Tag Archives: gay marriage

Wicked Problems

October 27, 2015 by

Two intractable sides battling back and forth.

“How can you be so heartless? Where is your sense of compassion?”

“Why do you foster weakness? Where is your respect for authority?”

The sides play themselves out on the issues of the day: 

Against capitalism: It exploits labor by preying on the powerless. 

For capitalism: It depends on hard work and creates prosperity. 

For gay marriage: Love and partnership is acceptable for heterosexuals and homosexuals alike. 

Against gay marriage: A union between a man and woman is the only marriage sanctioned by God and the church.

Against capital punishment: We need to address the root causes of violence.

For capital punishment: Extreme penalties are needed to deter crime.

Like Perry Mason and Hamilton Burger in a courtroom drama striving to win by showing that one is right and the other is wrong, each side fights for superiority.

Policies about capitalism, gay marriage, and capital punishment are the kinds of issues that can’t be solved by getting more facts.

These are issues that are much more difficult to solve because the sides are shaped by disparate, deeply held world views, visions, and values. And these are what Horst Rittel and Melvin Webber described in a 1973 treatise as “Wicked Problems.”

Jon Haidt, one of the premiere social scientists of our day, identifies, names, and addresses Wicked Problems in his compelling TED talk, “Three Stories About Capitalism.” It’s a must-see, as are all of his TED talks.

A grand thinker, Haidt recognizes two very important points.

First, Wicked Problems are polarizing. We tend to be judgmental about people on the other side. We demonize, castigate, and criticize anyone who holds the opposing view. When this happens, it is hard to arrive at acceptable solutions.

Second, assuming we want to build a stable, flourishing society, perhaps we should refrain from picking one side over the other. We could find a way to “go between the horns of the issue” and find some middle ground. For Wicked Problems, the middle ground can be established by finding a way to include both perspectives into one “supervalue.”

When it comes to the debate about capitalism, Haidt proposes “dynamism with decency.” This is somewhat like the “Conscience Capitalism” recommendation from John Mackey, the Whole Foods CEO. It is a way to bring together the two sides by joining the fundamental values for each into one supervalue.

This might be a good solution to the capitalism debate. By uniting values from each side, we may find a way to stabilize discussion and continue to move towards the betterment of all.

What about gay marriage or capital punishment? What is the supervalue that can help us solve these Wicked Problems? I’d love to learn what Haidt thinks. And I might be able to, since he is coming to town in October for the Business Ethics Alliance Annual Trustees Meeting.

But I fear that supervalues cannot solve gay marriage and capital punishment public policy issues. Not to make light, but these public policy issues are akin to couples’ disagreements. In any relationship there are two or three issues for which values, desires, or beliefs cannot be merged. Love or disdain for sports, yearning for or disinterest in travel, desire or not for kids…one person’s values win and the other losses. Someone ultimately has to give in and let the other side’s values reign.

Unraveling such public policy issues as gay marriage or capital punishment might not be about finding a supervalue. It may be about intentions.

A loving couple’s relationship succeeds because, through thick and thin, they live out their intentions to stay together no matter what. So, too, our Wicked Problems may never be “solved” in any true sense. But by not giving up, by coming back again and again, we co-create a society that has what it takes for longterm success.

Beverly Kracher, Ph.D., is the executive director of Business Ethics Alliance, and the Daugherty Chair in Business Ethics & Society at Creighton University.

Beverly Kracher, Ph.D., is the executive director of Business Ethics Alliance, and the Daugherty Chair in Business Ethics & Society at Creighton University.

Individual Rights

March 2, 2015 by
Photography by Bill Sitzmann

Originally published in March/April 2015 Omaha Magazine

The following anecdote explains much about retiring federal judge Joe Bataillon, but, more importantly, it is perhaps the greatest Creighton basketball love story ever told.

Bataillon left the U.S. Federal Courthouse early one spring day a few years ago to get home in time to watch Creighton play in an NCAA tournament game. When he opened the door to his back porch, he looked down and saw a small rectangular metal box. It was not his. There was no message on the box. Considering some of the killers he has sent to prison, there was good reason to fear it was a bomb.His conundrum: If he called the U.S. Marshal’s office, he knew he would be forced to leave his house.

His brother, Douglas County District Court Judge Pete Bataillon, relates the rest of the story: “So Joe just goes inside and watches the game and only calls when the game is over to see if that’s actually a bomb on his porch,” Pete says. “The marshals come, make him leave, blow the thing up, and realize it’s an outdoor utensil set. A few weeks earlier he had presided over a wedding and the people dropped by with a present. They probably should have left a note.”

“The marshals were not at all happy that he put his life at risk for a basketball game,” his brother says.

So Joe Bataillon, graduate of Nebraska City Lourdes High School and Creighton Law School, is a big Bluejays fan. Got it. (He actually was the equipment manager for the basketball team in college. “We were low-budget back then. The guys had to really blow out their [Converse] Chuck Taylors before I could give them new ones.”). But there’s more there. After 17 years on the highest bench in Nebraska, ruling on everything from misdemeanors on tribal lands to brutal murders involving drug kingpins to the constitutionality of Nebraska laws, he is obviously a man courageous and seasoned enough to be walking calm in a world in which some very bad people might prefer him dead. And despite the gravity of his rulings on a massive number of cases (Judges of Nebraska’s federal district court have the eighth-highest caseload out of the nation’s 94 federal districts.), he’s still known in eastern Nebraska for giving up his limited free time to preside over wedding ceremonies.

Retired U.S. Sen. Bob Kerrey, who advocated for Bataillon’s nomination process in the mid-1990s, after Bataillon’s distinguished career with the county and in private practice, offers insight: “Joe is a terrific federal judge—he has been a very strong protector of individual rights,” Kerrey says. “He’s just a special guy.”

“And unlike me,” Kerrey jokes(?), “he’s extremely likable to boot.”

Be that as it may, Bataillon’s defining characteristic, his brother agrees, is that paramount concern for the rights of individuals when they are squared off against the government and the majority. Bataillon says he would be thrilled if that is, in fact, his legacy.

“You can never lose sight of the fact that these are real people and that you’re impacting their lives profoundly,” he says. “You have a duty to everyone who you’re going to impact to work your hardest to see the whole picture.”

Bataillon was raised in an environment sated in the concept of social justice. Amid his parent’s constant involvement in their community, his father founded and led Nebraska City’s volunteer rescue squad, a sometimes grisly and difficult effort to more quickly get life-saving help to people in crisis. “Caring for those less fortunate” is a foundational ideal of a Jesuit education, he adds. “It’s just an idea that’s always been there.” For one, throughout his career, Bataillon has been a key figure in building treatment and job programs for people trying to right and rebuild their lives after convictions.

Bataillon’s most controversial decision came nine years ago, when, in Citizens for Equal Protection v. Bruning, he ruled unconstitutional Nebraska’s voter-approved amendment to the state constitution that read “only marriage between a man and a woman shall be valid or recognized in Nebraska.” His ruling for individual rights was overturned by a higher court, but his groundbreaking arguments can be heard in debates on the issue elsewhere in the country.

Bataillon still is impacting the argument over gay marriage. In late January, he ruled not to delay a lawsuit challenging Nebraska’s gay marriage ban while the U.S. Supreme Court considers the issue on the national level.

Amid a slew of major decisions, one other case stands out. It got Bataillon a lot of snickering press reports, but the fundamentals of the ruling speak to his own fundamental beliefs.

In 2013, Bataillon ruled that the Nebraska State Patrol needed to return more than $1 million confiscated from a woman in a traffic stop in 2012. The cops suspected it was drug money. Bataillon believed the evidence suggested the woman’s story was true.

In fact, Tara Mishra, 33, had been saving the money—perhaps a dollar at a time—over 15 years working as a stripper. Mishra was driving from California to New Jersey with her life savings to buy a nightclub. She wanted a new life, and her story checked out.

““The government failed to show a substantial connection between drugs and the money,” Bataillon wrote in his opinion.

“He understands the government has a tremendous amount of power,” Kerrey says. “It can be unpopular to make some of the rulings he has made, but when individual rights are being abridged, Joe has been there to provide the balance.”

While Bataillon retired from “active service” in the fall, he will continue in a semi-retired role as a senior federal judge. He’ll continue his very active role in national federal judiciary issues. What is quickly becoming clear is that there won’t be much retiring in his “retirement.”

“I’m not finished with this work by any means,” he says.

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