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Enforcing Trusts That Exclude Family Members Who Marry Non-Jews:

Max Feinberg's will provided that all his property would go into a trust. During his wife Erla's life, she'd get income from the trust. When she died, the property would go to their descendants, but providing that any descendant who married a non-Jew, and whose spouse didn't then convert to Judaism within a year of the marriage, would be "deemed deceased" and would forfeit the share. Erla also had a "power of appointment" under which she could reassign which descendants could benefit from the trust. Erla exercised this power precisely the way that Max provided in his will — by disinheriting the four or out of five grandchildren who married non-Jews.

A complicated decision today from the Illinois Supreme Court, in In re Feinberg, upheld the validity of Erla's decision, but left open the broader question whether Max's wishes could have been enforced in the absence of the power of appointment exercised by Erla:

[T]his is not a case in which a donee, like the nephew in the illustration, will retain benefits under a trust only so long as he continues to comply with the wishes of a deceased donor. As such, there is no "dead hand" control or attempt to control the future conduct of the potential beneficiaries. Whatever the effect of Max's original trust provision might have been, Erla did not impose a condition intended to control future decisions of their grandchildren regarding marriage or the practice of Judaism; rather, she made a bequest to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished.

Still, the decision had some interesting language that might be relevant more broadly:

Michele argues that the beneficiary restriction clause discourages lawful marriage and interferes with the fundamental right to marry, which is protected by the constitution. She also invokes the constitution in support of her assertion that issues of race, religion, and marriage have special status because of their constitutional dimensions, particularly in light of the constitutional values of personal autonomy and privacy.

Because a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.

Thus, Michele's reliance on Shelley v. Kraemer (1948), is entirely misplaced. In Shelley, the Supreme Court held that the use of the state's judicial process to obtain enforcement of a racially restrictive covenant was state action, violating the equal protection clause of the fourteenth amendment. This court, however, has been reluctant to base a finding of state action "on the mere fact that a state court is the forum for the dispute." Indeed, Shelley has been widely criticized for a finding of state action that was not "'supported by any reasoning which would suggest that "state action" is a meaningful requirement rather than a nearly empty or at least extraordinarily malleable formality.'" Adoption of K.L.P., 198 Ill. 2d at 465, quoting L. Tribe, American Constitutional Law 1698 (2d ed. 1988).

The court reversed a 2-1 appellate court decision to the contrary, which I blogged about last year. Thanks to How Appealing for the pointer.

einhverfr (mail) (www):
This raises all sorts of interesting questions as to whether a will could disinherit kids who marry interracially, enter same-sex civil unions, or the likes.

My own thinking is that such restrictions would generally be Constitutional. Is that the thinking of others as well?
9.24.2009 5:59pm
troll_dc2 (mail):

This raises all sorts of interesting questions as to whether a will could disinherit kids who marry interracially, enter same-sex civil unions, or the likes.

My own thinking is that such restrictions would generally be Constitutional. Is that the thinking of others as well?


Sure. How could it be otherwise? The kids may have some sort of EXPECTATION of inheritance, but they have no ENTITLEMENT to one. Not only that, a testator is not a government actor. If he could have made the same decisions while alive (and on what basis could he forbidden to do so?), then why should death make a difference? I do not see how probate can ever constitute "state action" sufficient to invoke the Constitution.
9.24.2009 6:04pm
Dilan Esper (mail) (www):
Well, I suspect it is rightly decided under Evans v. Newton.

Personally, though, I always thought Evans v. Newton is wrongly decided and that the state should tell dead bigots to go enforce their own deed restrictions.
9.24.2009 6:08pm
Hadur:
In my law school Trusts and Estates class, there was a case just like this. I believe it also involved a dentist, but this time the dentist, who was Jewish, married a non-Jew and was disinherited by his (Jewish but non-dentist) father. The same outcome was reached. I want to say that it was from Maryland?
9.24.2009 6:09pm
Ariel:
I have to agree. If they want the money, they should follow the conditions. If conditional funding is allowed if you give up constitutional rights, when the government does it - and that is true, at least in some cases - a fortiori when an individual (or decedent) does so.
9.24.2009 6:09pm
Dilan Esper (mail) (www):
I have to agree. If they want the money, they should follow the conditions. If conditional funding is allowed if you give up constitutional rights, when the government does it - and that is true, at least in some cases - a fortiori when an individual (or decedent) does so.

This isn't really on point, but it is in fact not true that conditional funding is always constitutional. To the specific point at issue, I suspect conditioning funding on someone's not marrying outside their religion is almost certainly unconstitutional both under the equal protection clause and the free exercise clause.
9.24.2009 6:11pm
PatHMV (mail) (www):
This is why I've consistently disagreed with our host on issues of Constitutional interpretation in the family law realm. When the courts are involved to settle matters which are fundamentally matters of private conflict between two or more private actors, if we determine that the government action is in all cases "state action" for purposes of Constitutional limitations, then there is no such thing anymore, in reality, as private action. A contract which can't be enforced at law is not really a contract in our society.

There are times when it is important to decline to enforce contracts on grounds of public policy (racially restrictive covenants should be one such time). But that should be a fairly rare decision, and the fact that it is sometimes done should not turn enforcement of all contracts into "state action."
9.24.2009 6:11pm
Dilan Esper (mail) (www):
In my 6:11 p.m. post, to be clear, I was speaking of government funding, not private funding.
9.24.2009 6:11pm
FWB (mail):
The Constitution is the set of rules the People make FOR THE GOVERNMENT. It is not a set of rules for the people. The Rights in the Constitution are protected from government infringement not individual infringement and there are no clauses in the BoR that grant the government any power to enforce or otherwise legislate on those Rights.

Tiocfaidh ar la!
9.24.2009 6:12pm
Hadur:
I mean, would critics of this decision have Constitutional objections to a living philanthropist donating only to Jewish charities? Of somebody paying for their children's tuition only if the child went to Notre Dame?
9.24.2009 6:14pm
ShelbyC:
Dilan Esper:


the state should tell dead bigots to go enforce their own deed restrictions.


What's the "bigot test"? How strongly does the state have to disagree with the conditions before it can ignore them?
9.24.2009 6:15pm
PatHMV (mail) (www):
What about freedom of association, Dilan? If I want to bequeath money only to my descendants who choose to become members volunteers for the Humane Society, is that enforceable? Or am I infringing on the rights of those of my descendants who don't choose to associate with animal lovers?

Or suppose I'm a lawyer, and I want to bequest money to descendants who choose to become lawyers. Am I not interfering with my descendants' right to freely choose their occupation?

Bequests, and the enforcement thereof, are NOT state action. With state action, the government cannot choose to favor, say, the children from one wife over the children from another wife, or the children from the mistress. Bequests can. Or are you saying, basically, that bequests are improper unless given equally to all children, without condition?
9.24.2009 6:17pm
einhverfr (mail) (www):
Dilan Esper:

I am rather confused as to your objection to Evans v. Newton. Didn't that case turn on the fact that the day-to-day management of the park was done by the city and therefore a state actor?
9.24.2009 6:18pm
egd:
troll_dc2:

I do not see how probate can ever constitute "state action" sufficient to invoke the Constitution.

If enforcing a restrictive real estate covenant requires a state actor, couldn't the same be argued for probate? I think that in this case, the court is being asked to specifically enforce the private bigotry of a testator, which to some degree requires the court to inquire as to the individuals' Jewishness.

I would argue that it would not be state action, but I can see how such a case could be made. Fortunately, this case is saved by the fact that Erla had discretion to decide who would benefit.

Imagine a will that said "no one who has committed blasphemy in the last year may inherit." Such wording would require the court to make a religious decision - what constitutes blasphemy - that IMO it is not qualified to answer.

If the language was changed to "no one who has committed blasphemy in the last year may inherit, but Bill gets to decide," then whatever Bill says goes.
9.24.2009 6:18pm
Bored Lawyer:

In my 6:11 p.m. post, to be clear, I was speaking of government funding, not private funding.


Yes, and I believe the prior post was speaking about private funds.
9.24.2009 6:18pm
Ari Taz:
Prof. Volokh,

I note in your previous post on this subject that you lamented the testator's decision to refer to intermarried grandchildren as "dead," calling this "unloving" (if I recall correctly).

I just thought I'd point out that this terminology is actually just a very dry English translation of the legal terminology applied by Jewish law to converts out of Judaism. The reason it's applied is because in Jewish law, some of the regulations relating to the immediate family of a convert are parallel to those relating to those in a legal state of mourning. I suppose you might object to this from a philosophical point of view (and many Jewish theologians who are just as sensitive and compassionate as you might disagree), but the idea of a convert being "dead" has - over centuries of use - become just another dry legal category.
9.24.2009 6:19pm
ShelbyC:

I am rather confused as to your objection to Evans v. Newton. Didn't that case turn on the fact that the day-to-day management of the park was done by the city and therefore a state actor?


I would imagine Dylan would like the park to remain with the city and open to all.
9.24.2009 6:22pm
Bored Lawyer:
The real issue is whether one believes in freedom of testation -- to determine to whom one's money and property passes after death. (In England, at least testation of land was restricted until the Statute of Wills in 1540.)

Once you have that freedom. then it is not the place of the govt. to do anything but enforce the will of the deceased -- unless that violates public policy in some way. Leaving money to, say, fund a criminal enterprise would not be enforced. Discrminating among heirs for any reason would.

An heir can be disinherited for any reason. The testator does not like his or her way of life, or their spouse, or profession or moral character. That is what freedom of testation means.
9.24.2009 6:23pm
einhverfr (mail) (www):
(In Evans v. Newton, the issue was a park bequeathed by a senator to the city on the condition that it be for white folks only. Certainly there is a cause for seeing the segregation there as a state action.)
9.24.2009 6:23pm
einhverfr (mail) (www):
Shelby C:

I would imagine Dylan would like the park to remain with the city and open to all.


Um... Isn't that substantially what happened? Or am I reading the case wrong? In that case, why say it was wrongly decided?
9.24.2009 6:25pm
einhverfr (mail) (www):
egd:


Imagine a will that said "no one who has committed blasphemy in the last year may inherit." Such wording would require the court to make a religious decision - what constitutes blasphemy - that IMO it is not qualified to answer.



Sure. On the other hand, "no one who has in the last year committed blasphemy, as judged by Pastor Williams, may inherit" would avoid the issue, would it not?
9.24.2009 6:28pm
Ariel:
Dilan Esper,

I wasn't saying that conditional funding is always ok, but that it is sometimes ok. I think I made that pretty clear, when I said "some cases," in obvious contradistinction to all cases.

I think you're probably right that government funding would be disallowed if conditioned on religious non-intermarriage. (But see the hash made out of Rust and League, in the free speech context.)

My point was this:
(1) Government funding can sometimes be made conditional on giving up rights, even if perhaps not here;
(2) Individual action should have more flexibility than state action;
(3) Even if the fact that the court is involved constitutes some state involvement, it's a lot closer to individual than to state involvement;
(4) Given the above, this should be constitutional.
9.24.2009 6:30pm
Steve:
The real issue is whether one believes in freedom of testation -- to determine to whom one's money and property passes after death.

I don't think American law has ever recognized absolute freedom of testation. This is the whole point of the "dead hand" problem in estate law. You have complete control of your property at the moment of your death, but your ability to control what happens to it in the future has to be limited to some extent. Otherwise none of us would get to own or control any property of our own, because we'd be constrained by an endless chain of covenants and restrictions created by our great-great-great-grandfathers.

I believe the court was correct in ruling that Erla had the right to exercise her power of appointment as she saw fit, and even if she did so in a bigoted way (or in accordance with her late husband's bigoted wishes), that's not something the law can remedy. But if, instead, Max had attempted to control the disposition of the property long after his death by imposing conditions that violate public policy, that would be a different issue, and I don't think the courts have to enforce that.

You can characterize anything you like in terms of "freedom" but the reality is, if we acknowledge an unrestricted freedom to impose conditions on the use of your property that survive long after your death, that's great for your freedom but not so great for the freedom of future generations. The folks who laid down the common-law rules were pretty savvy about all of this.
9.24.2009 6:35pm
ShelbyC:
einhverfr:

Um... Isn't that substantially what happened? Or am I reading the case wrong? In that case, why say it was wrongly decided?


Didn't the park just revert back to the trust and get shut down?
9.24.2009 6:35pm
Dilan Esper (mail) (www):
I am rather confused as to your objection to Evans v. Newton. Didn't that case turn on the fact that the day-to-day management of the park was done by the city and therefore a state actor?

I cited the wrong case. Evans v. Abney.
9.24.2009 6:36pm
Dilan Esper (mail) (www):
I would imagine Dylan would like the park to remain with the city and open to all.

Yep.

I got my cites mixed up (it's been 15 years since I wrote my law review article on this). Evans v. Newton is fine. Evans v. Abney is wrong.
9.24.2009 6:38pm
Malvolio:
On the other hand, "no one who has in the last year committed blasphemy, as judged by Pastor Williams, may inherit" would avoid the issue, would it not?
Requiring the will to identify an executor who can judge questions (such as "what is blasphemy?" or "who is a Jew?") eases the Constitutional problem but does not solve it.

Is the designated executor given a completely free hand? If Pastor Williams decides that anyone who doesn't donate to the Pastor Williams Memorial Baptismal Pool is a hell-bound sinner and disinherits him, has the quondam heir no recourse in the courts?
9.24.2009 6:38pm
Dilan Esper (mail) (www):
What about freedom of association, Dilan?

Freedom of political association is extremely important and gets maximal protection. But other forms of freedom of association basically get protection only when there is little state involvement. Certainly, the KKK can exclude blacks from their rally. But the Jaycees can't exclude women, and the white students of the Topeka school district can't exclude blacks, and people can't keep blacks or Jews out of the neighborhood with restrictive covenants, and when it comes to leaving your property to your heirs, let's face it, there's a ton of state involvement. Obviously, a person is free to make inter vivos gifts on discriminatory grounds, but asking for the assistance of the state to enforce your discriminatory intent is a whole different matter entirely.

That said, to make it clear, this is what the law SHOULD be. The law currently protects the dead bigots.
9.24.2009 6:42pm
ShelbyC:

Max had attempted to control the disposition of the property long after his death by imposing conditions that violate public policy, that would be a different issue, and I don't think the courts have to enforce that.

You can characterize anything you like in terms of "freedom" but the reality is, if we acknowledge an unrestricted freedom to impose conditions on the use of your property that survive long after your death, that's great for your freedom but not so great for the freedom of future generations.


I'm not sure I see the connection between freeing folks from an endless chain of restrictions and allowing courts to ignore restrictions that violate public policy. It sounds like you're just letting the state leverage the "endless chain" issue into an excuse of the state to ignore conditions it doesn't like.

Anything called "freedom of testation" just has to be protected by the right to privacy, btw. :-)
9.24.2009 6:45pm
Bored Lawyer:

This is the whole point of the "dead hand" problem in estate law. You have complete control of your property at the moment of your death, but your ability to control what happens to it in the future has to be limited to some extent.


A fair point, but it does not completely deal with the issue. The point of dead hand is not to encumber property with endless conditions and covenants. That has nothing to do with whether the conditions are "bigoted" or not.

Suppose the wife in this case predeceased the husband. Suppose further that he conditioned inheritance from his estate to being married to a Jew at the time of death. There is no dead hand problem here -- the property passes free and unencumbered at the moment of death. The condition simply determines who is or is not an heir.
9.24.2009 6:46pm
Dilan Esper (mail) (www):
I'm not sure I see the connection between freeing folks from an endless chain of restrictions and allowing courts to ignore restrictions that violate public policy. It sounds like you're just letting the state leverage the "endless chain" issue into an excuse of the state to ignore conditions it doesn't like.

Barry Bigot made billions in the dot com boom before his 30th birthday when the website that he registered and developed went viral and was bought up by Microsoft. An Orthodox Jew, he decides to draft a will leaving his estate to his son, Herbie. However, he feels strongly against intermarriage, so Barry puts in a provision that the money will be held in trust for Herbie's benefit, with Herbie permitted to draw a certain amount per year, and if Herbie ever marries a non-Jew, the trust will be dissolved and the money will be donated to a charity.

Even though Barry was rich, he didn't share his riches with Herbie when he was alive. Herbie grew up middle class, went to private college, and incurred massive student loan debts because Barry wouldn't pay his tuition. Barry died in a freak car crash during Herbie's senior year.

Herbie hoped to marry and never cared much about the religion of the young women he dated and had relationships with; he had been with some Jewish girls and some non-Jewish girls. Because he was massively in debt and hoped to go into teaching, which didn't pay very well, he decided to take Barry's money. At the time he wasn't dating anyone.

A few months later, Herbie met Sally Shiksa. They immediately hit it off and fall in love, and a few months in, Sally proposes marriage. Herbie still owes over $100,000 on his student loans, and his teaching salary won't be able to cover his debts. If he marries Sally, though, he loses his trust fund.

Now, are you still going to tell me that the testamentary choices of dead folks don't impose limitations on the freedoms of future generations?
9.24.2009 6:54pm
ohwilleke:
The doctrine that resort to a court isn't state action is well established law, but it is one of those doctrines that it not logically necessary and provides dubious legal benefit.

We got that way, I think, because courts failed to make the subtle distinction between private law itself constituting state action (which it shouldn't), and court intervention to enforce private law constituting state action (which it should). In easy cases, clarity about this distinction isn't important, so it is an easy line to cross without realizing its importance.

The courts, of course, exist precisely for the purpose of securing state action, typically ultimately backed by, although rarely going all the way to, an order directed at an armed state employee such as a sheriff or U.S. marshall to enforce a writ of execution or arrest warrant, or to an official record keeper such as a clerk or recorder.

This doesn't mean legally authorized self-help has to constitute state action. "Legal" acts which involve the use of force but not any resort to a public actor may not give rise to state action. For example, state action might exclude self-help remedies like Uniform Commercial Code repossessions, financial setoffs, non-judicial foreclosures, distributions of property pursuant to non-probate transfers and trusts, use of force in self-defense or defense of property, bounty hunting privileges that arise as a matter of contract, or resort to arbitration that does not require court action to enforce.

Likewise, private law doctrines that permit non-state actors to take action that has legal effect, like entering into a common law marriage, emancipation, becoming bound to a contract, creating and terminating an employment relationship, forming an unincorporate entity, changing one's name, transferring title to property, and so on, need not constitute state action simply because the law gives these acts of private legal actors legal meaning.

Indeed, even refusing to grant relief any to someone petitioning or complaining to a court for relief may very well not constitute state action, as it leaves the status quo almost as unchanged as it would have been if no action was taken (a dismissal with prejudice does have res judicata and possibly collateral estoppel effects, and court enforceable discsovery rights within litigation may constitute state action, however).

But, refusing to call situations where a court affirmatively grants relief to someone who has complained to or petitioned to a court logically seems like the epitome of state action. And, there isn't any obvious good reason why the mischiefs that are not allowed to state actors should be permitted to those who secure court orders and judgments.

If one calls resort to state power in the form of the courts state action, and simply affords those involved in implementing the process either an absolute privilege (e.g. judges), or a qualified privilege (e.g. a sheriff or marshall acting pursuant to an order that appears lawful and regulate on its face), while making litigants themselves either absolutely privileged (with court sanctions as the remedy for misconduct to prevent collateral litigation) or qualifiedly privileged (to allow collateral litigation over certain extreme forms of litigation abuses).

Even if the state actors in a process have a legal privilege from civil or criminal liability, this would still allow courts to review lower court action enforcing private rights on the grounds that the private right isn't something that a state actor has the power to do. This would work in practice something like the establishment clause refusal to intervene in religious matters. Unless there is a right that it does have a right to enforce as a state actor, it doesn't intervene.

Indeed, the refusal of courts to make rulings on religious matters seems strongly inconsistent with the concept that court action is not state action.

Is this envisioning a fantasy constitution? Yes, to some extent it is. But, in practice, the vast majority of cases come out the same way with or without considering courts to be state actors who are privileged in certain respects. And, viewing courts as privileged state actors, rather than as non-state actors produces more consistent legal doctrine that is better in accord with the values embedded in the constitution where the distinction does matter.
9.24.2009 6:54pm
Steve:
The point of dead hand is not to encumber property with endless conditions and covenants. That has nothing to do with whether the conditions are "bigoted" or not.

Well, they're not the same, but they're not entirely different either. One reason we restrict the power of the "dead hand" is so courts don't find themselves in the awkward position of enforcing bigoted conditions that might have been considered okay in great-grandpa's day.

It may be more accurate to say that courts don't want to enforce covenants that violate public policy (racial restrictions, covenants that penalize marriage) at all, but that they recognize a narrow exception for people to determine where their property goes upon the event of their death only because it would be unworkable to try and restrict that right.
9.24.2009 7:01pm
ShelbyC:

Now, are you still going to tell me that the testamentary choices of dead folks don't impose limitations on the freedoms of future generations?


No, I'm going to repeat that I'm not seeing why it should matter whether or not those limitations comport with public policy.
9.24.2009 7:03pm
BT:

That said, to make it clear, this is what the law SHOULD be. The law currently protects the dead bigots.


Is Feinberg really a bigot? That sounds like a very harsh judgement of him to me. I am not Jewish, but my understanding is that a significant percentage of Jews marry outside of their religion. Could it be that Feinberg was concerned about this and wanted someway to influence his family and keep their traditions, religion, etc., alive? Is there anything really wrong with that? Also he put a clause in the trust that the grandchildren would keep any inheritance if their non-Jewish spouse converted within a certain time. That does not sound like the actions of a bigot to me. Granted, Feinberg may have been small minded but that is far from being a bigot.
9.24.2009 7:05pm
ShelbyC:
Dilan, I was just making the same point Bored Lawyer was making. He probably said it better though.
9.24.2009 7:05pm
David M. Nieporent (www):
Personally, though, I always thought Evans v. [Abney] is wrongly decided and that the state should tell dead bigots to go enforce their own deed restrictions.
I don't understand. I thought that's what the court did in Evans v. Abney. What you wanted them to do was tell them that they couldn't enforce their own deed restrictions.
9.24.2009 7:18pm
Bob from Ohio (mail):
Feinberg was in no way a "bigot". Esper is just expressing his own bias against the religious.

As BT points out, it is a huge concern that Jews are destroying themselves with intermarriage. That eventually there will not be any significant Jewish presence in the US.

To compare a Jew with such a concern to the KKK is wrong.
9.24.2009 7:19pm
David M. Nieporent (www):
Now, are you still going to tell me that the testamentary choices of dead folks don't impose limitations on the freedoms of future generations.
Yes. Giving someone money if they satisfy certain conditions is a reward, not a limitation.

Also, there's nothing bigoted about opposing intermarriage.
9.24.2009 7:22pm
John Thacker (mail):
Now, are you still going to tell me that the testamentary choices of dead folks don't impose limitations on the freedoms of future generations?


Yes, but it's about a choice of giving money to someone. Not everyone gets an inheritance at all, and there's no legal requirement to give adult relatives your money for any reason.

It's harder for me to get upset about a trust-fund baby losing his trust fund in college because I don't view inheriting a trust fund as an inherent right they way I do marrying or buying a house.
9.24.2009 7:34pm
John Thacker (mail):
Laws against intermarriage are bad. But I don't think that, e.g., Jewish dating sites or people choosing not to intermarry should be illegal. I would think that the question of inheritance would fall between the two.
9.24.2009 7:38pm
Dilan Esper (mail) (www):
Is Feinberg really a bigot? That sounds like a very harsh judgement of him to me. I am not Jewish, but my understanding is that a significant percentage of Jews marry outside of their religion. Could it be that Feinberg was concerned about this and wanted someway to influence his family and keep their traditions, religion, etc., alive? Is there anything really wrong with that?

Yes. It's clear, offensive, disgusting prejudice against gentiles, and it is also disrespect for the wishes and tastes of your descendants.

I realize that I can't stop people from trying to force their kids to marry within a religion, but it is clear religious bigotry and should be recognized as such.
9.24.2009 7:49pm
Dilan Esper (mail) (www):
To those who think that this sort of thing isn't bigotry, a question:

Is it bigoted for a white man, in light of all the intermarriage, to want to influence his family and keep their traditions and race alive by disinheriting anyone who marries outside of the race?
9.24.2009 7:53pm
Blargh:
But, that kind of bigotry is based on thinking that the outsiders are subhuman. I don't know if that's the same kind of thinking that people engage in when they prefer to marry intra-religiously. I.e. how many gentiles have Jews strung up in a tree?
9.24.2009 7:56pm
ReaderY:
Making bequests is perhaps a quintessential example of historically recognized purely discretionary conduct. And there could be no greater violation of the First Amendment religion clauses than for the state to say that individuals can't take their religion into consideration in determining how to use their discretion.

The constitution protects evn obviously evil, bigoted religions in much the same way that it protects even obviously savage, inferior races. It may not seem fair that the constitution protects evil, inferior people and lets them do evil, inferior things. But that's what the clauses say.
9.24.2009 7:59pm
ShelbyC:
Is discussing what is and isn't biggoted similar to discussing what is and isn't perverse?
9.24.2009 8:01pm
BT:
Dilan to answer your question, no, and I say this as someone who is a product of interracial marriage. If Feinberg as a dentist had only treated Jews as a matter of policy, or deliberately excluded blacks, or Latinos, etc., then I would agree with you. For him to want to influence his family, rightly or wrongly, to stay within their religion does not strike me a bigoted, small minded maybe, but not bigoted. . To me the word bigot gets thrown around loosely and it is used as a bludgeon to cover all manner of sins. Those grand kids could make a choice, live by grandpa's rules and get X amount of dollars or go against grandpa's wishes and get nothing. That is a far cry from having to live in fear for your life or liberty because of what some true bigot would want to do to you just because your were Jewish.
9.24.2009 8:07pm
ReaderY:
Also, it's not exactly as if the grandkids aren't free to do whatever they want. It's just whether they get to do it on Grandpa's dime.
9.24.2009 8:09pm
Dilan Esper (mail) (www):
But, that kind of bigotry is based on thinking that the outsiders are subhuman. I don't know if that's the same kind of thinking that people engage in when they prefer to marry intra-religiously. I.e. how many gentiles have Jews strung up in a tree?

That's a valid point, but I do think this sort of religious bigotry is based on a feeling of superiority, specifically, a feeling that either one's religion or one's ethnicity are superior to the religious beliefs or ethnic background of outsiders.

Otherwise, why would it matter so much who the kid marries?
9.24.2009 8:10pm
Dilan Esper (mail) (www):
Those grand kids could make a choice, live by grandpa's rules and get X amount of dollars or go against grandpa's wishes and get nothing. That is a far cry from having to live in fear for your life or liberty because of what some true bigot would want to do to you just because your were Jewish.

You could say the exact same thing about a stipulation not to marry a black or else you are disinherited.
9.24.2009 8:12pm
ShelbyC:

You could say the exact same thing about a stipulation not to marry a black or else you are disinherited.


Yup. A far cry from having to live in fear of your life or liberty.
9.24.2009 8:25pm
Guest14:
I already dreamed of a world with a 100% estate and gift tax, and here's yet another reason!
9.24.2009 8:25pm
Blargh:
That's a valid point, but I do think this sort of religious bigotry is based on a feeling of superiority, specifically, a feeling that either one's religion or one's ethnicity are superior to the religious beliefs or ethnic background of outsiders.

Otherwise, why would it matter so much who the kid marries?


Well, I assume that it's a rule of the religion (either written or by tradition). I think that these types of rules are more about maintaining the coherence of the religion/culture than preventing marriage to "inferiors". I mean, it isn't as if Feinman refused to do business with gentiles or associate with them socially (I realize we don't know if this is actually true, I'm just assuming it). He just wants to enforce a religious prescription on a religious act.
9.24.2009 8:29pm
Blargh:
What I mean is, do we know if he's thinking "Don't marry non-Jews because Jews should marry other Jews" or "Don't marry non-Jews because they're disgusting and inferior". I think the latter is vile but the former doesn't bother me so much.
9.24.2009 8:33pm
ShelbyC:

I already dreamed of a world with a 100% estate and gift tax, and here's yet another reason!


Folks who see equality as an end in itself, ahead of liberty, often do.
9.24.2009 8:41pm
Dilan Esper (mail) (www):
Well, I assume that it's a rule of the religion (either written or by tradition). I think that these types of rules are more about maintaining the coherence of the religion/culture than preventing marriage to "inferiors". I mean, it isn't as if Feinman refused to do business with gentiles or associate with them socially (I realize we don't know if this is actually true, I'm just assuming it). He just wants to enforce a religious prescription on a religious act.

Well, that just begs the question. Why a prohibition on marrying outsiders? It must be that the religion holds that outsiders are inferior, either ethnically or religiously.
9.24.2009 8:50pm
Blargh:
No, it just means their God thinks outsiders are inferior. WHO ARE YOU TO QUESTION HIM??!
9.24.2009 9:02pm
Blargh:
More seriously - not every religious person thinks the rules they have to follow are good and wise, even though that probably IS the case here. So, even if a rule appears hateful on the surface, it doesn't follow that the person follows the rule because it's hateful.

Example: Catholics and the no-meat-on-Friday rule. Now, my wife's family is Catholic, and they'll eat the shit out of some steak. But on Friday, not so much. That doesn't mean they don't like meat, or suddenly became vegetarians on that day, or think eating meat suddenly became PETA-style evil. It just isn't allowed.

Well maybe marriage is more serious than steak (but that's arguable) but I think the analogy is there. Really I'm just going with my gut here, for whatever religious proscriptions against extra-religious marriage just don't bother me all that much.
9.24.2009 9:09pm
Ariel:
Dilan Esper,

It wouldn't hurt to learn, instead of assuming. There are plenty of other reasons why a religion might prefer marriage within the religion without thinking of them as inferior. For example, a religion is more likely to be passed on if both parents share that religion in common.

I'm also a product of an inter-ethnic marriage, and I can tell you that it creates a lot of conflicts and identity issues. This is how we do things in Morocco, vs. $2 + that will get you on the subway... we've had that discussion in my house, when I was a kid, many times. If my great-grandparents wanted to preserve their particular traditions, it would be hard to do that for both sides in the sort of relationship my parents chose.

While the US values homogenization (the "melting pot"), there are many cultures and religions that want to preserve what is unique and beautiful about themselves (the "mosaic"). In your own way, Dilan, you're arguing for the former, which may not be as big-minded as you may think.
9.24.2009 9:11pm
BT:
No, it just means their God thinks outsiders are inferior. WHO ARE YOU TO QUESTION HIMHER??!


There fixed that for ya. (:
9.24.2009 9:11pm
Dilan Esper (mail) (www):
It wouldn't hurt to learn, instead of assuming. There are plenty of other reasons why a religion might prefer marriage within the religion without thinking of them as inferior. For example, a religion is more likely to be passed on if both parents share that religion in common.

Again, that begs the question. Unless one thinks that one's religion makes one superior to everyone else, there's no reason to want the religion passed on.

All the other justifications come back to a feeling that one religion or ethnicity should receive favorable treatment because of its inherent superiority.

It is bigotry. The only difference is that some bigotry is socially acceptable whereas other types aren't.

While the US values homogenization (the "melting pot"), there are many cultures and religions that want to preserve what is unique and beautiful about themselves (the "mosaic").

But unless what is unique and beautiful is also thought to be superior, there's no reason to preserve it when it means forcing people to marry folks they don't want to marry.

Again, it isn't enough to say something is unique-- it has to be SUPERIOR, or else why override people's preferences to favor it.
9.24.2009 9:25pm
Dilan Esper (mail) (www):
I'm also a product of an inter-ethnic marriage, and I can tell you that it creates a lot of conflicts and identity issues.

Homogenous marriages also create conflicts and identity issues, just different ones (like when the kid decides that the parents' religion, that they went to great effort to pass on to the kid, is complete bunk).
9.24.2009 9:26pm
Ariel:
Dilan Esper,

There may be plenty of reasons to argue for preservation without arguing for superiority. If you learn about Judaism, you'd see that's the case there. We don't think our version of Judaism is superior to those of many others, but we want to preserve our tradition of singing some songs in Arabic for certain holidays, eating certain foods at holidays, and so on.

Just based on the numbers in the US now, what you're suggesting will necessarily lead to homogenization and sameness, eliminating diversity and difference. You don't have to think you're superior to want to maintain your own traditions and history. Nor does Judaism so think.
9.24.2009 9:35pm
californiamom:
What is being entirely overlooked in all of this discussion is this: These grandparents apparently didn't love their disinherited grandchildren. If they had they would have included them in the inheritance no matter who they married. It's really, really sad. The grandparents also guaranteed that the disinherited grandchildren would feel the sting of this and no doubt tell their children how great grandma and grandpa didn't like their mother. And that's the reason that their cousins now have lots more money than they do. Quite an inheritance to leave behind.
9.24.2009 9:39pm
Bored Lawyer:

Now, are you still going to tell me that the testamentary choices of dead folks don't impose limitations on the freedoms of future generations?


Yes. I will. The son in your scenario is free to marry whom he wishes. He just has to live with the consequences -- that his father's money will not go to him.

Suppose the father were alive, rich and supporting his son in a luxurious lifestyle. (E.g., he writes him a check for $100k each month.) That's the father's free choice. Suppose further the father says, "Son, I'll continue to support you until I die, but if you marry out of the faith I'll immediately cut you off without a cent."

The father is free to give away his money as he wishes. Here he has chosen to condition his largesse on the whom the son marries. Does the choice here "impose limitations on the freedom" of the son? No. For the same reason.
9.24.2009 9:39pm
Repeal 16-17 (mail):
No, it just means their God thinks outsiders are inferior. WHO ARE YOU TO QUESTION HIM HER??!


There fixed that for ya. (:


Considering human history, you think God is female?
9.24.2009 9:39pm
David M. Nieporent (www):
Again, that begs the question. Unless one thinks that one's religion makes one superior to everyone else, there's no reason to want the religion passed on.
So if I want to keep grizzly bears from going extinct, it's because I think they're superior to other animals?
9.24.2009 9:55pm
Dilan Esper (mail) (www):
There may be plenty of reasons to argue for preservation without arguing for superiority. If you learn about Judaism, you'd see that's the case there. We don't think our version of Judaism is superior to those of many others, but we want to preserve our tradition of singing some songs in Arabic for certain holidays, eating certain foods at holidays, and so on.

None of that, of course, has anything to do with marriage restrictions.

But furthermore, unless one believes that these songs, holidays, foods, etc., are superior to other customs one might adopt, there's no particular reason to immpose restrictions on the freedom of one's descendants to marry the person their choice in order to pass them on.

Just based on the numbers in the US now, what you're suggesting will necessarily lead to homogenization and sameness, eliminating diversity and difference.

Sure you do. You at least have to believe that your customs are superior to whatever the homogenization of society will produce.

So if I want to keep grizzly bears from going extinct, it's because I think they're superior to other animals?

No, but the difference is, one ethnic or religious group could be assimilated (as happens all the time) and the species isn't going anywhere.

Differentiation among species isn't bigotry (unless you are Peter Singer). Differentiation among relgious and ethnic groups is.
9.24.2009 10:00pm
Ariel:
Dilan Esper,

You don't have to believe that they are better. You can believe that they are equal. You can believe that they are equal, and they are your traditions. Traditions that your ancestors practiced. In Judaism, and I'd suspect this is true for many other groups too, we want to keep our tradition alive partly because of the history and tradition. Partly as a way to say to those who tried to murder us over the years - we are still here. That's of some value, without even thinking less of the rest of the folks (except perhaps those who murdered us - and I guess I'm ok with that).

Italians preserve their food and their heritage. Indians look for other Indians to a great degree. Many other groups do this.

I'd suspect part of your thinking is colored by prejudices relating to Jews thinking of themselves as "chosen," a conception which does not mean what many think it means. That's why I'm saying you need to learn about it, at least based on your posts. If you have learned, but nevertheless reject it, then so be it.
9.24.2009 10:07pm
Tim Nuccio (mail) (www):

This raises all sorts of interesting questions as to whether a will could disinherit kids who marry interracially, enter same-sex civil unions, or the likes.

My own thinking is that such restrictions would generally be Constitutional. Is that the thinking of others as well?


I agree with yhou.


Again, that begs the question. Unless one thinks that one's religion makes one superior to everyone else, there's no reason to want the religion passed on.


I think it's a shame that we have to enforce a bigoted contract, but I don't want the alternative.
9.24.2009 10:10pm
einhverfr (mail) (www):
Dilan:

I think in the case of money a case can be made that this isn't coercive or permanent in the way covenants relating to land or property is. After all, money gets spent and is replaceable. Covenants relating to land or property are more difficult to deal with.

BTW I agree with Justice Douglass's dissent in Evans v. Abney.
9.24.2009 10:16pm
Dilan Esper (mail) (www):
You don't have to believe that they are better. You can believe that they are equal. You can believe that they are equal, and they are your traditions. Traditions that your ancestors practiced.

I would hope that we would both agree that if the tradition were lousy, it shouldn't be continued.

If the tradition were equal, then it shouldn't matter if it is continued.

So the tradition must be superior. All of your arguments go to whether people want to ADMIT that this is their reasoning. But it has to be their reasoning-- otherwise there is no reason to pass the tradition on.

I'd suspect part of your thinking is colored by prejudices relating to Jews thinking of themselves as "chosen," a conception which does not mean what many think it means.

It really isn't. Rather, I think any parent who tells an offspring that they can't marry a suitable partner that they love is an absolute slime of a person who should receive the worst sort of condemnation.

As for the "chosen people"-- no, I don't buy the excuse there either. Jews and Christians should get that crap out of their religion-- God didn't "choose" Jews or anyone else.

But "chosen people" is a different issue than intermarriage. I don't think of Muslim, Hindu, or Catholic attempts to force people to marry folks they don't want to marry either, and those folks don't claim that they are important because an invisible man in the sky "chose" them.
9.24.2009 10:19pm
Anonymous Cow:
I'll be a little troll'ish and phrase my argument in a bit of an ad homonym attack style for flourish purposes.

Dilan Esper obviously has no values that he/she wants to ensure get passed down to his/her descendants.

why?

Because if he/she did, he/she would know that the best way to ensure that those values are passed onto one's descendants would be for both spouses to share the same values, so they present a common voice to their children in regards to this value.

Therefore, if one places a value in judaism and wants to do the best job to ensure that this value is passed to their children, the best way to do that is if both spouses are jewish.

If one does not place a particular value in judaism, than of course they wont care if their spouse is jewish as they don't care as much if that value is passed down to their children. (they might care to some extent, but its not as important to them as other things).

If one doesn't view religion as having value, than of course one would view judaism's negative view of intermarriage as bigoted and racist, and there's nothing I can say to perusade you otherwise. i.e. we would say that in an ideal worled there's no value in race.

However, if one views religion(s) as having value, than judaism negative view of intermarriage makes sense. It might be a bit "uppity" in the sense that it places a significantly high importance in the religious values, but that's not being biggoted. It's simply showing the best way to transmit this value to the next generation.
9.24.2009 10:21pm
Dilan Esper (mail) (www):
Anonymous:

A religion isn't a value. It's a cultural belief system and a set of factual claims (and in Judaism's case, closely tied to an ethnicity as well).

It is religious bigotry to think that one's religion is superior to all the others. It is ethnic bigotry and cultural imperialism to think that one's ethnic/cultural background is superior to all the others.

In contrast, if one thinks a certain value is objectively correct, that is not bigotry (unless the value is itself bigotry).
9.24.2009 10:30pm
Dilan Esper (mail) (www):
However, if one views religion(s) as having value, than judaism negative view of intermarriage makes sense.

BTW, off topic, but religion has exactly the same value as astrology has, no more and no less.
9.24.2009 10:31pm
Anonymous Cow:
as I said, you don't place a value in it. many others do.
9.24.2009 10:45pm
Ariel:
Dilan,

So the tradition must be superior. All of your arguments go to whether people want to ADMIT that this is their reasoning. But it has to be their reasoning-- otherwise there is no reason to pass the tradition on.

No. There are good reasons to pass on a tradition without thinking it is superior, without having to worry about admitting or not admitting it. There's plenty of literature on Jews and chosenness, written by Jews, that will explain how you can think yourself equal while still wanting to preserve what is unique about yourself.

There's a value to tradition, that's intensely personal and tied to who one is, one's history. I might think that some customs of my ancestors were a little off, but that doesn't change the fact that they were my ancestors and that by paying homage to their traditions, I am hoping that my children will do likewise. Only in respecting those who came before us can we hope that our children will do likewise. So that's one value that can be had, regardless of thoughts of superiority. It's not the only one. Don't be so narrow-minded.

As for the "chosen people"-- no, I don't buy the excuse there either. Jews and Christians should get that crap out of their religion-- God didn't "choose" Jews or anyone else.

It's tangential to the main issue, but you clearly don't understand what is meant by this. Seriously. Go find out about it. It'll help you sound informed.

BTW, off topic, but religion has exactly the same value as astrology has, no more and no less.

Is that also true for culture? Maintaining a family tree? A family home, going back centuries? Trying to revive a language, like Basque, that was dead for some time?
9.24.2009 10:54pm
Sara:
As I understand the case:

1) The wife determined in her bequest that only unmarried grandchidren or those married to Jews would get $250,000, upon her death.

2) All parties agreed that only 1 of five grandchidren qualified.

3) The court seems to say that's not a restraint on marraige because none of the grandchidren knew of the grandmother's bequest.

An interesting next case is what will courts do when the grandchild contends they do qualify and the executor disputes this on religion grounds.
9.24.2009 10:57pm
gasman (mail):

This isn't really on point, but it is in fact not true that conditional funding is always constitutional. To the specific point at issue, I suspect conditioning funding on someone's not marrying outside their religion is almost certainly unconstitutional both under the equal protection clause and the free exercise clause.

I don't think the Constitution says what you think it says.
People often seem to use the word unconstitutional to mean something they believe just isn't right. But the Constitution restricts actions of the government, not individual citizens. It is UnConstitutional for the government to have tests of religion, race or gender in deciding these civil matters, but there is nothing unconstitutional about an individual doing this.
Families make judgements and execute decisions like this all the time; only once in a while do these acts get written by a lawyer for all the world to see and us to discuss. Families traditionally pay for the daughter's wedding; should the government immediately step in to correct this unconstitutional wrong and demand that the same go to sons too.
9.24.2009 11:35pm
ReaderY:

a feeling that either one's religion or one's ethnicity are superior to the religious beliefs or ethnic background of outsiders.


In your view, is a politicin or consultant who claims to have better ideas than the other guy a bigot? If you do, I accept your consistency.

If you don't believe that people who claim to have superior political or business ideas are bigots for making such claims, what permits political and business speakers to make such claims without being regarded as bigots, and why don't religious speakers have this permission?
9.24.2009 11:40pm
ReaderY:
Dilan Esper ,

I have to say, is there really any difference between saying "religious people are bigoted" and "I don't like religious people?" You seem to be saying that anyone who claims his or her religion has great value is a bigot. This is a rather curious claim. Isn't this simply equivalent to saying "I think religion is worthless?" The only difference is that one can simply use a convenient label instead of having to argue a case.

History is full of enlightened, freedom-loving people confidently explaining why the unenlightened, freedom-hating people shouldn't have any rights. After, the basic reason for disenfranchising Catholics in the 18th and 19th centuries was pretty much that they couldn't be trusted to think for themselves.

Aren't the arguments being made here essentially the same arguments made against Catholics applied to any and every religion that takes itself and its beliefs seriously? You seem to be willing to tolerate religion only so long as people don't actually believe it -- kind of like tolerating black people as long as they remain Uncle Toms and don't behave too "black". Why can't they be permitted to behave as if they take themselves seriously?

Why in the world must people be forced by the courts and the state to treat their religion as if it were equivalent to ethnicity? Why can't they treat it as a philosophy of the sort that is susceptible to a truth value? Why in the world is it the business of the state, or sociey, or you to impose labels on people who make one choice as opposed to the other?
9.24.2009 11:59pm
Soronel Haetir (mail):
I would have to say I agree with the majority in both Newton and Abney. A testator should not be punished for intervening changes in the law where those e changes do not require it.
9.25.2009 12:02am
subpatre (mail):
Dilan Esper, you're a hoot. You label other's positions as bigotry because they "believe [stuff] . . is superior to others", all while arguing that your own beliefs are superior to others.

Bigotry
"I don't think that word means what you think it means." — Inigo Montoya
9.25.2009 12:30am
PlugInMonster:
Whoever argued this case means we should have a 100% estate tax is an idiot.
9.25.2009 12:36am
Dilan Esper (mail) (www):
No. There are good reasons to pass on a tradition without thinking it is superior, without having to worry about admitting or not admitting it. There's plenty of literature on Jews and chosenness, written by Jews, that will explain how you can think yourself equal while still wanting to preserve what is unique about yourself.

There is, but it's a lie. To say that you are chosen by God-- no matter WHAT the context-- is AUTOMATICALLY an egotistical statement. It is true that people know this and try to explain it away, but it doesn't matter. If you claim that there's an all powerful creator and She chose YOU for something rather than others, that's a totally egotistical, self-important claim.

Is that also true for culture? Maintaining a family tree? A family home, going back centuries? Trying to revive a language, like Basque, that was dead for some time?

Individual freedom trumps those things. If people want to pass on a culture to willing recipients, fine. But if the recipients want something else, you shouldn't interfere.

These restrictions on marriage are about interfering with people's freedom.

But the Constitution restricts actions of the government, not individual citizens.

Read my comment 2 comments under the one you are citing. I was talking about the government. (And believe me, you don't have to educate me about the state action doctrine.)

In your view, is a politicin or consultant who claims to have better ideas than the other guy a bigot?

No. But that's a contest of ideas. This is "my God is better than your God". And the latter is mindless and stupid.

I have to say, is there really any difference between saying "religious people are bigoted" and "I don't like religious people?" You seem to be saying that anyone who claims his or her religion has great value is a bigot.

Nope. You can have it have all the personal value you want.

But anyone who uses their religion to interfere with the personal choices of OTHERS is a bigot. Get the distinction?

History is full of enlightened, freedom-loving people confidently explaining why the unenlightened, freedom-hating people shouldn't have any rights. After, the basic reason for disenfranchising Catholics in the 18th and 19th centuries was pretty much that they couldn't be trusted to think for themselves.

The people who tell their daughters they can't marry a Gentile are cut from the same cloth.

Why in the world must people be forced by the courts and the state to treat their religion as if it were equivalent to ethnicity?

Because if we don't, then religious people aren't protected from unfair discrimination.

Dilan Esper, you're a hoot. You label other's positions as bigotry because they "believe [stuff] . . is superior to others", all while arguing that your own beliefs are superior to others.

That's a straw man.
9.25.2009 1:13am
Linus (mail):
If I shared Dilan's premise (that all religion is hooey), I'd probably share his conclusions too (that believing one version of hooey is superior to another version of hooey is ridiculous-like disinheriting your kids because they don't care for The Love Boat). Although, I'd try not to be so obnoxious about it.
9.25.2009 1:19am
Soronel Haetir (mail):
You know, I agree with Dylan about the value of religion and tradition in general. I disagree completely on the nature of freedom. In all of these cases the freedom belongs to the person or estate with disposable property. The deceased should have the freedom to parcel out that property in whatever bigoted or otherwise foolish way they please.

If that means the grand-child needs to change their name to Rumplestilkskin in order to inherit I am fine with it. The grand-child has no right to the property, only an opportunity. It is up to that person to decide whether the condition is worth the payoff.
9.25.2009 2:10am
subpatre (mail):
Linus writes: "If I shared Dilan's premise (that all religion is hooey), I'd probably share his conclusions too (that believing one version of hooey is superior to another version of hooey is ridiculous . . ."

Dilan's premise is not that religion is 'hooey', he distinctly and clearly wrote "bigot" ("bigotry", "bigoted", etcetera) 23 different times. The terms refer to hatred and intolerance of others, a "person who is utterly intolerant of any differing creed, belief, or opinion" [Random House].

To date, Dilan Esper is the poster-child for utter intolerance to some old religious guy's ability to distribute his own estate as he wants.


Dilan Esper writes "But anyone who uses their religion to interfere with the personal choices of OTHERS is a bigot. Get the distinction?"

No; in the real world "bigot" has a dictionary definition, not made-up mumbo-jumbo to fit your particular argument and call names.
9.25.2009 2:15am
ReaderY:
Dilan Esper,

I understand your firm faith that your beliefs about religion are correct and superior to other people's religious beliefs. I understand the firmness of your faith leads you to label those who believe differently from you with some rather choice epithets. I won't argue your particular choice.

All I can say is how grateful I am that we live in a country where the people others despise and label are protected from those who despise them, and where people who have firm faith in the wrongness of others' beliefs can't use the organs of the state to impose their own ideas about what true or correct religion ought to be like.
9.25.2009 2:53am
EMG:
Massive logic fail, Dilan. There's a lot of daylight between "X is inherently superior to everything else" and "the world will be no worse off if X ceases to exist." You're just blinded by your own prejudices against the specific X we're discussing.
9.25.2009 4:23am
David M. Nieporent (www):
If the tradition were equal, then it shouldn't matter if it is continued.
That doesn't make any sense at all.
9.25.2009 6:15am
David M. Nieporent (www):
A religion isn't a value. It's a cultural belief system and a set of factual claims (and in Judaism's case, closely tied to an ethnicity as well).

It is religious bigotry to think that one's religion is superior to all the others. It is ethnic bigotry and cultural imperialism to think that one's ethnic/cultural background is superior to all the others.
Is it chronological bigotry if I think that 21st century America is superior to 18th century America? Or is it just Dilan's abuse of the English language and misuse of the word bigotry?
9.25.2009 6:20am
David Schwartz (mail):
In your view, is a politicin or consultant who claims to have better ideas than the other guy a bigot? If you do, I accept your consistency.
Surely it depends why he thinks that. If he has actually compared his ideas to that particular consultant's ideas and concluded they are better, then no. But if he concluded that his ideas must be better because he's white and the other guy is black, or because he's a Jew and the other guy is an atheist, then yes, he's a bigot.

When you judge people's worth based on their race or religion, you're a bigot. When you judge the value of people's ideas based on the content of their ideas, you're not.
9.25.2009 7:41am
BT:
Dilan, a question for you. Four of Feinberg's grandchildren chose to marry outside of their religion which means that one did not. Is that one grandchild a bigot? Based on your view that Feinberg is a bigot, then if the grandchild follows his wishes (for whatever reasons) then it seems to me (using your logic) that the grandchild is just as guilty as grandpa.

Also there is a movement in the US called Buy Black. A couple of years ago a couple in Chicago made news documenting their persuit of trying to find black manufactures, retailers, etc., for all of their worldly needs, to the exclusion of all others races. Are they bigots?

I know what my answers are, I am interested in hearing yours.
9.25.2009 7:57am
Pragmaticist:
To: Dilan Esper

A bigot is one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance.

If one's theology is such that one believes that God has commanded one to only marry a certain sort of person, e.g., a member of the opposite sex, a Jew, a believer, etc., how does believing that God has made such a command constitute bigotry?
9.25.2009 8:34am
Talkosaurus:
'The estate will not reward grandchildren that marry outside their ethnicity'

'The estate will not reward grandchildren that marry outside Catholicism'

'The estate will not reward grandchildren that marry outside Judaism'

'The estate will not reward grandchildren that marry outside their race'

Three of these statements elicit mainstream social judgments of 'How bigoted!', one elicits '...to reward values most cherished'. Discuss.
9.25.2009 8:57am
purplekoolaid (mail):
A few months later, Herbie met Sally Shiksa. They immediately hit it off and fall in love, and a few months in, Sally proposes marriage. Herbie still owes over $100,000 on his student loans, and his teaching salary won't be able to cover his debts. If he marries Sally, though, he loses his trust fund.

Now, are you still going to tell me that the testamentary choices of dead folks don't impose limitations on the freedoms of future generations?


Dude! Why doesn't Herbie get a better paying job? Could Herbie work two jobs until he pays off his debt? Imagine that! Why can't Herbie be like the rest of Americans that AREN'T inheriting anything from their parents? I refuse to feel sorry for Herbie bc he's made his own choices in life.
9.25.2009 9:05am
BT:
Just a comment in general. This thread, despite covering a delicate matter, has been remarkably free of invective, personal attacks, Nazi references, etc,. I just want to say thanks to all of the commenters here for keeping things interesting, informative and free of rancor. This is the way it ought to be.
9.25.2009 9:20am
ReaderY:

Surely it depends why he thinks that. If he has actually compared his ideas to that particular consultant's ideas and concluded they are better, then no. But if he concluded that his ideas must be better because he's white and the other guy is black, or because he's a Jew and the other guy is an atheist, then yes, he's a bigot.


In order to convert, one has to have compared one set of religious ideas to another and concluded that the other set is better. If it's bigotry to believe that any one set of religious ideas is better than any other, than doesn't follow that anyone who converts -- or makes any sort of personal choice about religion -- is a bigot? For to choose is to prefer. This example perhaps exemplifies the problem with the 'religion is like race' analogy. It's like race sometimes, but not all the time.

One can't change ones race, but one can change ones religion. This fact exemplifies the difference. Religion is a kind of thought: for many purposes, it has to be treated like other kinds of thought such as political views. Treating religions entirely as if it were like race is thus an imperfect metaphor and one that can lead to erroneous conclusions if taken too far. One sometimes has to have a "religion is like ideas" metaphor.

If we have a "religion is like ideas" metaphor, than we get another set of results. As that, as has recently been argued in the Supreme Court, spending money to propogate ones ideas is a form of expression protected by the First Amendment. Seen this way, it seems logical that a testator who wants to give money in a way that supports his ideas might have some First Amendment protection for doing so. The fact that the Religion Clauses are in the First Amendment bolsters the idea that religion is a kind of thought and its expression analogous to speech rather than a kind of personal status analogous to race.

The testator could have given all his money to those of his grandchildren who supported the Democratic Party in his will, and we wouldn't have called him a bigot for thinking the Democratic party superior to the Republican. We might have our own views on which party is superior, but the key issue here is that we don't think it wrong to consider one party superior to the other, even though we might disagree on which one it might be. From the point of view of the Framers of the Constitutition, religion is more like ones political views than it is like race. And its protections are more like freedoms of speech than freedom of religion.

The Supreme Court has held that it's unconstitutional to fire civil servants (except in policy-making positions) because of their politics. But the fact that it's sometimes illegal to discriminate on the basis of political affiliation or views in no way makes it wrong or unAmerican or quasi-treasonous to think or argue one set of political views or affiliations is superior to another set. Religion is like that as well.
9.25.2009 10:06am
ReaderY:
sory, more like freedom of speech than racial discrimination
9.25.2009 10:08am
PubliusFL:
David Schwartz: Surely it depends why he thinks that. If he has actually compared his ideas to that particular consultant's ideas and concluded they are better, then no. But if he concluded that his ideas must be better because he's white and the other guy is black, or because he's a Jew and the other guy is an atheist, then yes, he's a bigot.

Aren't religious ideas also ideas?

One law professor has compared his ideas on constitutional interpretation (using the text of the Constitution itself!) to the ideas of another law professor and concluded that they are better. The other law professor places more weight on the authority of the Supreme Court to interpret the Constitution over the centuries, and is fairly confident in the superiority of his own interpretation. So that's not bigotry, right?

So when Paul Protestant and Carl Catholic have a disagreement on a point of religious doctrine (one relying on the text of the Bible alone -- as he understands it -- and the other relying on the centuries-old traditions of his Church to guide interpretation of the Bible), and each believes that his position is better-founded and actually correct, that's bigotry?
9.25.2009 10:14am
PubliusFL:
In other words, what ReaderY said while I was typing. :)
9.25.2009 10:15am
Ken Arromdee:
One can't change ones race, but one can change ones religion.

Yes, but imagine a trust which says the family member may not marry a black person. While you can't decide what race you are, you can decide what race you will marry. It's still considered bigoted.

The testator could have given all his money to those of his grandchildren who supported the Democratic Party in his will, and we wouldn't have called him a bigot for thinking the Democratic party superior to the Republican.

That's because while religion is a choice, the idea that we choose religions like political views is a fiction. Religions are chosen for reasons which are fundamentally personal and have, in practice, almost nothing to do with the marketplace of ideas.
9.25.2009 11:03am
Ken Arromdee:

So when Paul Protestant and Carl Catholic have a disagreement on a point of religious doctrine (one relying on the text of the Bible alone -- as he understands it -- and the other relying on the centuries-old traditions of his Church to guide interpretation of the Bible), and each believes that his position is better-founded and actually correct, that's bigotry?


I would say that this isn't bigotry, but that it also isn't a lot like the religious differences we're discussing. Big religious conflicts are really about what tribe we're in and who gets to count as an in-group and an out-group. Religious conflicts may cause disagreements about particular propositional or logical statements, but those are side issues.
9.25.2009 11:16am
George Smith:
Dilan must never have power.
9.25.2009 11:18am
PubliusFL:
Ken Arromdee: That's because while religion is a choice, the idea that we choose religions like political views is a fiction. Religions are chosen for reasons which are fundamentally personal and have, in practice, almost nothing to do with the marketplace of ideas.

That varies from person to person. Some people choose their religious beliefs in very much the same way as others form their political beliefs. Conversely, for some people political identification has little to do with the marketplace of ideas (e.g. "my pappy was a Democrat, my grandpappy was a Democrat, and by God I'm a Democrat too!").
9.25.2009 11:20am
PubliusFL:
Ken Arromdee: I would say that this isn't bigotry, but that it also isn't a lot like the religious differences we're discussing. Big religious conflicts are really about what tribe we're in and who gets to count as an in-group and an out-group.

In a case like this, does it matter whether the religious exclusion is motivated by a "big religious conflict" or a small one? Should the probate court try to figure that out? For example, if it were a Catholic's will saying the grandkids can't marry Protestants, should the court look into whether the decedent was like my example of Carl Catholic (therefore making the exclusion like ReaderY's hypothetical grandfather restricting his legacy to those of his grandchildren who support the Democratic Party) or the decedent was motivated by tribal-type sectarian impulses like those that simmer in Northern Ireland and the Balkans (Catholic Croats v. Orthodox Serbs)? Note that in Mr. Feinberg's case, converts to Judaism were fine (grandchildren's spouses didn't have to be ethnically Jewish).
9.25.2009 11:35am
JJ799:

'The estate will not reward grandchildren that marry outside their ethnicity'

'The estate will not reward grandchildren that marry outside Catholicism'

'The estate will not reward grandchildren that marry outside Judaism'

'The estate will not reward grandchildren that marry outside their race'

Three of these statements elicit mainstream social judgments of 'How bigoted!', one elicits '...to reward values most cherished'. Discuss.


I'm pretty sure the racial one is the only one that the mainstream would judge as "bigoted". It's acceptable to care about religion; it's not acceptable to care about race. I don't think people are normally considered bigoted for wanting to pass on their Catholic or ethnic heritage any more than they are for wanting to pass on their Jewish heritage.

Of course, there are significantly different concerns about intermarriage between Catholicism and Judaism. No one is born Catholic, and Catholics constitute a significant percentage of the US. Jews constitute < 1%, and very few children of Jews who intermarry pass on the faith or traditions.
9.25.2009 12:29pm
Dilan Esper (mail) (www):
I understand your firm faith that your beliefs about religion are correct and superior to other people's religious beliefs. I understand the firmness of your faith leads you to label those who believe differently from you with some rather choice epithets. I won't argue your particular choice.

The absence of religion is not a faith, any more than the absence of coin collecting is a hobby.

Seriously, this is an argument made by rationalizing religious people, who like to pretend that the people who criticize religion are believing in a bunch of BS just like they are.

By the way, I make no claim that there is no God. I have no idea. And neither do you. It is pretty clear, however, that the various particular claims made about God by various religions are complete bunk.
9.25.2009 1:08pm
Dilan Esper (mail) (www):
Dilan, a question for you. Four of Feinberg's grandchildren chose to marry outside of their religion which means that one did not. Is that one grandchild a bigot?

Insufficient data. A person who marries in the faith to his or her chosen partner is no bigot. A person who marries in the faith because his or her parents force the person to is also no bigot.

A person who refuses to associate with people outside of his or her own religion or ethnicity, of course, would be a bigot.
9.25.2009 1:09pm
Dilan Esper (mail) (www):
If one's theology is such that one believes that God has commanded one to only marry a certain sort of person, e.g., a member of the opposite sex, a Jew, a believer, etc., how does believing that God has made such a command constitute bigotry?

Yes. If you think God commanded bigotry and you must follow it, that's still bigotry. Indeed, many justified slavery and segregation, and many still justify gay bashing, on religious grounds.
9.25.2009 1:10pm
Dilan Esper (mail) (www):
Aren't religious ideas also ideas?

They are both ideas (false ones) and a protected class.

And the best way to draw the distinction is between personal belief and imposition on others.

As long as a person is personally believing that his or her religion is superior, no problem. Indeed, that's part of what it means to be a believer.

But when a person tries to impose that religion on somebody else who doesn't want it imposed on him or her (with the background assumption being there is something superior about your God as opposed to someone else's), that's religious bigotry.
9.25.2009 1:13pm
David Schwartz (mail):
So when Paul Protestant and Carl Catholic have a disagreement on a point of religious doctrine (one relying on the text of the Bible alone -- as he understands it -- and the other relying on the centuries-old traditions of his Church to guide interpretation of the Bible), and each believes that his position is better-founded and actually correct, that's bigotry?
Why do you insist on conflating cases where people are judged on their individual beliefs with cases where people are judged based on their membership in a religious or racial group?

If Paul Protestant judges Carl Catholic based on his individual views of religious doctrine, then no, that is not bigotry. When Paul Protestant says he doesn't want his daughter to marry *any* Catholic, that is bigotry. This would be akin, in the idea example, to arguing that the ideas of every Catholic are superior to the ideas of every non-catholic, which is bigotry.

Bigotry involves judging the suitability of individuals based on their membership in a group rather than their individual attributes.

Dilan, a question for you. Four of Feinberg's grandchildren chose to marry outside of their religion which means that one did not. Is that one grandchild a bigot? Based on your view that Feinberg is a bigot, then if the grandchild follows his wishes (for whatever reasons) then it seems to me (using your logic) that the grandchild is just as guilty as grandpa.
No. If you pander to other people's bigotry (assuming that's what happened) that may be condemnable on other grounds, but it is not itself bigotry. Bigotry is about judging people based on their membership in a religious or racial group.

(And just for the record, I have not taken the position that opposing interfaith marriage by one's children is necessarily bigotry. Please don't assume that because I disagree with an argument intended to establish X, that means I believe not-X.)
9.25.2009 1:32pm
David Schwartz (mail):
Sorry to follow up on myself, but my parenthetical at the end seems to conflict with my statement, "When Paul Protestant says he doesn't want his daughter to marry *any* Catholic, that is bigotry.". To clarify, what I meant was that this doesn't have the defect that the examples have that prevent them from being necessarily examples of bigotry.
9.25.2009 1:35pm
Avatar (mail):
To me, the interesting case would have been the obverse.

In this case, Erda had a power of appointment and used it. We might say "she used it in a distasteful fashion," but well, that's up to her.

But what if she hadn't? If she'd said "forget what your father said, kids, marry who you like," and not disinherited any of them? Clearly she'd be acting against the instructions in the will, but eh, if it's her choice the one way, it's her choice the other way.

Now say that the one of five grandchildren was miffed. Would he be able to sue to have the other four grandchildren disinherited, not according to Erda's choice, but according to the original instructions? It sounds like the state court wants to signal "no, we won't enforce that sort of thing" without actually saying it...
9.25.2009 1:53pm
PubliusFL:
Dilan Esper: But when a person tries to impose that religion on somebody else who doesn't want it imposed on him or her (with the background assumption being there is something superior about your God as opposed to someone else's), that's religious bigotry.

Funny type of imposition. The imposition in this case is "I will give you a bunch of money if you act in accordance with my beliefs, but not if you don't." There is no entitlement to the money. If this is the kind of imposition that constitutes bigotry, is it bigotry for someone to give to a religious charity (without giving to charities from all other religions)?

David Schwartz: Why do you insist on conflating cases where people are judged on their individual beliefs with cases where people are judged based on their membership in a religious or racial group?

Because I'm trying to explore whether "religious" is more like "racial" or more like "political." Just as with religion, someone could engage in line-drawing based on specific political beliefs or based on membership in groups that serve as a proxy for sets of beliefs. If Ron Republican says his grandchildren won't inherit if they marry *any* Democrat, rather than judging potential spouses based on "individual views of [political] doctrine," would you say that's "akin, in the idea example, to arguing that the ideas of every [Republican] are superior to the ideas of every [Democrat], which is bigotry"?
9.25.2009 2:07pm
Lymis (mail):
While the bigotry discussion is fascinating in context, I can't help but wonder whether you're having it for it's own sake or in response to the point of the thread.

Other than illegal, criminal, or fraudulent things, I don't see a legal reason to prevent a bequest going (at death) to whoever or whatever the testator chooses, for whatever reason.

In other words, it doesn't matter if it is bigotry. It doesn't matter if it is frivolous. And it doesn't matter if it is distasteful.

If an insanely wealthy person wants to thumb his nose at the whole sorry lot of his slavering potential heirs and chooses to give his entire multi-million dollar estate to ferret rescue, or to endow a chair in Papier Mache studies, or whatever, then so be it.

If he wants to donate to the Klan, or to the Society for the Advancement of Just-Barely-Legal-But-Who-Are-We-Kidding Love, again, or whatever, then so be it.

If he wants to will it only to heirs that are naturally blonde, or taller than 6 foot, or who marry Jewish people, so what?
9.25.2009 2:08pm
Dilan Esper (mail) (www):
If he wants to will it only to heirs that are naturally blonde, or taller than 6 foot, or who marry Jewish people, so what?

This really depends on how you view the function of the probate process.

To some people, it's simply a natural right to leave your money wherever you wish when you die.

To others, the state of nature is the vultures picking at your corpse, and you only get to leave your money wherever you wish because the state provides you with that right, and because of that, the state can exact conditions, whether it be in the form of an estate tax or in the form of restrictions on gift conditions that violate public policy, on the exercise of that right.

And further, within that second group are people who (like me) believe that the probate process is infused with state action and thus that the normal prohibtions against discrimination against protected classes apply.

But you are right, it is a perfectly defensible position (even though I don't hold it) to say that this is really just about the right to leave your money to whoever you want to.
9.25.2009 2:18pm
ReaderY:


Seriously, this is an argument made by rationalizing religious people, who like to pretend that the people who criticize religion are believing in a bunch of BS just like they are.


Here we get to the heart of the matter. It's one thing to say that unlike you, who know the truth about religion, what religious people believe and do is a bunch of BS. That's a personal belief, that's fine. You can make any argument for the superiority of the true position you want.

It's another thing to say that the state should act against the people who believe the BS, not just by labeling the BS'ers "bigots" but by treating them as bigots in its laws, such as by forbidding them to take their BS into consideration in deciding how they make their wills.

The difficulty here is that the constitution's Religion Clauses really do "rationalize" the religious BS'ers in just the way you object to. They really and truly do put the BS'ers on the same level as the rational, reasonable folks who know the truth. They really and truly treat the truth and the BS pretty much the same. And more than that, they permit the BS'ers to perpetuate their BS, even letting them spend their money on it if they want, even putting it in their wills.

This freedom the BS'ers have imposes a limit on our ability to have a rational, reasonable, BS-free state. But it's a limit the Framers agreed to.
9.25.2009 2:23pm
Dilan Esper (mail) (www):
It's another thing to say that the state should act against the people who believe the BS, not just by labeling the BS'ers "bigots" but by treating them as bigots in its laws, such as by forbidding them to take their BS into consideration in deciding how they make their wills.

This is a strange thing to say. The law already treats religious people who want to hire only those of their own religion as bigots and forbids them from doing so. The law already treats religious people who want to rent rooms only to those of their own religion as bigots and forbids them from doing so. The law already treats religious people who wish to contract only with those of their own religion as bigots and forbids them from doing so. The law already treats religious people who would wish to impose a test on a public office to ensure that only those of their own religion will serve in the post as bigots and forbids them from doing so.

The question is whether there's something different about religious discrimination in inheritance versus all these other forms of religious discrimination.

The difficulty here is that the constitution's Religion Clauses really do "rationalize" the religious BS'ers in just the way you object to. They really and truly do put the BS'ers on the same level as the rational, reasonable folks who know the truth.

The Religion Clauses, properly interpreted, should ban governmental participation in religious discrimination, while protecting fully the right of people to practice their own religion.
9.25.2009 2:30pm
Seamus (mail):

Well, that just begs the question. Why a prohibition on marrying outsiders? It must be that the religion holds that outsiders are inferior, either ethnically or religiously.



No, it could simply be that the person issuing the prohibition is afraid that, if Jews keep marrying gentiles who don't convert, then after a while there won't be any Jews left, which would be a bad thing.
9.25.2009 2:36pm
Dilan Esper (mail) (www):
No, it could simply be that the person issuing the prohibition is afraid that, if Jews keep marrying gentiles who don't convert, then after a while there won't be any Jews left, which would be a bad thing.

Well, is it a bad thing that there aren't any worshippers of Greek Gods left? Or of Roman Gods?

Other than a belief that adherents of a particular religion are superior, why would one care about this?
9.25.2009 2:44pm
Seamus (mail):

It is religious bigotry to think that one's religion is superior to all the others.



I would think that, to the extent that any religion makes truth claims, an adherent of that religion would necessarily think that his religion conforms more closely to truth than do other religions and that it is therefore superior in that regard (even if not with regard to, say, the beauty of its liturgy, the educational achievement of its clergy, the friendliness of its congregations toward visitors, etc.). And if the adherent believes the truth of a religion is more important that the beauty of its liturgy, the educational achievement of its clergy, the friendliness of its congregations towards visitors, etc., he will necessarily think his religion superior absolutely. If he didn't, that would mean he thought some other religion was truer, in which case you'd expect him to become an adherent of *that* religion.
9.25.2009 2:46pm
ReaderY:
The court noted that only spouses and children have a nonterstamentary right to inherit, and essentially said that people with no intestate rights to inherit can never have an interest in having a will declared against public policy, because if the will is voided they get nothing anyway.

This would seem to be a standing issue; I'm not clear why the court nonetheless decided the case on the merits.

The court had said that most of the precedent the Court of Appeals had relied on had applied to the case of a will requiring that an heir divorce an existing harmonious marriage, and noted that public policy only prohibits a testator from demanding a divorce or imposing restrictions that effectively prevent marrying at all, but does not prevent restrictions that merely limit the pool of eligible spouses.

The courst said that in the main non-divorce case the Court of Appeals had relied on, the executor of the will had essentially committed a kind of fraud. The will had contained a provision requiring the children to wait until age 21 to marry and making a son executor. A daughter had asked the son for if it would be OK to marry 4 months before 21 and he had given pemission without telling her of the will's provisions. The case found no problem with the legality of the age 21 restriction, but found that the son had acted based on his personal interest in the matter to take more of the estate for himself rather than out of intent to enforce his father's wishes, and had acted wrongly by not truthfully informing his sister of the will's provisions. Thus, the case provided no support for a claim that the Illinois would void a will in a case where the executor was acting in good faith and reasonably consistently with the testator's intent.
9.25.2009 3:25pm
Suzy (mail):
EMG, you have it exactly right. Dilan, you say: "one ethnic or religious group could be assimilated (as happens all the time) and the species isn't going anywhere." Does that ring any sort of bell? Are there, say, any relevant cases of "assimilation" that spring to mind here? Any other relevant historical groups who would have embraced your comment with good cheer? I'm just going to call your remark "insensitive" rather than offensive, since I doubt the implications even crossed your mind. However, you might ponder this, if you really can't find the difference between "superior to" and "the world suffers from having none of".

If I say that the world contains ten equally worthless, bothersome things, and one is lost, there's no problem. If the world contains ten equally valuable, agreeable things, and one is lost, it's unfortunate. It is your pre-judgment of the value of religion--and more importantly, your insistence that others accept it--that blinds you to the difference here.
9.25.2009 5:23pm
David Schwartz (mail):
Now say that the one of five grandchildren was miffed. Would he be able to sue to have the other four grandchildren disinherited, not according to Erda's choice, but according to the original instructions? It sounds like the state court wants to signal "no, we won't enforce that sort of thing" without actually saying it...
I would hope the court would say that there's nothing they can do. They can't be the arbiter of such things. The will has to specify an arbiter and can give the arbiter guidelines.

Because I'm trying to explore whether "religious" is more like "racial" or more like "political." Just as with religion, someone could engage in line-drawing based on specific political beliefs or based on membership in groups that serve as a proxy for sets of beliefs. If Ron Republican says his grandchildren won't inherit if they marry *any* Democrat, rather than judging potential spouses based on "individual views of [political] doctrine," would you say that's "akin, in the idea example, to arguing that the ideas of every [Republican] are superior to the ideas of every [Democrat], which is bigotry"?
I would say so in this example, though it would be a complex and close call, admittedly a value judgment on my part. For example, if they disinherited for marrying a communist or Nazi, I would not consider it bigotry.

Saying you'd prefer a Jew to fill the vacant Rabbi position isn't really bigotry either, is it? Because I think there's an objectively-valid point that Jews make better Rabbis than non-Jews.

There is not a formal test for whether something is bigotry any more than there's a formal test for whether something is a cause of something else. It's a complex, case-specific inquiry and, in some cases, admittedly a value judgment.
9.25.2009 5:25pm
David Schwartz (mail):
If I say that the world contains ten equally worthless, bothersome things, and one is lost, there's no problem. If the world contains ten equally valuable, agreeable things, and one is lost, it's unfortunate. It is your pre-judgment of the value of religion--and more importantly, your insistence that others accept it--that blinds you to the difference here.
Even if that's true, so what? Calling something bigotry will always require a value judgment, and simply pointing out that there is a value judgment doesn't refute it.

Is it bigotry to refuse to consider a horse to fill that waitressing position that just opened up? I mean, isn't is specieism to think that no horse can be a good waitress?

To cause your precious, scarce children potential misery by burdening their decision to spend the rest of their lives with the person they love to make an insignificant contribution to preserving your religion is bigotry. And yes, that's my value judgment based on the relative value of preserving your religion compared to your children's happiness.
9.25.2009 5:29pm
Dilan Esper (mail) (www):
EMG, you have it exactly right. Dilan, you say: "one ethnic or religious group could be assimilated (as happens all the time) and the species isn't going anywhere." Does that ring any sort of bell? Are there, say, any relevant cases of "assimilation" that spring to mind here? Any other relevant historical groups who would have embraced your comment with good cheer? I'm just going to call your remark "insensitive" rather than offensive, since I doubt the implications even crossed your mind.

This is basically a very stupid interpretation of my statement. The Romans are no longer around. Nor are the Greeks. Nor are the Babylonians. Nor are the Mongols. Many White-European Ethnic cultures have been assimilated into America. Do we mourn any of that? Do we miss it?

The reason why genocide / ethnic cleansing / violence against ethnic groups is wrong is because it is an attack on HUMAN BEINGS. It kills HUMAN BEINGS. And human beings born into this world have a right to exist and to flourish.

But a pure attack on "culture", or its assimilation into another culture, kills nobody.

It is just idiotic to equate the two things.

If I say that the world contains ten equally worthless, bothersome things, and one is lost, there's no problem. If the world contains ten equally valuable, agreeable things, and one is lost, it's unfortunate.

But I doubt this is how folks think who advocate religious discrimination. I doubt, for instance, that these folks think that Islam or Voodoo or Pastafarianism is equal to their own beliefs.
9.25.2009 5:30pm
Suzy (mail):
Seamus writes:

I would think that, to the extent that any religion makes truth claims, an adherent of that religion would necessarily think that his religion conforms more closely to truth than do other religions and that it is therefore superior in that regard

That's exactly what Dilan wants to argue, I imagine, because he thinks that any religious claim is bunk, and that valuing any religious tradition is an inherently bigoted act of superiority. As opposed to, say, being a libertarian or virtue ethicist or thinking that cats make the best pets. The demand for ideological purity is staggering.
9.25.2009 5:38pm
Dilan Esper (mail) (www):
That's exactly what Dilan wants to argue, I imagine, because he thinks that any religious claim is bunk, and that valuing any religious tradition is an inherently bigoted act of superiority. As opposed to, say, being a libertarian or virtue ethicist or thinking that cats make the best pets. The demand for ideological purity is staggering.

There's no demand for ideological purity. It's very simple:

1. Believe anything you want to.
2. Don't push your beliefs on anyone who didn't ask you to, and don't punish anyone who believes differently than you do.

Now, where's the ideological purity in that?
9.25.2009 5:43pm
ohwilleke:
I already dreamed of a world with a 100% estate and gift tax, and here's yet another reason!


FWIW, a 100% estate and gift tax is where the law of property got started in English law (and the law of many other countries). The right to leave property to heirs (initially as determined by statute) at all arose only haltingly and piecemeal, and the generalized right to leave property to whomever one wishes in whatever manner you wish is a relatively recent and not universal idea.

One need go no further than Mexico to find inheritance laws that direct the persons to whom you must leave your property at death in the absence of good cause, and most U.S. states afford spouses some sort of right to inheritance. Community property states give spouses rights as they go along.

The American nearly complete discretion model has its faults. Most notably, in the case of those who are very wealthy, it makes possible vast changes in who inherits something based on the last stated whims of people who are often at the lowest level of intellectual capacity that they have had since they were children. Courts regulate incapacity, but only on the margins.
9.25.2009 6:30pm
Rich Rostrom (mail):
Hey, Dilan:

I've made a condition that my heir will inherit only if he

Served in the U.S. military.
Has not served in the U.S. military.
Graduated from college.
Graduated from Baylor University.
Pledged Kappa Alpha Theta at Baylor University.
Has no biological children.
Has two or fewer biological children.
Has at least one biological child.
Has at least three biological children.
Has not had a child out of wedlock.
Has climbed a mountain over 16,000 feet high.
Has passed the Ohio state bar.
Has qualified as a SCUBA diver.
Has an airplane pilot's license.
Has learned to play a musical instrument.
Has never left the territory of the United States.
Has spent at least one month in ten different countries.
Has hunted and killed a deer.
Is fluent in Irish Gaelic.
Is fluent in Navajo.
Has been a vegetarian for at least a year.
Has made aliyah to Israel.
Has made the haj to Mecca.

Which of these conditions would be "bigoted"?
9.25.2009 7:38pm
Dilan Esper (mail) (www):
Hey Rich:

Think about discriminatory intent, based on a protected class, and get back to me.
9.25.2009 7:46pm
David M. Nieporent (www):
Well, is it a bad thing that there aren't any worshippers of Greek Gods left? Or of Roman Gods?

Other than a belief that adherents of a particular religion are superior, why would one care about this?
Is it a bad thing that there aren't any speakers of Navajo (*) left? Other than a belief that speakers of a particular language are superior, why would one care about this?

Do you really not grasp that people can want to preserve their heritage/culture without thinking their heritage/culture is "superior"? If you don't, you'll just have to trust me: it's true. Whether you understand it or not.



(*) Yes, I know there actually are. Who cares; it's just an example.
9.25.2009 10:45pm
David M. Nieporent (www):
So if I want to keep grizzly bears from going extinct, it's because I think they're superior to other animals?

No, but the difference is, one ethnic or religious group could be assimilated (as happens all the time) and the species isn't going anywhere.

Differentiation among species isn't bigotry (unless you are Peter Singer). Differentiation among relgious and ethnic groups is.
Ipse dixit.
9.25.2009 10:48pm
David M. Nieporent (www):
This is basically a very stupid interpretation of my statement. The Romans are no longer around. Nor are the Greeks. Nor are the Babylonians. Nor are the Mongols. Many White-European Ethnic cultures have been assimilated into America. Do we mourn any of that? Do we miss it?
Some people do, yes. But that misses the point; the point isn't whether a non-Babylonian would miss the Babylonians, but whether a Babylonian would.
The reason why genocide / ethnic cleansing / violence against ethnic groups is wrong is because it is an attack on HUMAN BEINGS. It kills HUMAN BEINGS. And human beings born into this world have a right to exist and to flourish.

But a pure attack on "culture", or its assimilation into another culture, kills nobody.
So what? If you're not dead, you haven't been harmed? So by your logic, the separation of church and state is no big deal; forced conversion is no big deal. After all, since no religion is better than any other, it doesn't matter which religion the government supports or which one you're part of.
It is just idiotic to equate the two things.
And yet, the Genocide Convention does just that. It treats the attempt to wipe out an ethnic group by killing its members or by taking its children and raising them as members of another ethnic group to both be violations.
9.25.2009 10:55pm
David M. Nieporent (www):
It's very simple:

1. Believe anything you want to.
2. Don't push your beliefs on anyone who didn't ask you to,
Why not? If all beliefs are equal, then people aren't harmed by having your beliefs pushed on them.
9.25.2009 10:57pm
HoyaSaxa:
David M. Nieporent: "Ipse dixit." Brilliant! The term perfectly captures Dilan's (ironically) bigoted, and not very intellectually-serious, posts. So far, Dilan has proven himself to be the Mr. Ipse Dixit poster child. One could simply reply to each (or at least almost all) of Dilan's above posts with nothing more than an "ipse dixit," and the rest of us would nod in agreement at our monitors and move on to more cogent comments.
9.26.2009 2:19am
Suzy (mail):
I'm honestly a little shocked by this: "Do we mourn any of that?" Yes, actually, we do! Very much! When so many people are wiped out by genocide and their culture is subsequently fragmented and weakened and then lost, we do and should mourn this. There is no such thing as a "pure attack on culture" when it comes to Judaism. That's the crucial point you seem to be missing.

Trying to ensure that your cultural history and religious tradition will survive, rather than be wiped out, is hardly religious bigotry. Religious bigotry is what leads to the wiping out! A dying man is worried about preserving his traditions, after living through a time when evil forces were actively trying to destroy them, with horrible success. And you ask, how dare he be so superior? I would ask, instead, what makes you think that a man like this one does NOT think that other religious traditions are equally valuable to his own? Just because he's less concerned that they will vanish?

You do indeed believe in punishing people who believe differently than you when they behave in ways you consider unethical. And you're fine with pushing your beliefs on people or even a whole society: ideas about human rights that you just mentioned, for example. You just recoil at the idea that religious belief in particular could be valuable to anyone. That's the ideological purity I speak of.

The other disturbing thing is that you don't seem to care about the destruction of entire cultures that are incredibly valuable and meaningful to people, but you care so much more about the idea that some kids aren't going to get some money that isn't theirs in the first place! So a childish sense of financial entitlement is okay, but mourning the loss of a unique cultural history is not? Weird values. Don't try to push them on me or my country's system of laws, ok?
9.26.2009 3:09am
Dilan Esper (mail) (www):
And yet, the Genocide Convention does just that. It treats the attempt to wipe out an ethnic group by killing its members or by taking its children and raising them as members of another ethnic group to both be violations.

This is criminally idiotic. The genocide convention prohibits forcing people into a culture without their consent. Therefore, the poster will use that logic to argue that, eh, forcing people into a culture without their consent is a basic freedom of man.

Really smart there.
9.26.2009 3:48am
Dilan Esper (mail) (www):
I'm honestly a little shocked by this: "Do we mourn any of that?" Yes, actually, we do! Very much! When so many people are wiped out by genocide and their culture is subsequently fragmented and weakened and then lost, we do and should mourn this.

Suzy, here's a hint. Do you think it would have been any better if Hitler had taken 6 million random people and thrown them in the ovens? Would that be defensible in a way the actual Holocaust wasn't?

And if your answer is "no" (as of course it is), then you might think about the fact that what made the Holocaust really evil was that it was a GIGANTIC MASS MURDER, and that cultural assimilation is not one.
9.26.2009 3:50am
David Schwartz (mail):
Why not? If all beliefs are equal, then people aren't harmed by having your beliefs pushed on them.
Isn't this obviously completely false?

Suppose you have to choose one of two doors. You have no idea what is behind either door, they're both equally good as far as you know.

Your father says he has a strong feeling the left door is the right one, and he will feel hurt if you don't go with his sense -- after all, you have no reason not to pick that door. The problem is when your mother has the same feeling about the right door.

True, neither one alone is a problem. You can simply choose that door (what do you care which door you choose?). But you cannot satisfy both of them.
9.26.2009 9:26am
Lymis (mail):
Again, so what?

If someone leaves their money, or a portion of it, to the Republican Party, it is likely because they think it is superior to the other choices.

Maybe that it bigotry, and the deceased felt that all Democrats, etc, were subhuman mouth-breathers out to destroy humanity. Maybe it is because the deceased actually believed in the policies and programs of the Republican Party and wished to see it continue and prosper. Maybe it was just to stick it to his mother-in-law, a lifelong Democrat, knowing she would hate him even more for the choice.

What legal difference does that make?
9.26.2009 10:44am
PubliusFL:
Dilan Esper: Therefore, the poster will use that logic to argue that, eh, forcing people into a culture without their consent telling people you'll give them a bunch of money if they embrace your culture, but not if they don't is a basic freedom of man.

FTFY
9.26.2009 11:34am
Lymis (mail):
As far as all religious belief automatically requiring bigotry by definition, phooey.

People are equating preference with bigotry. The bigotry doesn't lie in someone's preference, but in how they deal with other people's freedom to make similar choices, and in their value judgements about people who choose otherwise.

It is perfectly possible to decide, for whatever reason, that a religious tradition suits you without automatically feeling vehemently that other people's religious choices are wrong for them. Not even if they work, or contribute, for the preservation or advancement of their own team.

Someone who loves opera but doesn't care for NASCAR isn't automatically a bigot. If they announce that only stupid people like racing, refuse on principle to associate with anyone known to have been to a race, or base hiring decisions on it, then yes.

But an opera loving grandfather who announces that he will pay for season tickets to the Met for any of his grandkids who want one, while not offering to buy season tickets to the races for those who don't isn't automatically a bigot.
9.26.2009 12:26pm
Suzy (mail):
But Dilan, it wasn't random people. It was Jewish people, and others. So we live in THAT world right now, and it affects how we feel about the value of preserving a tradition that people did their best to destroy, because of their bigotry.
9.26.2009 2:52pm
ReaderY:
The United States is also a civilization or culture, just like the Babylonians or Judaism. If the dissappearance of cultures or civilizations ought to be of no concern to their members, than the dissappearance of the United States ought not to mean any more to U.S. citizens than the dissappearance of Babylonia to Babylonians or Judaism to Jews. Doubtless other countries will replace it and the species will go on.

If this is the case, than shouldn't the idea of a citizen having a duty or loyalty to the United States also be regarded as nothing more than a form of bigotry?

Suppose a father who obeyed a U.S. currency transfer embargo by not leaving money to a child living in a country with whom the United States had such an embargo. Such a father is putting loyalty to the United States, a mere "culture or civilization", over loyalty to his own children.
9.26.2009 10:35pm
ReaderY:
Is obeying a law a form of bigotry? Is its existence? Is it bigotry for the U.S. to have a foreign policy or for a citizen to obey it?
9.26.2009 10:37pm
Dilan Esper (mail) (www):
But Dilan, it wasn't random people. It was Jewish people, and others. So we live in THAT world right now, and it affects how we feel about the value of preserving a tradition that people did their best to destroy, because of their bigotry.

I will concede that if someone is saying "because the Germans almost wiped Jewish culture out, I want to pass it on", that person is not necessarily being bigoted. But the problem is that you still have the METHOD that the person wants to pass it on-- by disinheriting anyone who marries the person he or she loves.
9.27.2009 2:16am
David Schwartz (mail):
If this is the case, than shouldn't the idea of a citizen having a duty or loyalty to the United States also be regarded as nothing more than a form of bigotry?

Suppose a father who obeyed a U.S. currency transfer embargo by not leaving money to a child living in a country with whom the United States had such an embargo. Such a father is putting loyalty to the United States, a mere "culture or civilization", over loyalty to his own children.
You can't equate making a particular decision in a particular situation with making a general decision without knowing the situation.

"I won't hire this black guy because I don't think he can do the job" may or may not be bigotry, but "I won't hire any black guy because black guys suck at this kind of job" almost certainly is.
9.27.2009 9:41am

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