The Exclusive Language of Marriage

So I was browsing around What's the Rumpus (recent recipient of the prestigious Debate Link Award for Excellence in Poetry) and I stumble across a post linking to this attack by Bradley Watson on the judicial "deconstructing" of the term "marriage." In a nutshell, Watson argues that stripping the historical meaning of marriage away (for legal purposes, anyway) makes marriage a meaningless term, and opens the door to Orwellian newspeak where words are infinitely malleable and can be used to whatever ends the state might desire.

The first problem with the article is it displays a profound misunderstanding of what "deconstruction" means. Conservatives seem to think it means "destruction," when we deconstruct the meaning of words we destroy them. That is not what it means at all. Rather, deconstruction stems from the axiom that words have multiple meanings, both existent and potential, and that language games involve the elevation of certain meanings and the suppression of others. When we "deconstruct" a word, phrase, or idea, then, we examine why it is that a particular meaning (or meanings) have become privileged, while others have been subordinated.

Conservatives might respond that with multiple meanings that are always situational and contingent, language becomes utterly incoherent, so it's as if we destroyed the meanings. However, this isn't true, and Watson himself demonstrates how:

For Christians, in particular, marriage has meant the union of a man and woman. This is because it refers, among other things, to the unique, God-given capacity of man and woman to enter a covenantal relationship parallel to that between Christ and His church. It is a point of encounter between God and man. The rites of marriage are performed in the hope-with full knowledge that the reality sometimes does not live up to the hope-that each and every example of the sacramental relationship realizes its potential and purpose and therefore reflects the divine intention. The divine mind has an idea of human nature, and therefore human relationships, that does not and cannot change. Marriage, in short, is a word that describes something particular in the divinely created natural order, something that simply cannot be replicated in a same-sex relationship.

I am not Christian. Hence, this "meaning" of marriage is, in a tangible sense, utterly foreign to me. I cannot reach it. "A covenantal relationship between Christ and his church" is beyond my philosophical horizon. I do have my own, Jewish conception of marriage, which has both similarities and differences with the Christian form, but still is in the end a different ritual. And yet, despite this, I can somehow recognize the relationship described as a "marriage." Something allows me to transcend the particularities of my experience to understand the experiences of the other, without--and this is the important part--either disparaging my own experience or denying its meaning. I can do the same thing for homosexual marriages, even though, as a heterosexual, it too is completely "distant" in a tangible sense. The deconstructed idea of marriage doesn't destroy meanings, it affirms multiple meanings as valid based on context.

What's interesting is that we accept the presence of "multiple meanings" all the time, generally without question. A Christian marriage might require the parties to recognize their bonds under Christ. A Jewish marriage obviously doesn't have that facet, yet most Christians would still accept it as a valid marriage, even if the same act would not be a valid marriage amongst Christians. The reverse is true too, Jews recognize Christian marriages without a Ketubah as legitimate, even if it is required for Jews and would make for an invalid marriage if the parties were Jewish. One might argue that acceptance of uncertainty and multiple life-paths is a precondition to a pluralist society--if I am utterly convinced that my way is the one true way, then democratic deliberation becomes an unnecessary barrier to utopia. As Chantal Mouffe puts it:

To believe that a final resolution of conflicts is eventually possible...far from providing the necessary horizon of the democratic project, is something that puts it at risk. Indeed, such an illusion implicitly carries the desire for a reconciled society where pluralism would be superseded. When pluralist democracy is conceived in such a way, it becomes a self-refuting ideal because the very moment of its realization coincides with its disintegration.["Democracy and Pluralism: A Critique of the Rationalist Approach," 16 Cardozo L. Rev. 1533, 1544 (1995)]

Hence, so long as acceptance of the right of some communities (IE, churches, families) to include gay marriage under the umbrella of marriage doesn't disparage the rights of other communities to reject it, pluralism is achieved.

One could also recast the question as a matter of "essences." What are the essential attributes of marriage? This is to some degree a peculiar question, since again, people somehow affirm that a Ketubah is essential to a Jewish marriage but not to marriage abstractly. Beyond that, though, the question of "essences" is infinitely reductive. Is marriage "a union between a man and a women under Christ," or "a union between a man and a women" or "a union between two loving persons"? All definitions include some and exclude others. So we have three choices: we can draw the line arbitrarily, simply in line with whatever social stereotypes and preconceived prejudices we've inherited from our ancestors; we can draw the line as far out as possible, including everything but meaning nothing; or we can reject the need for line-drawing at all and recognize that there are no abstract essences, just the individual traits of particular relationships. I'd assert that the last option is preferable, preserving meaning while including the hitherto excluded. It also allows for some forms of social control--bestiality is not prohibited because it violates some "essence" but because it violates the notion of consent which is required to enter into contractual relationships.

From a legal perspective, Watson's case grows weaker still. One might indeed believe that preserving marriage as a bond between a man and a women (or a Christian man and women) is worth defending. Nothing in any legal decision has cast otherwise--every Christian church in the land, if it so chooses, can continue to define marriage as such. However, from the perspective of the state, such inter-denominational spats (even if, in this case, the denominational breakdown is predominantly religious versus secular) are not to be waded into. The one true meaning, if it even exists, is of no concern to it (indeed, setting that meaning up as inviolable is inherently anti-democratic, see Mouffe above). The state is a pragmatic body, it tries to achieve pragmatic goals. Those goals have to be within the recognized authority of the state. Playing dictionary is not one of those goals, the state is (for obvious reasons) not vested with the authority to tell us, under pain of legal sanction, the final meaning of diction. The definition of marriage, preserving the ability of man "to express the union of a man and woman," as Watson so hyperbolically puts it (as if language can only exist within the context of state mandates. I should hope our social traditions are not so fragile!), is not valid material for the government to play with. States can, however, do many things that have a secondary relationship to marriage--for example, it can look out for the well-being of children, or encourage stable relationships. In pursuing these goals though, the state must act with as fine a scalpel as possible. If the goal is aiding children, then the state should assign whatever benefits it deems appropriate to any family unit with children. It is not enough to say that most married heterosexual couples either have or have the capacity to have children and most homosexual couples don't, because that is needlessly exclusive and their is a more precise mechanism available. The same thing applies to fostering safe and stable relations, whatever the state decides is necessary to achieve that goal, it must make available to any partnering that has the capacity of being safe and stable. The formulation may be laid down as such: When seeking to achieve a legitimate political end, the state cannot adopt a more exclusive policy in cases where it could just as easily adopt a more inclusive one without substantially changing the nature of the objective.

Watson's argument stems from a flawed premise of what deconstructionalism means, proceeds to defend arbitrary essences which do not exist, and then concludes by placing the duty to defend the whole enterprise at the foot of a state whom conservatives used to be wary of vesting so much power in. I would think that the prospect of Orwellian newspeak grows greater if we become dependent on government to define our meanings for us, rather than forming vibrant communities of our own in which we can pursue our version of nature, essence, and the meaning of life.

The Rapists and Sexual Predators Right to Sue Act

...and other creations of the GOP (I'll explain momentarily).

The House of Representatives passed a bill today which would make it a crime for any person to transport a minor across state lines for the purpose of evading parental notification laws to procure an abortion.

On face, parental notification laws seem quite reasonable. We require parents to be informed of any other medical action being taken on their child, so why should an abortion be an exception? Indeed, one could plausibly argue that abortion is more worthy of parental notification, since, after all, it does represent an intense and emotional moral decision that should come with care, support, and familial guidance.

Matthew Yglesias, however, dissects that notion and hits upon my chief concern.

But the real locus for action with these laws isn't with families like that. It relates to young women who've gotten pregnant and who have socially conservative parents. The main effect of the laws is to intimidate such women out of getting abortions for fear of what their parents (most likely fathers) will do to them if they're told. Now if you believe abortion is murder, this is a great deal. From within the relevant class of people, a certain number are successfully intimidated out of having abortions. A sub-set of these women probably wind up being subjected to physical abuse by their parents, but a few beatings is a small price to pay for cutting down on the number of baby killers.

While nobody is afraid to inform mom and dad about knee surgery, or a flu shot, there is a significant number of teenagers who have legitimate reason to fear informing their parents about either a prospective abortion or a pregnancy. That alone distinguishes it from other medical actions. The primary group affected by parental consent/notification laws are young teens from socially conservative families, who will be disapproving of the pregnancy at the very least, and be overtly hostile and/or abusive at the most. Teenagers from healthy families would for the most part already tell their parents if they were going to have an abortion. Even teenagers which come from caring, pro-life families I suspect (hope) would be able to inform their parents if they were going to make that fateful decision. The group that wouldn't notify their parents are the girls who have reason to fear their parents would beat them, verbally abuse them, or kick them out of the house (not to mention those raped by their father or other family members). That group--most likely scared, confused, unlikely to know legal remedies to their situation and least likely to reside in locales with sympathetic judges (for judicial bypasses)--is the one targeted by this bill, and I submit it is predatory for that reason (Legal Fiction gives us a sneak preview of what the first conviction under this bill will look like).

But there are those, such as Kevin Drum, who are more undecided on the issue than I am. But even he (as well as I, and anybody else who cares about fair political discourse) is outraged by how Republicans behaved in the debate over the bill. Basically, the Democrats submitted a series of amendments, which committee chair James Sensenbrenner rewrote to make it sound like Democrats were defending sexual predators (the bill, needless to say, has nothing to do with sexual predators at all). Obsidian Wings has the details:

"DEMS: a Nadler amendment allows an adult who could be prosecuted under the bill to go to a Federal district court and seek a waiver to the state's parental notice laws if this remedy is not available in the state court. (no 11-16)
GOP REWRITE:. Mr. Nadler offered an amendment that would have created an additional layer of Federal court review that could be used by sexual predators to escape conviction under the bill. By a roll call vote of 11 yeas to 16 nays, the amendment was defeated.

DEMS: a Nadler amendment to exempt a grandparent or adult sibling from the criminal and civil provisions in the bill (no 12-19)
GOP REWRITE: . Mr. Nadler offered an amendment that would have exempted sexual predators from prosecution under the bill if they were grandparents or adult siblings of a minor. By a roll call vote of 12 yeas to 19 nays, the amendment was defeated.

DEMS: a Scott amendment to exempt cab drivers, bus drivers and others in the business transportation profession from the criminal provisions in the bill (no 13-17):
GOP REWRITE. Mr. Scott offered an amendment that would have exempted sexual predators from prosecution if they are taxicab drivers, bus drivers, or others in the business of professional transport. By a roll call vote of 13 yeas to 17 nays, the amendment was defeated.

DEMS: a Scott amendment that would have limited criminal liability to the person committing the offense in the first degree (no 12-18)
GOP REWRITE:. Mr. Scott offered an amendment that would have exempted from prosecution under the bill those who aid and abet criminals who could be prosecuted under the bill. By a roll call vote of 12 yeas to 18 nays, the amendment was defeated.

DEMS: a Jackson-Lee amendment to exempt clergy, godparents, aunts, uncles or first cousins from the penalties in the bill (no 13-20)
GOP REWRITE. Ms. Jackson-Lee offered an amendment that would have exempted sexual predators from prosecution under the bill if they were clergy, godparents, aunts, uncles, or first cousins of a minor, and would require a study by the Government Accounting Office. By a roll call vote of 13 yeas to 20 nays, the amendment was defeated."

Rep. Sensenbrenner justified the characterizations by saying that Democrats never explicitly excluded sexual predators from the amendments.

"Judiciary Committee Chairman James Sensenbrenner, R-Wis., who authored the panel's report, defended its language, saying the Democratic amendments would not have specifically excluded child molesters from protections.

'Perhaps these amendments were not properly drafted by the authors when they were submitted in the committee,' Sensenbrenner told the House. 'That's not the fault of the majority, that's the fault of the people who drafted the amendment.'"

To which Representative Nadler replied:

"Under CIANA, a father who rapes and impregnates his own daughter can go and sue the doctor or the grandparent or the clergyman who transported his child across state lines for the purpose of getting an abortion. Maybe that wasn't exactly the intent of this legislation. But according to the descriptive guidelines now laid out by the majority, it would therefore be fair to call this entire bill the Rapists and Sexual Predators Right to Sue Act."

Obsidian Wings adds some more potential bill rewrites under the "no specific exemption means you're defending sexual predators paradigm"

The Highway bill, for instance, can now be called the "Helping Sexual Predators Reach Their Victims More Quickly Act". A bill appropriating money for cabins at a National Park could be called the "Providing A Secluded Location In Which Sexual Predators Can Molest Their Victims Act". A new telecom regulations bill might be the "Enabling Sexual Predators To Communicate More Easily With Their Victims Act." The next time a supplemental appropriations bill for Iraq comes up, we can call it the "Enabling Sexual Predators To Target Our Men And Women In Uniform Act". (I mean, what are the odds that our armed forces, noble though they are, do not include at least one sexual predator?) The possibilities are endless.

This isn't honest political debate. This is childish mudslinging not even bothering to disguise itself as an argument. And it disgusts me.

Good Poetry

I tend to hate poetry. I don't really know why, but it's just not my cup of tea. But every once in awhile, there is one that really tickles me. Ann Althouse inspired this effort from What's the Rumpus:

Surviving a Tornado with a Post-Structuralist

"Il n ya pas d hors tornado"
he said,
his fingers forming quotation marks
in sync with "tornado,"
his black clad back to the window,
his form refusing to brace itself
against the chaos
of defenestrating wind.
Retreating to the cellar
I wondered
on what far field his form would fall
and whether he would finally find himself
outside the text.

Heehee...I grant thee The Debate Link Award for Excellence in Poetry (don't laugh, it's pretty impressive considering I despise all poetry).

ACLU Appeals Chesterfield

How Appealing directs us to the news that the ACLU is appealing to the full 4th Circuit the decision in Simpson v. Chesterfield County Board of Supervisors.

That ruling was simpy atrocious. It may have represented the worst parody of justice I've seen since I've begun blogging, even worse than the Lofton gay adoption decision, and that has been my paradigmatic awful case since pretty much when I began writing. I don't have a lot of faith in the 4th Circuit, but if there ever was a case that demanded reversal, this was it.

Abu Gharib's Anniversary

Jack Balkin reminds us that we have hit the one year anniversary of the Abu Gharib scandals. And what better way to commemorate it than by exonerating the top officers who allowed it to happen?

Say what you will about Ted Kennedy, but his speech to congress on the matter was stirring, to say the least. After outlining the way that torture scandals have hurt America in the war on terror, Kennedy reminds us that, of all things, torture should be an issue that unites Republicans and Democrats and transcends party affiliation.

Never before has torture been a Republican versus Democrat issue. Instead, it's always been an issue of broad consensus and ideals, reflecting the fundamental values of the nation, and the ideals of the world.


President Reagan signed the Convention Against Torture in 1988. The first President Bush and President Clinton supported its ratification. The Senate Foreign Relations Committee, led by Senator Jesse Helms voted 10-0 in 1994 to recommend that the full Senate approve it. The Clinton Administration adopted a "zero tolerance" policy on torture. Torture became something that Americans of all political affiliations agreed never to do.


9/11 didn't nullify this consensus. We did not resolve as a nation to set aside our values and the Constitution after those vicious attacks. We did not decide as a nation to stoop to the level of the terrorists, and those who did deserve to be held fully accountable


Americans continue to be united in the belief that an essential part of winning the war on terrorism and protecting the country for the future is safeguarding the ideals and values that America stands for at home and around the world.


That includes the belief that torture is still beyond the pale. The vast majority of Americans strongly reject the cruel interrogation tactics used in Iraq, Afghanistan, and Guantanamo -- including the use of painful stress positions, sexual humiliation, threatening prisoners with dogs, and shipping detainees to countries that practice torture. The American people hold fast to our most fundamental values. It is time for all branches of the government to uphold those values as well. It is clear beyond a doubt that we cannot trust this Republican Congress or this Republican Administration to conduct the full investigation that should have been conducted long before now. We've had enough whitewashes by the Administration and Congressional Committees.

Remember that this was not torture to uncover a nuclear bomb, but rather torture as a matter of routine, against detainees who might not even be terrorists. Such actions should be intolerable by anybody.

Contrast this response to the sick tirade by Rush Limbaugh and we can see who has the moral compass on straight in America today.

As I've said before, we need to put torture on the front page, make it so America cannot ignore the actions taken in our name. Our outrage right now is only skin deep, and America wants nothing more than to be able to ignore/deny the problem. This is unfitting of a light amongst nations, and I refuse to whitewash, deny, suppress, or explain away America's abdication of its duties as a global leader.

Sympathetic Reading

Phocion kindly (and eruditely) responds to my defense of sympathy as a potential judicial standard. However, I don't think he really addresses the critical dilemmas.

What Phocion seems most troubled by is the link between sympathy and a judges own sense of right and wrong. This, presumably, is subjective and thus not an apt methodology for making decisions. As he puts it:

That leads to the potentially troubling idea that judges can overcome logic, reason, and precedent because of their own feelings on the issue. So, my problem with sympathy in judging is not all due to its unpredictable nature, but its rather anti-democratic, moralist and yes, amorphous, nature.

This is all true, to an extent (although I have to ask, is sympathy inherently illogical? Could we not rationally conclude that it is best for our justice system to be sympathetic and try and "problem-solve," in a matter of speaking, rather than rigidly applying rules that everyone agrees won't lead to just outcomes in a given case?). However, I don't think it is unique. Any decision judges make--including the one to follow set-in-stone rules--is a value judgment. The judge concludes that following the rules, the guidelines, is more important than doing something else (achieving what he deems a just outcome, for example). Moreover, we recognize that this decision isn't always moral (see, e.g., Nuremberg). If someone contracts to perform an assassination, then refuses to carry it out, we wouldn't label him immoral because he refused to "follow the rules." Any decision people make is justified by some rationale, whether because it respected stare decisis, or was most in line with the framer's intent, or because it was "just." One can debate the relative merits of one to another, but to assert that one is a priori to the rest is facile and unsupported by any corroborating text, philosophically or constitutionally.

This is not to say that following the rules is always, or even mostly, bad. As I've said before, following rules has many positive outcomes, chief among them predictability, and also probably being democratic as well. However, it is facile to say those values can never be outweighed. T. More talks about this too in the torture discussion, pointing out that Professor Yoo had an obligation to examine the normative impacts of the rules he was describing, creating, and applying. It was an abdication of responsibility for him to just throw up his hands and say, "I'm just following the guidelines." We create subjective standards in the judiciary all the time, asking them to evaluate and weigh things that are not easily quantifiable, and nobody even questions it (see below). To say that subjectivity is utterly foreign to our judicial process represents a massive distortion of our constitutional rules and traditions.

Another problem unaddressed was why all our other rules are different. Take stare decisis, for example. It seems like that would give us a nice, objective way to decide cases--just look at what we did before. However, that ignores the fact that precedent is often fragmented and incoherent, furthermore, since every case is different in at least some respects, taking this view involves elevating some differences ("distinguishing" cases) and suppressing others (cases that are "the same"). See generally Martha Minow, Making all the Difference: Inclusion, Exclusion, and American Law. Faced with not one but many choices then, judges are compelled to find the strand of precedent which seems to best fit some standard of justice or what have you, but this is necessarily going to be subjective. Blackmun recognizes this too in DeShaney, saying

Like the antebellum judges who denied relief to fugitive slaves...the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. [internal citations omitted]

The dispute between Justice Rehnquist and Brennan in his dissent (which Blackmun joined) over when prior cases mandated affirmative government action to satisfy 14th amendment guarantees elucidates the problem extremely effectively. Precedent is not a unified field, it is a variety of threads that, if chosen wisely, can be used to weave virtually any tapestry one might desire to create. Were it not so, there would never be any dissenting opinions, for surely learned judges would be able to discern the clear and unambiguous mandates of tradition! Original intent poses the same problems, surely we do not deny that different founders had different ways of seeing the world; plucking one man to elevate over all the rest is arbitrary and can, depending on which man you choose, justify virtually any outcome.

The final objection, which Phocion skirts but I do not believe adequately answers, is what happens when the text itself (alternatively, the framers themselves), seems to demand subjectivity. In a similar debate I had with Feddie of Southern Appeal, I pointed out that:

[N]ot all of the goals of the constitution can be encompassed via completely objective standards. That's why we have the "necessary and proper clause." What is "necessary and proper" to carrying out Congress' I.8 powers is subjective, debatable, and most importantly it is temporally variable. It was not necessary and proper for congress to impose limitations on local commerce in 1820 to regulate interstate commerce. However, by 1940, with our far more integrated and interconnected economy, then such actions may very well have been necessary to regulate ISC. The point isn't that the meaning "changed," it's that the meaning was always contingent on specific social situations which (as situations are apt to do) DID change. The N+P clause is thus a perfect example of the constitution allowing for subjectivity in our governmental limits, which is probably why originalists are so uncomfortable with giving it any vitality. But without that clause, the founders knew that the constitution would quickly become as impotent as the Articles of Confederation. Guilty beyond a "reasonable doubt" is another case of generally accepted subjectivity in our judicial process: it is impossible to provide objective benchmarks for what that term means, and trying to do so would defeat the purpose of the standard at all. We allow subjectivity in our judicial decisionmaking all the time without question, not because we adore judicial fiat but because we realize that the infinite number and permutations of relevant facts make every case unique and thus require some bit of discretion if we're going to achieve justice in the end. Whether to give a defendant 10 years or 20, whether or not negligence was "gross" or not, whether or not someone is "competent" to stand trial, all of these are subjective determinations, but ones that are necessary to the functioning of our constitutional system, and I highly doubt the framers would dispute that.

If the text appears to mandate subjectivity, I'd argue we are bound to that determination regardless of whether the founder's had a concrete "understanding" of the meaning of the words. And not only that, I'd assert that the founders would agree with me, and would be appalled to find out that we'd tolerate unjust outcomes because we assume that "intended" it to be so (talk about subordinating laws to men!).

I'll continue to assert that the 8th amendment presents a perfect example here. Phocion argues that

I should say that it is quite possible that the words "cruel" in the 8th amendment are readily susceptible to an objective test: what was considered cruel at the time of the amendment's passage.

That may well be objective, but it is drawn out of whole cloth--nowhere in the text of the amendment does it even hint we should interpret it in that manner. Certainly, had that been the intention, the framers would have used different words beyond "cruel" and "unusual," both which appear by their very terms to be variant upon context and thus not meaningful if we lock them into a single meaning. For example, if I asked most people today if flogging a prisoner was cruel, they'd probably say yes. If I asked most people in the time of the founders whether it was, they might say no. So yes, the meaning of "cruel" changed, because the descriptor "cruel" is a social term that inherently is defined however society sees it. The word itself connotates evolution and change (which is why I, for one, like the "evolving standards of decency" test). Phocion is reading into the constitution what he wants to see there, but his assumption that the founders intended "original intent" simply has no warrant propping it up. There is no there there, and in the case of certain clauses such an interpretation would run directly counter to the dictates of the text. Adopting an originalist position on the basis of objectivity would immasculate the demands of the 8th amendment (just as objectvity would destroy the N+P clause, and "reasonable doubt," etc etc). An 8th amendment that was written in the manner Phocion wants might read: "No punishments that were cruel, or unusual, shall be inflicted." But in absence of a specific mandate to lock the terms of debate into one era's understanding, it seems that we should take the words at face value, and that means recognizing their inherent fluidity.

Finally, the very fact that I, Justice Blackmun, and Phocion (among, many, many others) can argue about what the framer's "intended" undermines the claim that such a meaning is singular and readily presentable. It could very well be that there was no unified intent, that there were many intents which cannot be reduced to a single common denominator. Alternatively (and this is what I feel the real truth is), the intent might have been to have no intent, to allow the principles to speak for themselves and to adapt to the evolving situations that characterize an emerging society. As I wrote earlier in my argument with SA, I don't think the constitution should be construed to make it obsolete every 30 years. It seems readily apparent that a vibrant and meaningful constitutional tradition has to acknowledge the manner in which social situations interplay and connect with the text, which can drastically change the way we apply and interpret the words themselves. Again, it isn't the words that change, but the contingent situations that surround the words. Given that reality, the temptation to devolve our constitutional application into a mere "What Would James Madison Do" (WWJMD) has to be cast aside as incoherent, impossible and fundamentally inadequate to the needs of our society.

I've added Ex Post to my blogroll (or at least I'm attempting to, blogroller is sometimes moody). Disagreements notwithstanding, from what I've seen so far, they have consistently top notch writing and analysis.

Show Some Spine

My latest column for The Carleton Progressive is online. It's entitled "Show Some Spine," and it argues that the Senate needs to stand up, somewhere on something, to the policies of the Bush administration, if only to remind them that there are three branches of government in America, not just one.

Enjoy!

Thinking Ahead

CNN reports that an Iraqi Parliamentarian has been assassinated at her house, hours before the government announced Parliament would be voting on the proposed cabinet.

Obviously, this is very sad news. However, I was shocked to read this:

No clear procedure exists to fill a vacancy in the 275-member transitional assembly.

I mean, really now. I know we wanted to be optimistic and all that, but isn't this a problem we could have anticipated in advance? Having a codified form of succession is a must in a democratic state, and it is simply incompetent not to have provided for one.

The Wheel Turns

My my, how the blogtopia wheel turns. A few days ago, A Crescat Sententia post directed me to the dissent in DeShaney v. Winnebago. Upon reading the case, I immediately was seized with the urge to blog on it. But I couldn't figure out a context to do it in. Although this is more of a commentary blog than a current events blog, I still make at least a perfunctory effort to blog on things relevant to on-going conversations.

Fastforward to today. A link from Balkinization points me to Ex Post and a long commentary of my own on torture. Scrolling down, I see this post on, what else, DeShaney! But the ultimate irony? It was also this post that got Crescat talking about the case in the first place. Oh what tangled webs we weave.

Anyway, back to the case. Ex Post's, er, post talks some about DeShaney, and some about the article accusing Blackmun of outsourcing much of his work to his clerks (something I am not at all interested in discussing at the moment). The part on DeShaney focuses on Blackmun's "compassion" paradigm for the judiciary. Phocion (writing for EP) thinks this is a very bad idea, and concludes his post by stating:

In the end, judging must be guided not by sympathy, but by logic, reason, and precedent. A judge must always be mindful that human sympathy can never be removed entirely from the equation, but that we are a government of laws and not of men. As such, morality and sympathy are simply not sufficient to decide concrete cases. If they are, we tread on dangerous ground, where one woman or man's sense of morality can trump the decisions that we the people have made collectively. Justice Blackmun is remembered foremost as the author of Roe; but he is also remembered as a gentle man. This new information must not only have us rethink his ultimate legacy, but should also have us question whether the psychology of human emotion and sympathy is a proper tool for judicial decision-making.

At first glance, this seems rather compelling. Sympathy is a wonderful attribute, but it isn't a standard, it allows for no predictability and makes law an outgrowth of the whims of a judge. Clearly, we need to base our decisions on laws, not human emotions like sympathy which are unquanitifiable and unpredictable.

Yet on closer examimination, I'm not sure this holds. There are two reasons for this. First, I'd contest whether "sympathy," as a rule, is any more or less predictable than other rules. Certainly, all the other "rules" we have are debatable and to an extent unpredictable, otherwise we'd never have circuit splits, have very little to argue about in Court, and far fewer lawyers. Meanwhile, sympathy, at least in this case, seems to be very predictable. Everybody talking about the case, from the majority to the dissent to Phocion seems to feel sympathy for DeShaney (who was beaten into a coma by his abusive father after Child Services refused to act on numerous signals that he was under threat). Indeed, it is hard to imagine anybody looking at the case and saying "screw Joshua." It seems in this case that "sympathy" would yield a very clear outcome. Obviously, in some cases, "sympathy" is far less obvious--but, I'd assert, that makes it no different from any number of the legal rules we apply without question.

The second question, though, is what do you do if the law specifically mandates us to look to non-quantifiable ideals? I'd argue that the 8th amendment does exactly that--what is "cruel" at least is somewhat subjective, it isn't something one can easily put to a brightline test. This pits the predictability/"rule of law" folks against themselves, they can obey the law and be subjective, or they can be predictable and rule as men instead of laws. This is clearly the situation Blackmun thought we were in, he specifically stated:

"The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence"

Blackmun thinks that the language of the 14th amendment mandates us to look from a sympathetic viewpoint. Far from drawing his philosophy out of whole cloth, Blackmun specifically links it into the constitutional scheme he is bound to follow. One might disagree with this interpretation, but accepting it as true for the moment, what then? Are we not bound to follow it anyway, predictability be damned?

Torture Chamber

The panel debate between Boalt Law Professor (and former Bush administration lawyer) John Yoo and Jeremy Waldron on the acceptability of torture has sparked a spectacular discussion amongst the bloggers at Ex Post. See here for the first shot by Publius, then here for the dissent and riposte by T. More, and finally here for a defense again by Publius. Marty Lederman also wades into the fray over at Balkinization.

The Ex Post debate ranges over so many topics and is so well developed I feel embarrassed even trying to chime in. But I do feel compelled to raise at least a few points.

One of the points discussed was the age old question, "what if there was a nuclear bomb and only by torturing a terrorist could we find it and defuse it?" Waldron said the torture still would not be justified, to which Publius replied:

I think the President not only doesn't have a moral obligation in such a situation to avoid the torture, but has a moral obligation to do precisely the opposite. I can't believe that anyone finds this sensible. How is he going to explain to the 8 million peoples' families that he didn't think it was "right" to torture the terrorist to save their husbands/wives/children/parents? This, I think, is silliness.

More responded that

Prof. Waldron's "ivory tower" point was also that some things are so wrong that no countervailing threat could justify them. His point was to deny the applicability of utilitarianism in this context. Your astonishment at that answer could only be justified by a certainty that we must be utilitarians in such situations. Fine: How many infants would you rape, as a defender of the hypothetical, in order to stop the detonation of the bomb? If you answer "none" or close to it, then you are no utilitarian worthy of the name (except for some strained and silly "rule utilitarian" which is always a dodge, as it abandons the notion of actually calculating utils or anything of the like, and simply mimics deontological or categorical reasoning in hard cases). If you would in fact be willing to rape wives, daughters, or mothers of terrorists in order to prevent such a bomb exploding, then you would have to answer to the law and to most traditional forms of morality. Or you could simply assert: "Hey, governments have to do ugly things sometimes. Do you want a Government of Waldrons?"

And Publius rejoins:

To be sure, I have no answer to the rape examples. I, admittedly, hadn't thought of this before yesterday. I would distinguish them from my hypothetical because these people are innocent, have not placed themselves outside the rule of law. So I have a significantly harder time with that, maybe even prohibitively harder. To be sure, I think the question gets hard even when its terrorists, not civilians. Expand the hypothetical to include 100 terrorists, and only one of them knows. Can you torture all 100? Dunno. I think the argument gets interesting, but Waldron won't discuss it.

I'm inclined to agree with both, to an extent. I think that yes, there is a theoretical threshold point at which we can't reasonably assert that the moral evil of torture outweighs the moral evil of millions of innocent deaths. However, there are alot of caveats I'd place even on that. If we know that this one guy knows the information, and if he won't give up the information willingly, and if the threat is imminent, and if all other remedies have been exhausted, then MAYBE I'd be okay with torture as a dead last resort. But even there, if one recasts the question to "how many terrorists would you rape to stop the bomb," I'd be given pause. Worse yet, what about the families of terrorists who aided and abetted their relatives? They, too, have placed themselves "outside the law," as Publius' puts it; can we rape them? Of course, I'm okay with situational ethics, but for others, this is an even more difficult question that it is for me (and it is very tough for me!) because it means shattering given rules because the outcome is displeasing, which is what moral standards are supposed to prevent.

However, to some extent this point is moot, because it has nothing to do with what Yoo actually advocates. As Lederman points out:

And, in response to a question about the broad assertions in the OLC memos of the President's alleged authority as Commander-in-Chief to ignore statutory limitations--such as the argument in the August 2002 torture opinion (which I discuss briefly here) that Congress is powerless to restrict the President's decisions concerning "what methods to use to best prevail against the enemy"--Professor Yoo explains that Congress cannot criminalize any "legitimate exercise" of conduct that "falls within" the President's Commander-in-Chief power. What Professor Yoo apparently means by this is that if the President may engage in particular conduct in the absence of statutory limitation, Congress is foreclosed from restricting that conduct by statute. Thus, for example, Professor Yoo shockingly asserts that Congress could not enact a law prohibiting the President from ordering the use of nuclear weapons or from sending troops to Europe.

In otherwords, Yoo doesn't advocate torture in limited circumstances within carefully crafted legislative exceptions. Rather, he views torture as a tool in the Executive's toolbox, to be whipped out whenever the President deems it to be the best way to "prevail against the enemy." And furthermore, upon such a determination, Yoo believes that this action is utterly unreviewable and subject to no external check. At the point, we are well beyond nuclear apocalypse, and into Abu Gharib--so long as the President deems it necessary, it automatically becomes constitutional. This strikes me as an immense perversion of constitutional dogma.

Publius also asserts that terrorists, because they act unlawfully, are thus not contained within the scope of legal protections:

But these are people that have placed themselves outside the rule of law, and are shaking the very foundations of the system. These are people, (as some people argue murders are, and should get the death penalty) that do not respond to "law" and either must be dealt with in a way that helps preserve law for us, or we must "take the hit" so that we extend our law to even them. That's exactly what terrorists do--they try and destroy the foundations of law. And I do not think that the "law" that you and your friend Jeremy are saying we should stick to will keep them from accomplishing this. Those that place themselves outside the legal system lose "rights."

This is true, you say. Anyone who disobeys the law loses rights: you get locked up, you get money taken from you, etc. But some things should never be taken away.

My response is that the rights that are taken depend on the danger of the person's actions to the legal system. I, who in regular circumstances strongly oppose the death penalty, think you can kill terrorists. Send missiles into the caves in Afghanistan. These people pose too great a threat to our system of law.

This is patently absurd. The 4th, 5th, 6th, and 8th amendments all deal with those accused of being "beyond the law," and at least the 8th amendment (and at times 5 and 6 too) deal with those who already have been convicted of violating laws. These facets of our constitution would become meaningless if they did not apply to criminals or those who otherwise do not respect the legal system. That doesn't mean we can't do anything to terrorists, but it does mean that our system (in both the legal and military sense) has standards and methods for dealing with them that need to be held to, we can't just throw them out because the "threat" is too great. From a moral perspective, furthermore, it is unfathomable to hold the moral standards cease to exist when one is combating "evil" (or those who don't subscribe to moral limitations). As I blogged before:

I suppose one might argue that since al-Qaeda won't abide by any of the above rules, we are under no obligation to abide by them either. That's a very dangerous position to hold. The US, being a liberal democratic state, agrees to abide by certain standards. It has moral legitimacy because it will not utilize any tactic to achieve its ends. Just because al-Qaeda flies planes into our buildings does not mean we can do the same to them. Just because they deliberately target civilians in an attempt to shatter our morale does not mean we can do likewise. Morality often means fighting with one hand tied behind your back, but that disability also is why our fight is worth fighting in the first place.

Law continues despite the presence of unlawfulness, indeed, it is designed to account for it. The whole reason we pass laws in times of sanity is that we know that trying times lead to emotional decisions we'll regret later (see: Internment, Japanese). That isn't a "pre-9/11 mentality," that's a realistic assessment of human psychology that needs to be factored in.

The point isn't to argue that we can't address terrorism at all. Rather, it is the acknowledgment that a) we live in a nation of laws and standards and b) those standards restrict us from undertaking some "effective" responses to problems. It might be annoying, it might be inconvenient, it might even be unfortunate, in a sense. It might also, I'd assert, be American.

Pots and Kettles

This must be that principle thing I keep hearing about:

As mentioned, the filibuster stretches back not merely to Jimmy Stewart in "Mr. Smith Goes to Washington," but to the presidential administration of Franklin Pierce 152 years ago. And, as a last measure of the defense of the minority, it has had many supporters over the years, like the very people of faith who sponsored yesterday's Justice Sunday, the group Family Research Council.

Yesterday it was opposed to filibusters. Seven years ago, it was in favor of them. That's when Clinton and a then-Democratic plurality in the Senate wanted a man named James Hormel to become the ambassador to Luxembourg. Hormel, of the Spam and other meats Hormels, was gay, as the Senate minority bottled up Hormel's nomination with filibusters and threats of filibusters, minority relative to cloture, to breaking up a filibuster.

They did that for a year and a half. The Family Research Council‘s senior writer, Steven Schwartz, appeared on National Public Radio at the time and explained the value, even the necessity, of the filibuster.

"The Senate," he said, "is not a majoritarian institution, like the House of Representatives is. It is a deliberative body, and it‘s got a number of checks and balances built into our government. The filibuster is one of those checks in which a majority cannot just sheerly force its will, even if they have a majority of votes in some cases. That‘s why there are things like filibusters, and other things that give minorities in the Senate some power to slow things up, to hold things up, and let things be aired properly."

Ambassadorships, of course, are also granted with the "advice and consent" of the Senate, so the FRC's bogus constitutional argument is indistinguishable.

Can somebody please try and find a principle in this mess?

Thanks to Obsidian Wings for the tip.

Which Way Will They Go?

SCOTUS Blog gives links to today's Supreme Court opinions, and, more importantly, alerts us to the opinions still to come. This was the part that intrigued me though:

From the December sitting, four opinions are outstanding: three from important constitutional cases -- Ashcroft v. Raich (which was actually argued on November 29th, technically at the beginning of the "December" sitting), Granholm v. Heald, and Veneman v. Livestock Marketing -- as well as Miller-El v. Dretke (also important, but not technically a constitutional case). Of those four opinions, Justices Stevens, Kennedy, and Souter are likely writing at least one majority apiece, and Justice O'Connor almost certainly is not writing a majority.

Two of those three are most certainly in the liberal camp (and with what the rightwingers are saying about Kennedy, maybe he's now considered one of ours too). Now, I know nothing of Granholm, Veneman, and Miller-El, but Raich is something I have expressed thoughts on. For those of you who don't know, Raich is a Medical Marijuana case which deals with whether or not California's medical marijuana plan sufficiently implicates inter-state commerce such that it can be regulated (read: superceded) by the federal governments anti-drug statutory scheme. What makes this case particularly interesting is that it represents a conflux of liberal means to conservative ends. That is, if one accepts that there is a broad congressional power to regulate interstate commerce (as most liberals do), then one would be inclined to permit Washington's overriding of California's medical marijuana plan (a conservative outcome). Conversely, if one takes a narrow view of the ISC clause (as conservatives do), then Washington's efforts become more suspect and the marijuana plan might be saved (a liberal position). There might be some mighty fine hair-splitting in the opinions for this case.

Perhaps it is that difficulty which has caused the long delay in hearing from Raich (link: Randy Barnett, who represented Raich in the case).

Dean v. Bolton: The Showdown

Wonkette gives us the tale of the tape. Ab-so-lutely hilarious.

Fear the Turtle

Powerline discusses the characteristics of the Snapping Turtle, concluding that:

"They're detestable creatures, certainly, but it's hard not to have a sneaking admiration for them. Just for a day, I'd like to have one as Senate Majority Leader."

Interesting observation. But I thought we already had a Snapping Turtle in Congress: The House Majority Leader.

Relatively Relative

Matthew Yglesias links to and comments on an excellent post by Left2Right's David Velleman on the nature of moral relativism. However, I think that even Velleman over simplifies the issue. He writes:

Relativism is the view that the correct standard of right and wrong depends on (or is relative to) either the person applying it or the person to whom it is applied. In the former case, the view is called speaker-relativism, since it says that the correct moral standard depends on who is speaking. In its most extreme form, speaker-relativism amounts to the view that right and wrong are in the eye of the beholder, since it says that each person is correct in making moral judgments according to what seems right or wrong to him. But speaker-relativism also has less extreme forms, according to which the correct moral standard is determined by the speaker's culture, for example. On this version of the view, each person is correct in making moral judgments according to what his own culture deems right or wrong. Thus, a speaker-relativist might say that whereas we are correct to judge slavery wrong, the ancient Romans were correct to judge it differently, because their cultural standards were different.

The alternative to speaker-relativism is agent-relativism, the view that the correct moral standard depends on the person to whom it is being applied -- that is, the agent. Like speaker-relativism, agent-relativism allows for different versions, depending on whether the criterion of correctness is taken to be the agent's personal opinions, the standards of his culture, or whatever. An agent-relativist might say that whereas we would be wrong to hold slaves, the ancient Romans were not. (The speaker-relativist would require us to say that Roman slavery was wrong, though he would allow the Romans to judge otherwise.)

Neither view is at all plausible. Leaving aside the technical objections, we can reject both views on the grounds that they deny the universality of morality. Standards that varied from one speaker or agent to another simply wouldn't be moral standards; they would be cultural norms or personal preferences, not standards of right and wrong.

The problem comes in where you draw those lines. In theory, it could be anywhere. Consider the following example:

"Yesterday, April 25th, I jumped into a lake to save a drowning child."

Let's assume that was a paradigmatic "moral" act (I understand it is disputable, but let's just assume). What is the "universal" standard (in the Kantian sense) I just set? Is it to jump into lakes to save drowning children? That seems plausible. I could define it more broadly--jump into bodies of water to save drowning children. Now I can save children drowning in rivers as well as lakes. Perhaps the standard is to save drowning children, regardless of whether it is by jumping in or calling for help. Or maybe the standard is saving children, period, and it does not matter if the problem is that they are drowning or not.

All of these seem to be plausible, but which one we pick seems somewhat arbitrary and random. Moreover, I could draw the standard completely differently, perhaps the moral standard I just set was that I am morally obligated to jump into lakes (irrespective of the situation). One can also draw the lines narrowly, but this, if anything, makes the problem worse. Maybe the standard is that one is universally, eternally, and everlastingly obligated to jump into lakes to save children--on April 25th. Or better yet, that I, David Schraub, am universally and eternally obligated to jump into lakes to save drowning children on that date(/hour/minute/instant). This creates a universal standard, but not one that really matters in a transcendental sense. The lines are arbitrary and somewhat meaningless, where we place them is a matter of pure discretion.

This is problematic because moral universalism's most convincing warrant is its claim to predictability. That is, when I set up a moral standard, I am bound to abide by it regardless of the situation. Universalism allows us to set up moral categories, sorting actions into moral and immoral based on their similarity to the overarching standards. Murder is wrong universally, so my particular act of murder is wrong because it violates the standard. Situational exceptions are not permitted because the whole point of the standard is to transcend the particularities of the moment, otherwise we'd never have any methodology for decisionmaking beyond case-by-case analysis. Velleman asserts that "situational ethics" is different from moral relativism, and he may be right, but it seems that they are fatally interwoven. The "situation" which dictates moral choices is often heavily contingent upon the standing of the agent, thus situational ethics are often indistinguishable from the "agent-relativism" Velleman claims is ridiculous. Velleman cannot have it both ways--he can't say that we have set-in-stone universal standards AND claim that situationalism falls within that paradigm. Or rather, he can, but only if he admits that standards don't give us predictability in any real sense of the term, because the standard itself is arbitrary and almost definitely will shift in the face of unpredictable circumstances.

The way out might be to affirm, as a moral principle, pragmatism and flexibility. That is, set our moral standard to "case-by-case," and make it elastic. Then, when faced with choices, we balance between the competing values presented, such as predictability and efficiency, as well as more nuanced concepts like justice and dignity. Different (but seemingly comprarable) situations might then come out differently--but that is okay. Richard Delgado and Jean Stefancic explain in the context of Critical Race Theory that:

"Most mainstream scholars embrace universalism over particularity, and abstract principles and the 'rule of law' over perspectivism (an approach characterized by an emphasis on how it was for a particular person at a particular time and place). Clashing with this more traditional view, Critical Race Theory writers emphasize the opposite, in what has been termed the 'call to context.' For CRT scholars, general laws may be appropriate in some areas (such as, perhaps, trusts and estates, or highway speed limits), but political moral discourse is not one of them. Normative discourse (which civil rights is) is highly fact-sensitive, which means that adding even one new fact can change intuition radically. For example, imagine a youth convicted of a serious crime. One's first response may be to urge severe punishment. But add one fact-he was seen laughing as he walked away from the scene-and one's intuition changes: Even more serious punishment now seems appropriate. But add another fact-he is mentally impaired or he was abused as a child-and now leniency seems in order. Because civil rights is more like the latter case than the former (highway law), neutral universal principles like formal equality can be more of a hindrance than a help in the search for racial justice. For this reason, many CRT writers urge attention to the details of minorities' lives as a foundation for our national civil rights strategy." [Richard Delgado and Jean Stefancic, eds. Critical Race Theory: The Cutting Edge. Philadelphia: Temple University Press, 2000, pg. xvii-xviii]

I'm not sure Velleman wants to live in that world, as it doesn't have the type of rigid moral taxonomy he seems to think is necessary for a functioning moral universe. But I don't see a better option. Recognizing the reality that there is no single moral standard that does not both encompass too much and too little, we have to find another option. Perspectivism (which is not the same as relativism, but very close to it and situational ethics) offers much promise in this regard.

Other people have written that any moral standard (situational or no) is necessarily arbitrary and unprovable, no matter how much we may "want" or "need" it. This might or might not be true, but it is irrelevant. We have to live some way, even if living means, as Max Weber put it, committing ourselves to "warring Gods and Demons" without any solace or hope that our choice can be "justified" in the abstract, metaphysical sense of the term. Choices have to be made, including the choice to judge or not to. I am equally unjustified in not judging as I am in judging. It is literally impossible to escape the vortex of morality (even if it is, paradoxically, totally beyond our grasp). Inaction is still a moral choice (think of bystanders in the Holocaust), so choose we must. Even if there is no morality "out there," it still becomes relevant. Without morality, none of our actions have meaning--including the action to create moral codes. Okay, so we created morality out of whole cloth--so what? There isn't a standard to tell us we can't. So we're back where we started, and I still assert that from that starting point, Perspectivism has a lot to offer moral theorists, even though it clearly doesn't offer the "universal standards" Velleman so clearly desires.

Beat to the Punch

The VC provides links to all parties in an excellent debate between Cathy Young and Professor Bainbridge.

The party started with Young's Boston Globe column where she said that conservatives were playing the "faith" card much the same way Democrats played the race or gender card. She asserted that Democrats were clearly opposing the nominees because of positional differences (e.g., the nominees are pro-life), not because they are Catholic or Christian.

Bainbridge agrees this is true on face, but then draws a comparison to Title VII discrimination law and "disparate impact" claims. Essentially, if an ostensibly neutral standard, in effect, harms a given group way beyond what statistics would dictate, then the standard becomes suspect. In this case, if opposing "radical pro-lifers" means very few Christians can get on the bench, then it is discriminatory and anti-Christian.

I would have loved to jump all over this, but Young struck back first:

1. The human resources guide Prof. Bainbridge quotes refers to "any qualifying test that hurts minorities, and isn't job-related" (emphasis added). Indeed, the U.S. Supreme Court has stated that in order to be a violation of Title VII, an employment practice must be "unrelated to measuring job capability." For instance, job interviews that focus heavily on a prospective employee's familiarity with sports -- tending to screen out women -- are legally acceptable if you're hiring writers for a sports magazine, but not if you're hiring stockbrokers.

Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"? If the Democrats were refusing to confirm someone as, say, Secretary of Agriculture based on his or her anti-abortion zealotry, that would be mere prejudice. However, protecting the legal right to abortion is -- for better or worse -- a key part of the Democrats' political agenda. Thus, disqualifying judges who not only oppose abortion but passionately advocate its banning is, from their perspective, directly job-related (hence not discriminatory under the "disparate impact" standard).

2. Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"? Creative interpretations of what is and isn't "job-related" have led to some absurd court decisions -- throwing out "gender-biased" physical strength and endurance tests for firefighters, or nixing written tests for promotions in the police force because they are disproportionately flunked by minorities. Do conservatives now want to extend this "logic" to the absurd conclusion that a prospective judge's views on important legal issues cannot disqualify him from the job if those views are based on religion? (By the way, would that also apply to a "devout Muslim" who advocated the adoption of Islamic sharia law in the United States? Just wondering.)

I don't agree with everything that Young says (I, for example, am far more open to disparate impact claims than I suspect she is), but she is correct in implying that Professor Bainbridge probably is not such a gung-ho supporter of "disparate impact" claims in other cases as he's being here (nor, for that matter, I'd suspect are the judges in question).

Personally, I'd be willing to offer a trade to Bainbridge--throw the "disparate impact" door as wide open as this post implies in all cases, and I'll agree to examine Democratic actions against the judges under that paradigm as well.

Injustice Sunday

The conservative "Justice Sunday" event--a giant talkathon against the filibuster--has of course ended (and aren't they smug about their accomplishments?). Legal Fiction watched the show (and I salute him for it, it means I didn't have to!) and has, as usual, essential commentary.

LF works his way across several points, many of which I have my own observations about. So let's take a look, shall we?

Interestingly, there was a heavy emphasis tonight on constitutional and legislative procedure. You heard over and over that the Senate was neglecting its constitutional duty to 'advise and consent.' Each speaker demanded an up-or-down vote as the Constitution requires. Frist himself didn't even mention religion – it was strictly about process and the nominees’ right to an up-or-down vote. To an average listener, this doesn't sound unreasonable at all. The Constitution says the Senate shall 'advise and consent,' and it doesn't appear to being doing so by denying an up-or-down vote on the nominees.

Though it seems reasonable, this constitutional argument won’t work. The Constitution does say 'advise and consent,' but it never defines 'consent.' What is or isn't 'consent' is determined by internal Senate rules. In other words, the Senate gets to decide how it approves of everything from legislation to treaties to nominees.

I think that LF is making this way too complex. When the constitution says with the "advice and consent" of the Senate, it means the senate must take affirmative action. My Oxford Essential Dictionary defines "consent" as "to express willingness; agree." If the Senate doesn't "express willingness", then it is withholding consent. It can explicitly deny consent of course, via a "no" vote, but that does not mean that consent is a yes/no dualism. I too, can expressly consent to go to the park, or expressly say I don't want to, or just not do anything at all. In the latter case, I certainly am not consenting to a park trip. If the Senate takes no action, it is legitimately withholding its consent from the nominee.

One more thing, that I shouldn't even have to add: Contrary to what Justice Sunday participant and FRC chief Tony Perkins has insinuated in the past, the senate is perfectly justified in not consenting to a nominee. Perkins said, and I quote, that the "Senate's role is to 'advise and consent' when it comes to judges, not 'block and dissent,'" implying that dissenting from the president's picks for the judiciary is unconstitutional. Under that logic, even rejecting a presidential nominee WITH an up/down vote would be unconstitutional. Oh, and one more question: If the Senate is abdicating its "consent" duties, I wonder if the President actually sought the "advice" he is constitutionally required to obtain? [crickets chirping]

The other point LF makes is on the self-delusional sense of assault that the Christian right experiences.

When I wrote my post on the Outrage Industry, one of the commenters suggested calling it the Persecution Industry. I'll stick with my phrase, but the commenter was correct too. The Justice Sunday leaders require outrages and persecutions to feed their movement. And you could see that tonight. Even though their language was toned down, the big theme was persecution. The Christian faith is under attack. Pryor and Pickering were discriminated against because of their religious faith, and you could be next (Mohler said 'you and yours' could be next). Babies are being killed. Pornography is everywhere. Marriage is being undermined. Even the title of the event referred to the 'filibuster against faith.' Everywhere, oh everywhere, the secular Left is attacking us. Even though Republicans control all branches of government, people of faith are being persecuted. And the persecution is so great that it requires breaking the Senate rules.

Outrage Industry, Persecution Industry, or Fetishizing our own oppression, it is all the same. The Christian Right needs to get a grip. I'm sorry, but at the point where you're seeing anti-Christian bias at The Air Force academy, you know you've been smoking some strong stuff. Get off the brink and maybe we can have a rational discussion about what our country really needs.

Hell of a Trial

Well wouldn't this be a bloody mess? Atrios points us to this article accusing Pope Benedict XVI, nee Cardinal Ratzinger, of obstruction of justice.

Pope Benedict XVI faced claims last night he had 'obstructed justice' after it emerged he issued an order ensuring the church's investigations into child sex abuse claims be carried out in secret.

The order was made in a confidential letter, obtained by The Observer, which was sent to every Catholic bishop in May 2001.

It asserted the church's right to hold its inquiries behind closed doors and keep the evidence confidential for up to 10 years after the victims reached adulthood. The letter was signed by Cardinal Joseph Ratzinger, who was elected as John Paul II's successor last week.

Lawyers acting for abuse victims claim it was designed to prevent the allegations from becoming public knowledge or being investigated by the police. They accuse Ratzinger of committing a 'clear obstruction of justice'.

Bill Clinton was impeached for this, I believe (though his sexual indiscretions had nothing to do with small children). I'm not sure if you even can impeach the Pope. But obstruction of justice is a crime. What would happen if the Pope got sued? What about an indictment? Subpoena? Can you seek the extradition of the Pope? One thing is for sure: I would not want to be that prosecutor (note: I'm not opining at the moment on whether Benedict/Ratzinger is guilty of anything. I'm just engaging in a hypothetical sparked by the situation presented in the article).

On a somewhat related note, I just finished "The Trial of God," by Elie Wiesel. Fascinating book. I highly recommend it.

Flashback

I love Star Wars as much as the next geek, but am I the only one who found this just a bit creepy?

Marc Lorch of Stuttgart, Germany, traveled here with nine other men to attend his first U.S. "Star Wars" convention, complete with his own stormtrooper costume. "There's so many people from all over the world," he said.

Germans in stormtrooper costumes. I remember those days...

Be Careful What You Wish For...

Who would have thought Syria leaving Lebanon would be bad for Israel? But Mark Kleiman makes the case, and it's unfortunately quite persuasive.

The only quibble I have is at the end, where he says "So in the end, the Bushies will celebrate the "success" of their policy, only for the rest of us to pick up the pieces several years out. Haven't we heard this somewhere before?" The negative impacts on Israel are quite tragic. But I'm confused about what his preferred alternative would be. Is it leaving Lebanon under military occupation, forever to be denied democratic self-rule? That seems to be the implication, as Kleiman specifically points to a successful Lebanese democracy as the threat to Israel. I'm not willing to make that trade-off. If a democratic Arab world is going to be a problem for Israel, then I think it's a problem they are going to have to live with (obviously excluding if the countries democratically decide to destroy Israel). The law of unintended consequences certainly is in full swing here, but I can't fault Bush for this one.

Which One Am I

Pseudo-Polymath (one of these days I'm going to figure out what that title means [Update: Now I know!]) groups Iraq war thinkers into four categories, and asks which one people think they are in:

1) The War was Just and a "Good Idea" That is to say, it satisfies their definition of a just conflict, and so rightfully done, and furthermore not only just but a good idea either strategically, on humanitarian grounds, or just in our best selfish interest. This grouping I think defines most of the Iraq War supporters.
2) The War was Unjust but a "Good Idea" That is to say even though we didn't have a good enough reason to enter into to the conflict, we had so much to gain by entering into say either lots of oil or spreading oil on the troubled waters of the Middle East conflict that it made sense in a "realpolitik" fashion to do it anyhow. This group I think is probably small.
3) The War was Just but a "Bad Idea" While meeting one's criteria for Just War, many possible conflicts might fill that bill. For example, one might advocate jumping into the fray in the Sudan right now. But, while the Iraq endeavor might have been just, it was unwise. Perhaps too expensive, too difficult, or a bad strategic choice.
4) The War was UnJust and a "Bad Idea" This group defines (I think) most of the rabid anti-POTUS denizen of the left.

A few observations. Number one, I don't think "4" is necessarily only amongst rabid-leftwingers. Republican isolationists would probably fall in this camp too. Moreover, people who think that the US needs to be bound tightly by international law and needs to be restrained by international institutions could easily be here. Some of those people are kool-aid lefties, but not all.

Now, what about me? I'm not a huge fan of categories in general--they always seem to paper over important complexities. For example, I probably am a "1," I think the war was "just" (on humanitarian grounds) and a good idea (democratization aids the war on terror). I also think, however, that it was remarkably poorly executed. If I had known that the Bush administration would conduct the war in the manner in which it did, I'd be far more uncertain about the war being a good idea. Also, there is the question of opportunity costs--if intervening in Iraq means that we won't intervene in Darfur, then whether or not it was a "good" idea becomes even more muddy.

I think that there is another permutation that has to be added to the categories: "done right" versus "done wrong." I'd be a "Just war, good idea, done wrong" person, as would, for example, Andrew Sullivan. The most pro-war republicans would be "just war, good idea, done right." The most partisan leftists would be "unjust war, bad idea, done wrong," while I'd suspect you might find a reasonable amount of Republican isolationists in the "unjust war, bad idea, done right." The other categories would probably have smaller mixes.

Just my two cents.

Standing Alone

The Volokh Conspiracy alerts us to a Colorado school which switched "one nation under God" in the Pledge of Allegiance to "one nation under your belief system." I'm inclined to agree with The Moderate Voice that it was somewhat ridiculous (though frankly, not much more so than saying "under God"). It doesn't even make much logical sense (and let's not go into it's poetic rhythm).

However, Kevin Drum made by far the most interesting observation.

And so the worm turns. After all, if it's OK for biology teachers to decline to teach evolution and for pharmacists to refuse to dispense certain medications, why shouldn't teachers have the right to modify the pledge for reasons of personal conscience?

It's quite a little rabbit hole we have here, don't we?

This is extremely thought provoking. After all, you and I both know that there is simply no prayer the "defenders of conscience" will stand up to protect this teacher. The reason is that her statements don't fall into accepted Christian patterns of thinking. This dovetails with a general hostility to non-Christian religions in free exercise jurisprudence.

It has been noted by University of Wyoming Law Professor Stephen M. Feldman that while Christians have a mixed record on free exercise challenges, non-Christians have never managed to win a single case with the exception of Church of the Lukumi Babalu Aye v. Hialeah. In Simpson v. Chesterfield County Board of Supervisors, for example, the court uphold the county's policy of only allowing Judeo-Christian(-Muslim) prayers before the board in the face of a first amendment challenge by a Wiccan. The court justified itself by saying:

In seeking to invalidate the Chesterfield system, Simpson effectively denies the ecumenical potential of legislative invocations, and ignores Marsh's insight that ministers of any given faith can appeal beyond their own adherents. Indeed, Marsh requires that a divine appeal be wide-ranging, tying its legitimacy to common religious ground. Invocations across our country have been capable of transcending denominational boundaries and appealing broadly to the aspirations of all citizens. As Marsh and other cases recognize, appropriately ecumenical invocations can be "solemnizing occasions" that highlight "beliefs widely held."

In other words, the Court argued that Judeo-Christian prayers have some sort of transcendental appeal that other religions do not. Wiccans and atheists are seen as "deviant," their beliefs particularistic and specific only to them as opposed to the universality of Christian-style prayer. The effect of this is to utterly close off the first amendment to minority religions. A cursory look at the opinion should reveal its logical inadequacy, as I wrote in my analysis of it:

The Court here is caught in a bind: Either Simpson's Wiccan faith shares...common ground with Judeo-Christian faiths, in which case she should be allowed to stake her claim to it same as any other religious person, or her faith doesn't share common ground, in which case it isn't common ground but sectarian ground "common" only to the religious majority.

Since Wiccans don't fit the religious norm we've set up for ourselves, any discrimination against them, even as blatant as it was in that case, is seen as permissible, even neutral.

Atheists have it particularly bad. Their religious beliefs, or lack thereof, are almost universally condemned (see Appendix I). There is no protest to politicians deeming atheists to be inherently unequal citizens, or accusing them of being more likely to be immoral. Such actions, if said about a Jew or a Muslim (though probably not a Wiccan) would be intolerable. The closer a religion can be related to Judeo-Christian norms, the more protection it gains. The farther away it is (and Atheists represent the absolute farthest distance away), the more tolerable discrimination becomes, a perverse inversion of what constitutional protections are supposed to guarantee.

The Colorado case is a case in point. For all one can say about the judgment of the teacher, the most one can say about her modification was it made the Pledge more inclusive. However, despite this, it will most likely be characterized as an "assault" on Christianity--despite the fact that Christianity is still a "belief system" and thus completely included under the change. The conscience of the teacher--whom, after observing Columbine, believed that inclusiveness was key to preventing the ostracization that leads to school violence--dictated to her that she not say "under God." If she was a pharmacist whose religion demanded she not give a birth control prescription, Christian groups would anoit her a hero. As it stands, she will undoubtedly become a devil. It appears that once again, "conscience" is something only Christians can have.

Sanity and Insanity

Charles Krauthammer has a very interesting column on the judiciary in today's Washington Post (Orin Kerr, among others, with the link). There were loads of points made, some which will anger liberals and others which are clear shots at conservatives. Kicker quote, from my end:

Have that independence and supremacy been abused? Grossly. What other advanced democracy would radically legalize abortion by judicial decree rather than by democratic will expressed through legislatures or referendums? What sane democracy allows four unelected robed eminences in Massachusetts to revolutionize the very definition of marriage, the most ancient institution in society?

This is not just deeply undemocratic. It is politically crazy. Democracies work as stable social entities because when people are allowed to settle issues themselves by debate and ballot, they are infinitely more likely to accept the results when they lose. To deny them that participation is to risk instability and threaten social peace.

It was Ruth Bader Ginsburg who said that Roe v. Wade "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

Now, obviously, I disagree about what constitutes "radical." But the idea that persons need to have a say in the decisions that effect their lives is important--counter-balanced by the fact that when it comes to people's basic rights as persons, elections are neither necessary nor relevant (while we're on the subject, Prawfs Blog had two great posts on whether it's better to be right or have rights). Obviously, the line drawing issues raise dilemmas (I'll once again recommend John Hart Ely's spectacular Democracy and Distrust for some guidance there), but it appears that at least some liberals are starting to take the question seriously.

The other prong of Krauthammer's argument is plea for perspective by conservatives who apparently have been infected by a rabid form of judge-hatred. The Supreme Court is not akin to the Mafia, references to international law are not the sign of the beast, and Anthony Kennedy is certainly not the anti-Christ. Yet the far right seems intent on bringing down the judiciary--and America too if need be. As TMV says, "The judges aren't the ones displaying behavior betraying longtime American traditions and the defense of the constitution..."

The Short of It

If you'd prefer a post on gay rights that's shorter than my last treatise, here you are.

The New York Times reports that the Pentagon might revamp its sodomy laws, bringing them in line with Lawrence v. Texas.

Meanwhile, Kansas Senator Sam Brownback (R) is threatening retaliation if D.C. officials try and recognize gay marriages (link: Andrew Sullivan). If Mayor Williams did choose to endorse gay marriages and/or civil unions, that would be a move by a popularly elected official. But then, I suppose this would be more of that activist democracy I've been hearing so much about.

Of course, this whole drama is all the more absurd in D.C., because they don't even have the same democratic rights as the rest of the country. But don't expect the self-righteousness advocates of the popular will to make that argument.

Easy Cases and Bad Law

The Uncivil Litigator points us to a Texas Law under consideration that would ban gay couples from serving as foster parents. UCL asks how the law could not be held unconstitutional based on the Supreme Court's precedent in Romer v. Evans. The answer lies in the 11th Circuit's abysmal ruling in Lofton v. Department of Children and Family Services, upholding Florida's prohibition on adoption by gay couples. The case isn't binding in Texas (it lies in the 5th Circuit), but both Court's are overwhelmingly conservative and I'd imagine the latter will latch onto any case which would support their position, no matter how erroneous it was.

In December of 2004, an Arkansas state judged ruled a similar law unconstitutional in Howard v. Arkansas, saying it violated separation of powers. Though brief, there are several issues to note in that opinion that deserve discussion.

The opinion gave an excellent overview of the testimony presented to the court. Dr. Michael Lamb, of the National Institute of Child Health and Human Development, superbly analyzed the body of literature on homosexual parenting, concluding that being raised by gay parents:

(i) does not increase the risk of problems of adjustment for children; (ii) does not increase the risk of psychological problems for children; (iii) does not increase the risk of behavioral problems; (iv) does not prevent children from forming healthy relationships with their peers and others; (v) does not cause academic problems; (vi) does not cause gender identity problems; and (vii) does not cause any adjustment problems at all. [op. at 19]

Dr. Lamb also addresses one of the most salient, and misleading, claims put forward by "pro-family" groups on the issue: that "children do better with a mother and a father." Lamb correctly notes that what that research actually says is that children do better in two parent homes than single parent homes. However, there is no statistical disparity between two-parent heterosexual homes versus two-parent homosexual ones.

In contrast to Dr. Lamb, whom the court characterized as "the most outstanding of the expert witnesses" and "the best example of what an expert witness is supposed to do at trial," the opinion characterized Dr. George Rekers--the primary expert witness for the state--as "there primarily to promote his own personal ideology" even at the expense of the facts, refusing to directly answer questions, and giving inconsistent testimony throughout the case. Rekers, in addition to being a tenured Professor of Psychology at The University of South Carolina, tries to "cure" homosexuality in his private practice, an attempt characterized as "unethical" by the APA. In all, the expert evidence given in the case was overwhelmingly in favor of allowing qualified homosexuals to adopt. Because the statutory authority given to the advisory board was solely related to the best interests of the child, then, the board exceeded its authority by prohibiting qualified homosexuals from adopting without any scientific basis to do so.

Unfortunately, when the opinion proceeded to analyze equal protection claims (an endeavor the court admitted was "moot" due to the separation of powers judgment but undertaken anyway for the sake of completeness), the court held that there was no violation. The Court first held that homosexuals are not a suspect class as a matter of "well-settled law." I'm not sure if that's true, and even if true it strikes me as badly misguided, but I can understand the reluctance of a state circuit judge to be the one to say it outright. It seems clear that Homosexuals, if not subject to strict scrutiny, are at least within the realm of heightened scrutiny. The standards for applying heightened scrutiny are whether the group has:

"experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." [Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976), quoting San Antonio School District v. Rodriguez, 411 U.S. 1, 28 (1973)]

It seems self-evidently clear that homosexuals meet this test, and thus the proper standard of review is heightened scrutiny, not rational basis.

Beyond that, though, the court misapplies the rational basis test. The rational basis test was explicated most clearly in City of Cleburne v. Cleburne Living Center. Applying rational basis, the court found that the cities restrictions on a group home for the mentally retarded "rest on an irrational prejudice against the mentally retarded" and thus was impermissible [473 U.S. 432, 450]. The supposed rational basis for the Arkansas law, by contrast, was "public morality." The court here seemed to feel that in absence of any quantifiable measure of what "public morality" means here, or even a statement by the legislature to that effect, the court should just assume public morality is the justification for the law and thus conclude the law was rationally related to that objective. But this is patently absurd. First of all, it represents a peculiar quasi-attempt to divine the thoughts of legislature, assuming without proof that the legislature believes this law to be related to public morality without in anyway explicating what the connection is. What moral concern of the state of Arkansas is implicated or furthered by this bill? It can't be simple moral disapproval of homosexuality without cause, for that would be an "irrational prejudice" and thus would be barred via Cleburne. The court concedes that showing the health, safety, or welfare of children was implicated would satisfy rational basis, but the opinion specifically rejects that due to the testimony of Dr. Lamb and others. The only "moral" issue of relevance here, it seems, is to seek to legally hamper homosexuals to show the state feels their actions are wrong. It is true that nobody in Cleburne was labeling retarded people "immoral" (though it is at least conceivable that a given set of people might believe God punished immoral people by making them developmentally disabled). This just encourages vague statute writing, however, the state by virtue of it’s silence can later argue any challenged law relates to “public morality. ” Society cannot hide its pre-existing biases by labeling them "morality," and the very least, the Court cannot just assume those biases exist.

Second, even granting that the state could, in general, could legally constrain someone because of "immoral" actions, they can't in this case because Lawrence v. Texas precludes it. The Arkansas court argues that the rights implicated in Lawrence were far more extensive than in the present argument, so the cases aren't analogous. That would be true, except the state is punishing persons for precisely the action Lawrence said was protected, IE, it is punishing them for constitutionally protected behavior. As Lawrence stated: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." The Court specifically referenced the "stigma" (see here, infra Part V, for more on this) that legal restrictions against homosexuals place upon them. The Court clearly dismissed the idea that morality was able to outweigh this:

"[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society..."

The Arkansas statute specifically defined the disabling act as homosexual conduct by anyone present in the house. Not only does that prevent practicing homosexuals from getting foster children, but it prevents even non-homosexuals from this as well if they live with a homosexual (one of the plaintiffs in this case was a heterosexual married couple who lived with their adult gay son). Far from being an oversight, the testimony makes it clear this was an explicit goal of the statute. The testimony of James Balcom of the Child Welfare Agency Review Board indicated that he had not just an objection to homosexual behavior, but "to people being in a household where a same-sex relationship is going on." In otherwords, being in the presence of a practicing homosexual is morally condemnable. This raises troubling free association claims unaddressed by the court, not to mention the disturbing implication that homosexuals should never be allowed in the presence of any "moral" individual.

In its dismissal of the equal protection and privacy claims, the court relied heavily on Lofton, which lends credence to the fears that Texas Courts will do the same. Furthermore, I do not think the 5th circuit will find the "separation of powers" argument compelling (if it is even applicable to the case at all). So although the judgment was a victory, it could turn into a mixed blessing.

The sponsor of the Texas law, State Representative Robert Talton, said that

"It is our responsibility to make sure that we protect our most vulnerable children, and I don't think we are doing that if we allow a foster parent that is homosexual or bisexual."

With all due respect to Representative Talton, it is not protecting the most vulnerable children when we leave them to languish in the foster system, without loving parents, without any parental figures at all. Removing qualified candidates from the foster system hurts children, and Talton should be ashamed of himself.

I'll conclude with the memorable words of Judge Birch, who gave the majority opinion denying rehearing en banc of the Lofton case:

"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."

May we all see that different light in the very near future.