Unification Ritual

So this is a problem. Palestine has formed a unity government. That isn't the problem part. The issue is that said unity government hasn't unified on the subject of whether to recognize Israel (/whether killing Israelis is okay). The Fatah leadership says they reject violence categorically. I don't believe them, but it's still a nice gesture. The Hamas half of the government refuses to budge in inch on the whole "destroy the Zionists" bit. Hence, the Israeli government's response:

"President Abbas accepts the three international principles and Prime Minister Haniyeh not only doesn't accept them, but calls openly for Palestinian resistance -- that is, for Palestinians to commit terror against Israel," said Miri Eisin, spokeswoman for Israeli Prime Minister Ehud Olmert. "Israel will not recognize or deal with such a government."

It's probably good that Israel has a single entity to deal with (in whatever manner it ends up dealing), but when the unity government isn't unified over some pretty key issues, I don't think we're really going to see any progress.

Contraceptive Failure

The 8th Circuit has issued a very disappointing 2-1 ruling in Standridge v. Union Pacific Railroad. The court held that a company policy not extending its health care to cover contraception violated neither Title VII nor the Pregnancy Discrimination Act (PDA), primarily because contraception occurs prior to conception (obviously) and thus is not "related" to pregnancy (er, less obviously).

The decision is wrong, and not in the liberal, judicial-activist, decisions I dislike are wrong fashion. It's wrong because it violates the plain meaning of the PDA, which applies not just to "pregnant women" but to "women affected by pregnancy." I.e., any women of child-bearing age--pre- or post-conception. Not just the sexually active--since all women can be raped (a fact "the sluts deserve it" arguers always forget to account for), all women who are within the proper age frame can become pregnant and thus are "affected" by pregnancy--with all the medical, psychological, social, and economic burdens it brings (even if we were to restrict the debate to sexually active women, I neither know how nor desire the capacity for companies to discern which of its female employees were sexually active). As Ann of Feministing puts it:

How hard is it for judges to understand that 1) contraception is a basic, fundamental part of women's preventive and routine health care, 2) pregnancy -- which is the result of lack of contraception use -- disproportionately affects female employees, so 3) failure to cover contraception is discrimination against women? Seems clear as day to me.

This points to another issue--the panel not only fails to understand what makes one "affected by pregnancy," it also fails to discern the meaning of discrimination. The court used Union Pacific's failure to cover certain non-prescription contraceptive tools (such as condoms and vascetamies) as proof that their policy did not discriminate against women. This, of course, misses the point: the issue isn't who takes what pill or undergoes what procedure. The issue is who bears the medical affects of pregnancy. Women get pregnant, men do not, thus women bear the medical affects of pregnancy, and men do not. This should be obvious, but the dissent apparently felt the majority needed a basic reminder of Biology 101: "[T]he record demonstrates women are the only gender which can become pregnant." Not providing coverage of a significant medical condition that only affects women is discriminatory on face, and is precisely the sort of disparity that the PDA was designed to remedy.

These effects are not inconsequential. Reproductive Rights blogger Caitlin Borgmann remarks on the significant out-of-pocket expense women are forced to incur if they have to pay their own way on contraception. If they can't afford it, then their sexuality (voluntarily chosen or not--remember the rape issue) becomes a Sword of Damacles hanging over their head, threatening to decapitate their earning potential, subject them to serious health risks, and, oh yeah, force them to possibly bring a child into the world before they're ready. These disparities are real and should be obvious. That the court did not see them, and did not apply the plain meaning of the PDA which by its terms applies to any women "affected by pregnancy", suggests more of a willful blindness than any mundane dispute over statutory interpretation.

Good Lord

LA Times reports that Obama "bowed to Allah" as a child in Indonesia. Obama's campaign issues a statement saying "Senator Obama has never been a Muslim, was not raised a Muslim, and is a committed Christian who attends the United Church of Christ."

Wow, do I not care. What exposure Obama had to Islam as an eight year old is spectacularly uninteresting to me. For that matter, now that Keith Ellison is in Congress I would love if we could all affirm that Obama could be Muslim now, and it wouldn't matter so long as his politics were the same (I'm curious how GOPers would respond if Zalmay Khalilzad ran for office). But regardless, even if this story turns out to be true (as the radical madrassah one wasn't), it is so innane as to border on "Mitt Romney's ancestors were polygamous" territory.

Home, Sweet Home

Today's the travel day. I'm heading back to Bethesda for Spring Break. And thus, the maelstrom of this term (far and away the most intense I've had at Carleton) comes to an end.

Clinton, Obama and AIPAC

The recent meeting at AIPAC is apparently one of the few venues where Hillary Clinton outdrew Barack Obama. Obama's last foray to AIPAC, in my opinion, was "solid but not spectacular." Here, a minor flap appears to be developing over Obama's comment (the night before the conference) that "Nobody is suffering more than the Palestinians."

I agree with Jon Chait that this overblown. It's self-evidently clear that Obama is talking within the context of the I/P conflict (had he be saying that the Palestinians were suffering more than, say, Darfuri Africans, I'd have issues). And we can recognize the immense hardship that Palestinians live under without turning to reflexive Israel bashing. Some of it is traceable to Israeli actions. Some of it is the Palestinian's "own fault." A large part, I'd forward, can be laid at the feet of Palestinian militia and terrorist groups, of which the average Palestinian man or woman has little influence on.

Whatever. I agree with Ezra Klein and think pro-Israeli speakers (in which I count Obama) should emphasize the manner in which prolonging the conflict hurts Palestinians. The Israeli and Palestinian interest here are not out of sync. A peaceful solution is to the benefit of both. When Palestinian's launch a suicide bombing, that is anti-Palestinian, because it has virtually no hope of causing any positive change and merely prolongs their suffering.

The sooner that truth is drilled into everyone's head, the happier I'll be.

Lucy In The Sky

Sasha Volokh points to a new article by Mike Seidman, Critical Constitutionalism Now [75 Fordham L. Rev. 575 (2006)], which argues that the arguments of the Critical Legal Studies movement have been vindicated--by President Bush's, er, creativity in interpreting legal texts and norms to justify some of his more extreme policies on the war on terror.

I think that's true, although I hardly think it strikes a mortal blow against the CLS movement. Much the opposite, I think this is precisely what modern CLSers would predict--conservatives mask their policy preferences as "rule of law," when in reality they are just contorting law to fit the policy. This is how law can be enlisted so easily to impede social change--it's content never is unambiguous and thus no conservative will ever feel compelled to make any earth-shaking or radical reform to society via law.

In sum, I feel like Seidman's understanding of the history and "ideology" (such as it is) of CLS and successor movements is weak, although the prescriptive portions of his paper are better. However, he does score significant points for this passage, explaining why CLS scholars think the discourse of rights can actually be harmful towards achieving social reform:

The rhetoric of rights tended to objectify and distort the actual situation in which people found themselves. Rights were abstract, alienating, and individuating rather than concrete, liberating, and unifying. 12 These deficiencies were, in turn, reinforced by what might be called the "Lucy-and-the-football" phenomenon. The possibility of vindicating legal rights was endlessly dangled before the dispossessed. Rights were in fact vindicated frequently enough so as to keep people in the game. However, the indeterminacy of rights allowed courts to yank them away just when any truly meaningful reform seemed within reach. Consequently, endless time and energy were wasted in the pursuit of legal remedies, when the time might better have been spent organizing nonlegal popular resistance. (578)

Agree with it or no, I certainly think that portrays the argument in a delightful, succinct, and lucid manner.

Incidentally, Volokh-the-younger also links to Jack Balkin's Deconstruction's Legal Career [27 Cardozo L. Rev. 719 (2005)], which is a spectacular piece and one I cannot recommend highly enough.

Meehan Has Left The Building

Massachusetts Democratic Representative Marty Meehan is resigning from Congress to become the chancellor of UMass-Lowell. The coverage has focused on the fact that this creates a truly competitive Bay State House race for the first time in five years (Gov. Deval Patrick needs to call for a special election within 160 days). That's true (there are undoubtedly a lot of talented Massachusetts Dems who have been yearning to advance in the Party), and it should be interesting. But I just want to point out that Meehan is the point man on the effort to repeal the military's odious Don't Ask Don't Tell policy. He's got 116 co-sponsors and rumors of momentum. I hope that the other Representatives working on this issue can keep this issue moving in his absence.

UNHRC: Lost Cause?

After reading yet another article detailing how the UN Human Rights Council's single-minded focus on Israel to the expense of any other human rights issue in the world, Julien Ku asks if it is time to abandon the idea of a UN human rights body altogether, at least for the near term.

Rather than whining about the U.N., etc., a more interesting question whether there could ever be a Human Rights Council with a broad-based membership that achieves fundamental agreement on the applicability of universal human rights norms. The consistent failure of this or any HRC to achieve broad consensus is not necessarily the result of political machinations by "bad" countries. Rather, it may reflect the more unsettling reality that there is no serious or broad consensus on what those norms are, despite lots of claims contained in human rights treaties to the contrary.

Meanwhile, Elizabeth Cassidy has an interesting post noting how the structural aspects of the new UNHRC give disproportionate power to the Organization of the Islamic Conference (OIC), virtually none of whom are "free" countries, and who have used their influence to dictate the council's aggressively anti-Israel stance. In 2006, the OIC managed to pass eight resolutions condemning Israeli human rights violations (without mentioning any abuses committed by the other side). No other country was singled out for critique even once. The European members of the council did manage to push through two resolutions on Darfur, but in order to get OIC approval they had to be watered down so much they actually lauded Khartoum for its "cooperation." Gag.

The problem with the UN in general, and the UNHRC in particular, is that it is dominated by unfree nations who have no interest in protecting human rights, and a very big interest in distracted global attention from their own internal failings by finding convienant external scape-goats (who, in what must be some incredible historical coincidence, happen to be Jews!). That this does not yield particular progressive results on a regular basis really cannot surprise us anymore.

DePauw Kicks Out Delta Zeta

Via Sacha Zimmerman, apparently DePauw University has kicked out the Delta Zeta sorority, which had made news after its national HQ expelled a significant portion of its house members on-campus. The exiled women included pretty much anyone who was not White, slender, and conventionally pretty.

DePauw obviously made the right move here. I also want to point out that this issue is a major victory for the Feminist Blogosphere, who got on this issue early and refused to let it drop. Excellent work.

Our Bodies Our Blog has the University's rationale, as well as links to several Delta Zeta alum who joined condemnation of the national office.

Arab Gay Rights Meeting in Israel

Jerusalem may host a rare meeting of Arab gay rights activists.

Headlined "Home and Exile," the March 28 meeting is meant to spark discussion of homosexuality among Israel's 1 million Arab citizens, said Roula Deeb, a prominent Arab feminist and one of the scheduled speakers.

The conference is being organized by Aswat, an Arab lesbian group based in Haifa, a coastal city home to both Jews and Arabs.

Around 100 to 150 people are expected to show up, Deeb said. With homosexuality a taboo topic in much of the Arab world, the meeting is important simply because it is taking place.

Israel is generally tolerant of homosexuality, and the country's secular metropolis, Tel Aviv, is home to a thriving gay community. But Israel's Arabs, who make up 20 percent of the population, live mostly in separate communities and homosexuality is still considered out of bounds.

Any guesses why the meeting is happening in Israel?

I don't mean to be too triumphant. There is plenty of anti-gay sentiment in Israel and in the Jewish community (the article notes opposition coming from leaders of Jerusalem's ultra-orthodox community). And again, the most important thing is that the meeting is happening, and one hopes that it is fruitful and productive. But let's remember--in all the Middle East, Israel is probably the only country this meeting could happen publicly without the participants being beaten and/or stoned.