The problem of police harassment persists due to a significant number of homophobic police officers who will continue such practices unless given regular sensitization training on this issue.

iii. Societal Acceptance

After the judgment, general acceptance of gay, MSM, and kothi men in society has increased. While total acceptance of the sexually marginalized sections will be a gradual process, there has certainly been a marked change in societal perception and awareness since the judgment. Many respondents stated that societal acceptance has grown and people have begun treating them with respect. The media has also played a part in this process, with many sympathetic movies and news items being released after the judgment. A few participants attributed reasons for such change to movies like Dostana[28], wide media coverage of the Naz Foundation judgment and the queer pride march in the city. One of the respondents said:

“I am much braver after the judgment and have been able to speak up and explain to people who I am. And most people have understood and accepted me. So there has been a change in people’s thinking also.”

Another respondent said:

“Dostana has brought about a lot of change. It resulted in spreading knowledge”.

An optimistic respondent said:

“People often made fun of me when I walked. They teased me. Now, since the past one year, things are looking different. There are some who still taunt and tease, however I know that if the Supreme Court also passes the same judgment, all such harassment will reduce further.”

On a similar note, another respondent said:

“After this judgment people have started accepting us to a certain extent. Some people still pass comments, but now my co-workers have started supporting me and I am respected in my office.”

There appears to be greater acceptance of the LGBT community in some sections of society as compared to others. One respondent feels that educated people are more accepting than uneducated people, as they are more aware. One respondent said:

“Upper middle class and the elite class is fine but the lower section of the society has a lot of problems with us. The reason for this is also less awareness and social stigma.”

On a similar note, another respondent said:

“I feel that the Supreme Court should also pass laws of anti- discrimination along with the judgment. There should be stringent anti- discrimination laws like the SC/ST Law[29] which provides punishment for discrimination.”

In certain areas like Badarpur[30], discrimination and harassment levels are still high.

One respondent living there said:

“In the area where I live there are a lot of MSMs so harassment is very common. They take away our money and beat us up. In some affluent areas, societal acceptance is higher.”

Similarly, another respondent said:

“People did not know much about our community earlier and used to tease us, but now many are aware and respect the way we are. In areas like Saket, where people are educated and more aware, people do not tease and pass unnecessary comments.”

Many respondents seemed to think that the Supreme Court reaffirming the High Court’s judgment would result in greater positive changes in society. One respondent said:

“I have noticed a lot of difference among the normal people. Now people talk properly with us and respect us. Earlier, I was scared to admit to myself that I was gay. No one spoke openly about being gay but after this judgment people have started coming out in the open.”

Another respondent said:

“Gay people used to hide their sexuality but people have now started coming out. And all this is happening only because of the decriminalization.”

There will always be a social minority which will harbor intensely homophobic feelings. Decriminalization is unlikely to alter this, but many homosexuals in “non- criminal” jurisdictions have, on the whole, felt that they have become a more accepted part of society as a result of legal reforms.[31]

iv. Familial Acceptance

Although there was general optimism about change with respect to the three aspects mentioned above, the same did not hold true when it came to how respondents viewed the potential for acceptance by their families. Most respondents stated that they would not disclose their identities to their families.  Some also admitted that they had faced severe discriminatory treatment from their families, on such disclosure. One of them said:

“I cannot even go home as my sister has to get married. I feel that there should be an environment in which we can live more openly. Parents play a huge role in discriminating. Even they tease. Why should I be blamed because I do not get attracted to girls? There has to be anti- discrimination laws to protect us and then families will be more accepting.”

Another respondent said:

“People’s behavior has changed a lot…But I am still scared to come out to my family as I am afraid of how they will react.”

It also seems that for some of them, a few members in the family are more sympathetic than others.

“I have a big family – my mom and sister, support me a lot. I do not get that much support from my dad and brother.”

Some families seemed to think that their child’s sexual orientation could be changed or “corrected” through heterosexual marriage.

One respondent said:

“My family does not know about me. They will never accept it. I will not be able to survive there if I tell them. Some family members force us to get married. But we don’t want to spoil the lives of women. We are helpless.”

Contrary to popular belief, however, decriminalization may actually serve to promote the institution of family. The knowledge that society and the law censure their relationships can be very difficult for homosexuals who are trying to accept their own sexuality. One consequence of the anti-sodomy laws is that many feel compelled to conceal this aspect of their lives from their family and friends, sometimes marrying for appearance’s sake.[32]

In the presence of anti-sodomy laws, it has been seen that many homosexuals enter into heterosexual marriages to keep up appearances and prevent societal condemnation. These marriages are often unstable and fail, to the detriment of both partners as well as any children that may result from the marriage.[33]

According to a report by the Peoples’ Union for Civil Liberties, the institution of family reinforces the heterosexist organization of society.[34] Rather than supporting their homosexual children and protecting them from social violence, families often reflect social intolerance; and those who do not conform to these social norms are humiliated, ill-treated and even disowned by their own families.[35]

It is clear that one of the major reasons for non-acceptance by families is the fear of social alienation. Many families fear that they may lose respect in society and face ridicule if their children are open about their sexuality. Hence, they either force them into heterosexual marriages or disown them, leaving them with little or nothing. This often leaves LGBT individuals little choice but to hide their sexuality and lead a dual life.

One respondent, who was disowned by his family when they found out about his sexual orientation, was very distressed about being thrown out of his house without even getting his rightful share in the family property. He suddenly found himself not only abandoned by his family, but also without any money or assets, and very little means to support himself. He said:

“Family support is also important, and if they do not support, then at least we should get our share in the property. They just cannot disown us like that.”

This non-acceptance and fear of non-acceptance has other dangers as well. It is clear that the police often succeed in harassing these individuals because they are able to blackmail them with information about their sexual orientation to their families. One of the respondents said:

“I am scared of the police as my family does not know that I am gay and I do not want them to find out. I am concerned about my reputation in the society. I once got caught with another man but I managed to escape from the police and I do not know what happened to the man.”

5.      Conclusion

This study concludes that the decriminalization of homosexuality will ensure that sexual minorities in India are one step closer to living with dignity. The invalidation of Section 377 will ensure greater self-confidence among the LGBT community leading to a gradual but steady acceptance of sexual minorities by their families and society as a whole.

The findings of this study are in line with the results of Professor Goodman in his study of the impact of sodomy laws in South Africa.[36] He stated that even if sodomy laws in a particular jurisdiction only reflected the moral beliefs and sentiments of a small minority of the population, their presence in the law books would give the impression that criminalization of homosexuality represented the sentiments of society as a whole. This representation results in the laws having a “far-reaching” and “self-reinforcing” effect.[37]

According to Professor Goodman, anti-sodomy laws have a variety of impacts.[38] First, they influence the attitudes of society towards the state with members of the LGBT community fearing state authorities. Second, they change peoples’ relationships with public spaces; since these individuals are not awarded an equal level of protection by the law,[39] they acquire a more vulnerable status and have a less active relationship with public space in the society. Third, anti-sodomy laws impact the boundaries of what constitutes a civic community.[40]  Laws that criminalize specific communities lead to exclusion, marginalization and victimization. Since these laws have such a strong influence on social norms and can successfully transform them,[41] the justice they bring must be analyzed in this social context.

One important conclusion of this study is that there has been a definite increase in confidence and self-acceptance among LGBT community members. All the respondents interviewed unanimously agreed that even if decriminalization did not change attitudes of the police and people in general, it did result in an improvement in their own self-confidence. This is in keeping with the results of prior studies, which have found that jurisdictions criminalizing homosexuality have been home to individuals from sexual minorities with low levels of self-esteem and self-worth. But jurisdictions that decriminalized homosexuality have been associated with gay citizens who demonstrate greater levels of self-acceptance.

Police harassment has definitely reduced after the judgment, though it seems to be more prevalent in some areas of Delhi than others. Acceptance by society as well as by families has increased slowly, but there is still much work to be done. Apart from the law, the media and movies have also played their part in effecting a change in societal perception of the LGBT community.

Decriminalization can remove much of the stigma associated with homosexuality, and can help homosexuals feel more accepted in society as well as within their own families. Decriminalization has also been seen to be associated with more self-acceptance as well as psychological and emotional security among homosexuals and other sexual minority groups. Such qualities help homosexuals form healthy relationships and build and strengthen familial ties. In fact, it is encouraging to note that parents of several homosexual children have filed interventions in the Supreme Court   praying   for   decriminalization of   homosexuality.   Even   though   family acceptance of LGBT people still seems to be bleak, this situation will improve if the Supreme Court upholds the High Court judgment on Section 377. It is pertinent to note that an appeal was by filed by several individuals and religious groups in the Supreme Court of India to challenge the decision of the Delhi High Court. The Supreme Court concluded the arguments in March- April, 2012 and the judgment has been reserved. It is hoped that the Supreme Court upholds the Delhi High Court judgment otherwise all the benefits realized by the LGBT community will be imperiled.

The post Impact of the Decriminalization of Homosexuality in Delhi: An Empirical Study appeared first on The Arkansas Journal of Social Change and Public Service.

At issue is the fact that the EPA sets annual volume requirements for certain renewable fuels – here, domestic ethanol production.  Presently, the RFS requires that 13.2 billion gallons of the corn starch-derived biofuel be produced in the United States in 2012.

While the stated goals of such an initiative are admirable – among other things, proponents tout energy independence and reduced greenhouse gas emission as natural consequences of these production requirements – the ethanol target has caused a rift between the energy and agriculture industries, who have become competitors for the nation’s dwindling corn crop.  Perhaps surprisingly, the biofuel industry and livestock farmers use roughly the same amount of the nation’s corn, with energy accounting for 40% of the crop and agriculture accounting for 36% for feed.

The RFS is a comparatively new regulatory mechanism, coming into being in 2005 and dramatically expanding in scope in 2007.  Since its inception, corn prices have risen 193%, according to Governor Beebe, among other sources.  In a growing season plagued with national droughts and record temperatures, the ensuing scarcity of domestic corn has caused prices to skyrocket further.  Accordingly – at least as far as the livestock industry argues – we’re faced with a dilemma.  Which do we want to cost more: food or fuel?

The concerns of Governors Beebe and Purdue (admittedly, as advocates for the agriculture industry) highlight an interesting tension between two seemingly dissimilar but equally essential segments of our economy.  In the campaign season, a great deal of coverage has been given to the talking points of energy independence and renewable resources, but very little time has been devoted to food security.  Regardless of one’s feelings towards livestock farming or, for that matter, ethanol as a renewable energy source, the Governors’ letters, coupled with the mounting cry of both the agriculture industry and sympathetic lawmakers, remind us that our policies must square at the end of the day.

It is a certainty that some pundits will tell us our choices at the fuel pump need not overlap with our choices at the table, but it is important to know that in the current regulatory landscape, these two areas appear to intertwine considerably.

The post Food v. Fuel: A Growing Conflict appeared first on The Arkansas Journal of Social Change and Public Service.

By David Slade

As I wrote in a much longer article earlier this year, numerous 2012 legislative sessions across the country saw the introduction, and in two cases the passing, of bills that would criminalize acts of investigative journalism in the agriculture industry.  These controversial “ag gag” laws target a practice common within news reporting and animal rights activism circles: embedding oneself as a factory worker, getting footage of inhumane or unsanitary conditions, and then releasing the video or photographs to the public.  Iowa, for instance, passed House File 589 (“HF 589”), which created the offense of “agricultural production facility fraud.”  Broadly, the law criminalizes a party making misrepresentations in order to gain access to a farm or agricultural production facility (read: lying on a job application).  Utah passed a similar law, House Bill 187 (“HB 187”), which goes one step further and also prohibits making a recording of any type without the consent of the facility’s owner.  Both laws also provide penalties for parties who abet the proscribed acts, presumably all the way up to the news agency that runs the story or shows the video.  Bills worded similarly to HF 589 and HB 187 were introduced, but not passed, in Florida, Illinois, Indiana, Minnesota, Missouri, Nebraska, New York, and Tennessee.

Not only are these laws unsavory on both a gut and policy level, they also appear to run into serious constitutional problems, as the First Amendment’s guarantees of freedom of the press would seem to guard against this exact type of legislation.  The interesting wrinkle here is that laws like HF 589 and HB 187 don’t attack the finished work – the video played on network news or posted to a website, or the photographs compiled in an exposĂŠ article – but instead target the underlying acts of gathering the material for the news story, and this is a far murkier area in First Amendment law.

In terms of the former category – the finished product – First Amendment jurisprudence is fairly clear.  Supreme Court cases like New York Times Co. v. Sullivan, for instance, have held that media outlets can’t be sued, even where they print something that is untrue, except where they acted with “actual malice” (meaning that even if they get something wrong, they aren’t liable, unless they ran the incorrect information on purpose, with the intent to harm the injured party).  In that same opinion, the Court wrote that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”  Accordingly, any law or agent of the state attempting to rein in the ability of the press to print what it wants is going to have to leave “breathing room” for “speech that matters,” as the Court noted in Gertz v. Robert Welch, Inc.

The problem is that, again, the above cases contemplated finished, published products and involved claims that attacked that same product.  In the wake of opinions like Gertz and Sullivan (and scores of others that support the same propositions), lawyers have gotten creative and instead of attacking the media’s ability to publish the news, they’ve attacked the steps that the media take to gather the news in the first place.  Here, they’ve been surprisingly successful.

As discussed in more detail in the paper, in cases like Branzburg v. Hayes, Zurcher v. Stanford Daily, and Cohen v. Cowles Media Co., the Supreme Court began limiting the First Amendment protections for acts of news “gathering,” as opposed to publishing.  In Branzburg, for instance, the Court held that a reporter would have to submit to a grand jury subpoena, even where the information sought was the name of a confidential source.  Zurcher held that police officers, in possession of a valid warrant, may search a newspaper’s office, even where confidential information and work product is uncovered.  And Cowles held that a journalist could be sued by a former source for having broken a promise of confidentiality.  Contrasting the holdings in Cohen, Branzburg, and Zurcher with the holdings in cases like New York Times v. Sullivan, one discovers a tension between competing interests – the rights of the press to publish and the privacy rights of the subjects of investigative reporting – that borders on paradox: the press is afforded expansive protections for the article that has been published, but each of the steps taken along the way to publishing get almost no cover from the Bill of Rights.

The problem, however, is that attacking the methods amounts to attacking the end product.  Nowhere is this more evident than in a federal appellate court’s decision in Food Lion, Inc. v. Capital Cities/ABC, Inc.  In this 1999 case, the Fourth Circuit held that two reporters for ABC News, who had gone undercover in a grocery chain’s meat department to uncover unsanitary business practices, were not afforded the protection of the First Amendment in an ensuing lawsuit brought by the store.  Relying primarily on Cowles, the Court found that while expression of the press is typically beyond the power of state sanction, its behavior is in play for purposes of litigation.  Specifically, it looked to Cowles for the proposition that generally applicable laws (laws that affect everyone and not just the press) will not trigger enhanced scrutiny “simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”  And it appears to be in that spirit that laws such as HF 589 and HB 187 were drafted.

The immediate problem with the Fourth Circuit’s analysis in Food Lion, and with laws like HF 589 and HB 187, is that clearly their effects are more than “incidental” in the scheme of gathering and reporting the news.[1]  Arguably, these boutique laws came into existence for the very purpose of stopping reporting on factory farms dead in its tracks.  As one Utah legislator inelegantly put it, “we certainly don’t want some jack wagon coming in and taking pictures.”[2]

Effectively, then, these laws amount to state-sanctioned censorship of an entire area of speech, also known as a “prior restraint.”  In the seminal case of New York Times Co. v. United States (also known as the Pentagon Papers decision), the Supreme Court stated that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”  The Court went on to say that the government “carries a heavy burden of showing justification for the imposition of such a restraint.”  Such a burden cannot be met by the current crop of ag gag laws, as their lone purpose is to prevent the embarrassment of private industry through the documentation of abuses.

Ultimately, the public interest is best served by favoring transparency and protecting journalism that exposes issues directly related to public health and food supply safety.  Within the context of food safety and public health, it is almost impossible to overstate the importance of exposĂŠs conducted by investigative journalists.  In 1904, Upton Sinclair performed undercover work in Chicago’s meatpacking plants at the behest of the newspaper The Appeal to Reason.  His investigation yielded the novel The Jungle, a social realist depiction of abuses of animals, workers, hygiene, and consumer confidence that sent a shockwave through the American public.  The book prompted a federal investigation, which in turn led to the Meat Inspection Act and the Pure Food and Drugs Act of 1906, which in turn created the agency that would ultimately become the Food and Drug Administration.

This work, created over a century ago, serves as a reminder of the need for a vigilant press to uncover practices of the agricultural industry that put our food supply at risk.  Unfortunately, recent reports have revealed that bad actors in the meat and dairy industry do not appear to have meaningfully changed since Sinclair’s days.  An investigation conducted by the Humane Society of the United States uncovered horrendous conditions at a Pennsylvania-based Kreider Farms egg facility, including rodents on egg conveyor belts, rotting corpses in cages with live laying hens, eggs testing positive for salmonella, and ammonia levels so high that workers were forced to wear masks.  A similar Humane Society exposĂŠ of four Iowa egg farms identified similar conditions.  Several months later, Iowa farms were at the center of a salmonella outbreak that led to the largest egg recall in U.S. history.

It bears mentioning that Iowa has the largest concentration of factory farms in the country.  If HF 589 remains law, it will make an increasingly suspicious public even more leery of the quality of the meat and dairy products stocking grocery shelves.  As one Iowa state senator, Herman Quirmbach, stated prior to the bill becoming law, “[p]assing this bill will put a big red question mark stamped on every pork chop, every chicken wing, every steak, and every egg produced in this state because it will raise the question of what do you got to hide.”

Supreme Court Justice Potter Stewart once suggested that the Press Clause of the First Amendment deputizes the news media to serve as a “fourth institution outside the Government [acting] as an additional check on the other three branches,” a sentiment that certainly extends to the instant circumstances.  Justice Byron White, in his opinion in Branzburg, conceded that “without some protection for seeking the news, freedom of the press would be eviscerated.”  Unless courts reject holdings like the Fourth Circuit’s opinion in Food Lion, and instead begin striking down ag gag laws such as HF 589 and HB 187, this is precisely the threat we face.

The post “Ag Gag” Laws: Industry Trumps the First Amendment appeared first on The Arkansas Journal of Social Change and Public Service.

by Jody Hardin

certifiedarkansas@gmail.com

The lowest hanging fruit seems the most likely to be harvested, right?

Many new opportunities are awaiting harvest as the niche market for local, sustainably-produced foods continues to expand as one of the fastest growing sectors of our national economy.  When you combine this growing opportunity with the growing demand for on-farm attractions and agri-tourism, the opportunities surrounding this growing niche market seem more and more exciting as a farmer, economist, and entrepreneur who lives and breathes this every day.

On the other hand, central Arkansas, like other parts of the country, has seen unprecedented growth in new Outdoor and Internet-based Farmers’ Markets, new Community Supported Agriculture programs, Local Food Festivals, Buying Clubs, U-pick Farms, Value-added products, etc. With this growth, there have been severe burdens placed on the small farmer in terms of new demands, governmental policies, and global environmental changes, that if not remedied, will soon crush the whole local food movement.  Simply put, there is demand for local foods, but we, as farmers, do not have the necessary tools and leadership to make the potentially huge health and economic impact on our state that we think we can achieve.

In my mind’s eye, the impact of this move to be more sustainable by Americans is a paradigm shift that ultimately explains some of the currently unexplained dynamics of our ongoing economic recession.  Perhaps it’s just a small group of people that are becoming to some small degree LESS consumption-based as families; however, I believe this is having some impact on the overall economy.  But, are we seeing some of this food dollar going back into rural Arkansas?  If so, it’s only a small trickle compared to the relative decline that our communities have experienced within their city limits and surrounding food sheds.  People once grew much of their own food or relied upon local farmers, but now they rely on McDonald’s and Wal-Mart for their main sustenance.  For those who think people aren’t smart enough to eventually figure this out on their own and continue to reconnect with our old ways of food production, they may be sadly mistaken.  The numbers speak for themselves, but it seems only a few farmers and businesses have this understanding, and can see this grassroots movement in food dollars being redirected back into small communities and the small farms that serve them.

It would be fair to say that a growing percentage of consumers are buying with higher standards, and are shifting some of their purchases and menu selections to local food.  It would also be fair to say that, as families reconnect with how and who grew their food, they become more mindful of eating a healthy diet and spending their food dollar in the local economy.  Additionally, as children are exposed to more varieties of fruits and vegetables, their interest and corresponding education create more intelligent consumers that can discern good food choices from bad.  Perhaps it would be fair to say that a healthy child will grow into a healthier adult, and in a larger sense, place less of a burden on the existing healthcare infrastructure.

Economically speaking, a fairly recent study commissioned by Heifer International concluded that Arkansan’s exported $8 billion in food dollars out of state each year.  According to our best guess, less than five percent of what is purchased by residents in the state of Arkansas is grown in Arkansas.  Some have guessed that fresh fruits and vegetables account for less than one percent of the Arkansans’ annual food budget. The opportunities for growth are mind boggling, but I’m beginning to uncover the many evil bottlenecks our farmers and consumers face trying to affect change in our local food system.

Through my relatively extensive network in the local food and agriculture world in Arkansas and, more recently, the nation, I have seen the multitude of problems that our state faces first hand.  And, after taking several years to painfully boil them down, I am now supremely confident we can do something that will impact everyone in our state, and significantly alter the economic outcome of small communities and the many small acreage farmers in Arkansas.

This will be no small task.  We must understand the problems and opportunities, as well as the risks.  We will need to look outside our borders for working models, and we must quickly convince our state’s leadership that local food policy means big bucks for our state; all we need are a few infrastructure projects to come together with the markets and capital needed to reach new and existing customers.

Initially, our state needs to organize these markets, and it needs to give them credibility by creating a “Certified Arkansas” program, so that each farmer is source-verified by a rigorous inspection system that would allow him or her to sell at any Certified Arkansas Farmers Market that will be developed strategically around the state. Furthermore, as we crank up this economic engine and significant amounts of money and opportunity begin to flow from local food, impostors will attempt to enter with illegitimate products.  Impostors with illegitimate products and those producing food unfairly within a farmers’ market serve as one of the most dangerous catalyst to the quick demise of a local farmers’ market.  This must be considered before we make the first step.

The types of markets I’m proposing are not community-based farmers’ markets.  These have been traditionally called “Terminal Markets” or “Regional Farmers’ Markets.”  Some states refer to them as “State Farmers Markets,” as they are often run by the state’s Department of Agriculture and a member board.

Connecting these farmers’ markets to aggregators, processors, distributors, and retailers, is the key factor in this approach to building our infrastructure for Arkansas’ Local Food System.  Wholesale local markets, connected with aggregators, processors, distrubutors and marketers, are commonly referred to as Food Hubs.  In essence, we want to stay focused on this gluewith an overall mission statement that will drive us collectively, as developers of a statewide local food system that not only organizes food but also food policy and marketing.  However, none of this will work in the typical time frame that most new enterprises experience, since new governmental food policies recently imposed on food producers severely limit their ability to access these new markets.  Specifically, the Good Agriculture Practices program has put a glass ceiling on the size of the local market due to the additional capital and time investment necessary for farmers trying to comply.  It’s foreign to most farmers, and it does not suit their lifestyle without adding some infrastructure and incentives for them to produce in a different way.

Farmers are an interesting group to work with, and must be brought to the table creatively, patiently, and cautiously, even though they are a large part of the reason we are making this proposal.  Many don’t want or don’t know how to come into compliance with the many new changes in the Food Safety and Modernization Act and the Tester-Hagan Amendment, which gives small farmers a critical exemption in some areas.

An Arkansas Food Hub is the ultimate infrastructure goal we must aim to achieve, backed by a set of robust and high volume “Certified Arkansas” markets.  It would allow a market-based focus on building a new economic engine for our state, and it will act like a floodgate to channel money back into rural economic development through wholesome occupations like family farming.

The lowest hanging fruit, based on the consensus of a few knowledgeable leaders in our community, is the opportunity of Farm-to-Work.  Farmers are beginning to realize that in today’s busy world, the best way to reach the consumer during the week is through their work place.  Employers are beginning to embrace workplace healthy living products, such as workplace delivery of fresh food and on-campus farmers’ markets.

In Arkansas, we have identified a growing number of large corporate campuses that would be suited for a demonstration Farm-to-Work program.  This program is simple and straightforward –if farmers were able to produce the variety and volume needed to make the new program successful.  I don’t believe we have this type of ability under the current environment without initially starting out with some planning funds to begin coordinating farmers and their crops to new markets and their unique demands.  Nevertheless, we believe that, with a coordinated effort, the lowest hanging fruit that could be harvested first would be to develop a Farm-to-Work program in Little Rock and elsewhere around the state.  It can be started with little expense, run independently, and have its own specific mission, while allowing other infrastructure components time to develop on their own, i.e. regional and state sponsored farmers’ markets, mobile farmers’ markets, auction markets, producer cooperatives, csa’s, food clubs, farm-to-school processing, etc.  We could plan for the Food Hub to spring from the first Farm-to-Work program facility.

For phase two, I propose that we develop a small fleet of mobile farmers’ markets from the city’s retired CATA buses, brightly wrapped in colorful signage, to go out into underserved communities of Arkansas with the best of what is in season each day.  These buses will be managed, serviced, and inventoried by the future Farm-to-Work aggregation and distribution facility based in Little Rock.

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I am in my eighteenth year [1] of teaching at a law school that currently sits in the third tier of the U.S. News and World Report law school rankings.[2]  Over the years, I have been amazed by the amount of focus in legal academia placed on the needs and experiences of law schools in the top tier and law students who graduate from these schools.  According to my calculations, the top twenty-five law schools in the United States educate 23,705—or roughly 16%— of the 145,239 law students attending American Bar Association-accredited law schools.[3]  Yet, so much discussion seems to be directed at what is going on at these schools.[4]  While that might be understandable given that many of these school’s graduates become influential lawyers and politicians,[5] the majority of the legal work completed in this country is performed by lawyers who graduated from law schools that are not among the top twenty-five.  Schools such as mine, a third-tier school, train lawyers who will have the opportunity to provide legal services to members underserved populations and at some of the highest levels of practice.[6]  Yet, there does not appear to be much discussion about what is happening at schools in the third tier.  If people did take a moment to focus on what we are doing, I think they would be very surprised to find out how innovative and thoughtful institutions like mine are.  I can only speak directly from my experience at the University of Arkansas at Little Rock William H. Bowen School of Law, but my colleagues at schools like the Bowen tell me similar stories.[7]  Let me begin what I intend to be a series of short articles regarding life in the third tier with a look at something that should be the focus of law students’ interest—teaching.

Critics have long complained about law school education and legal academia.  Members of the bench and bar have criticized legal education, in particular, for being both out of touch with practice[8] and neglectful in how it trains future practitioners.[9]  The popular media has taken up these criticisms in recent years in response to the high costs of legal education and dimming job prospects resulting from the current recession.[10]  I always find these criticisms interesting, while at the same time thinking, “These folks obviously haven’t visited my school.”

The idea that we were doing something different here—or at least different than top tier schools—occurred to me many years ago at the annual meeting of the Association of American Law Schools (“AALS”) shortly after the Fifth Circuit decision in Hopwood v. State of Texas.[11]  For those of who do not remember that case,[12] it was, for a brief time, the leading case striking down a law school affirmative action admission program.  It sent shockwaves through legal academia, and left law schools—at least schools who receive thousands of applications—scrambling to find a way to continue to admit a diverse student body.  Following the decision, AALS took up the topic at its annual meeting.  A series of speakers spoke about ways to achieve diversity in admissions while not running afoul of Hopwood.  One speaker explained that schools would have to begin to look at the “whole person,” meaning that they would have to look at the applicant’s file and actually read and review it.

I found myself chuckling.  What do schools in the top tier think those of us who do not get thousands of applications do?  Members of my school’s admissions committee had long been reading entire applications not only to diversify our classes, but also to try to find those few students who might not have the highest LSAT scores, but had the potential to excel in law school and become competent lawyers.  That was the beginning of what became frequent experiences at the national level: law school-related conferences that purported to be about legal academia throughout the United States, but instead seemed only to be aimed at schools in the top tier and their close relatives in the second.

Two additional occurrences pushed me to write this article about life at a law school like Bowen.  One involved a comment from an inspector from the ABA during our most recent reaccreditation review.  During a one-on-one discussion, he asked me how our school had managed to keep our bar passage rate up when a good chunk of our student body was pretty “middle-of-the-road” in terms of entering statistics.  I’m sure I looked at him quizzically.  It never occurred to me that the students I taught would not have a high bar passage rate.   Most years, with the occasional exception, my students have strong bar passage rates.  That some law schools like Bowen have difficulty with this was not something of which I was particularly aware.  As a general matter, my students, even those that did not come with the greatest credentials in terms of LSAT scores and undergraduate grade point averages, have worked hard and passed the bar.

The second incident occurred at a conference on the Carnegie Report.  For those not familiar with the study, the Carnegie Foundation prepared a report about the state of legal education in the United States.[13]   There have been other reports about legal education,[14] but this study highlighted the legal education system’s failure to provide practice-related experience and its failure to inculcate professional identity in law students.[15]

The conference included a panel of legal academics that discussed how their law schools were incorporating some of these values into their courses.  One of the panelist—the Dean of a top tier law school—provided as an example that Civil Procedure professors at his school were beginning to have students draft a complaint in their Civil Procedure courses.  I once again chuckled.  My Civil Procedure students have been drafting complaints in my class for approximately fifteen years.  It’s a capstone exercise that allows them to pull together a variety of different legal concepts that they have learned in class up to that point: personal jurisdiction, subject matter jurisdiction, venue, and pleading requirements.

I’m not alone among my colleagues at Bowen in incorporating practice and value-related concepts into my courses.  Indeed, our curriculum itself emphasizes the two competencies that the Carnegie Report criticized law schools for neglecting.  For example, in addition to the first-year legal writing and research program, Bowen students are required to take a two-semester Lawyering Skills course during their second year.[16]  Every Bowen student progresses through a simulation that begins with client interviewing and counseling and eventually ends in a bench trial.  We also have clinics and a vibrant externship program, in which students are placed in public interest organizations or government offices under the supervision of a practicing attorney and a full-time faculty member.  Among the components of the externship program is student journaling, whereby students are encouraged to reflect about what they are experiencing in practice.  Indeed, my colleague who teaches the externship class wrote an article describing how the course is consistent with Carnegie values.[17]  Bowen also offers a variety of upper-level writing courses, including a course on drafting contracts.   Finally, for students who are inclined to hang their own shingle, the School offers a law practice management course.

It’s not only in the skills-related courses that students have opportunities to see what practice is like.  We have many faculty members who incorporate additional activities into doctrinal classes to help students understand the real world applications of their studies.  For example, along with drafting complaints in my Civil Procedure course, students develop what I call “approaches” to the various subjects I teach them.  These approaches require them to synthesize a variety of cases in one area—for example, personal jurisdiction—and develop a framework by which to analyze a problem in that topic.  These approaches must be completed in writing, and I critique them.  Another example is our Poverty Law class, in which my colleagues require students to draft a complaint, a motion and supporting brief, and a client advice letter related to the subjects covered in class.  Family Law is taught in a similar manner.  Many of my colleagues use problems and hypotheticals in class so that students can apply what they have learned to new situations.

That’s not to say that Bowen does everything right, but we are thoughtful about our teaching approaches and take our jobs as teachers seriously.  Currently, the school is in the process of mapping its curriculum to core competencies developed by the faculty last year.  We want to make sure we are teaching students what we want them to learn.  While our bar results suggest that we have done a good job in past,[18] there is always room to improve.  We continue to carefully consider the manner in which we approach teaching certain subjects.

I hope to produce law students who can pass the bar and conclude their educations with a real sense of what practice is about as a result of gaining practical skills along the way.  Another distinct advantage of Bowen is the price: $11,456/year in tuition for in-state students.[19]  Our students do not graduate from law school mired in debt.  Because of this, many are able to follow their interests, whether it’s becoming a public defender or prosecutor or working for a public interest law firm.  Perhaps this is why no one is talking about what goes on at third-tier state law schools like Bowen: a great legal education at a great price may prove pretty tough competition for the top twenty-five.

The post A View from the Third Tier: One Professor’s Preliminary Thoughts about Teaching Law Students appeared first on The Arkansas Journal of Social Change and Public Service.

By Gary Slater [1]

The logical method of abduction provides a constructive means of addressing religious disputes in public settings.  By allowing one to distinguish between appropriate and inappropriate contexts in relation to the meaning of religious claims, such logic uncovers errant rules of reasoning among religious arguments without presuming to judge the truth of faith in general.  Logic thus helps clarify the place of faith in an open society, and is available to policy-makers as well as members of faith communities.

It appears there is something rotten in the United Methodist Church these days.

The issue of homosexuality has divided Methodists since as far back as its General Conference of 1972, and recent decades have seen the formation of such rival groups as the Confessing Movement, which opposes recognition of gays in the Church, and the Reconciling Ministries Network, which favors it.  At this year’s United Methodist General Conference in Tampa, reformers among both clergy and laity unsuccessfully lobbied to have the Church’s Book of Discipline amended to remove statements that prohibit clergy from performing same-sex marriages and condemn homosexual acts.  This resulted in such acrimony among everyone involved that the United Methodist Church of Arkansas has since called for a “series of sacred conversations on human sexuality,” affirming the commitment of Arkansas Methodists to mutual love and respect amidst disagreement on this issue.[2]  In spite of professions of unity from both sides, Methodists might find themselves agreeing with Ethan C. Nobles that no compromise on this issue is ultimately available and that United Methodists are headed for a split akin to that which affected the Presbyterian Church in 2011.[3]

Compelling as these events are on their own terms, the history of the dispute within Methodism over homosexuality is not the principal subject of this essay.  Nor is the intention to offer a theological polemic on behalf of either side.  Although Methodists wishing to avoid the outcome Nobles has forecasted will hopefully find it helpful, what follows is an attempt to place the controversy in broader context by (1) highlighting the public nature of religious conflict in an open society and (2) introducing a form of logic—abduction—that is uniquely suited for evaluating religious issues, as it operates on principles that allow faith its integrity within civil society without assuming the two to be either identical or unassailably separate.  The logic of abduction, which was pioneered by the American pragmatist philosopher C.S. Peirce (1839-1914), was originally intended as a basic syllogistic form alongside deduction and induction,yet its applications extend far beyond formal logic.  If one accepts that it is precisely when questions of eternal importance are at stake that logic is of its greatest value, then the insights uncovered by an abductive approach are of public importance—even if the function of abduction is to clarify religious problems rather than solve them.

To point out that tensions like those facing the United Methodists represent a public issue is not a controversial view, nor is it a particularly interesting one.   Only when one tries to specify how religious belief ought to affect public policy do things become contentious, and leading thinkers have offered a variety of suggestions for how to proceed.  In an essay entitled “Religion as Conversation-Stopper,” philosopher Richard Rorty argued that religious claims, while perfectly admissible in private, have no place in public debate in democratic cultures, as they rely on foundations that are insupportable through reasonable argument, e.g., “God tells me to support [X].”[4]  Legal scholar Stephen L. Carter, on the other hand, argued in his book, Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, that one’s religious convictions both can and should affect one’s perspective on public issues, so long as the political commitments stem from religious belief rather than the other way around.[5] More recently, sociologists Robert Putnam and David Campbell have contended that, divisions among religious denominations notwithstanding, religious belief relative to society as a whole promotes behaviors associated with good citizenship such as membership in civic organizations, donations to charity, and voting rates, and American culture is a lot better off with high rates of religious participation than it would be otherwise.[6]

Without commenting on the relative strengths of these arguments, an abductive approach to religious conflict is unique in that it carries with it the following two assumptions.  First, it operates on an understanding of truth in which a given claim is true to the extent that it potentially explains its subject matter.  This is a sort of logical equivalent of the American Dream, which is to say that abduction sees where an idea comes from as less important than where it is (potentially) going, with an idea deserving of an equal chance to prove its worth regardless of the person whose child it is.  Peirce’s colleague in pragmatism William James summed up the forward reference of truth in a famous passage from 1907:

The truth of an idea is not a stagnant property inherent in it.  Truth happens to an idea.  It becomes true, is made true by events.  Its verity is in fact an event, a process, namely, of its verifying itself.[7]

The pragmatic conception of truth thus places its dictates among concrete events without surrendering claims to objectivity, and at the same time opens the field of interpretation to anyone who has a plausible guess as to what those events mean.  In terms of faith in public life, abduction allows that a given religious dispute is open to comment from secular as well as religious citizens, layman as well as priest.  In a culture in which members of religious groups often claim their values are in direct opposition to society at large, such interpretive openness is an important point.

The second reason that an abductive approach is unique is that it is triadic rather than binary.  Rather than a proposition simply being true or false, as would be the case in binary logic, a proposition understood abductively is true with respect to a given context.  Context, like human bias, is inescapable: in carrying on a conversation, participants are exchanging linguistic signs that refer to various objects, and meaning is created through the relationship of these signs to the context in which the conversation takes place.  Context can mean anything from the language in which an argument is expressed to one’s location in space and time, as well as the identity of the person making the argument—in every case, it represents the third element that mediates between a proposition and its truth.  Understood logically, context takes the form of rules of reasoning, often unconscious, that shape the form a given argument takes, as well as the way it is received by its audience.  Contrary to popular belief, an argument can thus be biased and objective at the same time.

These two points—the forward reference of truth and its inseparability from context—combine in what is undoubtedly the most important feature of the abductive approach to religious conflict: the ability to identify (and possibly repair) errant logical binaries that are embedded in a given argument.  Considering its importance, the meaning of the term “logical binary” bears further explanation.  As used here, “binary” simply refers to a relation between two opposing concepts, in which, for the sake of advancing an argument, one of the concepts is held as preferable to the other.  Binaries occur all the time, and are often essential in formulating an argument.  An errant binary, however, is one in which the distinction it offers extends beyond its appropriate context.  For example, if one is a guest at the home of a friend, she might think, “I need to finish all my food at dinner, so as not to appear wasteful.”  This presents a binary between “finishing meal: not appearing wasteful” and “not finishing meal: appearing wasteful.”  In Arkansas, where social mores emphasize finishing one’s dinner as a sign of frugality, the binary is appropriate.  In China, however, where not finishing one’s dinner signifies frugality, the binary is errant, as its distinction is not borne out in the actual experience of that context.  In encountering what appears to be an errant binary, the next step is to look for the rule of reasoning that generated it, then imagine what would be the effect on the argument if the rule were other than it is.

As to how logical binaries function with regard to religious disputes, it helps at this point to dispense with abstractions and return to the issue of gays in the United Methodist Church.  As such, arguments from the controversy will serve to illustrate the difference between appropriate and errant binaries in religious debates.  The following passage comes from the official declaration of the 2005 Confessing Movement Conference, and is an example of an errant binary in favor of excluding gays from the United Methodist Church:

Genuine unity in the church is not secured by religious sentiment, sincere piety, tight property clauses, or appeals to institutional authority and loyalty . . . . Genuine unity, as a precious gift of the Holy Spirit, is rooted in the gospel of Jesus Christ, witnessed to in the Holy Scripture, summarized in the ecumenical creeds, celebrated in worship and sacraments, demonstrated in common mission, articulated in our teaching, lived out in love, and contended for by the faithful.[8]

The binary embedded in this passage is between two definitions of unity, and the authors of this passage clearly intend for the reader to understand that unity based on “the gospel of Jesus Christ” and a “common mission” is superior to that based on “tight property clauses” or “appeals to institutional authority.”  Yet this binary is deeply flawed.  First, the criteria for what distinguishes the two forms of unity is unclear, as it is difficult to tell how unity based on “ecumenical creeds” or “the faithful” is not itself an appeal “to institutional authority and loyalty.”  Second, no rule is provided that explains how the criteria for “genuine unity” are to be interpreted in such a way that one might reasonably conclude that gays are not welcome in the United Methodist Church.  Third, and perhaps worst of all, since no explicit interpretive rule is provided, the binary implies that to oppose the Confessing Movement’s position on gays in the United Methodist Church is to oppose all the criteria given for unity, which is to be against Holy Spirit, against Jesus Christ, even against love.

An alternative example comes from the New England delegation to this year’s General Conference, and represents an errant binary on behalf of the Reconciling Ministries Network:

We will not be saved by our bishops, our polity, our structure, our metrics, our theology, our doctrine, our social principles…Our strength and our unity lie in our identity as a spiritual movement, grounded in the grace of God and linked by common practices of personal and social holiness.  Nothing more, nothing less.[9]

The binary here also bears on the question of unity in the Church, offering a choice between unity based on ecclesiastical structures and unity based on “the grace of God” and “personal and social holiness.”  Although arguably less provocative than the previous example, this binary likewise suffers n its lack of an explicit rule for interpretation.  Is spirituality always to be opposed to “structure” in the United Methodist Church?  Would someone wishing to uphold United Methodist unity with respect to a particular creed or doctrine therefore be arguing on behalf of divisiveness?  If United Methodist unity is a “spiritual movement,” and if movement implies direction, then in which direction does such unity point?  The binary offers no answer, and though it is clear that the unity envisioned here would be flexible enough to accommodate gays in the Church, the argument does not support its position through specific criteria so much as abandon the idea of criteria itself.

A final example, one whose argument displays an appropriate rather than errant binary, may be found in the following sermon from the Reverend Thompson Murray, senior pastor at Quapaw Quarter United Methodist Church in Little Rock.  The sermon, which was given on October 23, 2011, speaks out in favor of gays in the Church, but its argumentative distinction is highlighted because the binary on display is meaningful with respect to a clearly specified context:

It’s always dangerous for us to design processes that discern who is called by God to be leaders in the church…but when we declare a particular classification of people to be unqualified for professional ministry we have aligned ourselves with the worst form of religious tradition. By declaring that gay, lesbian, bisexual, and transgendered people are categorically unqualified for ordination I feel that we are standing with the legalistic Pharisees who couldn’t accept what God was doing through Jesus Christ – because Jesus didn’t fit their criteria for the One who would come in the Name of the Lord.[10]

The binary on display is between emulating either the “legalistic Pharisees” or “what God was doing through Jesus Christ.” Although this may appear to be an obverse of the Confessing Movement’s Statement on Unity in associating its preferred position with Jesus (what Christian, after all, would wish to go against the example of Jesus Christ?), the argument avoids an errant binarism for the following reasons.  First, it is based in a specific passage of Scripture (Matthew 22: 34-46), so to debate the terms of the argument is to be provided with a concrete text that may be interpreted, in which all participants can at least agree that Jesus and the Pharisees are in fact different entities.  Second, at issue in the Pharisees/Jesus distinction is a choice between two frameworks of interpretation, both of which are acknowledged as part of the Christian tradition: legal formalism on one hand, acknowledgement of concrete experience on the other.  Third, in recognizing a theme of “stupefying” love, the sermon adopts a principle in which the fallibility of human understanding remains open, and so inquiry is allowed to remain ongoing rather than closed through an unearned sense of certainty.

In understanding these examples, it is important to acknowledge a few points.  First, the presence of an errant binary in a theological argument is not to be equated with the falsity of that argument on the whole, just as the presence of errant arguments among both sides does not mean that “both sides are equally at fault”; an objectively correct position may exist, but identifying this position is impossible before the abductive method has performed its critical task.  Second, theological disputes often display problems that the abductive method is not designed to address.  Participants may simply refuse to speak to one another (or worse).  A given argument may be factually incorrect.  In the case of the Nestorian Controversy of AD 431, the Patriarch of Constantinople was exiled to the Egyptian desert in part because of an incorrect translation of the Greek term Theotokos![11]  The recognition of errant binaries solves none of these problems, though it may help identify them.  Third, certain general tendencies are common among religious disputes in contemporary American culture, which are worth bearing in mind in understanding the following examples as symptoms of deeper problems.  These include the tendency to argue on behalf of “unity” while attributing extremism to one’s opponents (much like politicians employ “bipartisanship” as a screen for a given agenda), as well as the tendency to claim one’s own view as representative of the “true faith” in contrast to the “secular values” of one’s opponents.  This last point speaks to what is perhaps the deepest errant binary of all among contemporary religious debates: the view that religious and secular values are diametrically opposed.  This is an error that is not limited to fundamentalists; in their respective ways, both the atheist Richard Rorty and the liberal Stephen Carter commit the same mistake, the former by assuming that religious values are inadmissible in public, the latter by assuming that religious values cannot extend from social or political causes.

It must be emphasized that this method does not pretend to offer a definitive answer to religious conflict.  Philosophy often flatters itself that its problems are the world’s problems, and so makes the mistake of attributing outsized importance to its own answers.  Yet one must remember that abductive logic as demonstrated above represents the beginning of inquiry, not the end.  Given the time and means, the next step would be to undertake sustained research on the history of Methodist faith and interpretive practices, as well as its stance toward society at large and homosexuality in particular.  The critical method offered here is best understood as a sort of clearing of rhetorical debris before the real work can begin.   Perhaps the best way to understand abductive logic as applied to religious conflict is as a publicly available response to genuine suffering.  There is no reason, for instance, to doubt that the pain expressed by members of both the Confessing Movement or the Reconciling Ministries Network in the debate over homosexuality in the United Methodist Church is real, and as such any attempt to correct that suffering—through logic or otherwise—is an exercise in healing.

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