Month: June 2026

Way back in the summer of 2014, the United States Supreme Court struck down a Massachusetts law that forbid protestors from approaching within 35 feet of abortion clinics. The buffer zone law was established in response to acts of violence. Not surprisingly, the court based its ruling on the First Amendment, accepting that such a buffer zone violates the right of free expression of those wishing to protest or provide unsought counseling to those seeking abortions.

Though I am a staunch supporter of the freedom of expression, I do recognize that it has justified limits—especially when they protect the life, liberty and property of others. To use the stock examples, freedom of expression does not permit people to engage in death threats, slander, or panicking people by screaming “fire” in a crowded, non-burning theater.

While I recognize that a buffer zone serves a legitimate purpose in enhancing safety, I tended to agree with the court based on utilitarian considerations. The harm to freedom of expression arising from banning protest in public spaces exceeds the risk of harm caused by allowing the protests. But people who engage in threatening behavior should be removed, but that does not require a buffer law. But the arguments in favor of the buffer zone have merit—weighing the freedom of expression against safety concerns is challenging but can be debated in good faith.

Ironically, but as one would expect, the Supreme Court has its own buffer zone. There is a federal law that bans protestors from the plaza of the court. This buffer zone is legally justified by defining the plaza as not being public space. This is like how pro-gun legislatures ban guns from their workplace while ensuring that guns can be freely brought into most other places. There is, as far as I know, no requirement for consistency in the law. But morality usually requires such consistency, at least in the application of principles (although this can be debated).

A principle is consistently applied when it is applied in the same way to similar beings in similar circumstances. Inconsistent application is a problem because it violates three commonly accepted moral assumptions: equality, impartiality and relevant difference.

Equality is the assumption that people are initially morally equal and hence must be treated as such. Naturally, a person’s actions can affect the initially equality. For example, a person who commits horrible evil deeds would not be morally equal to someone who does predominantly good deeds.  Impartiality is the assumption that moral principles must not be applied with partiality. Inconsistent application would involve non-impartial application.

Relevant difference is a common moral assumption. It is the view that different treatment must be justified by relevant differences. What counts as a relevant difference can be very controversial. For example, while many people think that gender is not morally relevant to how much someone should be paid, there are those who disagree.  But relevant difference requires that principles be applied consistently.

Given that the plaza of the court is a space analogous to a sidewalk, then if free expression guarantees the right to protest in front of abortion clinics, then the same should apply to the plaza, even if allowing protests puts the court at risk. To grant protestors access to the sidewalks outside clinics while forbidding them from the plaza of the court would be an inconsistent application of the principle. The same can be said about protesting outside any federal building, such as a place conducting ICE operations.  But, of course, there is always a way to counter this.

One principled way  to counter this view is to show that an alleged inconsistency is merely apparent.  One way to do this is by showing that there is a relevant difference in the situation. If the Supreme Court wishes to morally justify their buffer while denying others their buffers, they must  show a relevant difference that warrants the difference in application. They could, for example, contend that a plaza is relevantly different from a sidewalk. One might point to a size difference and how it impacts protesting. They could also contend that government property is exempt from the law (much like certain state legislatures ban the public from bringing guns into the legislature building even while passing laws allowing people to bring guns into places where other people work)—but they would need to ground the exemption. Otherwise, it would just be defending an inconsistency with more inconsistency.

My view is that there is no relevant difference between the scenarios: if freedom of expression applies to the spaces around private property, it also applies to the spaces around state property (which is the most public of public property).

 

 

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Years ago, the Hobby Lobby decision by the Supreme Court of the United States raised numerous issues including one about beliefs and facts. Oversimplifying things for the sake of brevity, the owners of Hobby Lobby said they were opposed to abortion on religious grounds and they claimed to believe that certain forms of birth control are abortion. On this basis, they claimed that providing insurance to their employees that covered what they saw as abortion would violate their religious beliefs and impose an unreasonable burden.

As I tell my students in my ethics class, a moral issue often involves three main components. The first consists of the relevant facts. A factual matter is such that the claim being made is true or false regardless of how we think or feel about its truth.  For example, the mass of an object is a factual matter.  The second consists of the relevant concepts, which are often in dispute. Resolving such a dispute involves presenting and defending definitions of the key terms. In the Hobby Lobby case, a key concept is abortion. The owners of Hobby Lobby claimed that certain birth control methods are methods of abortion. This seemed to be because the owners claimed to believe that life begins at conception, and they seemed to reject the notion that pregnancy begins at implantation. 

If pregnancy begins at implantation (which is the scientific consensus), then the methods in question (specifically those which prevent implantation) do not involve abortion.  As such, the owners of Hobby Lobby would have held factual incorrect beliefs regarding these methods of birth control, and this would undercut their moral position. If their moral opposition is based on a factual error, it would seem to be unfounded.

However, if pregnancy begins at conception (which is not the scientific consensus), then these methods do involve abortion. In this case, the owners of Hobby Lobby would have been factually correct. But the question would remain as to whether their moral claims were correct. After all, a person can be right about the facts but be wrong about the morality, which leads to the third component, that of morality.

Obviously, a moral issue always has a moral component. In this case, the moral issue is whether abortion is morally wrong. The owners of Hobby Lobby claimed to believe this—but belief does not entail a claim is true. People  often sincerely believe false claims. Fortunately for the owners of Hobby Lobby, they did not need to argue their moral beliefs were correct or even plausible—they just had to convince the court that they believed what they claim to believe. Given the context, this is not unreasonable—after all, the issue addressed by the court was not whether abortion is morally wrong.

The owners of Hobby Lobby did not even need to argue for their factual claims and their concepts. They did not need to make the case that pregnancy occurs at conception and that the methods in question cause abortions.   Apparently, they merely needed to establish that they believe what they claim to believe. This raises an interesting general issue that goes beyond the specific Hobby Lobby case: should facts matter when considering cases involving value beliefs?

On the one hand, it can be argued that the facts should not matter—at least in the sense of requiring that the beliefs in question be proven. This can be based on practicality: religious beliefs would be difficult to prove, and this could be seen as imposing an impossible burden on those bringing legal cases involving their values. Also, legal cases about such beliefs are not about their truth but about the right to hold such beliefs.

On the other hand, it can be argued that facts do matter—especially when the beliefs have an impact on others. Returning to Hobby Lobby, the reasoning seems to have been that the owners should not be required to follow the law because they are opposed to abortion and they believe that the birth control methods cause abortions. If it is claimed that it does not matter whether the owners are right or wrong about actual claims, this establishes the general principle that the truth of the claims does not matter in such contexts. This raises the question of how far this principle should extend.

In the Hobby Lobby case, to say that the facts are not relevant might not seem serious. After all, the question of when life begins is one that is disputed and the Hobby Lobby owners could engage in a conceptual dispute over the definition of “abortion.” But suppose we accepted the principle that the facts do not matter, only the sincerity. This would entail that if the owners of Hobby Lobby claimed that paying women the same as men caused abortions, then all that would matter would be the sincerity of their beliefs. The fact that such a claim is obviously false and absurd would not matter. Once the principle that truth is irrelevant is accepted, then truth is irrelevant. If the owners could show they sincerely believed that equal pay for women would cause abortions, then the facts would not matter. One could argue that such absurd claims would not pass muster but a cynical person might point out that someone would just need to appear adequately sincere.

 

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To narrow the moral discussion, I am focusing children migrating to the United States who are not criminals. One reason for this is that the issue of whether criminals should be allowed to come here for the purpose of committing crimes has an easy and obvious answer.

As some Americans like to claim that the United States is a Christian nation, it is tempting to apply Christian ethics to the issue of whether children should be allowed to migrate to the country. While many professed Christians prefer a selective reading of the bible,  the book is clear about this issue: “Thus has the LORD of hosts said, ‘Dispense true justice and practice kindness and compassion each to his brother; and do not oppress the widow or the orphan, the stranger or the poor; and do not devise evil in your hearts against one another.’” The bible also enjoins people to “not mistreat or oppress a foreigner, for you were foreigners in Egypt.” Given these statements, it seems to follow that those who profess to practice Christian ethics would be morally (and religiously) obligated to show compassion and kindness to the children who are strangers and foreigners.

There are those who take these injunctions seriously and act accordingly. However, there are others who profess faith but do not heed the words: “But they refused to pay attention and turned a stubborn shoulder and stopped their ears from hearing.…” To be fair and balanced, they might sincerely believe that Christian ethics is limited to the values they happen to like.

Alternatively, a person could profess they embrace Christian ethics but contend these principles are overridden by more important concerns. One possible line of argumentation is to point out that children who arrive here illegally should not be given the full measure of compassion but sent back to their place of origin. Another line of argumentation is utilitarian: though extending kindness and compassion to migrant children would be laudable, this would require resources that are either unavailable or would be better used elsewhere (such as helping poor Americans). On this view, utilitarian ethics or practical concerns would trump religious based ethics.

There are non-Christians and those, though professing to be Christians, explicitly reject the principles mentioned above. Such people would need other reasons to believe that migrant children should be treated with compassion and kindness.

One option to appeal to a principle of moral debt: when someone has been harmed, the wrongdoer has an obligation to set matters right. While children migrate for various reasons, many from Central America migrate to escape violence and crime. This claim can be challenged—one could argue that the children are sent to the United States for other reasons, such as better economic opportunities. Some of these arguments have merit and must be given due consideration. After all, if children are coming to the United States illegally to escape danger and death, then that is very different morally than if they are coming to have a better life.

But it seems reasonable to think that some of the children are fleeing danger. An obvious concern is why this might obligate the United States to allow them to stay. One answer, as noted above, is to appeal to a moral debt owed by the United States. Some might wonder what the foundation of such a debt might be. There are two easy and obvious answers to this.

The first is that the United States has a well-documented history of political and economic machinations in the region. These include toppling governments, supporting death squads, and other such nefarious deeds. In short, the United States has significantly contributed to the conditions that threaten the children of the region with death and danger. Fairness does, of course, require noting that the United States has not been alone in its adventures in the region (the Cold War helped shape much of the current situation) and some instability and chaos is self-inflicted. Given the United States’ role in creating the current situation, we owe a collective debt, and this would obligate us to addressing the consequences of these past actions.

The second is that a significant cause of violence in the region is the production and distribution of drugs. While there is some local consumption, the people of the United States are a primary market for the drugs produced in this region and the war on drugs pursued by the United States has been even more disastrous in Central and South America than it has been in the United States. Given our role as drug consumers and our war on drugs, the United States is  a major contributor to the violence and danger of the region. Since we are doing wrong, this would create an obligation on our part towards the children that are fleeing the situation we helped to create and continue to sustain.

To use an analogy, if affluent outsiders wreck a neighborhood and are the prime customers for a drug industry that arises there, then the outsiders are moral accountability. If children try to flee the ruins of that neighborhood and head into the affluent neighborhood, it would be wicked of those people to insist on sending them back into the mess they worked so hard to create and maintain.

 

 

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