Values-Based Debate

I've gotten some great emails and some intriguing comments on my earlier post regarding Bush's stance on the FMA. I want to write one, long, uber-post explaining my position on this issue and why I think it is a moral imperative that America grant marriage equality to gays.

I. The Morals Problem
The most common attack on gay marriage is that it is "immoral." The problem with that statement is that it is an entirely empty term. I have no idea what "moral" means. I happen to think that equality is "moral." Clearly, others do not. Just parroting the word "moral" over and over again doesn't get us anywhere, because it is too vague. Gay marriage must succeed or fail based on something more concrete.

Generally, something can be considered moral or immoral based on whether it violates some socially accepted value. "Morality" isn't a value, it is a term that encompasses values. Preserving the family might be considered a value. Equal protection might be considered another. Liberty could be a third. Analysis of gay marriage must begin with an examination of how it impacts into specific social values. At that point, we can begin a comparison and start weighing the benefits versus the harms.

II. Protecting the Family
The refrain one continuously hears from the religious right (usually juxtaposed next to "morals") is that they are protecting the family. Stable, secure families are undoubtedly a social value, so that strikes me as a good place to start. So the first question we can ask is: Do gay marriages help or harm families?

At no time has anyone ever pointed me to any evidence, statistical or analytical, that homosexual marriages have caused any harm whatsoever to heterosexual families. It does not threaten the benefits accorded to married couples. It does not signify a degrading of the term--unless one feels that homosexual participate in any institution automatically degrades it. Simply put, heterosexual families are not impacted in any material way by the presence of homosexual married couples. The net negative here is zero.

On the positive side of the ledger, homosexual marriage provides the same benefits to said couples, and their families, that heterosexual marriage does. It affords social legitimacy, provides standardized and streamlined mechanisms for allocating benefits, and grants stability to any children that the family may be raising. I would add another issue as well: the existence of legal restrictions against homosexuals as homosexuals legitimizes their subordinate status. Especially in schoolyard environments which are so sensitive to the prevailing social winds, this has the potential for severe harm to the children of homosexual children (see "anti-subordination" below).

III. Equal Protection
Another value we hold dear in society is equal protection of the law. Indeed, some might argue that this is the paramount value upon which all others are based. The reason that democracies cannot willy-nilly oppress minorities is that any law passed by the legislature must apply equally to the most and least powerful among us. Hence, laws that either single out one group for negative (or positive) treatment must have at least some rational basis in law. The bar is raised to strict scrutiny when the group in question is a "discrete and insular minority," or has been the past target of animus and discrimination. Homosexuals, needless to say, fall in both categories.

So now we turn to whether the prohibition on gay marriage violates the equal protection of the laws. The answer is clearly in the affirmative.

The most obvious parallel is to the prohibitions on inter-racial marriage, held unconstitutional in Loving v. Virginia. The equal-protection violation in that case was clear: If White Man A married White Women B, we had a legal marriage; but if White Man A married Black Women C, then we had a crime. Since the only change was in the race of the party, it clearly was a case of racial discrimination.

Defenders of marriage discrimination rejoin that there is no similar violation here because all men--hetero- and homosexual--are equally barred from marrying other men (and of course, the same applies to women). First of all, I think that is a pretty skewed perception of what marriage means. The right to marry means little if it does not include the right to marry one someone of your choice. Heterosexuals get that choice, homosexuals do not. Once again, marriage is not just about giving two people the socially sanctioned right to have procreative sex. If that was the case, we'd simply pair folks off randomly and assign them to have children. The beauty in marriage lies in two persons consciously choosing to spend the rest of their life together, as a family, often with children. However, even if you don't buy that, the above analogy is illustrative on why marriage discrimination violates equal protection. Let us recast it in terms of the debate at hand. Male A marries Female B, valid marriage. Male A marries Male C, invalid marriage. In this case, the only difference is in the sex of the party, which is also not a valid reason to discriminate under the constitution. The equal protection violation remains.

There are other equal protection shortcomings inherent to the anti-gay marriage case as well. The most prominent is that defenders of marriage discrimination make no effort to apply their logic to similarly situated persons. As I wrote in my analysis of the 11th Circuit Court of Appeals case Lofton v. Department of Children and Family Services:

The vast majority of the state's claims of rationale falter because it makes no effort to apply the same standards to similarly situated people (for example, its claim that it wants children in houses with a mother and a father is undercut by the fact that it allows single people to adopt). The only analysis it gives that arguably only applies to Homosexual couples is that the state might want its children to be "normalized" and that it would be weird and possibly harmful for predominately heterosexual children to be raised by homosexual parents who are implied to be outside the mainstream. Even beyond the substantial psychological evidence which shows that any harm to children raised by homosexual parents is fictive...the flaws in this argument are transparent. First, as the dissent aptly notes, it gives no guidance on how to deal with homosexual children who presumably need a "similar" parent figure as much as heterosexual parent does. Second, it doesn't apply the same standard to other groups that could be termed "outside the mainstream" (like inter-racial couples).

Virtually all arguments against homosexual marriage come apart under this standard. If the state is seeking to encourage procreation, it shouldn't be giving benefits to non-procreative couples. If the state is worried about social stigmatization of children, then it should be precluded from allowing inter-racial couples to marry. If the state wants parents who will be good role models, then it should prevent anybody but Doctors and Lawyers from marrying. There simply isn't a shred of evidence that can be used to prevent homosexual marriage that could not also be used to strip away rights from people whom society overwhelmingly agrees should be protected. Call this the inverted slippery slope: If we affirm that homosexuals can be discriminated against under law, then there are any number of discriminatory actions we'd have to take against other groups in order to satisfy the dictates of equal protection. Which conveniently moves me to...

IV. The Slippery Slope
The slippery slope argument is another popular one to make. It basically says "even if homosexual marriage isn't that bad, it will invariably lead to X which IS horrible, so we can't set down that path." Now, as I demonstrated above, the slippery slope goes both ways so it really isn't a valid argument. However, if we deconstruct the logic behind "slippery slope," we can see how it falters.

The reason that the "X" above is presumed to be a persuasive reason not to allow gay marriage is because X is some very bad thing. Gay marriage isn't a very bad thing--if it was, we wouldn't even need to raise the comparison to X in the first place. We could simply explain all the bad things associated with gay marriage. However, is X really is that bad, it should not be that difficult to figure what makes it bad when homosexual marriage is not. Take bestiality, a common marker (thank you Senator Santorum!) that the gay marriage slippery slope is supposed to take us past. What makes bestiality bad when gay marriage is not? Animals, of course, cannot consent, while gay couples can. Since we don't allow entities to enter into relationships without giving consent (which implies the capacity to give it), bestiality can be prohibited when homosexual marriage is not. Another example is incest. Here the problem is in harm to any child formed from the relation. Children of incestuous relations are at a statistically far higher risk to any number of genetic diseases and defects. It is protecting these potential children from harm that justifies anti-Incest legislation; clearly this also does not bear any relevancy to homosexual marriage either (incidentally, we can prohibit homosexual incest as well based on equal protection arguments--it would be wrong to grant homosexual couples a right (incest) not granted to heterosexual couples). The slippery slope can be stopped rather easily.

V. Anti-Subordination
It is generally agreed that the state should not subordinate certain groups, labeling them as subhuman and unworthy of basic respect. The problem with codified discrimination is that it is stigmatizing. Law is seen by society as a reflection of reality--those that society chooses to stigmatize via the allocation of legal sanction are presumed to deserve their reduced status. This process of stigmatization can rapidly spiral out of control; even if we want to limit the stigma only to a specific aspect (in this case, that Gays shouldn't be allowed to marry), the stigma has a tendency to reproduce itself as a general proof of inferiority. Ernest Goffman elaborates:

The attitudes we normals have toward a person with a stigma, and the actions we take in regard to him, are well known...[W]e believe the person with a stigma is not quite human...We construct a stigma-theory, an ideology to explain his inferiority and account for the danger he represents...imput[ing] a wide range of imperfections on the basis of the original one...

Persons who notice that some persons are not accorded the same respect as others will condition themselves to see the disrespected person in that light. A man who grows up around slaves is being told explicitly that blacks are incapable of self-rule. Implicitly, he is likely to construct broader theories of black inferiority: Blacks are stupid, they are lazy, they are churlish, they are simpleminded, they are sexual predators. Worse yet, the sheer ubiquitousness of these social norms will likely inoculate these same values in the oppressed party--Blacks will see themselves as inferior because that is what society tells them they are. Thus, even narrow deprivations of rights reify discriminatory attitudes across the board. For homosexuals, the signal of the FMA is that they are not equal citizens, that they are something society must be afforded "protected against" under law. It is a very small leap from saying we need to protected against gay marriage, to the society claiming protection against gay sexual molestation, gay cultural abuse, or gay mental instability.

Indeed, the inoculation of discriminatory attitudes perhaps is the worst of all the harms accorded by the FMA because it precludes societal correction or change. This is because in addition to being discriminated against de jure, the stigmatized will be de facto barred from the political process. Any advocacy on behalf of the stigmatized opens the advocate to the same stigmatization, thus, the oppressed party is more likely to withdraw from political controversies so as to not provoke any further backlash. Elisabeth Noelle-Neumann terms this the "spiral of silence": as a social norm becomes more entrenched, dissenters are more likely to self-censor themselves rather than risk the repercussions that stem from challenging the dominant view. This has the effect of further entrenching that view, and a feedback loop ensues. The Supreme Court has recognized as much in its refusal to continence the endorsement of certain religious views:

Endorsement sends the message to non-adherents that they are outsiders, not favored members of the political community; and an accompanying message to adherents that they are insiders, favored members of the political community. [Lynch v. Donnelly, J. O'Connor concurring]

The harm is just as severe, indeed probably more so, when the state is specifically "endorsing" the premise that one group is to be considered legally superior to another.

VI. Liberty
America was founded on the premise of liberty. With some exceptions, it is assumed that persons can do what they like so long as it does not harm others (John Stuart Mill's famous "Harms Principle"). The law cannot, without some demonstration of harm, prevent me from putting cream in my coffee. That action does not harm society in any way, it has no impact on my neighbors, and it is totally beyond the scope of a legitimate government. If something as mundane as coffee is immune from governmental reproach, how much more protected must such a fundamental decision as marriage be! Those who would deny homosexuals the right to marry love to wax eloquent about the importance, the sheer essentiality, of the marital rites. Yet if we are prepared to declare those rites to be fundamental, to be a possession of all of mankind, then we simply have no warrant or justification to restrict marriage to those we deem worthy. The whole justification behind liberty is that every man and woman has the equal right to pursue their life as they see fit. Every time the government stands in the path of a person's life choice, it is stripping that person of their most basic right of all--the right to be. To be gay, to be straight, to be black, to be white, to be a teacher, doctor, lawyer, policeman, whomever. The right to be whatever you want to be, that is what America is founded upon.

VII. Conclusion
Allowing gay marriage fulfills many core American values. It is pro-family, prevents subordination, affirms liberty, and is in accordance with the principle of equal protection of the laws. To me, these seem like a fair cross-section of what can be reasonably be called "moral values." Weighing against those arguments we have the slippery slope and the fact that a majority of Americans are still opposed to gay marriage (IE, Democracy). The slippery slope argument falls on its own terms, as I proved above. The democratic argument is a serious one. However, our nation has never held democracy higher than the basic constitutional rights we all posses. After all,

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [West Virginia v. Barnette]

Equal protection (14th amendment) Personal Liberty (9th amendment), and non-discrimination (14th amendment) are principles deeply ingrained in our constitutional and social traditions. Our nation cannot ignore those values without ignoring the very foundations upon which our nation stands. For those reasons, the United States must extend marriage equality to homosexual citizens.

Purely Academic

Todd Zywicki of The VC links to research done by Dan Klein showing that Republicans are vastly underrepresented in the halls of academia. The combined rate of Democrats to Republicans at Stanford and Berkeley is 9:1, and judging by the rate of tenure-track hires it is getting worse. What does this mean?

Zywicki correctly notes that if this was the gender or race based disparity, people would be throwing a fit. And certainly, these statistics are distressing. However, there are some important differences between under-represented ideologies vs. under-represented races or genders. The reason is that while there shouldn't, in theory, be any reason why a particular race would avoid academia, it is quite conceivable that a group based on ideological persuasion might prefer to do other things. That's one of the reasons that race is considered a suspect class and political parties aren't: political party members necessarily share certain values and characteristics, while race and gender based characteristics are overwhelmingly based on stereotype. So it does make a certain degree of sense that softy, idealistic liberals may want to go into teaching and sacrifice the allure of money and power, while hardheaded, realistic conservatives would either enter the private sector or think tanks where they can make more cash and influence authority. I'm not saying this is true, but it is far more reasonable a proposition than any non-discrimination based argument for why Blacks are underrepresented (I include in "discrimination" the continued economic disadvantages faced by minorities as a legacy of past discrimination).

The real question is: Are there significant numbers of Republicans who wish to enter Academia but either a) face institutional obstacles to doing so (such as biased administrators) or b) feel academia is a "hostile environment" to persons with their views? If either of those are true, then we may have a case. But more research needs to be done first.

The Irony Gods Hate Me

Typical. I receive another link from Powerline. An ensuing Power-lanche results. My hit counts go way up. And what is second from the top on the blog? Why, it's my set of proto-marxist debate evidence! That's the way to endear me to my new guests!

Powerline worries (well, maybe "worries" isn't the right word) that now that I've joined The Centrist Coalition, they don't have a favorite liberal blogger. I still like to think of myself as a Liberal, not in the reactionary Kossack/Michael Moore sense, but in the older Truman/Wilsonian sense. My positions on most social issues is still fairly leftwing (as the comments to this post--probably responding to a Powerline reader--make clear). I have a on-going love affair with critical theorists (IE, Catherine MacKinnon, Richard Delgado, et al) that you certainly won't find anywhere near the "center" of American politics. And considering that it is my old pals the Democrats who have taken up the mantle of fiscal responsibility, I guess I'm economically liberal too. So I'm socially a libertarian-style liberal, economically a fiscal responsbility/pro-poor policy liberal, and internationally a Truman/Wilsonian interventionist liberal. Which in today's political climate makes me...a Centrist.

Which is why I will never enter politics.

No More Excuses

Read Nicholas Kristof, then tell me not to intervene in Darfur. 11,000,000 people didn't die in the Holocaust so we could ethically ignore genocide. There simply is no longer any excuse. Any administration: the US, the UN, the EU, the Arab League, whomever, who is refuses to support whatever action necessary to end the atrocities in Sudan permanently forfeits any claims to moral leadership in the world.

Link by The Moderate Voice, who falls on the right side of this issue.

The Anti-Capitalist

Those of you who watched LD finals at Harvard will recognize one of the cards present here from the round. Otherwise, these cards are a gift to the trendy Marxist debater near you.

[A caveat: When I post debate evidence, it should not in any way be taken as an endorsement of the material unless I explicitly say so. Debaters need evidence from all sides of the debate, include evidence that critiques capitalism. They request, I respond]

Brian Massumi, Associate Professor of Comparative Literature at McGill University. The Politics of Everyday Fear. (Minneapolis: University of Minnesota Press, 1993)
IN A CAPITALIST SYSTEM, PERSONS ARE IDENTIFIED SOLELY BY THE COMMODITIES THEY BUY

"The commodity endows us with identifiable qualities. It registers our gender, social status, and character traits: buckled up and prudent but still stylish; multi-time zoned jet setter; home-bodyish, with an adventurous streak. The commodity stands (in) for our existence. The ground(lessness) it stands on is the accident in its most general expression--the accident-form, exemplified as downfall, the unqualified or generic founding event. Our generic identity (our subject-form, or humanity) is the generic event (the accident-form); our specific identity (the content of which is our "individuality" or "self") is the sum total of our purchases (axiom 2). In other words, contingency is the form of identity, and identity is determined (given content) through the serial commission of the act of groundless consumption. We buy and buy, until we die. We are in free-fall, held aloft by the thinnest of credit cards. "Shop till you drop" is our motto. We know we are alive--or at least in a state of credit-suspended animation--as long as we are shopping. "I buy therefore I am" (axiom 3). The commodity encounter not only specifies but actualizes the subject of the purchase. The subject of capitalism cannot be said to exist outside the commodity relation." (7, emphasis added)

Rodney D. Peterson, Professor of Economics at Colorado State University. Political Economy and American Capitalism. (Boston: Kluwer Academic, 1991)
ECONOMIC POWER AND POLITICAL POWER ARE IRREVOCABLY INTERTWINED; EACH IS USED TO REINFORCE THE OTHER.

"As political pressure groups from different segments of the citizenry assemble to negotiate, the result is often a compromise skewed in favor of those who were most successful at using their bargaining strengths. Success is often based on the amount of persons a bargainer represents and the property and wealth backing the bargainer. Those with most political influence are often those with most economic advantage. Once both have been acquired, they reciprocate and reinforce each other, especially if the property holders are active in the political arena, pressuring to get laws passed for their benefit, or to gain privileges, subsidies, and favors for themselves from the system. All of this is a logical extension of freedom, self interest, and profit seeking…" (37)

Another line of attack is the famous "tragedy of the commons," which shows how autonomous beings acting totally rationally and without constraint will destroy the environment (for more on the intersection between capitalism and the environment, see my posts here and here)
Garett Hardin, "The Tragedy of the Commons," Science, 162(1968):1243-1248
Capitalism locks rational persons into environmentally destructive decisions

The tragedy of the commons develops in this way. Picture a pasture open to all. It is to be expected that each herdsman will try to keep as many cattle as possible on the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching, and disease keep the numbers of both man and beast well below the carrying capacity of the land. Finally, however, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality. At this point, the inherent logic of the commons remorselessly generates tragedy.

As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, "What is the utility to me of adding one more animal to my herd?" This utility has one negative and one positive component.

1. The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly + 1.

2. The negative component is a function of the additional overgrazing created by one more animal. Since, however, the effects of overgrazing are shared by all the herdsmen, the negative utility for any particular decision­making herdsman is only a fraction of - 1.

Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another.... But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit -- in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.

Finally, one undeniable aspect of Capitalism is that it privileges the current generation over the future. The rational capitalist actor has perhaps some incentive to provide for his/her own children, but none whatsover to the other members of generation next. They will not consume the capitalist's products, they will not revolt against his mansion, their cries will not offend his pacified ears. This is immoral.
Philip Phenix, Professor Emeritus of Philosophy and Education at Teachers College, Columbia University. Education and the Common Good: A Moral Philosophy of the Curriculum. Harper and Bros., 1961.

"Up to now the people of the industrial nations of the world have lived as though the material bounty of the earth were inexhaustible. In this respect we have been guilty of a "plutocracy of the present," through grasping material privileges without taking account of the needs of future generations. Such a way of life is just as undemocratic as the forcible subjugation of the poor by the wealthy at any given epoch. Democratic justice as between generations requires the employment of the earth’s resources in such a way that they shall be conserved, restored, and replenished for continued use by our children and our children's children."

Reap What You Sow

It's finally happened. The Democrats are striking back. Roll Call reports that Democrats are seeking to pull a DeLay and do midterm redistricting in Louisiana, Illinois, and New Mexico--hoping to oust GOP incumbents and blunt DeLay's power grab in Texas.

There are only two ways that this country can go. Either we can universally agree to pull the redistricting process from the hands of partisan politicians, or we can collapse into an orgy of partisan in-fighting and political scuffles. Today's politicians better choose wisely.

The New Man on Court

Orin Kerr links to this NYT article about Bush's plans for Chief Justice Rehnquist's inevitable retirement. The article specifically notes four judges, Michael W. McConnell, John G. Roberts, J. Harvie Wilkinson III, and J. Michael Luttig, as on the "short list" for the spot, and mentions Samuel A. Alito as also in the running.

I must say, if accurate, this is very heartening news. When The New Republic's Jeffrey Rosen wrote on possible Bush picks for the Supreme Court. The four names on the short list are the four names Rosen picked as "principled" conservatives: certainly not short on conservative bona fides, but not engaged in so-called "Constitutional-in-exile" extremism either (Alito, alas, did fall in that radical category in the article).

From my very limited independent knowledge of these persons, I also will say I'm pleased. I've been reading McConnell's law review articles on the 1st amendment (specifically Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) and "God is Dead and We Have Killed Him!": Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163) and have been tremendously impressed. It is clear to me that McConnell is an intellectual giant who could do great things on the Court, and his unabashed opposition to the decision in Employment Division of Oregon v. Smith, which essentially demolished the Free Exercise Clause of the 1st Amendment, is badly needed on the Court today.

I don't know anything about Roberts firsthand, although Kerr certainly speaks highly of his opinions. However, Georgetown Law Professor Richard Lazarus, who I have the pleasure of knowing through the Walt Whitman HS Debate Team, also has made known that he thinks Roberts is a brilliant jurist and fairminded individual. Their vouchers mean a lot to me. I have no problem with a Conservative taking Reinquist's spot, so long as he is a principled Conservative, and it appears that Roberts meets that standard handily.

Wilkinson and Luttig are both quite Conservative (though the latter is more so), but both are clearly excellent judges who know the law and apply it with principle. Neither would make the Court any worse off than it was with Rehnquist, and some of their opinions (especially Wilkinson's) have struck me as quite erudite and well-written.

My personal order of preference would be McConnell, Roberts, Wilkinson, then Luttig (Alito--known as "Little Scalia" or "Scalito"--is a separate issue entirely). However, this entire story is good news. My personal guess, prior to this, was that Bush was going to nominate Clarence Thomas to the Chief Justice position to draw away Democratic fire, then quietly push through a hyper-Conservative to the bench while nobody is looking (similar to what Reagan did with Reinquist and Scalia). Though I'm not counting that out quite yet, these nominees do a little to mitigate that fear.

Broken Promises

Sorry for the lack of blogging this weekend. I was away coaching my old debate team at the Harvard Debate Tournament (at the same tournament--and with the same team actually--as Powerline's Deacon). If you're interested in the results, go here.

While I was away, one of the breaking stories was on the so-called Bush Tapes. Now, when my GOP friends saw the headlines I knew they were having panicky Watergate flashbacks, but these turn out to be pretty tame. Except for one thing.

In response to requests by Christian Conservatives that he exclude homosexuals from office, Bush responded quite clearly that he would not join in "kicking gays." Noble sentiments. But that simply makes Bush's support for the FMA all the more abominable. Not only is it purely political, not only is it pandering to the basest of human instincts, but it broke a solemn promise Bush made to himself prior to running for office. If legally codifying discrimination into our constitution, if deliberately inciting a new run of anti-gay hysteria for political gain, if seeking to destroy real families while purporting to the protect "the family" is not "kicking gays," then I don't know what is. I understand that politicians sometimes posture and lie for the camera. But presumably what Bush said in that room, in private, was his real and true principle at the time. That he was so ready to abandon it for a quick political bounce speaks volumes of his character and tenure in office.

UN Anti-Semitism

The Wall Street Journal reprinted a speech by Columbia Law Professor Anne Bayefsky on the United Nations' history of anti-Semitism. She delivered it at the very first conference the UN has had on anti-Semitism (60 years after its formation, no less). It's an old column, but an important one.

What does discrimination against the Jewish state mean? It means refusing to admit only Israel to the vital negotiating sessions of regional groups held daily during U.N. Commission on Human Rights meetings. It means devoting six of the 10 emergency sessions ever held by the General Assembly to Israel. It means transforming the 10th emergency session into a permanent tribunal--which has now been reconvened 12 times since 1997. By contrast, no emergency session was ever held on the Rwandan genocide, estimated to have killed a million people, or the ethnic cleansing of tens of thousands in the former Yugoslavia, or the death of millions over the past two decades of atrocities in Sudan. That's discrimination.

The record of the Secretariat is more of the same. In November 2003, Secretary-General Kofi Annan issued a report on Israel's security fence, detailing the purported harm to Palestinians without describing one terrorist act against Israelis which preceded the fence's construction. Recently, the secretary-general strongly condemned Israel for destroying homes in southern Gaza without mentioning the arms-smuggling tunnels operating beneath them. When Israel successfully targeted Hamas terrorist Abdel Aziz Rantissi with no civilian casualties, the secretary-general denounced Israel for an "extrajudicial" killing. But when faced with the 2004 report of the U.N. special rapporteur on extrajudicial executions detailing the murder of more than 3,000 Brazilian civilians shot at close range by police, Mr. Annan chose silence. That's discrimination.

At the U.N., the language of human rights is hijacked not only to discriminate but to demonize the Jewish target. More than one quarter of the resolutions condemning a state's human rights violations adopted by the commission over 40 years have been directed at Israel. But there has never been a single resolution about the decades-long repression of the civil and political rights of 1.3 billion people in China, or the million female migrant workers in Saudi Arabia kept as virtual slaves, or the virulent racism which has brought 600,000 people to the brink of starvation in Zimbabwe. Every year, U.N. bodies are required to produce at least 25 reports on alleged human rights violations by Israel, but not one on an Iranian criminal justice system which mandates punishments like crucifixion, stoning and cross-amputation of right hand and left foot. This is not legitimate critique of states with equal or worse human rights records. It is demonization of the Jewish state.

As Israelis are demonized at the U.N., so Palestinians and their cause are deified. Every year the U.N. marks Nov. 29 as the International Day of Solidarity with the Palestinian People--the day the U.N. partitioned the British Palestine mandate and which Arabs often style as the onset of al nakba or the "catastrophe" of the creation of the state of Israel. In 2002, the anniversary of the vote that survivors of the concentration camps celebrated, was described by Secretary-General Annan as "a day of mourning and a day of grief."

In 2003 the representatives of over 100 member states stood along with the secretary-general, before a map predating the state of Israel, for a moment of silence "for all those who had given their lives for the Palestinian people"--which would include suicide bombers. Similarly, U.N. rapporteur John Dugard has described Palestinian terrorists as "tough" and their efforts as characterized by "determination, daring, and success." A commission resolution for the past three years has legitimized the Palestinian use of "all available means including armed struggle"--an absolution for terrorist methods which would never be applied to the self-determination claims of Chechens or Basques.
[...]
But I challenge the secretary-general and his organization to go further--if they are serious about eradicating anti-Semitism:

-Start putting a name to the terrorists that kill Jews because they are Jews.

-Start condemning human-rights violators wherever they dwell--even if they live in Riyadh or Damascus.

-Stop condemning the Jewish people for fighting back against their killers.

And the next time someone asks you or your colleagues to stand for a moment of silence to honor those who would destroy the state of Israel, say no.
Only then will the message be heard from these chambers that the U.N. will not tolerate anti-Semitism or its consequences against Jews and the Jewish people, whether its victims live in Tehran, Paris or Jerusalem.

For an organization formed, at least in part, in response to moral depravity of the Holocaust, the UN has been shockingly acquiescent to the murder and destruction of the Jewish people. Certainly, there are valid claims to be made for Palestinian statehood. But before claims of legitimacy can be discussed, the UN has to at least recognize who the real monsters are first.

Monkey See, Monkey Do

Looks like the good folks in Georgia have decided to take a page out of Tom DeLay's book (hattip: ACS Blog).

To be fair, the Georgia Republicans say they are trying to make the districts more compact and representative of community guidelines. Whether or not this is true (I don't know), it still seems abundantly clear that there were partisan motivations behind the move. If Georgia legislators (on both sides of the aisle) are serious about crafting fair, competitive, and equitable congressional districts, then they should follow Iowa and Arizona in making the process non-partisan and outside the realm of political disputes.

Real Monsters

It is a rare day indeed when I link to Conservative archetype Jonah Goldberg. However, this column really hit home.

"The tragedy of the imagination was that we couldn't appreciate that evil is real and it exists. In a society where everyone is a victim and it's not right to "judge" others, there's just not much room left for real monsters, while society itself becomes monstrous."

We can seek to understand the causes of evil, the rationales, the justifications, the roots. However, we can never forget that some things still just are evil. And we can never turn a blind eye to the atrocities of the present by invoking empty theories of moral relativism or ethical equivalency. For, as the Rev. Martin Luther King reminds us, "In the end, it's not the words of our enemies we will remember, but the silence of our friends." Global liberalism, "friends" of oppressed people everywhere, needs to find the voice to condemn and combat the grave injustices that occur around the world on a daily basis. Conservatives can hide behind realism and national self-interest if they want. Liberals have no such excuse. We either speak out or become accomplices in the act.

Thanks to my friend Luci Hague for originally drawing my attention to the article.

Calling a Spade a Spade

I do hate when people seek to minimize or legitimize the insurgency. But still, this was deserved:

Hopatcong, NJ: Do you, Masland and Dickey mean "F---ing Murderers" when you say "insurgents" and "fighters" in your STUPIDITY? I've grown sick and tired of you "politically incorrect" reporters. Why don't you have the gumption to call a spade a spade?
Rod Nordland: OK, you're an idiot. How's that?

With thanks to Kevin Drum.

Cruel Intentions

Read the ACLU brief for the upcoming Supreme Court case of McCreary County v. ACLU. Watch the ACLU utterly smack down the arguments for having the 10 commandments displayed in the courtroom (at least in this case). Smile and realize that the Court almost definitely will ignore the arguments and uphold the display anyway.

I got the link via Crescat's Waddling Thunder, who, while impressed with the argument, is unsure that the "Founders could have meant anything so draconian." I have never quite understood the "Framers' intent" theory of constitutional law. Basically, that theory says that we should look to what the Framers would have believed a certain clause of a law should do when interpreting that law--even, and here's where it gets messy, when that interpretation seems entirely at odds with the principle underlying the law. There seem to be several possible conclusions one can draw from that theory. The first is that the framers deliberately left their own prejudices out of the constitution for a reason--so that we were truly governed by laws, not men. That, of course, would defeat the FI theory on its own terms--it would be the framers intent that we not look at the framers intent. The second would be that the framers just assumed their prejudices were not inconsistent with the text. However, that appears to be incorrect, and it strikes me as odd that we'd ignore the text and uphold the musings of John Adams (or whomever). If the law says "free speech," but the framer thinks "but that can't possibly apply to sedition," all that means is the framer is contradicting himself. It doesn't exercise a magical power to exorcise "seditious speech" from "speech." This shouldn't be that hard of a concept. There is a third conclusion, I suppose, which is that America was meant to be in perpetual serfdom to the particular, extra-constitutional whims of Madison, et al. I would presume, however, that if this was the case, they would have given us some inkling of it in the "supreme law of the land."

Not a Big Deal

...only the wholesale betrayal of American values. The New York Daily News reports that military JAGs repeatedly objected to Guantanamo Bay "interrogation procedures" (IE, torture), but were overruled by senior Pentagon officials who "didn't think [it] was a big deal" (link: Balkinization). The Lawyers specifically drew a distinction between "battlefield interrogation methods, where slapping around a prisoner might be justifiable if it immediately saved lives," and the situation in Guantanamo, where the detainees were nowhere near a combat scene and months removed from their capture.

We cannot let this issue drop. The only thing more despicable than this being an issue in the United States is that it doesn't appear that anybody cares. So long as torture isn't on the front page and staring us in the face, Americans prefer to just pretend it isn't happening. But if we aren't willing to throw down the gauntlet at torture, where exactly is the line we "won't cross"?

A little while ago, the Legal Fiction blog wrote that it would support a primary challenge against Connecticut Senator Joe Lieberman (D) due to his vote for pro-torture Attorney General Alberto Gonzales. Lieberman has done more than virtually any other elected Democrat to try and make the party more formidable on national security. However, when he decides to condone torture as a matter of American policy, it is very hard to argue that he has the moral character to continue to represent us in the halls of congress.

Anti-Family

Coming by way of How Appealing, the Richmond Times-Dispatch reports on the latest anti-family move by gay rights opponents.

The day in 2002 when Ulf Hedberg won a legal fight with his ex-wife and was awarded physical custody of his son should have been a happy one for him.

Instead, Hedberg calls it a "cruel victory."

That's because the Virginia judge who named Hedberg the custodial parent attached a life-altering restriction: Hedberg, who is openly gay, would be barred from living in the same house where he and his partner had been raising the boy, who is now 12.

At the time of the ruling, in 2002, the couple had been living together for 6 years. The ruling was prior to the Lawrence v. Texas decision, and was based on the presumption that a gay couple living together would automatically be engaged in illegal activity (namely, sodomy). Post-Lawrence, that analysis shouldn't hold up.

The lawyer for the ex-wife claims that she did not request the court's order to ban Hedburg's partner from living with him. However, she opposes the lifting of the order, on the grounds that "she does not want his homosexual lover to move back in," and that she "does not believe this person [the partner] is anything to her son." Note the rhetoric involved: "homosexual lover," which implies that this is merely an eight year long fling (because homosexuals can never enter into meaningful relations) and "this person" (as opposed to a respectful "Mr. Delahoussaye").

Hurray for "family values"!

After We Finish Spending the Money, Then We Can Start Spending More Money

My head hurts. A few Congressman are a tad bit antsy that the cost-estimate for the new prescription drug coverage plan has inched up slightly since Bush originally proposed it. To be precise, it has nearly doubled: from $400 billion at the time of passage, to $534 billion immediately after passage (information, incidentally, the administration knew but suppressed: see the Post article below), to $724 billion today. To be fair, not everyone thinks the pricetag actually will end up being $724 billion. The Washington Post, for example, thinks the ultimate price will actually be $1.2 trillion over the first decade of the program. The $724 billion dollar figure comes out when you factor in some offsetting "savings," but you'll forgive me if I'm starting to get a wee bit skeptical of those sorts of things. Anyway, what is Bush's reaction to the spiraling price of his pet healthcare proposal? According to CNN,

"Bush pledged this week to "deal with the unfunded liabilities of Medicare" once Social Security is overhauled as he has proposed."

So...once we enact a program that will incur trillions of dollars in new debt, then we'll try and fund the skyrocketing debt we've already got? Thus is the mantra of Bush budgeting I guess: Buy now, refuse to pay later.

Tea Time

I meant to post on this earlier, but got sidetracked. According to CNN.com, the Attorney General has appealed the 10th Circuit Court of Appeals decision in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft. The background of the case is as follows. The Church (known in short as the UDV) uses a type of tea in its ceremonies that contains hallucinogenic ingredients. The plant used doesn't grow in America, so they import it from Mexico. The DEA is arguing that this plant is classified as a Schedule I drug (the most restricted category) under the Controlled Substances Act, and thus the church should be barred from importing it. The 10th Circuit disagreed and ruled for the church. The case has now been appealed to the Supreme Court (who, to be clear, haven't taken the case, so this could all be moot).

If they do take the case, I can see a couple of outcomes. First, they could simply agree that prohibiting the drug importation for religious use fulfills a compelling government interest. Most obviously, it could plausably be argued that allowing the drug in for religious purposes would undermine Congress' regulatory scheme with regards to controlled substances. This argument hinges heavily on the outcome of the Raich v. Ashcroft, of which I blogged about here. If the Court rules that the use of drugs outside the general commercial market ruins Congress' regulatory scheme (which consists of keeping drug prices high via the black market), then the Church will almost definitely lose. However, this is one of the better possible outcomes.

The biggest problem is that the statute under which the church is seeking relief is the Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1). The law was in direct response to the Supreme Court's decision in Employment Division of Oregon v. Smith that any legitimate, generally applicable law could override any free exercise claims besides mere abstract expression of belief. That decision justifiably came under a lot of fire, and Congress worked to change it. The RFFA sought to overturn that decision, and restore the "compelling interest" test in Sherbert v. Verner, which mandated that any law which impugned on the free exercise of religion must satisfy a compelling state interest. The Supreme Court has already ruled that act unconstitutional as applied to the states in City of Boerne v. Flores, saying that it granted preference to religion by only allowing them to claim exemptions from general law. However, since the UDV case deals with a federal claim, Boerne is inapplicable.

However, while Boerne itself only applies to the states, I don't see much in its reasoning that prevents it from being applied to the federal government. If the Court applies Boerne to the federal government, then that will entirely restore Smith to Constitutional supremacy and strike a lethal blow to the religious beliefs of minorities. It would, in effect, prevent these minorities from gaining judicial OR statutory relief from laws which prevent the exercise of their religion. That essentially write the Free Exercise clause out of the constitution. On the flipside, the Court could overrule Boerne and rule for the Church. That would be the best outcome.

There is a way that the Court could distingiush Boerne and uphold the law on the federal level. However, it involves some very scary implications for the future of 1st amendment jurisprudence. It has been well accepted for some time now that the 1st amendment's religion clauses now apply to the states, though they technically only say "Congress Shall Make No Law" establishing religion or prohibiting the free exercise thereof. A few extremist jurists (Justice Thomas among them) do not believe this should have been so. If his view swings the Court, then the RFFA will be upheld--but only because it applies to the federal government. The implication, then, is that the states are exempt from some of the first amendments prohibitions and mandates--precisely what Thomas wants, but it direct conflict with decades of Court precedent protecting the rights of religious minorities. Upholding the RFFA could be a stealth attempt by the Court to utterly shortcircuit first amendment protections under the guise of protecting them.

Watch this case carefully.

Hearts and Minds

I'm a bit worried about this. Joseph Braude translates Ayman Al Zawahiri rebuttal to George W. Bush's state of the union. The reason I'm worried is that

Al Zawahiri's speech represents a departure from the Al Qaeda addresses of recent memory, most of which amounted to direct threats of violence targeting Western and Muslim regimes (including, needless to say, their civilian populations). This statement, by contrast, was not so much threat as political argumentation, and the audience was not Western but rather Arab and Muslim. Implicit in Al Zawahiri's speech was an acknowledgement that the United States is now actively competing in the war for hearts and minds in Muslim countries--leaving Al Qaeda no choice but to engage America at the level of politics and ideas.

Why does this worry me? Because in the current climate in the Arab world, I'm afraid it could get some traction. Zawahiri's speech is not standard al-Qaeda "blow up the infidels and build a bridge to the 12th century" rhetoric. Rather it tries co-opt (more accurately, pervert) liberal notions about freedom and justice into its radical ideology. Zawahiri states:

"The freedom that we want is not the freedom of interest-bearing banks and vast corporations and misleading mass media; not the freedom of the destruction of others for the sake of materialistic interests; and not the freedom of AIDS and an industry of obscenities and homosexual marriages; and not the freedom to use women as a commodity to gain clients, win deals, or attract tourists; not the freedom of Hiroshima and Nagasaki; and not the freedom of trading in the apparatus of torture and supporting the regimes of oppression and Copts and suppression, the friends of America; and not the freedom of Israel, with their annihilation of the Muslims and destruction of the Aqsa mosque; and not the freedom of Guantanamo and Abu Ghraib.

Our freedom is a freedom of monotheism and morals and probity and asceticism and justice. The freedom that we are striving toward is on three foundations: The first is the rule of the Shari'a. The Shari'a, revealed by Almighty God, is the path that is obligatory to be followed. ... The second foundation, upon which reform must be established--and this is a corollary to the first foundation--is the freedom of the lands of Islam and their liberation from every robbing and looting aggressor. It is unimaginable that any reform may be realized for us while we are under the coercion of American and Jewish occupation.
...
As for the third foundation, which is also a corollary of the first foundation, it is the liberation of man. The Ummah [pan-Islamic nation] must snatch back its right to choose its ruler and call him to account and criticize him and depose him, and snatch back its right to enjoin good and end that which is abominable. ... The Ummah must undertake [to end] repression and brute force and theft and fraud and corruption and dynastic succession in rule, which our rulers are practicing with the blessings and support of the United States.

This is a relatively clever bit of rhetorical jujitsu. It manages to sound somewhat liberal (even though it isn't), play on latent anti-Americanism, and oppose the current wave of elections, all at the same time. I can see that message carrying a lot of weight. In Iraq, for example, political parties were falling over each other to see who could be the most anti-occupation...even though they were doing it in the context of a democracy the occupation enabled. My guess is there is a significant portion of the Arab world that will jump at the chance to appear both anti-American and pro-reform. If al-Qaeda manages to portray itself as in that niche, we're in trouble.

To be 100% clear, I am not saying that al-Qaeda is in any way a reformist organization. They are not, but they are trying to appear that way. If their distortion works (and remember, the primary entity that can is and willing to refute this, the US, has precious little credibility here), that's when the trouble kicks in.

Oh, and Happy Birthday to me! Big 19 today. The blog doesn't turn 1 until June though. [sniff] It just grows up so fast...

Calm Like a Bomb

First things first. I am now a co-blogger at Centerfield, the blog of The Centrist Coalition. The following post is also cross-posted there. This does not mean that I am abandoning this blog. I don't anticipate posting any less frequently here. I will merely be dropping in that blog from time to time to throw some thoughts out. Anyway, the blog is great and I highly encourage y'all to read it. Now, on with our story.

North Korea has the bomb.

Of course, U.S. policymakers have suspected NK had nukes for some time now. But obviously, their flagrant admission, paired with their withdrawal from mulitparty talks, changes the geopolitical situation dramatically. What's a centrist supposed to do?

When discussing NK, there are two aspects to keep in mind. The first is the security issues. To be perfectly clear: North Korea is a security threat to the United States in a way Iraq never was or had the potential to become. There are a few reasons for this. First, their Taepo-Dong II missile, with nuclear warhead capabilities, can hit Hawaii and possibly the west coast of the US. Furthermore, nuclear proliferation offers one of the few ways for the cash-strapped North Korean regime to gain hard capital. Even if Kim Jong Il was bound by moral scruples (he's not), it would be hard to pass up that opportunity given the abject poverty and desperation the country faces on a daily basis. Finally, and not to toot my own horn here, but current US policy is making the situation worse. Several months ago, I predicted that continued US work on the ABM missile defense shield (paired with a more aggressive foreign policy stance generally) would cause NK to accelerate its nuclear program as a hedge against potential US military intervention (I made a similar prediction with Iran as well). Lo and behold, NK has picked up the jitters and has accelerated its nuclear program. It goes without saying, obviously, that Kim Jong Il with nukes is more dangerous than Il without them.

The second issue is of humanitarianism. Though there are a million and one factors that play into whether or not the US should seek to depose a given regime, Centrists must never forget that the most dangerous nations in the world also tend to be engaged in the most brutal human rights atrocities in the world. Every moment that regime stays in power, every moment that the world community fails to act, another political prisoner is shot, another family is imprisoned, another child starves. The human rights situation in NK is notoriously brutal. Between state sponsored terror and oppression (forced labor camps abound for even minor crimes), and the more general famine and economic poverty that is pervasive in the country, North Korean citizens rank amongst the most desperate in the world. For better or for worse, US and global inaction lends tacit consent to all of these activities. So while the security situation might demand caution, the human rights situation demands decisiveness and action. There must be a strong statement (and I don't mean that in the UN resolution sense) that government sponsored brutality is not and will not be tolerated by any nation, anywhere, at any time. Morality demands it.

Meddlesome Bureaucracy

Democrats and Republicans take different views of bureaucracy. Democrats see it as an unfortunate but necessary organization to maintain accountability and facilitate programs. Republicans think it's the antichrist--unless, that is, they want to obstruct something.

The Austin American-Statesman (link by the indispensable Daily DeLay) reports that a bill introduced in the Texas legislature will give the state ethics commission veto power over local prosecutors who wish to prosecute election law violations. In simple terms, it adds a layer of bureaucracy between prosecutors and their jobs (IE, prosecuting criminals).

Now, the commission is bipartisan, so one might think that it wouldn't succumb to political temptations. That's true in a sense--but only because the commission lacks any spine and thus will be an equal oppurtunity enabler of corruption for both parties. Since the commission's formation in 1991, according to the Statesman, "the agency...has never subpoenaed a witness or documents to investigate a complaint or referred a criminal case [to prosecutors]." So basically, giving this commission power over election law will render the law unenforcable. Which is exactly what Tom DeLay and his cronies want.