Rational Basis and Gay Rights

So, the California State Senate has just passed a bill legalizing gay marriage. And if it passes the State Assembly, it appears Gov. Schwarzenegger will veto it. Why? Because according to a spokesperson, he prefer[s] to let judges sort out the legality of gay marriage (link: Kevin Drum). Oh, irony is SO sweet.

Dafydd at Patterico's Pontifications actually has some legitimate beefs with what the legislature did. Essentially, he makes two claims. The first is that under the California Constitution, referendums passed by the people need the people's approval to be overturned. As this bill conflicts with the 2000 Proposition 22, it should therefore get voter approval before it becomes law. I don't know if the authors are planning to do just that--but if they aren't (and assuming there isn't something more to it that I don't know about), then that's bad. However, assuming that Prop. 22 is overturned by the Courts, then he moves to problem number two, which is regarding the opinion of a California Superior Court Judge who struck it down. In California, this is rather meaningless--the law won't be officially struck down until it is heard by an Appellate Court either this year or next. But Dafydd thinks the Court completely overstepped its bounds by ruling the ban on same-sex marriages fails the "rational basis" test.

First, I've noted before my confusion as to why homosexual rights cases are adjudicated under the "rational basis" test. It seems somewhat clear that laws discriminating against homosexuals, at the very least, meet the guidelines for applying "heightened scrutiny." Heightened Scrutiny is applied when the group in question 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 is beyond question that homosexuals meet both these tests--being historically reviled and imputed to have disabilities and character flaws based solely on that irrational prejudice. Hence, in my view, the proper standard of review is not rational basis but heightened scrutiny.

The problem is that our legal system creates a perverse catch-22 when adjudicating minority rights claims. Yale Law Professor Jack Balkin explains:

In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." [Jack Balkin, What Brown Teaches us about Constitutional Theory, 90 Va. L. Rev. 1531, 1552 (2004)]

This explains that--lofty claims about protecting "discrete and insular minorities" notwithstanding--the Court affords higher protection to the elderly and disabled than it does to homosexuals, despite the fact that homosexuals are far more clearly disadvantaged in the political process.

The problem is getting worse, not better. Because contemporary rhetoric from the far right equates even modest victories by gay rights activists (AKA "the homosexual lobby") as proof of their political potency, homosexuals have almost zero space to operate in modern law and politics. If they win, they will no longer be seen as needing protection from the Courts and will see their victories stripped away by a hostile legislature. If they lose, then they won't be seen as an important problem and the Court will just ignore them. Either way, homosexuals will remain in roughly the same position--mostly powerless, mostly ignored, and mostly reviled.

But I digress. Even under the "rational basis" test, I think that homosexual marriage bans fail. Dafydd gives several "rational" reasons for the ban:

It is in society's interest that children be raised with both a (male) father and a (female) mother; therefore, we encourage anything that tends to lead in that direction, such as traditional marriage, and discourage that which denies it, such as same-sex marriage.

We believe that traditional marriage empowers women and civilizes men.

If laws against two men marrying are held to be unconstitutional, and there is thus a "constitutional right" for any two adults to marry, then what is the argument against allowing any three adults to marry?

Cultures have the right to define themselves by enacting values into law, so long as there is some secular reason for such values; one such secular reason for rejecting same-sex marriage is that...a union between a man and a woman is required to propagate the species...thus, such unions should be encouraged in the law and alternatives that do not serve to propagate the species (and civilize the young; see first argument supra) should be discouraged in the law.

We might abbreviate these arguments as the "interest of children" argument, the "interest of partners" argument, the "polygamy" argument, and the "democratic" argument.

The case that best explicates the Rational Basis test is Cleburne v. Cleburne Living Center [473 U.S. 432 (1985), because it gives us an example of what type of arguments don't satisfy rational basis. The two arguments rejecting in Cleburne were laws that rest on "irrational prejudice" and ones which weren't applied to similarly situated people. The latter test can be articulated in two ways, either a) that the minority group doesn't have the "different" trait ascribed to it, or b) it does have the difference, but so does another group that is treated in the way the minority group wishes to be (or has the right the minority argues it should have). In addition, I think it is somewhat self-evident that the argument has to be related to the proposal in question--"the sky is blue" is a rational argument, but it has no bearing on homosexual marriage. I also have my own standard I think is a rational supplement:

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.

But let's apply just those first three tests to Dafydd's justifications.

The first basis is by far the most common one argued--that since heterosexual couplings are better for children, they should be encouraged to the exclusion of homosexual ones.

This fails tests one and two. It fails the second because California is perfectly willing to allow homosexual couples and single parents to adopt children, as well as allowing both to artificially conceive them if they wish. Since the state allows a similarly situated person (IE, a not heterosexual couple) is allowed by California to take care of children and is not discriminated against for doing so, there is no rational basis absent some method of distinguishing single parents and homosexuals. This brings us to why it fails test one--the claim that children fare better raised by heterosexual parents is supported by no evidence whatsoever--indeed, the scientific evidence runs nearly uniformly in the other direction. Dr. Michael Lamb of the National Institute of Child Health and Human Development, testifying in Howard v. Arkansas, summarized the body of literature analyzing homosexual parenting and concluded that it

(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.

No mainstream medial or psychological organization has concluded otherwise. I think when the state makes a claim that is buttressed by naught but stereotype discredited by numerous scientific studies, it's safe to label it an "irrational prejudice."

Moving to number two, the "good for the partners" argument. I'll try not to giggle too much about traditional marriage "empowering" women (see, e.g., Fronteiro v. Richardson, 411 US 677, 684 (1973) "[traditional notions of sex roles] in practical effect, put women, not on a pedestal, but in a cage."). This one fails tests two and three. Homosexual marriage does nothing to stop marriages between heterosexuals--so the empowering/civilizing effect remains the same. Meanwhile, as far as I can gather men are "civilized" by marriage because it provides someone who depends on them and needs their love and care, and woman are "empowered" because there is a primary earner leaving them free to care for children and the household. Both of these are sex-neutral--a man can as easily serve as the dependent partner, a woman can be the primary earner (of course, some men won't be dependent partners. But the neither will some women. These type of sex-based differentiations DO fall under Heightened Scrutiny and are unlikely to survive constitutional scrutiny. See Craig v. Boren, 429 U.S. 190 (1976)). Hence, the civilizing effect has zero bearing on homosexual marriage--the standard isn't applied to heterosexual couplings where it is deemed unlikely that either the man will be civilized and/or the woman will be empowered, and as far as the logic goes it applies to homosexual couples as well.

The "polygamy" argument is slightly different. First of all, asking it violates longstanding legal norms of deciding cases before they're ripe--we shouldn't decide whether polygamy is legitimate before we actually have a case relating to polygamy (in fact, we've already had one: Reynolds v. United States, 98 U.S 145 (1878), and it's already been distinguished from homosexuality, Lawrence and Garner v. Texas, 539 US 558 (2003).). Taking it at face value, though, we note that it fails test two in the opposite direction, that is, polygamous couples ARE differently situated than homosexuals. Specifically, someone who would like to be polygamous is not forced to marry someone they're not attracted to in order to become an equal citizen under law. They may not be able to marry as MANY people as they'd like, but the rights themselves are still open to them where they are not for homosexuals. Hence, the analogy doesn't hold. Furthermore, the slippery slope doesn't hold (see Part IV) on its own any way.

After dealing with the preceding three, the final "democratic" argument becomes irrelevant. Yes, democracies can generally legislate their own existence, but only within the bounds prescribed by constitutional law (which imposes requirements beyond that the laws be "secular"), boundaries that have so far held against the "rational reasons" given by Dafydd. The weak independent reason given in reason four--that heterosexual couples can reproduce the species doesn't fly. Aside from the fact that our species doesn't seem to be at any imminent risk of population collapse, it fails test three (as many babies will still be made because heterosexuals can still marry) and test two (homosexuals are similarly situated because thanks to modern tech, they too can have babies!).

For those reasons, even under the Rational Basis test, bans against homosexual marriages are unconstitutional.

Dead People...Death Tax! It's So Obvious!

I admit it. I was wrong. Yesterday, I blasted Republican leaders for appearing to utterly ignore the Katrina Catastrophe in favor focusing on the Estate Tax. I said that this shows the GOP has it's priorities entirely out of order.

But it turns out I'm wrong. Because according to key Bush ally Grover Norquist, repealing the Estate Tax is "exactly what the residents of the Gulf Region need at this time to start the rebuilding process for their neighborhoods and more importantly for their lives."

And to think I was starting to get cynical.

Foreign Aid For American Devils

Althouse points to this article regarding the response of Foreign Nations to the Katrina crisis. Twenty of them, to date, have offered assistance. But I particularly liked the responses of Venezuela and Cuba:

Venezuelan President Hugo Chavez, a vocal critic of the United States, offered to send cheap fuel, humanitarian aid and relief workers to the disaster area.

The State Department did not comment on Venezuela's offer but several officials smiled at the gesture from Mr Chavez, who yesterday called Mr Bush a "cowboy" who failed to manage the disaster.

Cuban President Fidel Castro, a close Chavez ally, led a minute of silence in remembrance of the victims of Katrina in parliament on today. The parliament then returned to normal business with a resolution attacking Mr Bush over the Iraq war.

Something about that makes me giggle. Heh.

I suppose it's good that even those nations with which our relationship is...strained can look past their animosity and feel empathy for those in pain. Not that I'm a huge fan of either Chavez or Castro. But credit (or in Castro's case, partial credit) where and when it's due.

Jack Grant at The Moderate Voice has more on the issue of foreign aid to the US in general.

If You Can't See New Orleans, It Isn't There!

Let's get the obvious out of the way. There is very little one can do when a strong, Category 4 Hurricane blasts through a city below sea level and surrounded by water. Yes, it would have been nice if the levee's had been funded properly. No, I'm not thrilled that FEMA was headed by an administration hack with no disaster experience. So yes, this could have been handled better. But I'm also cognizant that even had we taken all the proper precautions, we'd still have a disaster on our hands, and we'd still be having a devil of a time trying to recover from it (Mr. Proliferation captures the distinction nicely).

But while there has been a bipartisan outpouring of support amongst bloggers for the Katrina victims, the political arm of the GOP seems barely aware that Katrina even happened. Consider the latest email sent by the RNC. The focus? Not disaster relief. Not aid for families impoverished by Katrina (or sluggish economic growth in general). Nope--it's all about The Death Tax:

When they return from their August recess, Senators will consider a key issue: elimination of the death tax. The death tax is an unfair double taxation of income, which hurts America's small businesses and farms and threatens job growth. Unfortunately, Senate Democrats are working hard to oppose our efforts to eliminate this unfair tax.

Yes, that's really the biggest priority right now. I mean, goodness, who knows how many billionaires died during Katrina? After the Death Tax, their heirs will be...millionaires! SOB!

But that isn't even all. Moderate Republican reports that Speaker of the House Dennis Hastert (R-IL) is questioning whether the government should support rebuilding New Orleans at all. Are you kidding me? And even Republicans are acknowledging that Bush's response, in terms of expressing sympathy for the victims, has been pathetic.

Meanwhile, House Democrats are submitting legislation to protect disaster victims from further financial ruin at the hands of the recently passed Bankruptcy Bill. "Resubmitting" might be more accurate, because the proposal (protecting victims of natural disasters from some of the anti-debtor provisions of the bill) was originally put forth along with the bill itself--only to fail on a partyline vote with no debate. Maybe this time around, they'll be more successful.

I don't want to make political hay out of a catastrophe, I really don't. But it is frankly appalling that Elected Republicans are just ignoring Katrina entirely. Was "compassionate conservatism" ever more than a slogan?

Left Behind

John Cole gives a needed reminder about those who "chose" to stay in New Orleans:

I have said I am out of touch with America regarding what is expected for disaster relief. Maybe, but the people spreading the meme that the vast majority of who did not evacuate New Orleans did so because they simply chose to ignore the warnings are out of touch with reality. I just heard James Carville state that the Governor and Mayor did all they could, and that some people "just didn't listen."

That may very well be. 'Some people' probably didn't listen, and instead chose to just weather the storm. But the vast majority of people who are stranded, and, I fear, dead in the flooded parts of NO in numbers we have not yet begun to discover and comprehend, did not 'choose' to 'ignore' the warnings.

They simply had no place to go, no way to get there, no way to afford living in a motel/hotel somewhere else, no relatives outside the region, no automobile. I know it is always funny to make fun of the "Hurricane Strikes- Poor Hit Hardest" headlines, but there is some truth to it.

Sure, a lot of the people interviewed on cable may say they just stayed because they have seen all sorts of hurricanes. They may say that. But I am willing to bet a lot of them are just saying that to save face. Ever been broke? And I mean, chronically, long-term, without ANY money, broke? It sucks, and it can be embarrassing, and it isn't likely most people are going to admit it. I know most of you are affluent, but was there never a time in college when all your friends were going somewhere, going to a concert, going out, going on Spring Break, and you wanted to go, but couldn't? Instead of saying "I'm broke," how many of you said something like "I've got better things to do," or "I hate Florida," or made some other excuse?

I'm not willing to jump on the "it's all the GOP's fault" bandwagon for why more wasn't planned in the event New Orleans was hit by a natural disaster. But I sure as hell am not going to blame the poor for their own predicament. Intentionally or not, the invisible hand of capitalism abandoned untellable numbers to die in New Orleans. We would do well to reflect on the implications.

We've Totally Moved Beyond Racism

PrawfsBlawg alerts me to the story of two photos and two captions. Both photographs show persons wading through chest-deep water after procuring items from a flooded grocery store.

Photo One is captioned as follows:

A young man walks through chest deep flood water after looting a grocery store in New Orleans on Tuesday, Aug. 30, 2005. Flood waters continue to rise in New Orleans after Hurricane Katrina did extensive damage when it made landfall on Monday. (AP Photo/Dave Martin)

Photo Two:

Two residents wade through chest-deep water after finding bread and soda from a local grocery store after Hurricane Katrina came through the area in New Orleans, Louisiana.(AFP/Getty Images/Chris Graythen)

Literally the ONLY discernible difference I can see between photos one and two (you can check yourself) is that the "looter" is black, and the "finders" are white.

What a surprise. Looks like Jerry Kang was right. Professor Kang argues that subtle racial "priming" effects our attitudes--that the exposure to constant negative stereotypes about racial minorities allows racism to continue where it might otherwise be killed off. He then links it in to local news coverage, arguing that the parade of Black criminals that headline every single day create far worse problems for society than is justified by their news value (especially given that the coverage is nearly always disproportionately higher than the amount of minority crime would seem to dictate).

And here we are, with news coverage engaging in that very type of stereotyping (and to be honest, I don't think Louisiana needs any pushes in the racist direction). It's unbelievable just how much racist stereotypes infect even the most mundane things--but it's rare you actually have a side-by-side like this that really demonstrates how deep the problem is.

I have to ask what on EARTH those caption writers were thinking?

See also Atrios, Spin Dry, and Metafilter.

UPDATE: Althouse argues that since the captions were by two different wire services (AP and AFP), the racism charge doesn't hold. That carries some weight, but Yahoo still made the conscious decision on which photos to run and how to run them. And even if the decision was totally "innocent," the racial priming effect Kang talks about still exists. So at best this just shows how when racism is deeply imbedded it can perpetuate itself even via well-meaning actors applying neutral standards.

Stay Focused

There's a new game in town for Miami crime fighters. The US attorney is reallocating resources toward a grave threat. One so important, he's willing to take attorneys off child endangerment cases to fight. For in this post-9/11 age, we can spare no effort in fighting...

Porn.

No, not porn featuring children. Just plain old-fashioned adult consensual pornography.

When FBI supervisors in Miami met with new interim U.S. Attorney Alex Acosta last month, they wondered what the top enforcement priority for Acosta and Attorney General Alberto Gonzales would be.

Would it be terrorism? Organized crime? Narcotics trafficking? Immigration? Or maybe public corruption?

The agents were stunned to learn that a top prosecutorial priority of Acosta and the Department of Justice was none of the above. Instead, Acosta told them, it's obscenity. Not pornography involving children, but pornographic material featuring consenting adults.

Acosta's stated goal of prosecuting distributors of adult porn has angered federal and local law enforcement officials, as well as prosecutors in his own office. They say there are far more important issues in a high-crime area like South Florida, which is an international hub at risk for terrorism, money laundering and other dangerous activities.

His own prosecutors have warned Acosta that prioritizing adult porn would reduce resources for prosecuting other crimes, including porn involving children. According to high-level sources who did not want to be identified, Acosta has assigned prosecutors porn cases over their objections.

I suppose it makes perfect sense. I mean, after all, Miami doesn't have even traces of a drug problem. Or trafficking. Or terrorism. Or illegal immigration. Or gang violence. So why not pander to the rabid Christian Right (yes, they're giving full-throat support to Mr. Acosta)--it's not like we have anything BETTER TO BE DOING!

Balloon Juice with the tip (and mutual indignation).

An Americanized Tragedy

UNC Law Professor hits it out of the park critiquing the "Americanization" of injustices elsewhere in the world:

The comparison [between violence by Blacks in the 1970s South and Palestinians in Israel] reflects a basic mistake we Americans make over and over again: we "Americanize" the rest of the world's conflicts, seeing them through the lens of our own national experience. We look at the Palestinian-Israeli conflict and see two groups of people divided by ethnicity, race, and religion. We see one of them as historically powerful and the other as historically powerless. We see one of them as oppressor and the other as victim. And, most crucially, we explain this dynamic by reasons that are familiar to us from our own experience: the powerful group oppresses because of a historical commitment to sustaining what it imagines to be its own superiority and to reinforcing what it imagines to be the inferiority of the victim group. The "freedom struggle" is the fight of the group labeled as inferior to establish its inherent human dignity and equality, and to secure the rights and advantages that belong to dignified and equal human beings.
[...]
What has emerged over the last 60 years in and around Israel is not a "freedom struggle" in anything like the sense of the struggle of American blacks for freedom from slavery, from Jim Crow, and from their vicious and oppressive legacy. What has emerged instead is a struggle over the ownership of disputed land after the demise of Western colonialism in the region. The Palestinian terrorism whose efficacy D.G. Martin wants us to reflect on has been violence not to establish a principle of equality and dignity, but violence to extinguish the fact and idea of a Jewish state in the region, and to turn "every inch" of the current State of Israel into a Muslim theocracy. Any doubt about this is resolved by even a quick glance at the founding covenant of Hamas. (I recognize that many Palestinians do not deny Israel's right to exist, that some Palestinians are not Muslim, and that some Palestinians would not want a theocratic Palestinian state. These Palestinians, however, are by and large not the people practicing the terrorist methods that Martin invites us to consider.)

Of course, the intensity of the Israeli-Palestinian struggle has led some people on both sides of the divide to demonize those on the other, and to speak of them, and treat them, as less than fully human. This vocabulary and these actions can, at times, revive echoes and images of American white supremacy in our American ears and eyes.

But Gaza and the West Bank and Jerusalem of today are decidedly not the Oxford, North Carolina of 1970--or, for that matter, of 1770 or 1870.

So it's not just that torching an uninhabited tobacco warehouse in Oxford in 1970 is different from blowing up a Passover Seder in an Israeli hotel in Netanya in March of 2002 in the sense that one was property destruction and the other cold-blooded murder. That's true, but it misses the much more important point that the two incidents can only be grouped together as "political violence" in aid of a "freedom struggle" in the same way that (to use my earlier example) the sinking of the Titanic and the Lusitania can be grouped together as "unexpected incidents at sea" that led to "shipping disasters."

Spot on. I'd broaden it out a bit to say that leftist critics of Israel often "Westernize" the conflict, in that they wish to incorporate their pre-existing (and devastating) attacks on imperialism to the situation. In reading critiques by so-called "leftists," I'm often struck by a weird sense that the majority of them basically thought "Hey! I've got this perfectly good theory of Colonialism. Why not use it?" After all, while neo-Colonialism is all well and good, if you squint hard enough, Israel can become a real life Colony in the Rhodesia model--and what self-respecting liberation theorist can pass up a target like that?

The problem, of course, is that Israel isn't "the West," Jews aren't European Christians, and whereas colonialism implies outsiders versus insiders, the Israeli/Palestinian conflict is between two insiders (historically oppressed ones at that).

One could rather easily I believe deconstruct some of the basic assumptions (many closetly anti-Semetic) that undergird the leftist Critique of Israel. And indeed, that is a project I wish to undertake at some time off blog.

But for now, Professor Muller's post is a incisive and badly needed analysis of how many liberals misinterpret the conflict.

It's The Second Shot That'll Sink You

I'll admit, I saw the first one coming. The minute I read these articles responding to increasing religious harassment in the Armed Forces, I knew that the FRC would be up in arms in its daily briefing (the New York Times also has its take). I've blogged on this issue before, but I am still amazed at just how far these extreme right wing organizations will go in defending Christian supremacy.

An investigation found pervasive hostility toward religious minorities in the Air Force.

Among other incidents, the academy commandant had urged cadets to use the "J for Jesus" hand signal with the thumb and index finger, the head football coach had told players that he expected to see them in church, and Jewish cadets had experienced anti-Semitic slurs after students were urged to see the Mel Gibson film "The Passion of the Christ."

As a result

[t]he Air Force...issued sweeping guidelines yesterday that say prayers are not appropriate at most official events and discourage commanders from speaking publicly about their religious beliefs.

This is what the FRC deems to be an "overreaction." In response to documented instances of religious harassment by both the commanding elite and the rank-and-file, the service asks merely that official events not become prayer meetings, and that commanding officers by mindful of the power differential between themselves and their subordinates--one which easily can make generic religious discussion into a very hostile endeavor. It should be noted that in all its coverage of the controversy, the FRC has not once even alluded to, much less condemned, the allegations of anti-Semetism that prompted the investigation in the first place.

And they wonder why Jews object to their claim to speak for "Judeo-Christian" values. It's because they don't respect us--unless of course, we can be used as a tool for their other political goals.

As for other views:
Bump in the Beltway believes the stories. Ranting Profs thinks that the headline "Air Force Sets Rules Limiting Religious Expression" is "as neutral and information packed as could be." Are you kidding? "Limiting Religious Expression" is a loaded phrase--it plays right up to every naive fear of anti-religious suppression that rightwing groups are trying to make this out to be (when in reality it's a reaffirmation of the tolerant traditions that make our armed forces representative of the nation--not particular sects). Jonah Goldberg professes ignorance but believes that "it sounds like the Pentagon is taking the issue(s) seriously and responding responsibly." Assuming that the issue doesn't get hijacked by, oh, the FRC, I'd agree. By contrast, Stones Cry Out echoes the FRC line that this is just political-correct intrusion by those "push[ing] for vapid generic faith" (presumably, the faith of Jews, non-evangelical Christians, Buddhists, Wiccans, Atheists, and other minorities who wish not to proselytized by their commanding officers can all be grouped under "generic"). Like the FRC, SCO does not even acknowledge the presence, potency, or relevancy of anti-Semetism in the military--viewing the issue solely as an instance of Christian victimization.

But, as I said, this one I called out in advance. The one that truly stunned me--the brutal "two" in "one-two combination," was their stirring homage to former Senator and continued racist Jesse Helms (R-NC).

It's not Helms' description of abortion as a "Holocaust" that gets me. No, it's his continued insistence on defending, justifying, and promoting his blatantly racist stances against African-Americans throughout his political career. Again, from the Post:

Helms devotes an entire chapter to his views on race relations, defending his record as a 1960s television commentator and senator who challenged most of the nation's civil rights legislation.

"I felt that the citizens of my community, my state and my region of the country were being battered by this new form of bigotry," he wrote. "I simply could not stay silent in the face of this assault -- and I didn't."

Helms rejected the notion that racist tendencies drove him to oppose the creation of a national Martin Luther King Jr. holiday in 1983, or to run a 1990 campaign ad tying his black opponent to affirmative action.

He wrote that he opposed the King holiday in part because the Senate rejected a Helms amendment that would have unsealed the FBI files of the civil rights leader. Helms contends that King's advisers included communist sympathizers.

To be perfectly clear, Senator Helms, you know nothing of bigotry except that which you spouted yourself. What exactly was "battering" the south? Was it freedom riders trying to desegregate schools? Or perhaps it was the uppity blacks themselves, forgetting their place and trying to vote (of all the indignities!)? Trent Lott gets slammed for praising Strom Thurmond--but while I think Lott deserved what he got, at least Strom had the dignity to apologize later in life for his racist past. Helms, by contrast, is entirely unrepentant (if not proud) of his role in preserving the racial caste system. But to the FRC, he was:

the moral conscience of the Senate, always holding firm to upholding the traditional values that are embraced by most Americans. Throughout his career, until his retirement in 2002, he was a pathfinder for Americans...a statesman who was willing to challenge Democratic and Republican administrations alike when he thought they threatened or ignored the principles that make this country great.

Between the ellipses is plenty of fawning over Helms' pro-life views--but nothing that even hints at a condemnation of racism. Nada. Squat. So we can only conclude that, to the FRC, segregation, lynching, bigotry, prejudice, and discrimination of all sorts are part of the "traditional values" that "make this nation great."

Stunning, but somehow, not surprising.

It's Good To Be King--I Mean Governor

Things are not well in the heart of Appalachia. Kentucky is currently embroiled in a giant corruption scandal. No less than nine members of Governor Ernie Fletcher's administration are currently under investigation for a variety of felonies and misdemeanors. Or, rather, they were--until Governor Fletcher decided to issue a blanket pardon to all of them.

It could have been worse--the original rumor on the street was that the Governor was going to pardon himself as well. As it stands now, he still will testify in front of the Grand Jury--and by "testify" I mean "appear," since he's already stated he'll be taking the 5th the entire way through.

Blue Grass Report has been doing a great job covering this issue, but the best part was their flashback feature to then Rep. Fletcher's and other Republicans responding to scandals in Governor Patton's administration. Fletcher ran specifically to contrast himself from the scandal-plagued Patton--and look at him now. Pulling every trick in the book to get out of jail. Democrats are fuming, and considering impeachment.

But the last laugh may be the Donkey's. BGR reports that the pardons may make it more likely Fletcher sees jail time, because now his underlings can't take the Fifth when they're called to testify (first person to say that this is proof Fletcher wants to make sure justice is done gets smacked).

The wheels are coming off the wagon...

All in Perspective

David Corn writes a hard-hitting post regarding Clinton and the Rwandan genocide. It turns the left's pet slogan, "Bush lied, people died," and replaces it with "Clinton lied, hundreds of thousands died."

I agree that Clinton's inaction during the slaughter was, by far, the greatest blemish on his presidency, and one that's utterly unforgivable. I also think that it is equally unforgivable on the part of the nation. There was barely any agitation from any quarter (outside the usual human rights suspects) for an intervention. The Republican Party was in the heat of its "we're not the world's policeman" schtick, it would have fought any allocation of US troops to the region tooth and nail. Especially after Somalia, the use of American troops to stop African bloodbaths was just too tempting a target. In fact, we know Republicans would have taken that response, since they did just that when Clinton partially redeemed himself and intervened to stop the Kosovo slaughter. This isn't to forgive or absolve Clinton, rather, it is to note that being bystanders genocide is a crime that falls on all our heads. And with Darfur probably past the point of no return--we'll soon have yet another mark on our collective wall of shame.

An honest perspective on President Clinton's tenure will relegate his dabbles with Ms. Lewinsky to a troubling footnote, compared to his inaction in Africa. Similarly, it might be more to President Bush's shame that Darfur and its millions will have happened "on his watch" than WMDs or Plamegate or what have you. It's a non-partisan sin, contra some, both Clinton and Bush are roughly in the same boat when it comes to their respective genocides--an uncomfortable silence. While Uncorrelated argues that at least American has brought some attention to the dispute. However, to be honest--at least as a government, we haven't. And basically the only concrete action we have taken, labeling the conflict a "genocide," may have been worse than nothing, legitimizing the notion that a bona fide genocide is still ignorable and triggers no obligations on signatories of the Genocide Convention. Again, this shouldn't absolve the world for its silence--but it takes a rather perverse view of American obligations toward genocide victims to argue that merely saying the word "genocide" elevates our Darfur policy even marginally above abominable.

Back into Eden

An interesting post by Ian Ayres probing how God treats Free Will. It then side-steps into an analysis of God's punishment of Eve, and how it seems rather obsolete via modern advances:

Indeed, the trifecta reappearance in our world of painless childbirth, the appearance of different sex unions where the man does not rule over the woman (pace MacKinnon) and the appearance of women whose desire is not for their husband might all be signs that the punishment is no longer in effect. You see, sin without free will is not even possible. Pharaoh’s failure to let the Israelites go when his heart was hardened by God cannot in good conscience be considered sinful. The reappearance of choice – of women that choose whether or not to desire husbands – opens up the possibility for sin, but it does not indicate that same-sex desire is sinful. Indeed, it may be a sign that we are step closer to the garden, a step closer to grace.

I'm curious how else one can define it (time to call in a favor on Pseudo-Polymath). Perhaps it is humans blatantly flaunting God's will--but then, the Bible is rather clear about what happens when we do that. So--what? Have we finally achieved penance for original sin? And what does that entail for modern Christian theology?

I Love Jerry Kang

Jerry Kang is a Law Professor at UCLA. Why do I love him? Well, for one, he's just published a spectacular article, Trojan Horses of Race, in the Harvard Law Review (118 Harv. L. Rev. 1489). Essentially, the article runs through a bevy of research on implicit racism and then critiques specifically the role constant local newscasts of black criminality has in reifying racist attitudes. The article is superb, I can't recommend it highly enough.

But what really sells me on the good Professor is his answer in his FAQs to the charge that the whole thing is just "politically correct mumbojumbo." He retorts:

"First, it's now politically correct to be politically incorrect"

and then goes on to note that he has a mountain of scientific data backing him up.

Oh SO true. Political correctness is perhaps the most politically lethal characterization one can have today. It's so horribly misnamed, it's almost comical.

Exploding in a Puff of Straw

Jim Lindgren links to an interesting article by KC Johnson regarding the response in some quarters to recent studies showing a liberal slant in academia. While the comments to the article make what seem to be valid critiques of the methodology of the study, some of the responses--both those cited by Williams and those that came out in comments--are just crazy.

Once before, I blogged on an article in favor of a more ideologically diverse academic sphere that was so bad it made me want to run away from the position as fast as I could. Fortunately for everyone, now there is a leftist counter-balance, an argument against a more diverse academic sphere that is equally horrific in its explication.

The author of this "argument" is Montclair State Professor Grover Furr. Though rather lengthy (not that I have the right to complain about that), it basically comes down to the rather novel core that Liberal = Good and Conservative = Bad. Well, when you put it like that, hell yes we want more liberals! Why didn't I think of it before?

Of course, Professor Furr's "logic" only makes sense if you subscribe to a few of the logical leaps (to put it mildly) he makes along the way.

Ideologically, most college faculty are trained to use evidence, and to entertain and discuss differing viewpoints. This is congenial to "liberalism", and even more so to to Marxism, but not to certain dogmatic strains of thought, and modern "conservatism" is among the latter.

During the past 30 years or so the limits of acceptable opinion in the American academy, especially in the humanities and social sciences, have been greatly expanded. This in turn has meant that graduate students have been increasingly exposed to viewpoints that were formerly considered "taboo." It also means that subjecting traditional beliefs to scrutiny and doubt is far more common in higher education than it was a generation ago. This is itself a "liberal" ideology.

Most college faculty feel threatened by those who show any inclination towards censorship, especially in teaching. Those who advocate various kinds of censorship these days are overwhelmingly "conservatives."

I won't claim to be an expert on Marxism--my particular brand of liberalism leans more towards Deconstructionalism, Critical Theory, and Post-modernism. However, it seems rather odd to claim that Marxism is particularly open to differing views. Marxism is a totalistic philosophy--it claims class struggle is the root of all conflict and all social structures. Thus, it is inherently unreceptive to differing views of how the world came to be as it is--not just conservative claims of "objective merit" or the "invisible hand," but also liberal explanations like structural racism, sexism or tribalism. This isn't to say that Marxism hasn't informed many liberal social theories--it has, and it should, because it was an interesting (if in my view ultimately wrong) development in the philosophical field. But most modern liberal theories can't co-exist with Marxism all that easily, considering that they don't view class as the breeding ground of everything wrong in society. One also might note that the continued presence of true-believer Marxists represents pretty good prima facia evidence of their stubborn refusal to face the facts--after all, Marx was pretty much dead wrong in his predictions of how the world would respond to capitalism (let alone his claims that it was "inevitable").

Professor Furr's allegations of censorship is also rather peculiar, considering that he specifically argues that a minimization of conservative viewpoints is a bona fide goal colleges should strive towards ("...we can never have too few
'conservatives.'"). I think that skirts pretty close to the edge of censorship. But regardless of whether it is or is not, conservatives can make a pretty good case that liberals are no strangers to the censorship mentality. Black Liberal Harvard Law Professor Randall Kennedy has noted the actions of liberal groups targeting purveyors of "hate speech,"--sometimes correctly, sometimes overzealously. Liberal Law Professors Richard Delgado, Mari Matsuda, and Charles Lawrence III all have advocated for campus speech codes. We can debate the merit of these proposals--we can even debate whether they're advocating "censorship." But it certainly is a close enough call that Furr's sweeping claim that "conservatives" are the main proponents of censorship has to be called into question.

Furr continues in his semantical quest which assures conservatives can only represent evil:

In my experience, there is considerable prejudice among academics against certain ideas that are strongly associated with the Republican party -- to its shame, I may add -- and so could be called "conservative."

Support for racism -- the Republican Party depends upon racism for success in national elections; support for dogmatic religious beliefs; for strongly authoritarian views of almost any kind, including "my-country-right-or-wrong" jingoism; for naked, unbridled exploitation; for knee-jerk anti-radicalism and anti-communism; in culture, for "tradition for the sake of tradition" -- these attitudes and ideologies, all of which are strongly associated with conservatism and the Republican Party, are rightly abhorred by most academics, who have excellent material reasons to identify with the "little guy."
[...]
And the terms "liberal" and "conservative" are themselves highly ideological. Lots of blue-collar workers would call themselves "conservative" if asked certain questions (e.g. about war, patriotism, homosexuality, etc.), but would have to be classified as "liberal", in fact, "radical", if asked about social policies (whether public employees should have the right to strike; about 'right-to-work' laws; the desirability of minimum-wage laws, etc.).

The blatantly distorted picture Furr draws of conservatism qua conservatism should be obvious by itself, but it is all the more ironic because, in his comment to the article itself he protests that Professor Williams "dishonestly equates 'liberal' with 'Left', an absurdity that lumps John Kerry with Marx or Lenin." Yet he seems utterly untroubled grouping "conservative" with "reactionary right." It is of course true that there are quite a few conservatives who (in effect if not in rhetoric) support these atrocious positions--and certainly one can find plenty to criticize in the modern Republican party. But a basic knowledge of Political Science would dictate that the views and positions of a party should not be presumed to represent those of all the parties members--especially in a two party state. Thus Furr makes his claims either a) knowing full well that many self-described conservatives would not support many of the policies he says they do (when's the last time you've heard a conservative say "I support naked, unbridled exploitation"?) or b) is so incredibly unaware of the world surrounding him that it is amazing he could have picked up his Ph.D. without getting run over by a truck on the way to the ceremony.

I suspect the former, though, because of his laughable efforts to group many conservatives into "liberalism"--at least when they say what he likes. For example, I don't think "right to strike" counts as a "radical" position anymore. What would happen if a conservative said that he considers himself a radical environmentalist--but based on his readings of economics he is convinced that the free market (mixed with, say, tax subsidies for environmentally friendly research) is the best way to fix the problem? I'd say he's wrong and misguided, perhaps. But certainly he isn't advocating "naked, unbridled exploitation." Is he actually a liberal, albeit one strayed from the path? I don't think we can play word games like that. Furr's claims only make sense if conservative is defined as in alignment with its most extreme wing--a claim that is akin to (and roughly as bad as) saying that all liberals are communists (which, as noted, Furr complains about!). If we agree there is such thing as a moderate conservative, or--perish the thought!--there are stalwart conservatives who still aren't racist, then there exists a vein of legitimate discourse that is as yet unfilled in colleges and universities.

At best, all I'm getting out of Furr's claims is that we should make Ms. Ann Coulter into Professor Ann Coulter. Okay, no argument. But should we chuck Professor Eugene Volokh on the street? I think it is rather absurd to call him a minion of evil. Indeed, this liberal wishes there were more professors like him.

Restrain Yourself

The VC links to a really interesting story regarding the controversial Kelo and Raich cases (eminent domain and medical marijuana, respectively).

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

A liberal judge voting against his policy preferences? Why, why, that's impossible! They're all activists--every last one of them.

And so it seems that some righties can't get there heads around the fact that Stevens might actually believe the law binds him to this particular result. Mike Rappaport, for example, says "give me a break" and thinks Stevens merely wants to deflect criticism from his role in an unpopular decision (why an 85 year old man with life tenure on the nation's highest court would be so concerned about self image goes unstated). What causes his immediate dismissal of the simple explanation--that Stevens actually believes what he says? Easy--"It is only judges who follow the [originalist] approach that are significantly restrained by the law." (Ethan Leib also weighs in on Rappaport's post).

Not that we're too self-assured or anything. I think it's abundantly clear that judges who are manifestly committed to an originalist understanding are quite capable of acting with reckless abandon (Scalia's opinion in Division of Employment v. Smith, anyone?). And of course, any principle worth its salt will restrain a judge from doing something he might otherwise like to do--I'm skeptical that devout Catholic Anthony Kennedy is a huge fan of sodomy, yet somehow he found the jurisprudential basis to realize the constitution "neither knows nor tolerates classes amongst citizens."

Other people are more sanguine. Helvidius thinks that it is probably true in at least some cases that Stevens really is voting against what he believes is "right," but posits that every judge has a "breaking point" at which time s/he ceases to interpret the constitution and instead searches for a rationale to justify the result s/he deems necessary. This is probably true to an extent--though of course it applies to all judges, not just liberals. PG of De Novo also hits on this--noting that Scalia's "duty" to protect criminal defendants from illegal processes seems to magically disappear once they've been convicted. Where do it go? But unlike Helvidius, PG is not so quick to label Scalia as giving in to mere "desire." That seems reasonable to me--there are many ways of interpreting the constitution, and I'm not so self-assured in my own method to tar those with opposing methods as being fundamentally ideological. Wrong, perhaps, but not deliberately so.

In any event, while I dislike the notion of judges deciding cases on partisan whim, I am far less alarmed at the supposed epidemic of activism than some of my peers. Frankly, I've seen no evidence that any judge on the Supreme Court consistently subverts constitutional interpretation to naked political desire. So Stevens' statement comes not as a shock or tragic exception, but as the way things are.

Hell of a Pedigree

Kos links to a story on Montana Governor (and Democratic rising star) Brian Schweitzer's plan for energy independence. Essentially, its a method developed eighty years ago that can derive gasoline from coal--and with skyrocketing oil prices, it's economical again.

Alright, so I'm intrigued. But oh, the history...

The Fischer-Tropsch technology, discovered by German researchers in 1923 and later used by the Nazis to convert coal into wartime fuels, was not economical as long as oil cost less than $30 a barrel.
[...]
The fuel that comes out of the Fischer-Tropsch method (also used by South Africa during their embargo years) burns cleaner than current fuels, stripping out sulfur, arsenic, and other nasty byproducts. [quoting from both the article and Kos]

Nazi Germany and apartheid South Africa. Now there's a nice set of play mates.

Triumphant Return

So, I'm back from the beach. I know I said I'd blog, but I didn't count on going to a posh and trendy resort and having internet access that resembled a bad cell phone commercial. Aside from the fact that the moons had to be aligned in order to even connect at all, the rates sounded like something Verizon would mock: "75 cents for the first hour and 10 cents a minute after that!" What the hell?

But aside from that, it was a good trip--or as good as can be expected considering I don't like warm weather and don't like South Carolina. Read a bunch of books--a cheap sci-fi piece, but also Barack Obama's autobiography (stellar!) and Randall Kennedy's book "Nigger" (thought-provoking).

I'll re-enter the blog circuit full time (I swear!) tommorow.

Myrtle Beach Bound

Work's over for me, but I'm off to Myrtle Beach for the next few days--Sunday through Thursday. I'm bringing my computer up, but obviously posting rates will be dependent on the timing of various vacation-ly activities.

Which, sadly, means you'll probably see no drop in frequency.

People Please

Kevin Drum of The Washington Monthly has been writing a flurry of posts regarding an American withdrawal from Iraq. For example, here he links to Sen. Chuck Hagel (R-NE) demanding that the US get out of Iraq--possibly the first time Hagel has been this explicit on the matter. But the really interesting post is here, when he asks when pro-war liberal hawks are going to start proposing a timed withdrawal. While acknowledging that Democrats need to watch out for allegations they are weak on security, Drum seems to think that there is frankly no choice, and gives three solid reasons why a timed withdrawal is the best policy option:

The presence of American troops is what's largely fueling the terrorism-driven Iraqi insurgency in the first place. Announcing in a credible way that we plan to leave -- really leave -- would at least partially draw its fangs.

As long as American troops are around, Iraqi leaders don't have enough incentive to make the hard choices needed to agree on a constitution and train troops to guard their own country. A no-nonsense announcement from the U.S. would force them to get moving.

The military can't keep up its current tempo in Iraq for much longer, and sometime in 2006 a drawdown is probably going to become necessary no matter what. If that's the case, it's better to do it on our own terms instead of waiting to be forced into it.

I think these make a lot of sense. I have two concerns however.

My overriding framework for evaluating any Iraq policy is how it affects the people. No, not our people, the Iraqi people--the folks whose country we invaded. I think that too often the Iraqi people are getting lost in the Iraq debate. Liberals talk about dead American troops and mounting costs. Conservatives talk about all the terrorists we're killing. (And nutjobs talk about how awesome the terrorists killing American troops are). We have a moral obligation to not leave the people in a state of chaos, and unfortunately so far we've been performing miserably in that respect. For liberal hawks like myself, this has been THE most disappointing part of the invasion--that after all of this, we couldn't even guarantee Iraq a future. But I'm not quite ready to give up hope yet--I think there still must be some way that we can, if not "win" in Iraq, avoid a disaster. At this point, however, I'm open to arguments that withdrawing is the best way to help create a better Iraq--if not that we should abandon the project of creating a better Iraq all together.

Of Drum's three arguments, the third is irrelevant to the "people first" framework, and the second argument I just don't think is true. A sudden withdrawal I think is likely to create a panic amongst political leaders in Iraq. MAYBE this will result in them pushing aside silly differences and creating a working government, but somehow I'm skeptical. More likely, the panic will exacerbate pre-existing tensions and make the problem worse, not better. I mean, it's not like liberal values are doing so great in the constitutional process even with--in effect--unlimited time for negotiations. Push comes to shove, and I think everybody becomes a lot more testy and thus a lot more radical.

Whether or not you believe my likely conclusion or Drum's depends a lot on how you evaluate argument one. I'll assume, arguendo, that our troops are the root of most of the current terrorism against us. The question, then, is whether Iraq has passed the "tipping point" where it is so destabilized that it cannot support itself without outside assistance (IE, US troops doing right). After all, even if most of the terrorists are drawing their support right now as resisters against the occupation, it is a bit fanciful to assume that if we leave, they'll quietly disarm and go away. So, if you think that without the aggravating factor of US troops Iraq will be able to right itself, then withdrawal will seem like a good option. If you think that a withdrawal will lead to a power gap that will likely be filled by violent militias and a bloody civil war, then US troops (for all their flaws) become the last bulwark before disaster. Cynic that I am, I believe the latter.

Basically, if liberal withdrawal advocates want to win over liberal hawks to their position, they have to show some methodology by which Iraq won't obliterate itself the minute the US leaves. Barring that, I'll stick with the occupation I know, rather than the Lebanese-style civil war I know even better.

Ethics in Ohio

Embattled Ohio Governor Bob Taft just was found guilty of several ethics violations and was forced to pay $4000 in fines.

While I could use this as a jumping off point for my usual tirades against corruption and power-madness in the GOP, I won't. Why? Because aside from the lapse itself, I think Gov. Taft handled this exactly as a good statesman should. He plead "no contest" to the charges and immediately apologized. Furthermore, Governor Taft has fired several folks over corruption charges--though how much of it he himself was linked to, I'm not sure.

I wouldn't be so quick to give the Governor a free pass except the violations in question were extremely minor--a few unreported golf trips. If the Governor is implicated in the Coin Pension Fund scandal though (which he might), then you won't see me quite so conciliatory.