Wednesday, April 29, 2015

Summation

Scott Lemieux of LGM writes in The Guardian how weak the opponents of marriage equality were during oral arguments yesterday at the Supreme Court.

It would be premature to declare that the US supreme court will guarantee a right to same-sex marriage in all 50 states, but that’s where the smart money is: [Tuesday’s] oral argument allows supporters of marriage equality to remain optimistic that nationwide legalization is in the not-so-distant future.

[…]

The arguments made by John J Bursch on behalf of the discriminating states were no better than the ones sympathetic justices made on their behalf. Bursch began by arguing that every individual has a “fundamental liberty interest in deciding the meaning of marriage” that would be violated by finding a constitutional right to same-sex marriage. As Justice Sotomayor explained, the argument is bizarre: individuals would retain the ability to define marriage as they see fit even if states did not discriminate against same-sex couples. At best, the argument seems to be that the “rights” of states to discriminate should trump the rights of individuals to not be discriminated against, which is no more attractive a notion than it was when it was used to justify racial discrimination in the 19th and 20th centuries.

And yet, it made sense for Bursch to open with inept, disproven democratic theory, because his other arguments were worse. His attempts to argue that extending marriage rights to same-sex couples would harm child-rearing and heterosexual marriage were so feeble that Justice Scalia intervened at one point to suggest that Bursch didn’t actually have to answer the question.

As anyone who has read the court’s opinion eviscerating the Voting Rights Act knows, however, that the arguments for the constitutionality of bans on same-sex marriage are terrible doesn’t mean that the court won’t embrace them. So all court-watchers have to look to the swing vote, Anthony Kennedy, for clues.

Kennedy was not particularly active during the oral argument and, in isolation, his questions reflected ambivalence, echoing both the traditionalist concerns of Roberts and suggesting that bans on same-sex marriage undermined the dignity of gays and lesbians.

However, one clue to Kennedy’s eventual vote can perhaps be found in his silence during the second part of oral argument, which focused on the question of whether states could be required to recognize same-sex marriage performed in other states even if their own bans were upheld. The most plausible explanation for Kennedy’s disinterest in the question is that he believes it will be moot because all of the state bans will fall.

When combined with Kennedy’s past support for LGBT rights and the near-certainty that the four Democratic nominees will vote to strike down the bans, this suggests that opponents of marriage equality are right to be desperate. The weakness of their arguments suggest that the Supreme Court’s recognition of the same-sex marriage rights is long overdue.

I’m sticking with my prediction of 5-4 in favor of marriage equality, and you can count on fresh outrage and fundraising from the haters.  They’ll find something else to blame on The Gay.

Tuesday, April 28, 2015

Hear Ye, Hear Ye

Via SCOTUSblog, here are the audios of the arguments made today before the Supreme Court on marriage equality.  Note: audio auto-starts.

Question 1: Does the Constitution require states to recognize same-sex marriage? [Transcript.]

Question 2: Whether states can prohibit same-sex marriages but nonetheless be required to recognize same-sex marriages that legally took place somewhere else. [Transcript.]

Gay Day at the Supreme Court

This morning the United States Supreme Court will hear arguments on whether or not same-sex couples have a constitutional right to get married, and whether or not states must recognize same-sex marriages from other jurisdictions, including outside the United States.

The outcome of this case will have a very profound effect on millions of people regardless of their orientation or marital status, and it will also signify the state of this nation in terms of the social and civil contract we have with both our government and each other.  I’ve been trying to think of a case that has been heard before the Court in my lifetime that could have a larger impact on me personally, and at the moment, I can’t come up with one.

I don’t have a stake in this case at the moment.  I do not have a partner (hope springs eternal, however), and I am presently living in a state where marriage equality exists by court order.  But the very idea that something as fundamental as the legal and social contract between two people embodied in the idea of marriage, be it blessed by a religious body or simply a contract signed in front of witnesses at a courthouse, should be unavailable to me because my genetic makeup has programmed me to love someone of the same sex goes against everything I believe this nation stands for: the simple idea that all people are equal under the law.  That is the basis of all the other rights and laws enumerated in the Constitution, along with the idea that those rights are not granted by the government but by the people.  If I cannot be treated the same way as everyone else for no other reason than an innate quality such as sexual preference, then the rest of those rights, however noble, are meaningless.

I don’t want to rehash in depth every argument I’ve made about marriage equality since I started writing this blog; that marriage is a contract, not just a religious rite; that churches and organized religious bodies have had the right to refuse their rites to those they don’t embrace long before same-sex marriage came along; that anything less than full recognition is separate-but-equal all over again.  The cases have been made again and again at every level of both legal and social adjudication by people much more versed in the law than me.

As I noted, I do not at present have a need to be granted the right to get married to the man I love.  But there should be nothing to prevent that from happening should I be so fortunate — and blessed — to find myself wanting to avail myself of it.

Monday, April 13, 2015

Tough Sell

I’m sure there’s a joke out there about how easy it is to get a lawyer to represent even the most heinous or ridiculous client as long as there’s a chance of a retainer or billable hours; as one of my lawyer friends says, “They’re innocent until indigent.”  But what about taking up the side of a case that has a high profile — say going before the Supreme Court — and is on the unpopular side of a social issue?

Every criminal defendant is entitled to a lawyer who will defend him or her to the best of their ability.  Not so with civil cases, and where the side of history is definitely moving in one direction, it’s getting increasingly hard to find prominent attorneys who will defend the other side.  According to Adam Liptak at the New York Times, that’s what’s happening with marriage equality.

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

Conservatives are claiming that attorneys who are anti-gay marriage are being “bullied into silence.”  In reality, the fact is that a good attorney is going to have a rather difficult time coming up with an argument for keeping marriage bans in place that do not rely on Scriptural imprecations — not something that will go over very well in a secular court system — or by invoking some pretzel-logic that states that the Fourteenth Amendment’s equal protection clause doesn’t apply to gay people.  (Several weeks ago I asked a prominent defense attorney to come up with a reason for denying gay couples the right to marry.  His reply was that the way he would go would be to base it on states’ rights, but he also admitted that that line of reasoning had lost its appeal after the passage of the Civil Rights Act of 1964.)

I also think the attorneys who are shying away from defending anti-gay marriage laws are well aware that they are arguing for the wrong side both in terms of civil rights and history.  And even if they should win, they will still go on the record as being the lawyer for the side that stood in the way of our inevitable movement towards full equality.  That’s probably not something you want to have on your c.v.

Tuesday, March 31, 2015

The Great and Powerful Gays

Here’s a novel approach to perpetuating discrimination against gays and lesbians: they already have too much power, so let’s not give them any more.

Gay Americans simply have too much political power to be afforded equal rights under the Constitution, according to a brief filed by the state of Ohio asking the Supreme Court to permit that state to continue to practice marriage discrimination. Ohio’s claim comes as part of a greater effort to convince the justices that laws which discriminate again gay men, lesbians and bisexuals should not be treated with skepticism by courts applying the Constitution’s guarantee that everyone shall be afforded “the equal protection of the laws.”

Under this provision of the Constitution, most forms of discrimination are entirely permissible. It is acceptable, for example, for the government to discriminate against unqualified job applicants when making hiring decisions, or to discriminate against people who commit serious crimes in deciding who to incarcerate.

When the government discriminates against groups that have historically been subject to unequal treatment that has little basis in their ability to “perform or contribute to society,” however, the Court applies what is known as “heightened scrutiny” to such discrimination. This is why discrimination on the basis of race or gender is typically not allowed, because racial minorities and women have historically been subject to the kind of irrational discrimination that triggers heightened scrutiny. A major question in the marriage equality litigation now pending before the Supreme Court is whether the nation’s long history of irrational discrimination against gay people also justifies applying such scrutiny to laws that discriminate on the basis of sexual orientation.

Uh, excuse me, but look next door, Ohio.  If we were so powerful, Indiana would not only not have passed their RFRA last week, we would have forced the state to do a complete make-over, made the Purdue football team play in tank-tops and short-shorts, replaced the state song with “It’s Raining Men,” and made Birkenstocks the official state shoe.

Sheesh.

Friday, March 13, 2015

Supreme Irony

Steve Waldman at Washington Monthly has a suggestion for a post-presdiency career for Barack Obama:

If Hillary Clinton wins, Obama should be her first Supreme Court appointment. It’d be good for her, and very good for progressives.

Would he want it? It’s possible he’d view it as too confining, but it may be the only job a former president can get that won’t seem like a step down.

I love it.  Not only is there precedent for it (William Howard Taft went to the Court after serving as president), it would set up one of the more interesting confirmation hearings in the Senate, even assuming that the Democrats are back in control and could get him confirmed.  It would make the Anita Hill hearings look like a Quaker potluck.

Of course he would have to recuse himself from a number of cases that involve his administration, but the best part would be seeing the Republicans, who have been waiting for him to leave the stage ever since he arrived, would have to live with him for the rest of his life.  He’ll be 55 in January 2017; he’d be one of the youngest members on the court.

Sunday, March 8, 2015

Sunday Reading

First things first: if you live in a place that observes daylight savings time in the U.S. and Canada, did you move your clock ahead?

Obama’s America — Matt Ford in The Atlantic on what President Obama’s trip to Selma says about us and his view of America.

America is, like all nations, an idea. Unlike many other nations, this idea requires a little articulation. A nation built by waves of immigrants can’t rely on Old-World, blood-and-soil ethnic nationalism to define itself. The American idea is instead built upon a civic nationalism rooted in democratic principles and self-evident truths, even though Americans often fail to meet those ideals.

And so, quoting James Baldwin and the prophet Isaiah, President Barack Obama spoke in Selma on Saturday. His address commemorated the 50th anniversary of “Bloody Sunday” during the marches to Montgomery in 1965, but his rhetorical scope encompassed all of American history.

Obama has not always spoken so clearly about American exceptionalism. At a March 2009 news conference, he told a reporter that he believed in it “just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism.” His political opponents incorporated this into a narrative that cast the president as anti-American, mistaking his ability to understand the pride of others abroad for a lack of pride on his own nation.

Obama corrected the record at Selma, making the case that we are not exceptional in the perfection of our virtue, but rather, exceptional in our relentless struggle to live up to our ideals:

For we were born of change. We broke the old aristocracies, declaring ourselves entitled not by bloodline, but endowed by our Creator with certain unalienable rights. We secure our rights and responsibilities through a system of self-government, of and by and for the people. That’s why we argue and fight with so much passion and conviction, because we know our efforts matter. We know America is what we make of it.

Many will interpret this speech as a thinly veiled rebuttal to conservative critics like former New York City Mayor Rudy Giuliani, who claimed last month that Obama “doesn’t love America.” Others will focus on Obama’s sharp attack on Congress for not renewing the Voting Rights Act of 1965 after the Supreme Court gutted it in a 2013 decision. But the speech’s broader themes are far more important than its soundbites.

For Obama, the marchers at Selma helped set a new course for American democracy. “Because of what they did, the doors of opportunity swung open not just for African-Americans, but for every American,” he told the crowd. “Women marched through those doors. Latinos marched through those doors. Asian-Americans, gay Americans, and Americans with disabilities came through those doors.” Had one of his predecessors not already taken the phrase, perhaps he would have called this a new birth of freedom.

Few would disagree with this assessment, but the president’s speech went beyond simple praise. Obama has a rhetorical tendency to construct grand, sweeping visions of American history. His inauguration speeches and State of the Union addresses often demonstrate this, but the first, best example might be his concession speech during the 2008 New Hampshire primaries, where he linked his own presidential bid to the historical arc of American freedom.

In Selma, Obama avoided the simplistic narratives of America the perfect (or America the oppressive, as some conservatives allege) in favor of America, the struggle. Instead of relying upon “patriotism à la carte,” as my colleague Ta-Nehisi Coates once phrased it, the president carefully wove the darker chapters of American history into its civic mythos:

We’re the immigrants who stowed away on ships to reach these shores, the huddled masses yearning to breathe free—Holocaust survivors, Soviet defectors, the Lost Boys of Sudan. We are the hopeful strivers who cross the Rio Grande because they want their kids to know a better life.  That’s how we came to be.

We’re the slaves who built the White House and the economy of the South. We’re the ranch hands and cowboys who opened the West, and countless laborers who laid rail, and raised skyscrapers, and organized for workers’ rights.

We’re the fresh-faced GIs who fought to liberate a continent, and we’re the Tuskeegee Airmen, Navajo code-talkers, and Japanese-Americans who fought for this country even as their own liberty had been denied. We’re the firefighters who rushed into those buildings on 9/11, and the volunteers who signed up to fight in Afghanistan and Iraq.

As he did with slavery and Japanese-American internment, Obama sought to incorporate Ferguson into the turbulence of American history. The Department of Justice’s damning Ferguson report, which it released last week after a lengthy investigation, depicted a present-day municipal government dedicated to the plunder and predation of its black citizens. Obama readily observed that Ferguson wasn’t an isolated case, but also noted that these racist acts are no longer “endemic” in America. He also refused to accept that Ferguson meant that the struggles of Bloody Sunday were for naught. “If you think nothing’s changed in the past fifty years, ask somebody who lived through the Selma or Chicago or L.A. of the 1950s,” he said to applause.

At times, it felt like Obama was addressing not the civil-rights movement veterans who had assembled in Selma, but today’s new generation of activists and marchers. “We do a disservice to the cause of justice by intimating that bias and discrimination are immutable, or that racial division is inherent to America,” Obama told the crowd and the country. “To deny this progress—our progress—would be to rob us of our own agency; our responsibility to do what we can to make America better.”

Transcript here via Washington Post.

Roberts’ Tell — Jeffrey Toobin in The New Yorker on the Chief Justice’s silence during the Obamacare hearing.

The Supreme Court oral argument on Wednesday in King v. Burwell featured thousands of words, dozens of provocative questions, two engaged and skillful lawyers—and one very striking silence. Chief Justice John Roberts, usually among the most active questioners on the court, scarcely said a word throughout the highly anticipated clash. The justices besieged Solicitor General Donald Verrilli and Michael Carvin, the lawyer for the plaintiffs, who are challenging a central provision of Obamacare, with so many questions that Roberts gave the pair ten extra minutes a side. The chief himself didn’t take up any of that time until practically the last moment.

Roberts’s one question may turn out to be extremely important. The issue in the case is whether the Obama Administration, in implementing the Affordable Care Act, violated the terms of that law. The plaintiffs assert that the A.C.A. only authorizes subsidies for individuals who buy health insurance on the fourteen state-run exchanges, or marketplaces. Under their reading of the law, the eight million or so people in the other thirty-six states who currently buy their insurance from the federal marketplace should be denied their subsidies. Most of the justices’ questions dealt with the issue of how to read the law correctly, but Roberts, in his single substantive question, took a different tack.

Anthony Kennedy had asked about “Chevron deference,” a doctrine of law that describes how much leeway the executive branch should have in interpreting laws. Verrilli, not surprisingly, said that the Chevron doctrine gave the Obama Administration more than adequate permission to read the law to allow subsidies on the federal exchange. “If you’re right about Chevron,” Roberts said, at long last, “that would indicate that a subsequent Administration could change that interpretation?” Perhaps it could, Verrilli conceded.

The question suggests a route out of the case for Roberts—and the potential for a victory for the Obama Administration. Roberts came of age as a young lawyer in the Reagan Administration, and there he developed a keen appreciation for the breadth of executive power under the Constitution. To limit the Obama Administration in this case would be to threaten the power of all Presidents, which Roberts may be loath to do. But he could vote to uphold Obama’s action in this case with a reminder that a new election is fast approaching, and Obamacare is sure to be a major point of contention between the parties. A decision in favor of Obama here could be a statement that a new President could undo the current President’s interpretation of Obamacare as soon as he (or she) took office in 2017. In other words, the future of Obamacare should be up to the voters, not the justices.

Why No One Cares About Bill O’Reilly — Eric Alterman at The Nation.

To anyone who has paid attention to O’Reilly or any of the Fox “anchors” in recent years, none of this should come as a surprise. There are many precedents in O’Reilly’s career (including a lie about, and faux on-air apology to, yours truly). No doubt one could find plenty of similar fabrications, exaggerations and purposely misleading statements on any given Fox program. That is, after all, the purpose of the network. It flatters the ignorance and prejudice of its audience even as it corrupts the larger media discourse on behalf of those same ignorant prejudices (as well as the financial interests of Rupert Murdoch, its billionaire owner, and Roger Ailes, its president and CEO). Hence, unlike NBC, which at least evinced some embarrassment over Brian Williams’s serial fabrications, Fox is totally down with its lying, bullying, name-calling host. Indeed, a Fox anchor or host would be far more likely to lose his or her job for telling the truth. (Things you’ll never hear on Fox: “Yes, global warming is man-made and a genuine danger to the security of our nation and our planet.” “Yes, President Obama was born in the United States and is a believing Christian.” “Yes, that entire Iraqi WMD thing was nonsense.” “Yeah, OK, the security arrangements at the US Embassy in Benghazi are not really the job of the secretary of state, much less the president.”)

To recap briefly, the mainstream media and the liberal blogosphere have recently been filled with stories in which O’Reilly placed himself at the center of world-historical events—or in imminent danger—and was found to be full of it. Contrary to O’Reilly’s claims, he was more than 1,000 miles from the Falkland Islands during the war there. He did not see any nuns murdered in El Salvador. He did not cover the “troubles” in Northern Ireland. He was not threatened by rioters in Los Angeles, and he was nowhere near the suicide of a man who claimed to have information about the assassination of President Kennedy. For all we know, he may not even be named Bill O’Reilly (though there’s apparently no truth to the rumor that he stole the dog tags off a dead soldier in Korea).

What is perhaps most disturbing about this story is the bifurcated reaction of the mainstream media. Almost no one who occupies a chair in a “respectable” media organization has taken the position that O’Reilly is a liar and Fox is filled with liars and it’s about time we stopped taking the network seriously as a news source. Rather, we hear from Politico’s Dylan Byers that “the Bill O’Reilly charges aren’t sticking.” Gabriel Sherman of New York magazine believes they have “backfired.” Jeremy Stahl in Slate says the case is “open to interpretation.” And a front-page New York Times analysis by Jonathan Mahler and Emily Steel describes O’Reilly as “a man who perhaps more than any other has defined the parameters and tenor of Fox News, in the process ushering in a new era of no-holds-barred, intentionally divisive news coverage.” The Times reporters leave it to the experts to decide whether what he says is true, though some of these experts—not incidentally, also cable-news veterans—are not so sure that it matters. “Bill’s credibility with his audience is not based on his record as a traditional journalist,” former CNN/US president Jonathan Klein told the reporters. “His credibility, in the view of his fans, is based on his trenchant analysis of the events of the day, his pulling no punches, his willingness to call it like it is”—which is apparently the way one defines lying, prevaricating and bullying in the world of cable news (and the Times’s “expert” sourcing).

More from Jeb Lund at Rolling Stone.

Doonesbury — Charlie Hebdo’s denizens live on.

Thursday, March 5, 2015

Supreme Humor

Justice Antonin Scalia got off a good one yesterday during the Supreme Court’s hearing on the Obamacare case.  Solicitor General Don Verrilli warned that millions of people could lose their health insurance if the Court ruled to strip away subsidies.  Mr. Scalia wondered why it couldn’t be fixed by legislative action:

SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

VERRILLI: Well, this Congress?

[Roars of laughter]

Translation: “Are you high, your honor?”

Wednesday, March 4, 2015

Thursday, February 26, 2015

High Court Humor

One of the reasons I would not make a good lawyer is because case histories and rulings do not strike me as page-turning can’t-put-it-down reading.  Judges have to be restrained and very detailed in what they put in their opinions because the law and precedent demand it.  But every now and then there comes a judge who can plant a kernel of humor.  For example, Justice Elena Kagan in a Supreme Court ruling yesterday:

As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Permission to gigglesnort, your honor.

Tuesday, February 10, 2015

Spoiler Alert

When the U.S. Supreme Court declined to intervene in the Alabama same-sex marriage case and the ban was lifted yesterday, Justice Clarence Thomas wrote a dissent in which he basically said that the Court has already decided to rule in favor of marriage equality when the case comes before them this term.

The dissent by Thomas, joined by Justice Antonin Scalia, accused the other justices of failing to show “the people of Alabama the respect they deserve” by letting the lower court ruling stand while the case is pending before the Supreme Court. He argued that the order reveals the Court’s intention to rule for same-sex marriage.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

This doesn’t mean that the Court will rule 7-2 in favor of same-sex marriage.  Court watchers believe that Chief Justice John Roberts and Justice Samuel Alito will also side with nay-sayers Scalia and Thomas and that the opinion upholding the lifting of the ban will be written by Anthony Kennedy, who has written several others in support of LGBT rights and whose writings have been cited in briefs in favor of ending the ban.  But by the first of July the ruling will come down and that will be the end of marriage inequality in America.

The reason Justice Thomas spilled the beans in his dissent yesterday was two-fold: to let the world know that he’s still a firm believer in states’ rights over the federal constitution, which, given his background, is a fascinating point of view, and to try to spoil the fun and celebration the pro-gay-marriage folks were going to have on the steps of the Supreme Court next summer.  It’s as if now that the ruling will be a foregone conclusion, he doesn’t want there to be any TV correspondents standing by to read the opinion live over the air to millions of people, hordes of happy couples waving signs and rainbow flags, images of men kissing men and doing other unmentionable things like holding hands right out there in public.  If he can’t uphold the ban on gay marriage, then by God he’s going to rain on the pride parade in front of the Supreme Court.  It’s not jurisprudence, it’s juris-petulance.

But knowing my tribe and knowing the trials and perils that we have gone through these many, many years and the lives that will now be made whole by this ruling, a mean-spirited and retrograde dissent from the two dyspeptic cranks on the court will in no way keep the most fabulous party from happening, all within earshot of Mr. Justice Thomas’s office.

Friday, January 30, 2015

Then What?

If, by some logic that escapes an awful lot of people, the Supreme Court guts out Obamacare via this bullshit case King vs. Burwell, it will leave millions of people without the ability to buy healthcare.  But never fear, citizens; the Republicans will rush to the rescue and fix it.

Oh, what a relief. But with what?

“It’s an opportunity that we’ve failed at for two decades. We’ve not been particularly close to being on the same page on this subject for two decades,” said a congressional Republican health policy aide who was granted anonymity to speak candidly. “So this idea — we’re ready to go? Actually no, we’re not.”

Republican leaders recognize the dilemma. In King v. Burwell, they roundly claim the court ought to invalidate insurance subsidies in some three-dozen states, and that Congress must be ready with a response once they do. But conversations with more than a dozen GOP lawmakers and aides indicate that the party is nowhere close to a solution. Outside health policy experts consulted by the Republicans are also at odds on how the party should respond.

The party that has failed to unify behind an alternative to Obamacare for many years now has five months to reach an agreement. It’s an unenviable predicament, especially for the congressional Republicans leading the effort to devise a response — all of whom hail from states that could lose their subsidies.

“There are a lot of ideas,” Senate Finance Committee Chair Orrin Hatch (R-UT) told TPM on Tuesday. “If the case goes the way I think it should go … then we’ve gotta come up with a way of resolving the problems we’re in. We’re quietly looking at all that and trying to do that.”

For now, the GOP’s goal is to “make the world safe for [Chief Justice John] Roberts to overturn” the Obamacare subsidies, said one prominent outside conservative close to Republican lawmakers and the case, who requested anonymity to speak candidly. “What I worry about is — the goal is to not let our guys look like they’re going crazy and letting the world spin into chaos.” In other words, Republicans must show they’re willing and able to deal with the issue.

The upside is that it will provide hours of sardonic mockery of a party that claims to be the adults in the room and can’t do anything; but at the loss of critical care for millions of people who will struggle and suffer because of their incompetence.

“And if I laugh at any mortal thing, ’tis that I may not weep.” — Lord Byron.

Sunday, January 18, 2015

Sunday Reading

Thou Shalt Not Commit Murder, Except… Valerie Tarico in AlterNet on the violence inherent in religion.

The year 2015 has opened to slaughter in the name of gods.  In Paris, two Islamist brothers executed Charlie Hebdo cartoonists “in defense of the Prophet,” while an associate killed shoppers in a kosher grocery.  In Nigeria, Islamist members of Boko Haram massacred a town to cries of Allahu Akbar—Allah is the greatest!  Simultaneously, the United Nations released a report detailing the “ethnic cleansing” of Muslims in the Central African Republic by Christian militias, sometimes reciting Bible verses. On a more civilized note, Saudi Arabia began inflicting 1000 lashes on a jailed blasphemous blogger—to be doled out over 20 weeks so that he may survive to the end. In media outlets around the world, fierce debate has erupted over who or what is responsible.  Is monotheism inherently violent? Is religion an excuse or cover for other kinds of conflict? Are Western colonialism and warmongering in the root of the problem?  Do blasphemers make themselves targets? Is the very concept of blasphemy a form of coercion or violence that demands resistance?  Is killing in the name of gods a distortion of religion? Alternately, is it the real thing?

Each of these questions is best answered “yes, and” rather than “yes/no.”

With the possible exception of Buddhism, the world’s most powerful religions give wildly contradictory messages about violence.  The Christian Bible is full of exhortations to kindness, compassion, humility, mercy and justice.  It is also full of exhortations to stoning, burning, slavery, torture, and slaughter.  If the Bible were law, most people you know would qualify for the death penalty. The same can be said of the Quran.  The same can be said of the Torah. Believers who claim that Islam or Christianity or Judaism is a religion of peace are speaking a half-truth—and a naive falsehood.

The human inclination toward peacemaking or violence exists on a continuum. Happy, healthy people who are inherently inclined toward peacemaking focus on sacred texts and spiritual practices that encourage peace.  Those who are bitter, angry, fearful or prone to self-righteousness are attracted to texts that sanction violence and teachers who encourage the same. People along the middle of this continuum can be drawn in either direction by charismatic religious leaders who selectively focus on one or the other.

Each person’s individual violence risk is shaped by a host of factors: genetics, early learning, health, culture, social networks, life circumstances, and acute triggers. To blame any act of violence on religion alone is as silly as blaming an act of violence on guns or alcohol. But to deny that religion plays a role is as silly as denying that alcohol and guns play a role.  It is to pretend that religions are inert, that our deepest values and beliefs about reality and morality have no impact on our behavior.

From a psychological standpoint, religions often put a god’s name on impulses that have subconscious, pre-verbal roots. They elicit peak experiences like mystic euphoria, dominance, submission, love and joy. They claim credit for the moral emotions  (e.g. shame, guilt, disgust and empathy) that incline us toward fair play and altruism, and they direct these emotions toward specific persons or activities. In a similar way, religions elicit and channel protective reactions like anger and fear, the emotions most likely to underlie violence.

The Odds of Marriage Equality — Garrett Epps in The Atlantic on the Supreme Court’s capacity to surprise.

I have many vices. I have been known to wager a dollar on those poker-hand coffee cups, and to go all in with deuces in the pocket. But I also once drew five aces and still lost; since then, prediction is not one of my bad habits. I’m not going to predict, then, what the Supreme Court will do with the same-sex marriage cases now that it has put them on this year’s docket. But if I were a bookie, I’d make marriage equality an odds-on favorite. It has been less than two years since Windsor v. United States, but it seems like a decade. Court after court has struck down bans on same-sex marriage; the “traditional marriage” camp has begun to seem like the enemy in Sun Tzu’s Art of War—exhausted, bewildered, devoid of hope or spirit. Take the decision under review in today’s grant of cert. The Sixth Circuit upheld the ban. But Judge Jeffrey Sutton’s opinion might generously be called listless. A famously bright and resourceful conservative was unable to muster a single serious argument why marriage equality was actually a bad thing; he was reduced to feebly protesting that it would be better for gay people themselves if they were to gain their rights through politics rather than law.

There’s not much there from which to fashion a last-ditch defense of  “one man, one woman.” Prodded by the federal courts, the nation has already decided. For the Court to affirm Sutton’s opinion would seem almost akin to reversing Brown v. Board of Education.

But even if Justice Anthony Kennedy’s vote seems foreordained, he must choose between the rights of gays and lesbians—an issue on which he has fashioned a historic legacy—and the prerogatives of the states, about whose “dignity” and honor he has often rhapsodized. He might be tempted to split the baby by holding for the states on the “celebration” issue but for the challengers on “recognition.” (The Court’s grant of review was careful to split the two questions.) That is, he might say, a state could refuse to perform marriages itself, but could not refuse those legally married out of state the benefits of marriage under state law.

But the temptation will be fleeting because that dog won’t hunt. In Kennedy’s Windsor opinion, he wrote that the federal government’s refusal to recognize legal same-sex marriages “humiliated” not only gay couples but their children. The children of couples who seek legal marriage in-state would be no less humiliated by their parents’ inability to marry than those of couples who married out of state. Once the issue becomes “the children,” we have probably entered the endgame.

That’s still not a prediction. This Court has shown a tremendous capacity to surprise. But if anybody wants to put down money on the states in the new case of Obergefell v. Hodges, please look me up. I will be the guy with the coffee cup and the careful poker face.

A President and a King — Jelani Cobb in The New Yorker on how Barack Obama wrestles with the legacy of Martin Luther King, Jr.

…Yet six years in the White House have vastly complicated Obama’s relationship to King. They are two of the three African-Americans who have won the Nobel Peace Prize. (The first, Ralph Bunche, was awarded the prize in 1950, for negotiating a truce between Jews and Arabs in 1949.) When King accepted his award, in 1964, he began his speech by questioning his worthiness as a recipient, since the movement he led had not yet achieved interracial peace:

I conclude that this award which I receive on behalf of that movement is a profound recognition that nonviolence is the answer to the crucial political and moral question of our time: the need for man to overcome oppression and violence without resorting to violence and oppression. Civilization and violence are antithetical concepts.

Obama opened his acceptance speech, in 2009, on a similarly self-effacing note, stating that he had barely begun his Presidency and his achievements were few. But then he departed from King’s reasoning. There is such a thing as just war, he said, under circumstances in which force is used in self-defense, is proportional to the threat, and, “whenever possible, civilians are spared from violence.” He continued:

I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world.

A moral crusader and a Commander-in-Chief grapple with different prerogatives. King was never tasked with national defense; Obama’s election was contingent on a belief that he could keep Americans safe. Some observers nevertheless find it difficult to square elements of Obama’s foreign policy—drone warfare and its civilian casualties—not only with King’s concept of civilization but with the President’s own criteria for just warfare. Cornel West railed against the decision to use King’s Bible at Obama’s second swearing-in. “The righteous indignation of a Martin Luther King,” he said, “becomes a moment in political calculation.” Still, the King who denounced the triple evils of militarism, racism, and materialism would likely hail next week’s address, in which the President is expected to touch upon normalizing relations with Cuba, immigration reform, and providing free education for students at community colleges—along with the Administration’s efforts to prevent voter suppression, the cause that animated the Selma campaign, fifty years ago.

Beneath all this lies the irony that, nearly six years after the Cairo speech, Obama is less able to deploy the moral capital of civil rights, at least in the Middle East, not only because he is now established as the face of American authority but also because many of the battles that King fought have still not been resolved. Racism remains an Achilles’ heel. The protests in Ferguson, New York, and beyond were watched by a global audience, and, as during the Cold War, America’s domestic troubles become fodder for a morally compromised foreign power to deflect attention from its own failings. Iran’s Ayatollah Khamenei took to Twitter to highlight the seeming contradiction that such actions were taking place under a black President. He tweeted, “Racial discrimination’s still a dilemma in US. Still ppl are unsecure for having dark skins. The way police treat them confirms it.” In spite of Obama’s debt to the civil-rights movement, the ideal of American exceptionalism is only as valid as the standing of people who have just as often been seen as exceptions to America.

Doonesbury — Hear that?

Saturday, January 17, 2015

We Will Know By July 1

From SCOTUSblog:

Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon agreed to hear four new cases on same-sex marriage.   The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.  A total of two-and-a-half hours was allocated for the hearings, likely in the April sitting.  A final ruling is expected by early next summer, probably in late June.

The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans.  As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but all are under court challenge.

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

It is anybody’s guess how they will rule, but my gut tells me, as I said before, that they will narrowly rule in favor of marriage equality.

Wednesday, January 14, 2015

Short Takes

Charlie Hebdo comes out with its next issue.

France’s parliament voted to increase strikes against ISIS.

Supreme Court denies stay in execution of vet with PTSD.

Jobless rates continue to fall.

Charges filed against bartender who plotted to poison John Boehner.

Happy birthday, Lucy.

Wednesday, January 7, 2015

That Ship Has Sailed

Now that Florida has made the number of states that recognize same-sex marriage an even three dozen, perhaps it’s time the Supreme Court weighed in on the matter.

On Friday, Supreme Court justices will meet in private to consider whether to act on cases that could provide a nationwide answer on whether same-sex marriages must be allowed. On the same day, a federal appeals court will consider bans in Texas, Mississippi and Louisiana.

“It’s an incredible confluence of events,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “It’s the culmination of many years of work.”

The marriages in Florida and the potential for a constitutional decision by the Supreme Court this year reflect the rapid advance of the same-sex-marriage movement and a remarkable change in public opinion. When the court heard oral arguments about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA) in 2013, only nine states and the District allowed such unions.

Hey, see that smudge of smoke out there on the horizon?  Yeah, that’s the Love Boat heading out on the Sea of Love.

But then we don’t want the Supremes to get too far ahead of themselves.  After all, Clarence Thomas and Antonin Scalia are still working on the idea that slavery is bad.

Wednesday, December 31, 2014

Looking Back/Looking Forward

The tradition continues:  it’s time for my annual re-cap and prognostication for the past year and the year coming up.  Let’s see how I did a year ago.

– Despite the terrible roll-out and start-up of Obamacare and the opportunity it handed the Republican campaign strategists, the healthcare law will not be as big an issue in the 2014 mid-terms that all the Villagers say it will be.  By the time the campaign hits the final stretch, the law will be so entrenched that even the people who claim they hate it — even though they support what it does — will have a hard time trying to run candidates who promise to repeal it.  Still, the GOP noise machine and Tea Party hard-core is locked in on re-electing their safe base and the morning after the 2014 mid-terms will show a House still in the hands of the GOP and the Senate closer to 50-50.

I got most of that right: Obamacare was not a campaign issue but I didn’t count on the Democrats running away from it like it was an Ebola-soaked sponge.  The Republicans didn’t win the Senate so much as the Democrats lost it.

– Immigration reform and gun control will go nowhere because it’s the same Congress we had in 2013 and they didn’t do jack-shit.

Too easy, more’s the pity.

– By December 31, 2014 it will be a foregone conclusion that Hillary Clinton will be running for president.  Joe Biden will play coy with the Villagers about running, but in the end he’ll demur to Ms. Clinton.  The Benghazi! non-scandal will be long gone except for the nutsery who still think Barack Obama was born in Kenya.  The GOP will be lining up its merry band that includes Ted Cruz, Chris Christie, Rick Santorum, and just for laughs, Rand Paul and Mike Huckabee.  President Obama’s approval numbers will be back up in the 50% range.

Nailed that one.  Even the GOP House report says Benghazi! is a nothingburger, and President Obama’s approval numbers are going up.

– Florida Gov. Rick Scott will lose his re-election bid to Charlie Crist, the newly minted Democrat, and Marco Rubio’s star will be as faded in GOP national politics as Pauly Shore’s is among Oscar voters.  He’ll pick up a primary challenge from the far right, but he’ll be safe in 2016 because the Democrats have nobody to run against him.

– Governors Scott Walker of Wisconsin, John Kasich of Ohio, Rick Snyder of Michigan, and Tom Corbett of Pennsylvania will all face tough re-election campaigns, but Mr. Kasich and Mr. Snyder will probably squeak by.  Mr. Corbett is out, and just for laughs, the people of Maine will toss their gaffe-prone Tea Party guv Paul LePage.

Still pissed that Florida and Maine re-elected those clowns.

– The national economy will continue to expand and the drive for the living wage movement will take hold.  The unemployment numbers will finally get below 7.0% and stay there.

Yeah, that was an easy call.  The minimum wage is going up all over the country.

– Marriage equality will spread to more states as more cases based on the ruling by the Supreme Court in 2013 are heard.  Indiana will vote on a ban on same-sex marriage in November 2014, and it will lose narrowly. But same-sex won’t be the law of the land yet, and I predict that unless the Supreme Court issues a sweeping ruling, Texas will be the last hold-out.

– The Supreme Court will rule 5-4 that Hobby Lobby or any for-profit non-religious corporation does not have the right “to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”

Not in my wildest dreams did I imagine that marriage equality would take hold like it did this year.  Thirty-five states now allow same-sex marriage, many based on rulings by courts that hold that banning marriage equality violates the equal protection and due process clauses of the Constitution.  There are several cases that are making their way to the United States Supreme Court.  But the court may have tipped its hand.  In October the Court declined to take action on five cases submitted for hearing during the 2014-2015 session.  This allowed the lower court rulings that struck down the bans in those states to stand.

Feh on the Hobby Lobby ruling.

– This will be a rebuilding year for the Detroit Tigers now that Jim Leyland has retired.  They’ll do respectably well and may even win the division again, but it’s time for a breather.

Yep.

– Fidel Castro will finally hop the twig, and the slow thaw between the U.S. and Cuba will begin as the generation that is as old as Castro continues to fade away.

Fidel is still alive, but Alan Gross is free and diplomatic relations are being restored.  About time, too.

– We will lose the requisite number of celebrities and friends as life goes on. As I always say, it’s important to cherish them while they are with us.

Losing Robin Williams and Philip Seymour Hoffman, both by their own hand, made this year especially painful.

– Personally, life will continue at its gentle pace in good health and good spirits.  In September I will turn 62 and begin the first steps towards eventual retirement, but that won’t be for a long time yet.  I’ve already started on my paper for the William Inge Theatre Festival in March, and I continue to write and produce blog posts.  My parents are happily settled into their “life enrichment community,” and I hope to visit them this summer.  I might even get a smartphone this year, but don’t bet on it.

I’m already working on my paper for the William Inge Festival in April, and I had two one-act plays produced, including one entitled A Life Enriching Community, thanks to my visit to my folks in Cincinnati.  No, I don’t have a smartphone.

Now the predictions:

– Now that we have a Republican House and Senate and a president who isn’t running for re-election, get out the popcorn, and I mean the good stuff.  The GOP will try to do everything they can to destroy the legacy of Barack Obama, but they will end up looking even more foolish, petulant, infantile, and borderline nuts than they have for the last two years, and that’s saying something.  Repeals of Obamacare, Dodd-Frank, and recharged attempts to investigate Benghazi!, the IRS, and the VA will be like the three rings of Barnum & Bailey, all of which President Obama will gleefully veto.  As Zandar noted at Balloon Juice, “Over/under on when a Republican declares on FOX that Obama’s veto is  “illegal”, Feb 8.”

– Hillary Clinton will announce that she is running for president by March 2015 at the latest.  Elizabeth Warren will not run, but Bernie Sanders, the Gene McCarthy of this generation, will announce as an independent and become a frequent guest on MSNBC.  Jeb Bush, after “actively exploring” a run in 2016, will announce that he is running and quickly fade to the single digits when the GOP base gets a taste of his views on immigration and Common Core.  He may be popular in Republican polls, but those people don’t vote in primaries.  The frontrunners for the Iowa caucuses a year from now will be Rand Paul and Chris Christie.

– The war in Afghanistan is officially over as of December 2014, but there will be U.S. troops actively engaged in combat in what is left of Syria and Iraq in 2015.

– The U.S. economy will continue to improve at a galloping pace.  The Dow will hit 19,000 at some point in 2015 and oil will continue to flood the market, keeping the price below $60 a barrel and gasoline will sell for under $2 a gallon, and finally wages will start to catch up with the improving economy.  I blame Obama.

– The Supreme Court will rule that bans on same-sex marriage violate the Constitution.  They will also narrowly uphold Obamacare again.

– The embargo against Cuba will end on a narrow vote in the Senate thanks to the overwhelming influence of Republican donors who see 11 million Cubans starving for Dunkin Donuts and car parts and don’t care what a bunch of domino-playing dreamers on Calle Ocho think.

– The Tigers will win their division again.

– We will lose the requisite number of celebrities and friends as life goes on. As I always say, it’s important to cherish them while they are with us.

– I technically retired on September 1, 2014, but my last day at work will be August 30, 2019.  (It’s complicated.)  I’m planning a return trip to Stratford this summer — more on that later — and I’ll get more plays produced.  I will finish at least one novel in 2015.

– And of course, the usual prediction: One year from now I’ll write a post just like this one, look back at this one, and think, “Gee, that was dumb.” Or not.

Okay, readers, it’s your turn.  What do you predict will befall us in 2015?

Wednesday, November 12, 2014

Reasons To Hope

Supporters of Obamacare were understandably concerned when the Supreme Court announced that it would review a challenge to the law this term.  The law has already been through one round with the Court, winning in 2012 by one vote, and now the opponents hope to gut it to the bone in this go-round.

Brian Beutler has come up with eight reasons why he believes the justices will not overturn the law, ranging from the legal — the case against it is weak — to the political.  He makes a good case on all eight points, including the fact that while the Court is supposed to be above politics (yeah, right), Chief Justice Roberts and the conservatives on the bench know that killing the law would infuriate private insurers, hospitals, and make the world miserable for Republicans who would have to face the millions of voters who suddenly find themselves either without insurance or unable to afford it.

As Finley Peter Dunne (1867-1936) — in the person of Mr. Dooley — noted in 1900, “No matter whether th’ Constitution follows th’ flag or not, the Supreme Coort follows th’ iliction returns.”

Monday, November 10, 2014

ACA Life Support

It is not a good thing that that Supreme Court has agreed to review a case that could basically rip the legs out from under Obamacare.

Lyle Denniston at SCOTUSblog:

The Supreme Court, moving back into the abiding controversy over the Affordable Care Act, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance.  At issue is whether the program of tax credits applies only in the consumer marketplaces set up by sixteen states, and not at federally operated sites in thirty-four states.

[…]

By adding the case to its decision docket at this point, without waiting for further action in lower federal courts, as the Obama administration had asked, the Court ensured that it would rule on the case during the current Term.  If it decides to limit the subsidies to the state-run “exchanges,” it is widely understood that that outcome would crash the ACA’s carefully balanced economic arrangements.

Via Scott Lemieux at LGM:

People with strong stomachs can look at Jonathan Adler, in his palpable excitement about millions of people about to be stripped of their health insurance, claiming that this case is about…deferring to Congress. The fact that not a single member of Congress involved in passing the ACA has believed at any time that the subsidies were not available on federally established exchanges and the interpretation of the statute saying otherwise is nonsensical on its face renders this rather dark comedy indeed.

In other words, what amounts to a typo in the law could — and with this court it’s entirely possible — crater it.

And even if they don’t, it will not be the end of attempts to kill the law.  Remember, the same fanatics who have been fighting against a woman’s right to reproductive choice are fighting this law.

Tuesday, October 7, 2014

The Beginning Of The End

Looking at some of the reactions to the Supreme Court’s non-decision on marriage equality by the anti-equality folks — outragejudicial activism by unelected judges, a violation of God-given rights, and so on — tells me that the battle for same-sex marriage is coming to the end the way I thought it would: by the slow inexorable march, state by state, court battle by court battle, until finally the freedom to marry is as ordinary as any other exercised right.

The losers are outraged because they believed that they had the right to encode their bigotry and religious prejudice into law.  They also have gone over the top because they hear the distant approach of oblivion.  It won’t happen overnight; history tells us that overcoming pride and prejudice (h/t Jane Austen) takes a long time.  But they know the jig is up and the anti-gay movement will in time become as relevant and forceful as the temperance movement.

This may not be the solution some of us wanted: a firm holding from the Supreme Court that the Fourteenth Amendment, contrary to Sen. Cruz’s assertion, does guarantee equal protection under the law and that marriage, established as a fundamental right in cases going back generations, should be available to all citizens regardless of genitalia.  Those who criticize the Court for not taking up the case should understand that in order to do so they had to have conflicting rulings: a ruling for and a ruling against.  So far no federal bench has sided with the anti-same-sex side, therefore there’s no decision to make, and they let the lower courts rulings stand.  In baseball, it would be called a walk-off: there’s no need to have the final out when the winning run has scored and the other team has no more at-bats.

They’re going to go out in the same way they came in, though.  They will grift the foolish and the fearful of their money and hope to hang on to their cash while desperately finding some other line of work.  They know that the lies they tell and the fundamental misstatements about the make-up of our government are meant only for their pigeons.  They carry on about “unelected judges,” knowing full well that the federal judiciary doesn’t face the voters for a very good reason: they — at least it is to be hoped — should not be swayed by political or financial ambition (even if that concept has been put to the test by the current Supreme Court).  Judicial activism is clearly in the eye of the beholder.  These same people praised the genius of the Court when it decided that corporations themselves can hold religious beliefs and that a checkbook is the same thing as a soapbox; two decisions that legal scholars of every stripe agree were outside the scope of the original cases.  And while appealing to heaven and the Almighty make for some thunderous rhetoric and get the money flowing, using a religious argument to enforce an untenable violation of the Constitution should automatically disqualify it from consideration.

A federal court could rule against marriage equality and that could set up a hearing before the Supreme Court.  But yesterday’s move basically opened the door and hundreds of couples have already tied the knot in places such as Virginia, and Utah (!); states that up until yesterday morning did not have marriage equality.  Even the losers concede that undoing those bonds would be impossible.

This is not the end.  Florida still has the ban — for the moment — as do nineteen other states.  But it is only a matter of time, and I’m not talking years.  It will be months, perhaps weeks now.