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Herb Rothschild Jr.: Distinctions that make all the difference

Lawmakers can and must make meaningful distinctions. Without that ability, we couldn’t institute the rule of law. Prohibiting any action would open the door to prohibiting all actions. But rarely do legislators start down “a slippery slope,” a common criticism of some proposed law.

Here’s an example of a real slippery slope as distinguished from an alleged one. It’s taken from an exchange I had with an opponent of the failed effort to end Oregon’s “personal and philosophical objections” to required vaccination of school children. She didn’t fault the bill, but she opposed it because more people would disrespect government. Doing so, she claimed, would start us down a slippery slope. I disagreed. It seemed to me that opposing the bill on the ground she cited was the real slippery slope. If it were taken as a general rule, lawmakers would have to oppose any bill to which fervent opposition was mounted. That would nullify their ability to make meaningful distinctions. There could be no weighing of the public benefit of a proposed law against the arguments of its opponents. Mere intensity of opposition would doom the bill — any bill.

True, it’s important to try to anticipate the practical consequences of a proposal. Our nation learned that the consequences of prohibiting alcohol were more damaging to the public welfare than its benefits, so the 21st Amendment was passed to overturn the 18th. Today we are engaged in a nationwide reassessment of the consequences of marijuana prohibition, and perhaps one day we’ll recognize that the ill consequences of all our drug prohibitions outweigh their benefits. But that is my own assessment of their benefits versus their costs. I don’t fault lawmakers for distinguishing between the relative harms of pot and meth. Legalizing the former, as some opponents of pot legalization argued, neither has nor should put us on a slippery slope to legalizing the latter and its ilk.

What prompted me to think about how essential the making of distinctions is to the making of laws was a speech Rep. Mike McLane (R-Powell Butte) gave in opposition to a bill the Oregon House passed on June 13 to curb sexual harassment in legislative offices. McLane contended that some of its provisions will obstruct free speech. “This body is not about protecting the feelings, the emotions of people. This body is about the expression of ideas, political thoughts, opinions. Even when those opinions are wrong or choices of words seem offensive, they have the right to be uttered in this Capitol.”

McLane will soon leave the House to become a judge. I hope he’ll apply such reasoning to any legal effort to curb public expression. But he has failed to make important distinctions. One is between a public space and a workplace. If I were to make a crudely suggestive remark to a woman at a bus stop, she could just ignore me or move away. But if she were my co-worker and especially if I were her supervisor, she wouldn’t have those options. Workplaces must be made safe. Another distinction is between kinds of opinion. Saying “I think you’re hot” isn’t in the same class as saying, “I think Trump should be impeached.” The first statement isn’t offered for discussion. Finally, there’s intent. Telling someone that you don’t like broccoli and telling her you like her body are both about your tastes, but the latter conveys an intention the former doesn’t; it’s harassment.

Let’s hope this bill makes it into law.

Herb Rothschild’s column appears in the Ashland Tidings every Saturday.

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