The Patron Saint of Superheroes

[Guest co-blogger Nathaniel Goldberg and I examine a recent Supreme Court decision in terms of sequels and retcons, two pop culture concepts we explore in our new book Revising Fiction, Fact, and Faith: A Philosophical Account.]

Responding to the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, the National Review wrote in an editorial: “The Supreme Court Redefines Sex.” Others have also used “redefine” to explain the Court’s action. They’re understanding Justice Gorsuch’s majority opinion as an update from previous findings. “Sex” used to mean one thing. With Bostock, it came to mean something else. In fiction, at least if we’re talking about serial works, we’d call Bostock a sequel. It continued the discussion of sex by giving it a new meaning, as a sequel continues the discussion of a hero by giving them a new adventure.

Sequel, however, doesn’t really describe things here.

That’s because, according to Gorsuch’s majority opinion, the Court didn’t redefine anything. Instead, the Court’s ruling was based on “the straightforward application of legal terms with plain and settled meanings.” The ruling merely acknowledged that sexual orientation and gender identity are inseparable from sex. Gorsuch’s opinion was reinforced by Justice Kavanaugh’s dissent, criticizing the majority for taking a “literalist” approach to Title VII language of the Civil Rights Act of 1964.

(In fact, Gorsuch’s opinion matches the “Brief of Philosophy Professors as Amici Curiae in Support of the Employees,” signed by 80 philosophers and arguing that sexual orientation and gender identity are categories “partially defined by sex and cannot logically be applied to any individual without reference to that individual’s sex.”)

Yet, in a separate dissent, Justice Alito also correctly observed that gender identity was a concept “essentially unknown at the time” that the 1964 law was written. Is not knowing something the same as that something not existing?

A philosophical distinction helps. The Justices might not be disagreeing about metaphysics, or facts about the way things are. Maybe they all agree that sexual orientation and gender identity are inseparable from sex. After all, being a lesbian means being female by sex and attracted to others of the same sex. Being transgender means being someone whose gender differs from their sex. The Justices also probably aren’t disagreeing about epistemology, or facts about what the authors of the 1964 law knew. The other justices likely all agree with Alito.

Rather, the justices are almost certainly disagreeing about whether epistemological facts (who knew what when) are more important than metaphysical facts (sex is inseparable from sexual orientation and gender identity). It’s a question of priority. Which is more important: what was known or what is the case—epistemology or metaphysics?

While at least Alito opted for epistemology, the majority opted for metaphysics. As Gorsuch argued: “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” The authors of the law referred to sex, which as a matter of metaphysical fact is inseparable from sexual orientation and gender identity. So the law refers to those too, even though the authors may not have known—let alone imagined—that it did.

In his 1980 book Naming and Necessity, philosopher Saul Kripke introduced the term “rigid designator.” A rigid designator designates, or refers to, the same thing in all possible circumstances the thing exists in. And that’s independent of our knowledge of the thing. “Water” referred to H₂O in 1720, before people knew modern molecular theory, just as it refers to H₂O in 2020, when people do.

Kripke is a philosopher of language, and he aimed to show that certain kinds of words—names for people or kinds of things—are rigid designators. On his view, they refer to metaphysical facts, independent of epistemological ones. That, we suggest, is the majority’s reasoning concerning “sex.” The Supreme Court didn’t redefine “sex.” It merely determined that sexual orientation and gender identity are inseparable from what “sex” refers to. That follows from the “the straightforward application of legal terms with plain and settled meanings,” including the legal term “sex.”

If Kripke’s notion of rigid designation is right, and “sex,” like “water,” is a rigid designator, then the metaphysics of sex, like the metaphysics of water, stays fixed, independent of our knowledge of it. Add to this Kripke’s view that definitions are about metaphysics and not epistemology, and you have Gorsuch’s point. Bostock didn’t redefine “sex.” It merely determined that sexual orientation and gender identity are inseparable from what “sex” (already) means.

That’s Gorsuch’s conclusion, phrased in a philosophical key. The same conclusion can also be phrased in a literary-theoretical one. We’ve written elsewhere that rigid designators are essential to understanding the phenomenon of retconning.

“Retconning” is short for “making retroactively continuous.” Retconning happens all the time in serial fiction. Some metaphysical fact about some character is revealed later to be true, when in an earlier story no one would have accepted or likely even guessed at it. Retconning is also one way of understanding how legal decisions, including the Supreme Court’s, work. In 1896, the Court decided in Plessy v. Ferguson that racial segregation was constitutional. In 1954, the Court decided in Brown v. Board of Education of Topeka, Kansas that it wasn’t. Yet Brown wasn’t a decision only for 1954 onward. Brown retconned Plessy. According to Earl Warren’s majority opinion in Brown, racial segregation had never been constitutional. It’s just that, in 1896, the Court mistakenly thought that it was.

Retconning broadens our epistemology by revealing new things about already-existing metaphysics that, at the time, we would have been rejected. Modern science revealed that water had always been H₂O, even though no one in 1720 would have agreed (let alone understood). Brown revealed that racial segregation had always been unconstitutional, even though Plessy insisted that it wasn’t. And—to the present case—Bostock revealed that sexual orientation and gender identity had always been inseparable from sex, even though before Bostock not everyone realized that it was. While it’s surprising that the Court determined this 56 years after the law under review was written, it’s no more surprising than that the Court determined that racial segregation was unconstitutional 58 years after it had wrongly claimed otherwise.

That’s also why it’s not quite right to call Bostock a sequel to previous law, just as it wouldn’t be right to call Brown a sequel to Plessy. Sequels sometimes retcon what came before. But often they merely make what came before continuous, rather than retroactively continuous, with later findings or events. Brown didn’t continue Plessy’s findings. It revealed new things about Plessy that even its authors didn’t realize. Brown made Plessy retroactively continuous with it by declaring that, while it was decided correctly, Plessy had been decided incorrectly.

Back to the National Review. The editors claim that “it would have been better to leave the meaning of the law as it was when written and leave to Congress the decision of when and how to change it.” This is a misunderstanding of the ruling. The majority in Bostock did leave the meaning of the law as it was when written. They just broadened our epistemology by revealing that its meaning covered cases of sexual orientation and gender identity. That’s why Congress didn’t need to change it by writing a “sequel” law with a new definition. Bostock determined that no sequel, or continuation, was necessary, because the decision retconned “sex.”

First, I doubt there’s much I will add to this topic that’s not been said elsewhere, and so unless you know and are interested in me personally, there’s not much reason to read this. Also, if you are a member of the Facebook page Rockbridge Civil Discourse, which I co-founded and co-moderate, you may have already heard me express some version of this first part:

I do not advocate “erasing history.” Memorials (such as statues and named locations and institutions) are not a part of the history that they memorialize. They are a history of how history has been memorialized, and so they are like history textbooks, only harder to change. To the best of my knowledge, every statue of a Confederate leader (Lee, Jackson, Davis, etc.) is an explicit celebration, not a neutral presentation of historical facts. Even so, I don’t want them erased. I think statues should be preserved but not displayed except in a carefully curated space.

I also have no desire to “attack,” “denigrate,” or “vilify” Lee, Jackson, or anyone else who fought in the Confederacy. But not celebrating is not the same as attacking. Ceasing to celebrate is also not attacking. I understand that these individuals were complex human beings who possessed a mix of traits, including some positive ones. I do not want to reduce them to their negative traits. I do not want to judge them harshly or unfairly or anachronistically by my contemporary values. But I don’t want to glorify them either. I want to understand them as human beings, not as monsters or saints.

Lee and Jackson have been described to me as honorable, loyal, brave, humble, ingenious, heroic, peaceful, and dedicated to the well-being of enslaved people through education. The memorials express the opinion that such attributes matter more than their other attributes. But I believe that slavery is so exceptionally and self-evidently repulsive that leading an effort to keep four million people enslaved cannot be offset enough to merit memorialization.

After 79% of the W&L faculty voted to approve a motion asking our board of trustees to removed “Lee” from our school’s name, the Washington Post headline the next morning included the adverb “resoundingly.” A friend emailed me a congratulations, but I had to say that the moment did not feel celebratory because, while some faculty members of color supported the motion, some objected to its inadequately inclusive process and a wrong-minded focus. I can literally only imagine their experiences. A queer-identifying friend described her experience when the Supreme Court ruled in favor of gay marriage: That was not what she had been fighting for, and celebrations that drew energy away from her continuing fight were just the latest in an ongoing series of obstacles.

I admit that I did not support the motion “for” anyone other than myself. I cannot claim that my vote was my way of supporting my school’s faculty and students of color if: 1) I did not first ask them if they desired that specific act of support, and 2) there were other things they desired more. If someone claimed to be doing something “for” me without first asking my opinion about it, and while also not doing other things that I care about significantly more, I can imagine speaking against their action, even if the action in itself were something that I might otherwise, albeit mildly, approve of.

I understand that changing names can be merely “cosmetic,” “performative,” or “symbolic,” and that such changes alone achieves little and potentially distracts from more important efforts. I have heard that argument from both white conservatives and black progressives now, and I agree with it. But since symbols do have symbolic significance, changing them is not meaningless.

A memorial to a Confederate leader is statement that white supremacy isn’t important. Confederate memorials means a society is willing not only to overlook racist actions but to celebrate those and other actions for reasons that are unrelated to race. It is a statement of priorities. Other things—regional loyalty, family pride, military prowess, etc.—are more important than four million human beings remaining in slavery.

I can literally only imagine what a black person experiences, but as a white person I experience Confederate memorials as directives to remain silently complicit in the legacies of slavery and Jim Crow. They’re hardly the only directives, or the most important ones, but they are some of the most flagrant. I may also be silently complicit in more significant ways. If a majority of black people defended memorials, I would accept that judgement. Still, I prefer my grandchildren to be born in a country that does not place people who committed extraordinary acts of white supremacy on pedestals. That feels to me like a minimal expectation.

I was recently accused of “propping up white supremacy” and “prioritizing racists” because I co-signed a Rockbridge Civil Discourse statement asking Lexington City Council to follow a process that all parties, whether for or against renaming the cemetery, could feel was fair. The accusation came from a white male progressive of roughly my age. I pointed out that many people in our community do not recognize white supremacy as white supremacy and so unless he had a strategy for persuading white conservatives about the existence and significance of unconscious bias and systemic racism his desire to “tear it all down” would fail.

I have regular conversations with conservatives who disagree with me about a range of issues, including Confederate memorials. I had a protracted conversation with the leader of an alumni organization that opposes removing Lee’s name from our school because we should instead “proudly celebrate” his legacy. Though I do not find it entirely convincing, the most effective argument I’ve heard on behalf of Lee and Jackson is that it is unfair that so many people now associate their names with racism. Maybe it is unfair. But if so, that unfairness does not counteract the fact that “Lee” and “Jackson” now primarily do mean white supremacy.

If I had grown up revering them because I had been taught that they should be revered, I imagine I might find the current meaning of their names bewildering. I imagine I would find it difficult to change something so deeply ingrained in me since childhood. I imagine I might feel attacked personally and might respond defensively and angrily. I imagine I might name a range of rationales for why Confederate memorials should remain, while avoiding the most overwhelming fact of these men’s lives: they chose to lead armies in a war to keep four million Americans in forced labor, poverty, torture, rape, and breeding. That’s why I asked for their names to be removed. I don’t think children, black or white, should be shaped by that reverence.

I’m glad my city council voted to remove Jackson’s name from our cemetery, and I am hopeful that my board of trustees will vote to remove Lee’s name from our school’s. Meanwhile, I will continue to work with members of my school and town to address more pressing needs.

This is Stooky Bill, television’s first celebrity. He premiered in 1925 from a department store in London. It was a publicity stunt. John Baird, the inventor, transmitted him by radio wave across the building. Later broadcasts would be electronic, but Baird’s was mechanical. He used a selenium cell, an old tea chest, an empty biscuit box, a perforated cardboard disc, and a neon-gas lamp to shine light through the spinning holes—two sets of each, the first to scan, the second to reassemble the strips of light into a replica. He started with thirty vertical strips, and eventually reached 240, which electronic TVs more than doubled. When they divided the strips into colored rectangles in the 60s, they called them pixels, short for picture elements, the smallest units of an image.

John Baird’s previous entrepreneurial projects included: artificial diamonds (he lost his engineering job at the electric company after diverting too much power), Australian honey, Baird’s Speedy Cleaner (Belgian soap), boot polish, Borax-filled socks (Baird’s Undersock), fertilizer, a flying machine, glass razors (never rust or tarnish), guava jelly (procured personally in Jamaica and eventually taken off his hands by a local sausage maker), pneumatic boots (the lurching experiment ended when one of the interior balloons burst), and selenium cells (permanently scarred his left hand).

Stooky was made of plaster, the kind used for broken bones. He was a ventriloquists’s dummy, because it was too dangerous for a person. Baird posed him in the glare, not minding when its straw hair singed, when its cheeks splintered, if one of the light-choppers spun loose and unhinged the jaw. He spoke to his hand clenched inside of the dummy’s head, and the dummy clacked something back. There’s no recording, no transcript.

When I projected this image from my laptop to our TV screen, my wife asked if I’d drawn our daughter. Apparently that’s the radio wave the spinning discs of my brain keep receiving. I made it in MS Paint. I make everything in MS Paint. It’s the equivalent of Baird’s contraption to Photoshop, but I like the limitations. The singed bits.