Saturday, May 21, 2005

Hitting the Spot

Finally! Someone who truly gets the sex drenched, slutty, porn-star-esque, Victoria's Secret culture of American Universities! What an incredible relief!

Well, it's the weekend. I would be studying, but according to this book if I want to be a "typical" member of my generation I have to go and have anonymous, commitmentless sex with countless of my peers (preferably while drunk and/or stoned). Toodles!

Friday, May 20, 2005

Compromise Nothing Except Our Principles (They're Expendable)

Does Bob Ehrlich (R-MD) want to lose his 2006 re-election fight (link: Andrew Sullivan)? He sure is acting like it.
Maryland Gov. Robert L. Ehrlich Jr. has decided to veto emotionally charged legislation that would grant unmarried couples, including gay partners, certain rights if they register with the state.
Modeled on laws in California, Hawaii and other states, the legislation would have granted nearly a dozen medical and funeral-related rights to unmarried partners who register with the state. Among the rights: to be treated as an immediate family member during hospital visits, to make health care decisions for incapacitated partners and to make private visits in nursing homes.

This sort of behavior won't fly in Maryland. Hell, the Post says Democrats might have the votes to override the veto. Now THAT would be democracy in action.

Speaking of Maryland, democracy, and gay rights, let's look at the FRC's response to Montgomery County's controversial sex ed curriculum (thoughts as amended here). If you recall, a federal judge overruled the democratically elected county board and forced them to remove certain portions of the curriculum on homosexuality, saying they violated the Establishment Clause. Knowing how much the FRC hates the judiciary overruling democratic branches, and how it utterly despises the Establishment Clause, we can expect another tirade against activist judges--or at the very least, some humility, right? Over to you, Tony Perkins:
Montgomery County, Maryland, is one of the nation's richest counties, a Democratic stronghold within a Democratic state. Its liberal establishment was rocked earlier this month when a federal district judge, Alexander Williams, Jr., blocked the county's newest sex education curriculum. Among other problems, the judge found, the curriculum presented "only one view" (approval) of the "moral rightness of the homosexual lifestyle." In addition, the curriculum improperly characterized religious bodies, Judge Williams wrote, portraying the Baptist church in particular as "intolerant and Biblically misguided." Judge Williams, it turns out, was appointed to the federal bench by President Clinton. His carefully written opinion makes two points very clear: an Establishment Clause violation is occurring in Montgomery County schools, and a fair-minded judge can recognize it when he sees it. As the debate continues in the U.S. Senate over the future of judicial filibusters, it's worth remembering that an ideal does exist - that judges, whether they are personally liberal or conservative, appointed by a Democratic or a Republican president, can review the facts and apply the law evenhandedly. Judge Williams did so in this case and did his office great credit.

There it is, unedited and uncut. Contrite, humble, logically consistent with their daily assaults on the imperial judiciary. Just what we've come to expect from our favorite organization on the radical right.

For those of you keeping track, the FRC thinks that this sort of behavior (judges overruling democratic branches) is good, bad, good, and bad, respectively.

Got that straight?

UPDATE: Positive Liberty has all sorts of great stuff up, including this post criticizing the Governor's veto. He points to cases where gay couples who had signed the necessary legal documents still were prohibited from seeing each other during medical procedures. This blows a gaping whole in one of the critical conservative arguments against gay marriage and/or civil unions--that homosexual couples can contract around the restriction via power of attorney, a well-crafted will, etc.. Sometimes, that clearly isn't enough.

Sara's Spot also weighs in on the matter.

And NST, the rural panhandle/eastern shore voters don't have nearly enough clout to put anyone in the governor's mansion. Ehrlich was elected because he won over moderate swing voters in the suburbs who are socially liberal but fiscally conservative. That's exactly the voting bloc he'll blow to hell by writing that veto.

The Force is Strong in This One

I went to see Star Wars, Episode III at a midnight showing two nights ago. Unsurprisingly, it was a smash hit at the box office. It was very good objectively as well. I highly recommend it to anyone who enjoys the series. It is also mandatory for anybody (like me) who wishes to erase the memory of Episodes I and II out of my mind permanently (okay....done. Now let us never speak of them again).

However, while it was quite good, Daniel Solove still has some pressing questions that need to be answered. Many of them were thoughts I had myself--it's enough for me to almost forgive Professor Solove for not going to a midnight showing. Alas, he has forfeited his status as a "true fan." But the questions are good.

Restless Mania also points us to something very cool and Star Wars related: Darth Vader's journal! It sounds silly and juvenile, but it is actually very well written. I send it along with my full recommendation.

Thursday, May 19, 2005

The Secular Use of Religion

This CNN article piqued my curiosity about an interesting church/state question.
If she runs away from her life of prostitution, her parents will become sick and die.

At least that's what this Nigerian woman believes. The threatened curse, she claims, was part of a voodoo rite performed in her homeland just weeks before she was brought to Greece by a prostitution ring.
Maria's case illustrates one of the least understood corners of the sex slavery underworld: gangs using the perceived potency of native West African voodoo and hexes to hold women in their grip. Recently, however, an unusual alliance has started fighting back.

One of Nigeria's new anti-prostitution inspectors is turning to Christian-affiliated groups to confront a system that -- even by conservative estimates -- may hold sway over at least 10,000 Nigerian women forced to work as prostitutes in Western Europe.

"We cannot fight this by police work alone," said Muhammad Babandede, the chief investigator for a Nigerian task force against human trafficking. "We need the faith groups on our side."

Would this sort of activity, if done in America (assume the same sort of condition, the women will not leave because they fear the curses), be constitutional under current (or any) 1st amendment jurisprudence? Or, in the more generic formulation: Can the government use explicitly religious institutions in an explicitly religious manner to further a legitimate secular end? How much does it matter if the government shows the religious aid is critical to its endeavors (for example, if it showed that it could not get these women out of sex slavery without enlisting some religious aid to assuage their fears of the curses)?

In Illinois ex rel. McCollum v. Board of Education, (333 U.S. 203 (1948)), the Court famously stated that "religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." However, what does one do when that definitively is not the case? It probably isn't the concern of government if religion cannot do its job without governmental aid--the first amendment would still mandate their separation (though I think their are exceptions to this, for example, I think that a state can enforce fraud statutes to prevent meat from being falsely labeled and sold as "Kosher." See Commack Self-Service Kosher Meats Inc. v. Rubin 106 F. Supp. 2d 445 (E.D.N.Y. 2000); Ran-Dav's County Kosher Inc. v. State, 129 N.J. 141, 608 A.2d 1353 (1992), cert. denied, 507 U.S. 952 (1993); Barghout v. Bureau of Kosher Meat and Food Control, 66 F.3d 1337 (4th Cir. 1995); compare Hygrade Provision Co., Inc. et al. v. Sherman, 266 U.S. 497 (1925); National Foods, Inc. v. Rubin, 727 F. Supp. 104, 109 (S.D.N.Y. 1989)). However, it is an interesting question what happens in the reverse: when government cannot achieve its ends without religious support. In situations like Nigeria's, the McCollum model simply does not work, because it isn't true.

Okay, so let's think about this. In Larkin v. Grendel's Den (459 U.S. 116 (1982)), the Supreme Court struck down a Massachusetts law which allowed Church’s in the immediate vicinity to have veto power over liquor licenses. The delegation of that state power to a religious group was seen as an Establishment Clause violation. However, that case dealt with zoning law, an entity which government has long been able to manage without turning to religious groups for aid. The situation above deals with circumstances where the state cannot act without religious assistance. Thus, I think we can distinguish Larkin. The standard we might use to determine whether such an action would be legitimate might be something like "government can use religious groups in pursuit of legitimate and compelling secular ends if the use is narrowly tailored, the entanglement is minimized, and the governmental objective can only be achieved with the aide of the religious group." Pretty strict standard, but would probably allow the use of evangelical groups to help fight the sex traffickers.

But let's take another example: the much maligned MCPS sex-ed curriculum on homosexuality. To review, the most controversial part of the course was the portion where the county claimed that homosexuality did not necessarily violate Christian teachings and pointed to several denominations which were perfectly tolerant of it. For purpose of argument, let's assume a few things. First, that the state has a compelling interest in ending discrimination against homosexuals. Second (and again, this is just for purpose of argument), that the state can definitively show that certain church positions on homosexuality constitute an insurmountable barrier toward teaching tolerance; for example, that students are simply leaving class and ignoring the entire lesson on the grounds that it conflicts with the Bible, and that many of these students are harassing and bullying homosexual students.

Given those conditions, would the curriculum not pass muster under the aforementioned standard? It is in pursuit of a legitimate and compelling secular end. It is established in the record that counteracting homophobic religious sentiments is essential to achieving that end. And the entanglement with religion is as minimal as possible (restricting itself only to teachings on homosexuality). I think that it would, and this should give us pause when thinking about the issue.

There are some ways of making a distinction, but I don’t find them persuasive. One might say that the curriculum is making a denominational preference: it is saying that the Unitarian conception of homosexuality is "right" and the, say, Baptist conception is "wrong." First of all, this is no different than the state saying the "evangelical" conception of Voodoo is correct and the traffickers’ conception is wrong. However, even beyond that, the problem seems rather easy to avoid--all one would have to do is rewrite the curriculum so as to make students aware of the Unitarian position, rather than explicitly saying that it is theologically correct. One might then say that the school should teach both sides, for example stating that "Some groups, such as A and B, believe that homosexuality is immoral and incompatible with the Bible. Others, such as X and Y, believe that homosexuality is private and morally acceptable sexual orientation." This, too, fails when compared to the Voodoo example—the state certainly would not have to give equal time to Voodoo practitioners arguing that, indeed, the curses are real.

So, in addition to the above questions, I pose this one to the blogospheric world: assuming my prior stipulations (anti-discrimination is a compelling interest and religious teachings are posing a barrier), is there a way to uphold a Nigeria-like program while striking down the MCPS curriculum? Do we want to?

Informed Association

In Boy Scouts of America v. Dale, the Supreme Court held that New Jersey's anti-discrimination statute could not be applied to the Boy Scouts refusal to admit homosexuals. In the wake of that decision, Ian Ayers has proposed a thought-provoking alternative for New Jersey:
The state might require that to avoid liability a private association must maintain records of written ackowledgements from each of its members indicating that they are choosing to associate with an organization that retains the option of discriminating on certain bases.

A lot of people couldn't bring themselves to sign such a document.

Question number one: is it constitutional? I'm skeptical--it seems that it would be seen as an attempt to intimidate unpopular associative groups. Such actions are inherently suspect (see NAACP v. Alabama ex rel. Patterson).

Question number two: is it a desirable precedent? Regardless of whether we can do this, I'm not sure we should. I'm not sure we shouldn't, either, but it seems to me there have to be some repercussions out there if liberals suddenly begin supporting requiring associations to publicly recognize when they differ with public policy. Imagine if the law schools win the Solomon Case currently before the Supreme Court. Would this then mean that Congress could require all affiliates of that university to sign a waiver saying, "I am joining an organization knowing that it has gained a legal exception and is allowed to discriminate against and exclude the armed forces from recruiting on its campus"? It seems the answer is yes. I'm uncomfortable with setting the precedent that the government can force certain speakers/groups to label themselves as "law-exempted" (implying, of course, that were it not for that pesky Supreme Court we would throw them all in jail).

It's an interesting idea, but a dangerous one.

Wednesday, May 18, 2005

I Would PAY

Students at Evanston Township HS in Illinois are challanging Rush Limbaugh to a debate on American History after he attacked the school's multicultural curriculum (via Wonkette). Of course, he'll never accept--Limbaugh was never exactly the brainiac--but oh, man, what if he did...

Suicidal Roots

Dan Drezner links to a provocative New York Times editorial by Robert Pape arguing that suicide bombing is not, as commonly assumed, as linked to religious fundamentalism as it is to resistance to (perceived) foreign occupation.
Over the past two years, I have compiled a database of every suicide bombing and attack around the globe from 1980 through 2003 - 315 in all. This includes every episode in which at least one terrorist killed himself or herself while trying to kill others, but excludes attacks authorized by a national government (like those by North Korean agents against South Korea). The data show that there is far less of a connection between suicide terrorism and religious fundamentalism than most people think.

The leading instigator of suicide attacks is the Tamil Tigers in Sri Lanka, a Marxist-Leninist group whose members are from Hindu families but who are adamantly opposed to religion. This group committed 76 of the 315 incidents, more than Hamas (54) or Islamic Jihad (27). Even among Muslims, secular groups like the Kurdistan Workers' Party, the Popular Front for the Liberation of Palestine and the Al Aksa Martyr Brigades account for more than a third of suicide attacks.

What nearly all suicide terrorist attacks actually have in common is a specific secular and strategic goal: to compel modern democracies to withdraw military forces from territory that the terrorists consider to be their homeland. Religion is often used as a tool by terrorist organizations in recruiting and in seeking aid from abroad, but is rarely the root cause.

Interesting. This dovetails with stories I've read that the typical Palestinian suicide bomber is not an ultra-religious, poor, depressed slum-dweller, but rather an educated, secular, middle-class professional.

Stygius has a strong critique of Pape's argument.
The whole piece is a collection of specious correlation-as-cause fallacies. Mostly its economics' deflated sense of agent rationality claiming to "understand" political calculation and motivation. Necessity claims implicit in Paper's explanation are dead wrong, mainly because there is no force to the assumption that there must be some singular foundational explanation of suicide terrorism.

Suicide bombing was a tactical innovation in the territories that had immense terror and propaganda dividend. Palestinian export of their terrorism led to decades of concessions by the West and increased the political legitimacy of the PLO. Suicide bombing, in its incomprehensibility and captivating hold on the media, brilliantly took islamist terrorism to another level. Pape, however, correlates increase Jewish settlement population with suicide bombing, and assumes cause. A nice case of empirical elegance, but ultimately uninformative, mainly because of its inability to consider Palestinian terrorist leaders as innovative, experimenting agents--not a set of dependent variables.

If I'm understanding Stygius correctly, he's not claiming that Pape is necessarily wrong in that religious fundamentalism is not the root cause of suicide attacks, but rather indicting the broader assumption that we can reduce suicide bombing to a singular root cause. This I would agree with, but that doesn't make Pape's contribution less valuable--it is important to disassociate suicide bombings from a false cause (religious fanaticism) if we're going to think of effective defenses. If Pape is interpreted narrowly--that if we'd only withdraw the troops, then suicide bombings would end--then yes, Stygius is right that he has dangerous implications (ask Israelis how well that theory worked when they got out of Lebanon).

Ultimately, I think that suicide bombing occurs because it works, and works well. It is extremely difficult to defend against, almost impossible to retaliate against, and is very effective at undermining the morale and willpower of the target nation--especially if undertaken over a large period. Insurgent leaders thus have an incentive to encourage whatever mindset necessary in order to gain suicide volunteers, be it religious fanaticism or a willingness to die for the motherland. But these "causes" are window-dressing for the movers and shakers, they are not intrinsic to the event itself.

Personally, I want to know what American Future has to say on the matter.

Tuesday, May 17, 2005

A Limited (State) Constitution

Apropos my musings here, Ian Ayres provides a far more eloquent and persuasive post arguing that in certain cases, state constitutions are more limited in what they can contain compared to state statutes. An excerpt:
Normally we think of the constitution as superior law. But here is a special situation where a rule of law becomes unconstitutional merely because it is put in the less amendable constitution. After this opinion, the statutory prohibition stands, but the constitutional prohibition falls.

The statute’s weakness is its greatest strength. The fact that the statute is more easily amended means that same-sex couples retain a more vibrant right to petition a deliberative body for redress of their grievances.

The U.S. Supreme Court upheld similar reasoning in 1967 when it struck down an analogous California constitutional amendment. The infamous Proposition 14 prohibited the state’s legislature from considering fair housing measures. The Supreme Court found that the legislature might choose not to adopt such measures but the constitution could not ban them.

You know I don't ask this often, but read the whole thing.

Passing a Milestone

Obsidian Wings links to an acute observation by Angry Bear regarding the War on Terror.
"This coming Thursday, May 19, 2005, will be the 1,346th day since the attacks of 9/11. That is the same length of time from the attack on Pearl Harbor to the end of WWII on V-J Day. (Dec 7, 1941 to Aug 24, 1945)

Most comparisons between WWII and the Global War on Terror (GWOT) have been preposterous: Saddam Hussein was no Adlof [sic] Hitler; the "Axis of Evil" was no WWII Axis Powers; the far right even went so far as to compare Colin Powell to Neville Chamberlain.

But this milestone does provide the opportunity to compare the effectiveness of America's responses to both crises. After the attack on Pearl Harbor, America came together, and with determination, shared sacrifice, and the effective and focused leadership of FDR, George C. Marshall, and many others, America and her allies were victorious.
A poorly defined mission has led to poor results. Iraq is a mess and many Americans have concluded that the invasion of Iraq was unrelated to the GWOT. The situation in Afghanistan is not much better. Worldwide terrorism is still on the rise and America is now deeply divided."

The inaptness of the "WWII = GWOT" analogy works both ways of course--the likelihood that we will have an easily recognizable "VT-day" strikes me as very remote. However, on a symbolic level, I think there is an important point to be made here. What is our status on the war on terror? Are we making it more or less likely that terror will be a prominent threat to our children? Are we making inroads against terrorist organizations and structures? Have we insured that the global community will get behind us for the long-haul?

In all honesty, I think we are making progress in most of these parameters. But the vagueness of our objectives and the dearth of long-term, strategic planning by this administration makes it almost impossible to tell. Like with our multi-trillion dollar deficit, President Bush has done a top-notch job of ensuring that the most difficult problems will fly at us after he's already left office. It is the next President who will have to deal with the smoking aftermath of our non-existent global reputation and lack of a clear mission in the world. In World War II, this sort of problem simply wasn't present. But without overstating the similarities between that case and this one, I think it is unacceptable that the problem is present here.

Hard Time

Orin Kerr links to a very interesting profile by the LA Times on Boalt Hall Law Professor (and former Bush administration attorney) John Yoo. Yoo was one of the chief architects of the infamous "torture memos," and thus has become a lightening rod of criticism. Regardless of what one thinks of him, however, it is apparent from the article that he is well-liked by colleagues and possesses a very sharp mind.

My question is this: let's assume for a moment that the policies Yoo outlined actually are illegal (I recognize this is quite controversial, so just accept it for the moment). Has Yoo conceivably done anything illegal? Does it depend on any particular variables, and if so, what? And of course the kicker, ought he be held accountable in the event that his suggestions advocate breaking the law?

Any legal professional more educated than I am, please feel free to chime in a response.

Monday, May 16, 2005

Friend or Foe?

Orin Kerr gets snarky on Tom DeLay, predicting that this statement by Supreme Court Justice Anthony Kennedy will get his ire up:
Referring to the title of a book by New York Times columnist Thomas Friedman about increasing globalization, Kennedy said "the world is now flat, and the U.S. is beginning to be involved in international law."

As Professor Kerr so aptly notes, the "flat world" theory is fine with Representative DeLay. It's the international law (that and that internet thingy) which will send him off the edge.

But I personally think that Professor Kerr is being way too pessimistic. Now that Kennedy has endorsed the flat-earth theory, perhaps DeLay will recognize that, far from an enemy, he has a kindred spirit in Justice Kennedy. And for all those conservatives who are up in arms about his supposed "judicial imperialism," well, we know that DeLay has his own little penchant for meglomania.

Yes, I see this developing into a long and sustained friendship...

Finding Fault

Sorry for the quiet period. I was sick over the weekend, and really wasn't up to any deep thinking (teasing Professor Bainbridge doesn't count!). So I sort of missed the whole Newsweek/riots in the Arab world fiasco. Yeah, sorry 'bout that. The Moderate Voice has the most comprehensive round-up you'll need.

For now, I just want to second a point Kevin Drum brought up in relation to the reaction the conservative blogosphere in general, and Instapundit in particular, have had to the deal.
I warned earlier that if Americans concluded that the press was on the other side, the consequences would be dire....I'm a big fan of freedom of the press. I think it's too bad that the journalistic profession is ruining things for everybody through the hubris, irresponsibility, sloppiness, and outright agenda-driven bias of its practitioners.

Drum has several important points to make (the most cutting: "As near as I can tell, the Pentagon has demonstrated more genuine outrage over this incident than they did over months and months of disclosures of similar (and worse) actions at Abu Ghraib. It's revolting."). However, the one I want to make on my own is the whole business of the press taking sides.

I am a long-time skeptic of the supposed "liberal media bias" (see here for loads and loads of detail). It's been my experience that everybody thinks the media is biased against them, and has dozens of horror stories to "prove" it. I rather subscribe to the "storyline" or "narrative" belief on bias, which is that the media will adapt a particular narrative in which to view certain parties, and will shoehorn events to fit the narrative no matter how much it distorts the facts. So Republicans are seen as cold, evil, money-grubbing bastards, even when it's wrong. But they also get the benefit of being tough-minded defense hawks and fiscal disciplinarians, even when that's wrong. Democrats have the same sort of thing: they're both bleeding heart dovish anti-Americans, and kind-hearted saviors of the poor. Since each side thinks the good things about them are just true, they only focus on the (wrong) bad coverage. Everybody screams, and nobody's happy.

So basically, while I'm about to engage in a defense of the media, don't think for a moment that I like them. I don't. I think they do an overall crappy job, and give me The New Republic and National Review over them any day of the week.

However, Reynolds' quote seriously disturbs me. As Drum notes, it comes perilously close to "explaining" American's anemic support for a free press (43% say it has "too much freedom"). Say what you will about media bias, but even if you don't buy my explanation I think we can all agree that a "regulated" (read: censored) press would be a solution that is infinitely worse than the problem. The undercurrent, that the media is "against us," implies that what they should be is "for us." Now, I'm sure that Reynolds would disagree. He'd say the press should simply be neutral, and that since America is in the right in this conflict, that means that, all in all, they should end up supporting us most of the time. The problem is, while I think America is right on the overall message, the day-to-day problems we...have...been...screwing up. The Right Wing just cannot get past this. We've made mistakes in this endeavor. The message is not a story anymore, and it shouldn't be, either. We know we're Iraq to make it a democracy (even if that was a nice bit of post hoc justification by the Bush administration). What exactly does Reynolds want? Front page stories in the NYT, "Experts Say: Democracy Still a Good Thing"? That won't sell papers for very long, because it isn't news. However, maybe if we can cut throw the stagnant inertia that affects any bureaucratic organization (and a vigilant press is one way to do it), then we can rectify the errors and win this war.

Reynolds sees papers covering our military's mistakes and sees an entity that wants us to fail. I see the same thing and see a media that wants us to succeed. I know that is why I'm constantly critiquing the Bush administration. The President can hear what a wonderful job he is doing from any of the innumerable sycophants he's surrounded himself with, but that won't win us any wars. It's only by pointing out mistakes that you can fix them, and it's only by fixing mistakes that you can succeed in anything. And if we're a bit more vociferous in our criticisms that Reynolds would like? Well, perhaps that's because this administration has been unusually inapt at responding to criticisms laid out through the normal channels.