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Bad anti-housing arguments

[ 186 ] July 24, 2015 |

In the San Francisco housing thread below, Steven Attewell points to this post by Robert Cruickshank that complicates the most simplistic version of the claim that some portions of ‘the left’ in San Francisco oppose housing. Cruickshank, accurately, points out that a number of recent leftist politicians and mayoral candidates ran on platforms with thoughtful, progressive plans to increase supply, with a strong focus on affordable housing. I don’t doubt this is true, but I don’t think that entirely rebuts the central claim of Metcalf’s central argument; namely, that ‘the left’ has unwittingly contributed to the current housing shortage and attendant affordability crisis. I don’t doubt the sincerity or wisdom of Matt Gonzalez and others’ housing plans, but the rubber meets the road when that faction is forced to choose their second best option amongst the following:

1) New housing built, with significant units set aside for affordable housing

2) New housing built, with relatively few units set aside as affordable housing

3) New housing not built.

The problem isn’t that the left favors (1), it’s that they have repeatedly agitated for (3) over (2). The case that adding more housing to our cities positively contributes to a significant array of progressive goals seems pretty much unimpeachable to me. Martin Duke lists the benefits, in the context of Seattle; most apply just as well to San Francisco:

  • Fewer vehicle miles traveled, resulting in less energy usage, air pollution, and run off into the Sound.
  • Less farmland and virgin forest destroyed for new housing.
  • More legislative representation and better treatment of urban issues in Olympia.
  • More time in congested central cities, where vehicle speeds make fatalities rare.
  • Less competition for existing affordable units.
  • More economic activity both in construction and in the businesses spawned by new units
  • A larger tax base for large capital projects (like light rail) that benefit everybody, as well as social programs

And this is true even when the new housing is expensive, because it takes the pressure off older housing stock by taking rich people out of the bidding for it. But significant portions of the left in San Francisco have worked very hard to convince themselves that (3) makes a greater contribution to progressive policy outcomes than (2). This leads them to make some pretty strange and embarrassing arguments. Since it was linked in the thread below and I saw some anti-housing NIMBYs in Seattle circulating it on facebook a few weeks ago, let’s take a look at Tim Redmond’s effort on that front:

The people with high disposable incomes who fill those condos or luxury rentals will spend money in town, creating a demand for jobs – restaurant workers, grocery clerks, cops and firefighters, bank tellers … and those people will also need a place to live.

(Sup. Scott Wiener notes that the city’s police force hasn’t kept up with the population growth. Perfect example – bring in 5,000 new wealthy residents, and the city faces pressure to hire more cops to protect them. Those cops cost tax money – but they also need places to live. And that puts pressure on the housing market).

So according to the study, by Keyser Marston Associates, every time the city allows 100 new high-end housing units, it needs to build between 20 and 43 new affordable units – just to keep the housing balance the way it is now. Put the affordable units in the main complex and the impact is lower (because fewer millionaires move in). Built them, as is common, somewhere else and the impact is greater.

In summary, for every 100 market rate condominium units there are 25.0 lower income households generated through the direct impact of the consumption of the condominium buyers and a total of 43.31 households if total direct, indirect, and induced impacts are counted in the analysis.

If the city demands 15 percent affordable set-asides, then every market-rate building adds more demand for affordable housing than it supplies. That means every new building makes the housing crisis worse.

This analysis has a rather obvious empirical flaw, so obvious one would think it hardly needs to be stated: refusing to build a luxury unit will not dissuade its would-be wealthy resident from moving to the city. It’s not like they’re moving to the city because they really liked that one particular condo. They’re almost certainly going to come anyway, and bid on some less-nice unit, denying some less-rich person, quite possibly a long-term San Francisco resident, for those worried about displacement, from living in a city.

But the obvious empirical flaw in this argument is trumped by an even more terrible normative flaw: namely, that it’s a good and progressive policy to prevent jobs, including some good middle class jobs, from being created. In the context of 2015, less than a decade after a massive job destroying recession, followed by many years of anemic job growth, which has pushed many thousands out of the job market and harmed the economic well-being and security of the middle class, this is particularly grotesque, simply because the city doesn’t want to go to the trouble of allowing for enough housing for them, should be seen as appalling immediately.

Another thing–there’s plenty of potential for new housing with minimal displacement in the city, simply be liberalizing some of the rules that strangle development in single family zones. One example, which had some success in Vancouver and Portland, and is now being proposed in Seattle, is to change the incentive structure and rules regarding the construction of backyard cottages:

Adding tiny, freestanding structures behind single-family homes across the city would increase density while preserving neighborhood character, proponents say. This would go a long way toward satisfying the city’s official policy of “infill development,” putting more housing on existing underutilized land. But first, the city would have to tweak existing building regulations tailored to mid-20th century lifestyles.

The trend is catching on, with small apartments popping up in urban backyards across North America. Like attached “granny flats” within existing buildings, backyard cottages are smaller dwellings, tucked away off the street — typically 200 to 800 square feet — with little aesthetic impact.

But remarkably, San Francisco seems stuck in a 1950s zoning mentality, mandating single-family dwellings with large backyards across nearly two-thirds of the city’s residential land. Backyard cottages are nearly impossible to construct within city limits, due to a combination of zoning laws, labyrinthine building codes and a lugubrious review process that grinds development to a halt when just about anyone protests.

This isn’t a silver bullet–nothing is–but it’s an obvious no-brainer. Each unit contributes to affordability twice, once for the renter and again for the homeowner, making it easier to make the mortgage. While the linked article overstates the potential here, it’s a good idea that costs the city nothing, is more likely to produce relatively affordable units than luxury construction, and has the potential to help out strapped homeowners, all while distributing density in a low-key way.

Veto points and democratic theory

[ 61 ] July 21, 2015 |

I wasn’t going to post this, because of the obnoxious policies of academic publishers that would normally prevent me from providing an open link, but I’ve learned that Cambridge has opened the gate to the June Issue of Perspectives on Politics for the month of July. So for any interested parties, Scott and I have an article that addresses some themes we occasionally address here. (If you are reading this 10 days or more in the future, the link presumably won’t work anymore, but feel free to contact me for a copy of the paper if you want one.) We begin with the increasingly widely acknowledged problems with the “countermajoritarian difficulty” framework for thinking about judicial review in democratic systems. The problems are familiar to many of you: judicial review is rarely particularly countermajoritarian in practice; legislatures fall short of the mark as a majoritarian institution for all manner of relatively predictable reasons, and democracy and majoritarianism aren’t synonyms to begin with.

This critique is correct, but it doesn’t really tell us much about the democratic legitimacy of judicial review, beyond rejecting a particular kind of argument about it. In a paper we really should have cited, Michael Dorf points out that this line of work actually creates an additional set of questions about the legitimacy of judicial review—if it’s just another majoritarian institution, what’s the point? (We reject the most common strategy for answering this question, which roughly takes the form of “We need judicial review to be a bulwark against X, so therefore it’s legitimate.” We reject it because we’re looking for an institutional answer, not a virtue-based one about how judges ideally ought to behave.) Our answer, in a nutshell, is that in focusing on judicial review narrows the frame excessively. Judicial review is an example of a larger phenomenon, namely, a veto point. Veto points are things contemporary democratic systems invariably seem t have, so unless we’re doing a particular kind of ideal theory not well suited for institutional analysis, we can’t simply declare veto points undemocratic and be done with it. So rather than ask “is judicial review democratically legitimate?” we need to take a set back and ask “What makes a veto point more or less democratic, relatively speaking?” The rest of the paper is our first take at playing around with this idea: we propose a not-intended-to-be-exhaustive list of five desiderata for relatively democratic veto points, and give a quick and dirty speculative assessment of judicial review’s relative merit on each count, contrasting it with a few other veto points along the way. Our conclusion: not perfect, but not bad. One idea we play around with that I expect to be controversial is that judicial review may be a more democratic veto point than bicameralism. I’d pretty strongly defend that in the context of the US, given the obvious democratic shortcomings of the senate. A reasonably democratic legislature is a much tougher call.

In addition to its present incarnation, this is also part of an in-progress book manuscript we’ll be workshopping in a few months, so any thoughts, observations, feedback, etc would be welcomed.

[SL] I should probably mention that this paper is something of a sequel to one we published a few years ago laying out our basic argument about the uselessness of the “counter-majoritarian difficulty” framework. If you’re considering perusing both it probably makes sense to start with this one.

Single family zoning: social engineering

[ 17 ] July 10, 2015 |

I’ll have more to say about it next week, when we see the final version, but a leaked draft copy of the mayor’s task for affordable housing in Seattle caused a pretty big splash this week. It was leaked to the Seattle Times, where Danny Westneat turned the pearl-clutching sensationalism up to 11. (Alex Jones’ website ran with the headline “Is Seattle Doing Away with Single Family Homes?”) What was proposed was quite a bit more modest, but was a set of very good ideas, as Erica Barnett explains:

according to a draft plan leaked to Westneat, recommend doing away with the label “single-family zoning” and replacing it with the more inclusive “low-density residential zone,” which would allow more flexibility to build backyard cottages, duplexes, and other very low-density (but not exclusive single-family) housing types.

I’ll make the urbanist/affordable housing/environmentalist case for these changes in another post; the case on all three fronts is very strong. Affordable housing in Seattle will require a great deal more than this, of course, but this matters, and it’s both cheap and easy for the city. But aside from all that, the notion that it’s appropriate for the government to limit development and housing styles in over 2/3’s of the available land in the city in such a way that promotes a particular style of living over all other arrangements should still trouble us. Whatever the virtues of living in nuclear family units may be, they’re not so obviously superior to other alternatives that the state should encourage it in ways that substantially limit other options. This story makes clear why: Want to build a home designed for your large multi-generational family? Get lost, hippie.

In May of 2013 I took the Preliminary Design into Seattle’s Department of Planning and Design (DPD) for an over-the-counter zoning screening. After disappearing for 20 minutes to consult with his colleagues, the reviewer declared “It’s a single-family house!” and with that settled (or so we thought) we continued developing and engineering the design


In January of 2014 just prior to submitting the permit application to DPD I met with Jess Harris, Director of the City’s Priority Green program, to see if the house could participate in the program. Jess passed along the floor plans to several compatriots in zoning review at DPD. A week later I recieved a carefully crafted letter from DPD saying that they had “discussed this most recent design with our in-house counsel who has advised us that it would be extremely difficult for us to defend permitting this structure as a single-family dwelling, as it is currently configured.”

Everyone we talked to, including multiple zoning reviewers on up to DPD Director Diane Sugimura, Planning, Land Use and Sustainability Committee chair Councilmember Mike O’Brien, and Kathy Nyland and Robert Feldstein (Director of the Office of Policy and Innovation) in the Mayor’s Office as well as several members of the Seattle Design Commission, all agreed it was a great project and that Seattle ought to support this kind of housing, however no one wanted to stick their neck out to give the project the green light.

The irony is they were able to complete their project in Shoreline, a “city” carved out of unincorporated King County that’s about 97% suburban sprawl.

William Bloomquist

[ 23 ] July 4, 2015 |


Two days ago, the Seattle Mariners designated William Bloomquist for assignment, replacing him with Chris Taylor on the active roster. To me, as a Mariners fan, this is something of a relief; not because this move is likely to make a significant difference in the Mariners 2015 season, but because Bloomquist serves as a painful reminder of the current front office’s poor choices in allocating resources. Bloomquist is 37 years old, and has been on a major league roster in every season since 2002, accumulating over 12 years of total MLB service time. If this is the end of the line for Bloomquist as an major league player (and I wouldn’t be surprised if it isn’t) he will have played in 1055 games, accumulating 3136 plate appearances. He logged 200 innings as a first baseman and over 2,000 innings as a shortstop, the other five non-catcher positions he’s played between 600-1000 innings. Curiously, he started two games as a designated hitter. When he collects the 1.5 million dollars the Seattle Mariners owe him for the remainder of 2015, he will have earned, by my count, just shy of $18 million dollars as a major league baseball player.

What has Bloomquist been worth to his employers? He had one legitimately outstanding baseball skill, as a baserunner and basestealer. He overall success rate at stealing bases (133 steals, 51 time caught) is solid, but has been brought down considerably by a lower success rate the last six years, and perhaps underestimates his skill in this area, given his fair number of high-stakes, everyone knows your running SBs as a pinch runner. Looking for clear positives on his resume beyond this gets a bit murky. He can legitimately claim defensive flexibility as a positive, but that positive value is limited somewhat by his inability to play any position particularly well. He made contact well enough, keeping strikeouts reasonably low and putting the ball in play, resulting in a generally respectable batting average. His utter and complete lack of power and low walk rate combined to make for an offensive skill set you can live with from an elite defender at a premium position, something Bloomquist was most decidedly not. His career ISO of .073, despite his ability to occasionally stretch singles into doubles and doubles into triples with his speed, is remarkably low.

What does it all add up to? Depending on which system you prefer, he’s been worth either exactly 1 win above replacement, or 1.9. There’s a decent case to be made that his defensive flexibility might make him more valuable in terms of smart roster construction. He makes the most sense on a team with a few excellent hitters who are poor baserunners and defensive liabilities. “Arguably a non-stupid way to fill the 25th roster spot on some teams” is pretty much the tagline you’d expect for a replacement level player. But how many replacement level players get to enjoy such long careers? Very few, I’d imagine; since they’re pretty much interchangeable, once you’re on the wrong side of 30 it becomes tempting to go with the younger player, who could still plausibly become something better. Most shuffle around the minors, getting maybe a couple of full years, and a handful of other short stints after injuries or trades until fading away by their early 30’s. Yet Bloomquist didn’t just get jobs, he consistently stuck on the major league roster all year, and got guaranteed major league contracts, including multi-year contracts on three separate occasions.

There are lots of potential explanations for his career; he a classic scrappy white guy who works hard, managers like both his attitude and the flexibility his skill set affords him, etc. But I want to flag another possible explanation: September 2002. Even as the Mariners playoff hopes were fading, he played very well. In 38 plate appearances, he walked five times and hit 11 singles and 4 doubles. That was good enough for a 455/526/576 slashline. That single month constitutes less than 2% of his career, but it’s responsible for either 38% or 70% of the WAR value of his entire career. It also served to convince the Mariners, who are as an organization very good at convincing themselves of dubious things they want to believe, that he held real potential. Now, obviously anyone who understands the role of chance in short-term outcomes in baseball would extrapolate no lessons whatsoever from those 38 plate appearances, but that’s now it worked out. As I’ve watched his career chug along, I’ve often wondered what his career might have looked like, had he merely performed at his true talent level in September of 2002, or worse yet had a bad month. That his ground balls were twice as likely not to find a fielder’s glove as they usually were for a month may very well have given him a career, and been worth  10-15 million dollars to him. To many fans, Bloomquist represents how far someone can go with hard work and a positive attitude; to me, he represents the staggeringly large role luck and random chance play in the outcomes of our lives.


Civil Disobedience?

[ 135 ] June 26, 2015 |

I really do wonder what precisely Huckabee has in mind when he’s talking about civil disobedience here. Form a human barrier to prevent gay people from entering the county clerks office? Unsurprisingly, it’s a bit tricky to conceptualize a resistance strategy for a law that doesn’t require those opposed to it to actually do anything. Of course, he seems to suggest that Abraham Lincoln was engaged in civil disobedience against the Dred Scott decision, so he may not be too clear on the concept.

Scott Walker: not good at this

[ 57 ] June 3, 2015 |

One of the basic tasks a Republican politician who hopes to be elected president must master is the ability to play both sides on abortion–to be pro-life enough for the primaries and the base, but not so pro-life as to turn off some needed moderates on election day. As far political needle-threading goes, it’s not the most difficult task a Oval Office seeking Republican must master; there’s a pretty successful template available that involves vagueness, liberal use of the federalism dodge, and the occasional dog whistle. It’ll be nonsense under any serious scrutiny, but this is a presidential campaign we’re talking about so that’s not necessarily a problem. It is becoming increasingly clear that Scott Walker is not just remarkably bad at this. He’s not screwing up in the ordinary ways but finding creatively appalling new ways to do it. I’ve long suspected that Scott Walker is a bit more like Rick Perry 2012 than conventional wisdom recognizes: he checks a lot of boxes, on paper, but at the end of the day he just may not be ready for prime time.

“And they’ll know we are Christians by our love”

[ 134 ] April 30, 2015 |

An oft-repeated theme in Rod Dreher’s lengthy, frequent, and increasingly unhinged posts (no need for links, they comprise around 40% of his voluminous output) about the increasing respect of the full equal citizenship (and humanity) of LGBT people and decreasing respect for those who insist on publicly denying them that status in various way is his insistence (against mounting evidence) that from a Christian (sometimes he remembers to add the ‘orthodox’ or ‘traditionalist’ modifier here, but he often, revealingly, drops it) perspective, rejecting same sex marriage and family formation is simply non-negotiable; it’s too close to core, unchanging and unchangeable Christian teachings. To succumb to social pressure on this issue is tantamount to abandoning Christianity, properly understood. That this position has no merit is obvious in both theory and practice. The reason same sex marriage (and equal rights and social acceptance for LGBT people) has made such progress is primarily because Christians are changing their minds, at more or less the same rate as everyone else. The liberal Christians and Catholics lagged behind non-religious people, and conservative and evangelical Christians lagged behind them, for predictable and easily understood reasons. But what we’re witnessing is the latest iteration of an utterly banal fact of American life playing out yet again: Christianity has always been, its various affectations of countercultural status notwithstanding, a fundamentally and deeply mainstream American identity and set of values, and has demonstrated, time and time again, sufficient flexibility to remain mainstream as the content of American values has shifted over time. And, of course, when the mainstream is split (with respect to, for example, slavery and white supremacy) we see a split in Christianity as well; as it became deeply tied to the defense and the attack of these institutions.

These reflections were motivated by Dreher’s deeply ugly post yesterday about Baltimore and Freddie Gray. Rod Dreher’s reflected on the deadly police violence and its aftermath was to piss on the grave of the recently deceased victim of state violence. If you tried to square this with his avowed devotion to traditionalist, orthodox Christianity by examining the teachings, actions and attitudes of the Jesus as presented in the Gospels, you’d be hopelessly lost. If you tried to square the argument of post with Dreher’s own general mode of social explanation, you’d be equally confused. (His sneering contempt in this post toward societal and structural explanations for social behavior might be easier to swallow coming from someone who didn’t routinely assume that the sexual mores and practices of the upper middle class is clearly and straightforwardly responsible for the broken families of the lower middle class.) The post makes sense only when you remember that solidarity with the downtrodden–the victims of excessive abuses of the power of the state and the choices of powerful economic actors–is tainted by liberals, the declared enemies of American Christendom, properly understood.

Update: fairness compels me to note that Dreher has put up a lengthy and somewhat rambling post that expresses regret over his lack of mercy in describing Gray. While it’s nice to see Mr. Gray removed from the role of scapegoat for Baltimore’s woes, his replacement candidate for that role–the dangerously excessive generosity of America’s social welfare state–provides further support for the point I’m trying make here.

“Pity the poor Christian photographer” is a tactic

[ 184 ] April 8, 2015 |

As I mentioned earlier, my views on the general approach embodied in RFRAs to protecting religious freedom as a general matter are complicated and conflicted, but my views on the political dynamic at work in the current push for them are not. Another reminder, via Dan Savage, comes this morning from Springfield, Missouri, where an effort to roll back civil rights and social equality for LGBT residents was, depressingly, successful:

Voters have narrowly repealed an LGBT-rights law in Springfield, Missouri, according to ballot results Tuesday night.

With all precincts reporting, the Greene County Clerk shows Question 1 passing 51.43% to 48.57%.

“We are very disappointed that we didn’t have the exact outcome that we wanted, but we are encouraged that the vote was so very close,” Crystal Clinkenbeard, a spokeswoman for the LGBT-rights campaign No Repeal, told BuzzFeed News.

The vote comes after a fierce clash between LGBT advocates and religious conservatives, who invoked campaign themes of Christian-owned businesses forced to sell products for gay weddings and cross-dressing predators lurking in women’s restrooms.

Whether one is personally sympathetic or not, it’s hard to deny that the image of the hard-working independent baker/florist/photographer, portrayed as perfectly decent to gay customers most of the time but bound to avoid participation in a same sex wedding ceremony not by animus but by deep personal religious conviction, is probably the most broadly sympathetic face those opposed to civil and social equality of LGBT people can construct for their movement. (And they need it: when the question is posed abstractly, the American public is much less conflicted about anti-discrimination protections than they are about same sex marriage.) But of course what happened in Springfield yesterday was not the carving out of a narrow exception–the citizenry not only overturned protection against discrimination in all public accommodations, they overturned it in housing and employment as well.

When we treat the current debate as being about whether we should carve out a very narrow, specific in anti-discrimination in public accommodations laws, we fall for a trap in two ways. First, because such a framing contributes to the widely held but false impression that anti-discrimination protections for LGBT people are widespread (for example: all the bad coverage of the Indiana law telling us it would “allow” what was already perfectly legal). Second, because for a significant number of the people pushing the ‘pity the poor photographer’ narrative, the photographer is little more than a wedge; a means to an end; an appealing and pitiable image designed to disguise a far uglier and less pitiable cause. This is a close cousin of the previous decade’s successful efforts to use the specter of Churches forced to solemnize same sex marriages to persuade voters to not only constitutionalize existing bans on same sex marriage, but also any legal recognition or protection whatsoever for their relationships and families.

As Dan Savage also notes, the short-term victories produced by the decision to maximally oppose any and all rights and protections for LGBT people, while occasionally still successful, comes at a very real cost in the long term:

When asked by The Barna Group what words or phrases best describe Christianity, the top response among Americans ages 16-29 was “antihomosexual.” For a staggering 91 percent of non-Christians, this was the first word that came to their mind when asked about the Christian faith. The same was true for 80 percent of young churchgoers. (The next most common negative images? : “judgmental,” “hypocritical,” and “too involved in politics.”)

The Weaponization of Religious Exemptions

[ 197 ] April 2, 2015 |

Some musings inspired by the Indiana backlash and the backlash to the backlash:

Some “meta” preliminaries: obviously, freedom of religion at its core is a non-negotiable requirement for any society wishing to plausibly call itself a liberal democracy. What is the core? The right to join and form religious organizations, worship freely, and speak openly about one’s religion in the larger society, regardless of the degree of overlap between the content of these religious views and the mainstream of official state ideologies. Of course, there’s a lot more to how states support freedom of religion as a matter of practice; from tax-exempt status to cooperative educational and charitable projects to the possibility of exemptions from general religious law. By saying such things are not the ‘core’ of freedom of religion, I don’t mean to suggest they are inappropriate or wrong, or even unnecessary. But unlike the religious freedom’s core, they should be understood as negotiable—that is, they’re the proper subject for democratic deliberation and contestation, and there ought be to no particular expectation there’s a universal proper liberal-democratic answer to these kinds of questions. Which are most appropriate for a particular political society is based, to a significant degree, on local circumstances. Any democratic society that finds itself debating whether to honor the core of religious freedom has badly gone off the rails, but a democratic society debating the non-core scope of religious freedom is just doing what democracies do.

On a less meta level, my own views on religious exemptions are quite fluid. I find myself shifting between being mostly (but never entirely) comfortable with the pre-Smith status quo balancing tests and original RFRA framework, and mostly (but never entirely) resigned to a Smith-like restrictive approach. I teach a seminar on multicultural policy in every Spring, so it’s not like I haven’t thought about it much; I just seem prone to change dramatically the relative weighting of different goals and values.

If there’s a pattern to shifts in my uncertainty, though, it’s probably that I find myself drifting toward a more restrictive approach. In watching the politics of the Indiana law and its backlash, I think I’m getting a better sense of why that’s the case. What’s currently underway is what I’ll call the weaponization of religious exemptions. To explain what I mean by this, here are some classic examples of requests for religious exemptions: permission to use otherwise illegal substances for religious ceremonies, such as the Smith plaintiffs and Peyote, Catholics and sacramental wine during prohibition, Rastafari and marijuana);exemptions from zoning laws for the construction of Sukkahs and rules regarding the religious use of public property for the constructions of eruvs; exemption from mandatory military service, schooling requirements, or vaccinations; exemptions from incest laws (regarding Uncle/Niece marriages for some communities of Moroccan Jews); Native American religious groups seeking privileged access to sacred spaces on federally owned land;exemptions to Sunday closing laws for seventh-day Sabbatarians. I find some of these easy to support and others profoundly problematic, but they collectively share a common feature: they are fundamentally defensive in character. Their primary objective is to protect a practice or tradition or community, and little more. These exemptions are political but not in the sense that their exercise is directed toward the larger community in any concrete, meaningful sense. In these cases, the end sought in pursuing the exemption is, more or less, the exemption itself.

The requested accommodation in City of Boerne is a kind of transitional case. The exemption sought was to modify a church in a Historical District where such modifications were not permitted. While the exemption was clearly sought for the purpose of the exercise of religious activity, it wasn’t really a religious exemption per se—they wanted a bigger, more modern facility for more or less the general kind of reasons a private business or homeowner might have liked an exemption—accommodate more people, better amenities, etc. There was no connection between their status as a religious group and the nature of the particular exemption they were seeking; in essence they were arguing that the RFRA gives them license to avoid a law they found inconvenient. (Hypothetically, if a religious organization sought an exemption to historic zoning on grounds that their religion prohibited worshiping in buildings over a certain age for ceremonies, this case would have more merit.) Turning religious exemptions into a license for religious groups to evade general laws when inconvenient seems entirely deserving of pushback.

But this is only a partially weaponized use of religious exemptions; they’re being used as a weapon to advance the Church’s goals, but not striking against their political enemies. The quintessential case of a weaponized religious exemption is, of course, Hobby Lobby; Obamacare was to be the subject of a blitzkrieg, to be hit with any and every weapon imaginable, and that’s what the RFRA provided. Their efforts to make the claim appear credible could hardly be lazier or more half-assed. One possible check on weaponization, in a better and more decent society, could conceivably be a sense of embarrassment or shame; exposing one’s religious convictions as a cynical political tool to be wielded against one’s political enemies might be hoped to invoke enough embarrassment that it might be avoided, but we were well past that point. A remarkable document of this trend is this post from Patrick Deneen–fully, openly aware of the fundamental absurdity of Hobby Lobby’s case, cheering them on nonetheless. I mean, you’d think they’d at least have found a company owned by Catholics.

In light of that case, the transparent push for a super-RFRA deployable in private torts is not quite as egregious. It’s passing a bill that is by no means guaranteed to get them the results they want (my understanding is that no attempt to defend discriminatory behavior under any RFRA has yet been successful), and has plenty of other potential applications, some of which may be salutary. But the politics of it are undeniable; as in Kansas, Arizona and elsewhere, it’s plainly the case that this is simply the latest effort in the longstanding war on full social equality for gay and lesbian people. (If not having an RFRA at the books on the state level is such a grave threat to religious liberty, why haven’t we been hearing more about this since 1997, seeing as most states have no such law?) That this is a considerably less ambitious project in denying social equality than most previous battles fought in this war merely reflects the ground they’ve lost recently.

As I mentioned earlier, I don’t have confident or strongly held views about the ideal and proper scope of religious exemptions, although I’ve probably been drifting further from the RFRA framework and closer to Smith. The backlash against the Indiana bill—a bill that, private torts provision aside, isn’t that different from something that once passed the house unanimously and the senate with 97 votes—not to mention even conservative Republicans vetoing similar legislation in Arizona and Arkansas–suggests something very real has changed. The assumption on the right is that it’s liberals who’ve changed; we don’t support religious freedom like we did back in the 90’s. They’re not entirely wrong about that, but it’s an incomplete view about what has changed. Insofar as liberals changed their minds about the proper scope of religious exemptions, they didn’t do so in a vacuum, they changed their mind about it because the context we’re now in—facing an utterly shameless political movement that treats any conceivable political tool as fair game to achieve its political ends—is just simply not the kind of environment that fits well with an expansive approach to religious exemptions. The personal, faith-based nature of religious conviction makes it clearly inappropriate for the state to question the sincerity of the professed belief, even when that insincerity is obvious and barely concealed; which in turn makes exemptions easier to support in an environment where there’s some degree of trust that this process won’t be routinely abused. As noted earlier, which approach to exemptions best serves the interests of justice and freedom depends to a significant degree on the details of the society in question. We may have been something closer to that kind of society suited for expansive religious exemptions in the past, and we may someday be that kind of society at some point in the future, but it’s becoming difficult to deny we’re not such a society now.

The Indiana backlash

[ 114 ] March 31, 2015 |

I’m not particularly troubled that some of the backlash against Indiana right now is a bit confused on the law, in large part because the backlash clearly gets the politics so straightforwardly and obviously right. But if I were the backlash coordinator, I’d direct my minions to start following up assertions that “of course it’s not our intent to authorize discrimination against gay people” if perhaps one way they could make their protestation seem vaguely sincere would be to follow 20+ other states and their largest city and make discrimination against LGBT people illegal. Because right now “God told me to” and “gays are icky” are equally lawful reasons to discriminate against LGBT people in Indiana with respect to housing, employment, schools, public accommodations and insurance markets. A group of legislators who really, really don’t intend to authorize discrimination against their LGBT citizens would surely want to do something about that, wouldn’t they?

A follow-up to the Seattle restaurants/minimum wage story

[ 27 ] March 18, 2015 |

A reader sends along a link to this Bethany Jean Clement piece in the Seattle Times.  Clement, in a refreshing act of journalism against her employer’s editorial interests, asks the restaurant owners about this, and all four openly repudiate the assertion that the coming minimum wage increase is a ‘factor’ in their decision. One owner in particular expressed some annoyance at being made a poster child for right wing nonsense:

We were never interviewed for these articles and we did not close our … location due to the new minimum wage,” Kounpungchart and Frank said in an email. “We do not know what our colleagues are doing to prepare themselves for the onset of the new law, but pre-emptively closing a restaurant seven years before the full effect of the law takes place seems preposterous to us.”

Frank went so far as to send a note to the author of the Washington Policy Center post saying: “Our business model is conducive to the changing times and we would appreciate it if you did not make assumptions about our business to promote your political values.”

As a point of clarification, the absurdity of the original Seattle Magazine story becomes even more clear if we look at the implementation schedule. The minimum wage in Seattle is presently 9.47, up from 9.32 on January 1st (Washington has an annual inflation adjustment for the minimum wage). On April first the implementation of Seattle’s minimum wage begins, but for employers with under 500 the minimum compensation goes to 11.oo an hour, but the minimum wage for tipped employees only goes to 10.00. So it’s a 53 cent increase in most cases, and 1.53 in the case of non-tipped employees making bare minimum.

Are Seattle Restaurants Closing in “Record Numbers”? (Spoiler: No.)

[ 98 ] March 15, 2015 |

Since the initial story about Seattle restaurant closings is making its way through the right wing blogs at the moment, prompting one wingnut outlet to declare that Seattle restaurants are closing “in record numbers,” let’s take a loot at the actual evidence provided in the story that launched the chain reaction. Before we begin let’s note despite long having one of the highest minimum wages in the country, while being located in one of only a handful of states with no ‘tip credit’ for wages, Seattle still manages to have the highest density of restaurants anywhere in the country, except for San Francisco and the greater New York City area.

What’s the evidence? The Seattle Magazine article that started this game of telephone identified four (4) restaurants that have closed or will close between February and May 2015. (A 5th restaurant is seeing its award winning chef resign to move to Spain; the alleged relevance here is unclear.) Included in these four restaurants is one that remains open at its original location, shifting its focus back to their original model, another is owned by one of Seattle’s most successful and celebrated restaurateurs, who continues to own five thriving establishments and is in the process of opening two new restaurants. The owner of the third closing restaurant  (easily the most over-hyped Indian restaurant openings I’ve ever seen), identifies the reason for closing as a poor fit between format and location, which seemed pretty obvious to me when they opened. The space the fourth restaurant occupies will be immediately replaced by another new restaurant.

What isn’t included is any analysis to suggest openings are failing to keep pace with closings. Given the short typical lifespan of a restaurant and the size of Seattle, we should expect annual openings and closings to be in the hundreds in a typical year. Identifying four closing restaurants over a four month period is evidence for the thesis in the same way finding a bunch of Democratic voters who don’t want to vote for Hillary Clinton is ‘evidence’ her campaign is in trouble. Indeed, the right wingers are hoping you don’t read the original article, which closes by refuting its own highly speculative thesis:

Despite these serious challenges, however, brave restaurateurs continue to open eateries in Seattle, which, remembering basic supply and demand, also naturally accounts for closures we’ve already seen and more that will come. Capitol Hill alone is carrying on an unprecedented dining boom, and in mid January, Capitol Hill Seattle announced that Nue, Chris Cvetkovich’s modernist global street food joint, was the neighborhood’s 100th food and drink opening in three years.

Other major Capitol Hill additions from the last few months include Stateside, (Eric Johnson’s long-awaited French-Vietnamese outpost), Tallulah’s (Linda Derschang’s [of Smith and Oddfellows] casual neighborhood café) and Serious Pie Pike (Tom Douglas’s third location of his pizza joint, now open in the new Starbucks Roastery). Moreover, just this week on the Hill, we’ve got news of Lisa Nakamura opening the Gnocchi Bar in the Packard Building on 12th Avenue (formerly the Capitol Hill D’Ambrosio Gelateria Artigianale) at the end of March.

Those keeping score at home will note that the article identifies more restaurants opening than closing.

I have no idea what impact, if any, Seattle’s minimum wage increase will have on total employment in the restaurant industry. It’s well worth watching, because knowing at what point more aggressive minimum wage increases have this kind of impact may be useful for shaping future policy. It’s also important because business owners and ideological opponents of the minimum wage will lie and obfuscate to create a false impression of negative impacts, whether they exist or not.

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