Wednesday, July 21, 2004

Gay Adoption

On a tied 6-6 vote, the 11th Circuit Court of Appeals has denied an en banc rehearing of Lofton v. Department of Children and Family Services. The case concerned the constitutionality of a Florida Statute which catagorically prohibited practicing homosexuals (but no one else, including drug abusers and criminals) from adopting children. The text of the denial ruling (along with its dissent) can be found here.

1) I think this ruling is just wrong. The court seemed to rest its decision on the idea that in order to challenge a statute under "rational basis" standards, one is obligated to disprove any possible rational basis for enacting the statute. From the Supreme Court case of Heller v. Doe a challenged statute under the rational basis test "must be upheld against equal protection challenge if there
is any reasonably conceivable state of facts that could provide a rational basis for the classification...It could be that the assumptions underlying these rationales are erroneous, but the very fact that they are arguable is sufficient, on rational-basis review, to immunize the legislative choice from constitutional challenge." The dissent makes a compelling argument that this controversy shouldn't be decided by a rational basis standard. However, even within that framework, I think the law fails. Certainly, one can argue anything, so the courts must make some sort of reasoned judgment about whether the argument is plausible or not. Simply asserted the legislature's professed rationale without any analysis as to its validity or internal consistency is no way to make a decision, even under such a deferential standard. Such a standard would have caused virtually all the cases cited by the court to have been decided in the opposite of their eventual rulings. For example, in City of Cleburne v. Cleburne Living Center (cited by the court), the "rational basis" for the denial of a zoning permit to an assisted living center for the mentally retarded was a) that people generally feared said group and b) a plethora of disingenious statements ranging from "the site is on a flood plain," to "local schoolchildren will harass the residents." For the latter rationale, the court dismissed the analysis on the grounds that the zoning board didn't have any similar requirements for any other type of similarly situated building (a flood plain is a danger to any building, and all sorts of people, from minorities to the elderly to hippies might be mocked by schoolchildren). The court then concluded that in abscence of any other reasonable rationale, the first justification amounted to nothing but an expression of animus on the part of the local community and could not stand. The parrallels to this decision are quite easy to see. The vast majority of the state's claims of rationale falter because it makes no effort to apply the same standards to similarily situated people (for example, its claim that it wants children in houses with a mother and a father is undercut by the fact that it allows single people to adopt). The only analysis it gives that arguably only applies to Homosexual couples is that the state might want its children to be "normalized" and that it would be weird and possibly harmful for predominately heterosexual children to be raised by homosexual parents who are implied to be outside the mainstream. Even beyond the substantial psychological evidence which shows that any harm to children raised by homosexual parents is fictive (which in itself is proven by the situation of the petitioning family), the flaws in this argument are transparant. First, as the dissent aptly notes, it gives no guidance on how to deal with homosexual children who presumably need a "similar" parent figure as much as heterosexual parent does. Second, it doesn't apply the same standard to other groups that could be termed "outside the mainstream" (like inter-racial couples). Ultimately, the statute legally places an actively homosexual person beneath a herion addict in the states perception of how apt they are to raise a child. That is patently absurd and profoundly irrational.
2) The 6th vote to deny rehearing was cast by Justice William Pryor, who was appointed by President Bush in a recess appointment. Had he not been present, the vote would have been 6-5 in favor of a rehearing, and the ruling might have been overturned. So for all those who view the appealate court nomination fights as a waste of time, this should be a wakeup call.
3) Am I the only one who has noticed that in cases such as these, even the conservative judges are loathe to defend the laws themselves, instead resting their arguments on judicial restraint? Justice Birch wrote in the majority opinion for the denial of rehearing:
I will conclude on a purely personal note. If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood. In reviewing the record in this case one can only be impressed by the courage, tenacity and devotion of Messrs. Lofton and Houghton for the children placed in their care. For these children, these men are the only parents they have ever known. Thus, I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interest of these children in a different light.

Justice Thomas wrote in his dissent in Lawrence v. Texas
I write separately to note that the law before the Court today 'is ... uncommonly silly.' Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources

This of course quoting Justice Potter Stewart in his dissent in Griswold v. Connecticut where he and Justice Black also talk about the stupidity of a law they believed they were obligated to uphold. Shouldn't conseratives do a bit of soulsearching if their own champions on the court are so vociferous in their denounciations of these laws even as they vote to sustain them?

Tuesday, July 20, 2004

Sandy Berger

Its been revealed that Sandy Berger, Bill Clinton's former National Security Advisor, took some classified Homeland Security documents while he was reviewing them for the 9/11 commission, and now claims he inadvertantly discarded a few.

Being 100% charitable to Mr. Berger, this was remarkably boneheaded. Being less charitable, it was possibly criminal, and one has to ask what his motives possibly could have been. Daniel Drezner is willing to give him the benefit of the doubt (IE, that Mr. Berger was just plain stupid). The folks at Powerline and The National Review are far more suspicious.

Powerline posted a statement from House Speaker Dennis Hastert on the matter. The quote I found notable:
Mr. Berger has a lot of explaining to do. He was given access to these documents to assist the 9/11 Commission, not hide information from them. The American people and the 9/11 families don't want cover-ups when it comes to the War on Terror. They want the truth. And so does the U.S. House of Representatives.

Begging your pardon Mr. Speaker, but you led the charge against full accountability for 9/11 and against the 9/11 commission. So let's not get too self-righteous about the need for full disclosure.

Monday, July 19, 2004

Markets and Masses

CNN had an interesting article on the relative intelligence of crowds compared to the individuals that are contained within them. Indirectly, this is a powerful argument for capitalism that contrasts with the prevelant "dumb herd" mentality. If this seems interesting to you, also check out Tom Friedman's comments on "The Electronic Herd" in his book The Lexus and the Olive Tree

Also hidden in the article was this gem of a card for those arguing on the impacts of the recent financial scandels.
James Surowiecki, author of "The Wisdom of Crowds" (as quoted by on July 14 2004)
If anything can hurt markets, says Surowiecki, it's lack of trust. Capitalism has succeeded, he says, because people are willing to trust their money with strangers. The misstatements and financial chicanery of the late-'90s bubble have wounded that confidence.

"The challenge for capitalism is that the things that breed trust also breed the environment for fraud," he says. People can make money by working together -- but when the sums of money are as huge as they've been of late, it can be very tempting for people to subvert the system for their own gains.

And yet Surowiecki has hope that trust can be maintained and, indeed, markets can keep improving. Economists and psychologists have found indications that our first impulse -- as people and consumers -- "is to do the socially beneficial thing," he says.

Potter Politics

UPDATE: 7/19 @ 3:00 PM
From the "You Are Really Reading Too Much Into It" catagory, the New York Times gives us this wonderful diatribe on how Harry Potter reinforces the myths of neo-liberalism and the capitalist model.

Daniel Drezner should be credited with the link, and his "responses" to the article are also worth the read.

This also talks about neoconservative leanings of the HP world, though in far less post-modern langauge.

Fun stuff.

Sunday, July 18, 2004

Full Disclosure

In response to the Bush administration's request for the footage from Sen. Kerry's controversial star-studded fundraiser, the Kerry campaign sent the Bush administration this letter. Highlights:

we will not consider your request until the Bush campaign and White House make public the documents/materials listed below:

-- Military records: Any copies of the President's military records that would actually prove he fulfilled the terms of his military service. For that matter, it would be comforting to the American people if the campaign or the White House could produce more than just a single person to verify that the President was in Alabama when said he was there. Many Americans find it odd that only one person out of an entire squadron can recall seeing Mr. Bush.

-- Halliburton: All correspondence between the Defense Department and the White House regarding the no-bid contracts that have gone to the Vice-President's former company. Some material has already been made public. Why not take a campaign issue off the table by making all of these materials public so the voters can see how Halliburton has benefited from Mr. Cheney serving as Vice-President?

-- The Cheney Energy Task Force: For an Administration that claims to hate lawsuits, it's ironic that the Bush White House is taking up the Courts' time to keep the fact that Ken Lay and Enron wrote its energy policy in secret behind closed doors. Please release the documents so that the country can learn what lobbyists and special interests wrote the White House energy policy.

-- Medicare Bill: Please release all White House correspondence between the pharmaceutical industry and the Administration regarding the Medicare Bill, which gave billions to some of the President's biggest donors. In addition, please provide all written materials that directed the Medicare actuary to withhold information from Congress about the actual cost of the bill.

-- Prison Abuse Documents: A few weeks ago, the White House released a selected number of documents regarding the White House's involvement in laying the legal foundation for the interrogation methods that were used in Iraq. Please release the remaining documents.

Florida 2000

John Edwards is mentioning the Florida 2000 debacle in stump speeches according to .

Good move? I'm think so, though its risky. The upside is motivating black and latino voters who might otherwise stay home at the polls. The downside is that Kerry/Edwards are opened up to charges of political pandering and dwelling on the past. But Republicans make that charge every day anyway. So I'm inclined to think this is smart campaigning.