A bill legalizing same-sex marriage has narrowly passed in Maryland's House of Delegates. It moves to the State Senate, and if it passes there, Gov. Martin O'Malley (D) (who's really come out swinging for gay marriage -- and good for him!) will sign. This, as you may recall, is a rematch of last year, where a gay marriage bill narrowly failed in the House of Delegates after passing the Senate -- so getting through the former body is a very, very good sign.
Opponents may still muster signatures to force the issue to the ballot box come 2012.
Saturday, February 18, 2012
Friday, February 17, 2012
A Dramatic Change
A leading Orthodox Jewish Rabbi, Avi Shafran, was given space recently in The Forward to explain his organization's take on homosexuality. The second paragraph made the following eyebrow raising claim:
Skate past the first part. It's the last sentence which caused my head to tilt a little. Because I would also agree that "whether the Jewish religious tradition is fixed or changeable" is rather inarguable -- I just think the obvious answer is "changeable."
Unlike many Christian sects, Judaism has classically not engaged in Biblical fundamentalism. Rather, the Tanakh is only part of the official religious doctrine governing the Jewish community. Alongside it and carrying equal weight is the Talmud, which, in brief, is a corpus of interpretations and expansions upon Biblical doctrine extending for thousands of years.* The Talmud is basically comprised of countless Rabbis giving their own interpretations on what the Torah, the Tanakh, and other Talmudic stories mean, how they should be interpreted, extended, circumscribed, or modified. It is a vast menagerie of differing opinions, and together it paints a dramatically heterodox and pluralistic picture of what Jewish tradition "says". In essence, Jewish theology was the original common law method.
Through this, it is beyond obvious that Jewish law and tradition has changed, often dramatically, over the years, and is the furthest thing from "fixed". The Talmud is chock full of disagreements, with dissenting and concurring threads diverging into a host of different "schools". Indeed, for much of Jewish history there were two separate Talmuds (Jerusalem and Babylonian). The claim that Rabbi Shafran is making here is internally contradictory -- it itself is attempting to enact a dramatic change in how we think of Jewish traditions, replacing historic fluidity with modern (and dare I say, Christian-influenced) stasis.
* This also caused me to raise an eyebrow to the phrase "Torah-loyal Jews". That, to me, sounds like it should be the motto for Karaite Judaism, but of course, most Jews aren't and have never been Karaites. The dominant thread of Judaism is not "Torah-loyal", or at least, not exclusively so. What it is loyal to is the process of an evolving understanding and uncovering of divine principles as they instantiate themselves in an infinite number of social, historical, and political contexts.
Whether homosexuality is fixed or changeable remains an open question. There are well-informed people on either side of the issue, but as of yet no incontrovertible proof of a “gay gene.” Whether the Jewish religious tradition is fixed or changeable, however, is not arguable — at least not for Torah-loyal Jews.
Skate past the first part. It's the last sentence which caused my head to tilt a little. Because I would also agree that "whether the Jewish religious tradition is fixed or changeable" is rather inarguable -- I just think the obvious answer is "changeable."
Unlike many Christian sects, Judaism has classically not engaged in Biblical fundamentalism. Rather, the Tanakh is only part of the official religious doctrine governing the Jewish community. Alongside it and carrying equal weight is the Talmud, which, in brief, is a corpus of interpretations and expansions upon Biblical doctrine extending for thousands of years.* The Talmud is basically comprised of countless Rabbis giving their own interpretations on what the Torah, the Tanakh, and other Talmudic stories mean, how they should be interpreted, extended, circumscribed, or modified. It is a vast menagerie of differing opinions, and together it paints a dramatically heterodox and pluralistic picture of what Jewish tradition "says". In essence, Jewish theology was the original common law method.
Through this, it is beyond obvious that Jewish law and tradition has changed, often dramatically, over the years, and is the furthest thing from "fixed". The Talmud is chock full of disagreements, with dissenting and concurring threads diverging into a host of different "schools". Indeed, for much of Jewish history there were two separate Talmuds (Jerusalem and Babylonian). The claim that Rabbi Shafran is making here is internally contradictory -- it itself is attempting to enact a dramatic change in how we think of Jewish traditions, replacing historic fluidity with modern (and dare I say, Christian-influenced) stasis.
* This also caused me to raise an eyebrow to the phrase "Torah-loyal Jews". That, to me, sounds like it should be the motto for Karaite Judaism, but of course, most Jews aren't and have never been Karaites. The dominant thread of Judaism is not "Torah-loyal", or at least, not exclusively so. What it is loyal to is the process of an evolving understanding and uncovering of divine principles as they instantiate themselves in an infinite number of social, historical, and political contexts.
Thursday, February 16, 2012
Magic Pills of Darkness
New Hampshire State Rep. Jeanine Notter (R) has a novel argument for why health insurance shouldn't cover birth control: It causes prostate cancer.
In case we're unclear: Birth control? Almost exclusively taken by women (e.g., the pill, IUDs, Nuvaring, etc.). Prostate cancer? Only occur in men, because men, unlike women, have prostates. So unless those be some magic pills women be popping, the odds that birth control causes prostate cancer is very, very slim.
In case we're unclear: Birth control? Almost exclusively taken by women (e.g., the pill, IUDs, Nuvaring, etc.). Prostate cancer? Only occur in men, because men, unlike women, have prostates. So unless those be some magic pills women be popping, the odds that birth control causes prostate cancer is very, very slim.
Wednesday, February 15, 2012
Return Slip
One interesting, albeit rarely discussed, permutation in the Israel/Palestine debate is the question of Jewish refugees. The history of Jews from the Arab world, both generally and immediately proximate to the creation of Israel, is poorly understood among the people of the world, and generally their interests are shunted aside (if not forgotten entirely) in the conversation.
The bare bones version is quite simple: There were approximately 800,000 Jews residing in various Arab countries in 1948, a figure that has crashed to less than 7,000 today. The majority were forced out in the years following Israel's independence, as anti-Semitic pogroms wracked the region and Jews fled to Israel (and other countries) for their own safety. This population displacement parallels the Palestinian refugee problem, where Palestinian residents of what became Israel also were forced to flee in the face of violence and war.
Then we have the population of Jews who lived in parts of what is now the West Bank (e.g., Hebron). The story itself isn't much different (although most of Hebron's Jewish population fled in 1929 after a particularly violent pogrom), but the basics are the same -- Jewish residents who had resided on a given plot of land forced to abandon their property and flee elsewhere. The trick comes, of course, from the fact that much of this territory now is under Israeli jurisdiction. And so this raises the question of whether they should have a "right of return".
My stance has been "no", for the same reasons I oppose return-rights for the descendents of Palestinian refugees, to wit: "I care more about protecting Jewish and Palestinian national self-determination rights and democracy than I do about letting every person live on the precise acre they wish." Insofar as "right of return" conflicts with the projects of creating and maintaining independent Jewish and Palestinian states, it's not worth it. We can query the hypocrisy of "pro-Palestinian" activists who simultaneously call for a Palestinian right of return while protesting in front of Sheikh Jarrah, but the basic principle isn't complicated.
All this is by way of introduction to this letter from the descendent of a Jewish family expelled from Hebron (via). The author is writing to formally disavow any claims to her ancestral property. Noting that her position is in principle no different from Arab families which have deeds to property in Jerusalem or Haifa, she reminds us that it is far too late to turn the clock back to 1948. The project can't be that anymore. The modern project is reaching a territorial compromise so that both a Jewish and Palestinian state can be created and flourish, and that's not going to include letting every person live on the precise parcel of land they might like. It means some Jews' whose families lived in Hebron but were violently forced out won't get to return, and it means some Arabs whose families lived in Jaffa but were violently forced out won't get to return either. It may be tragic, but it is a necessary component of a just peace. Kudos to the writer for a stark demonstration that many people are willing to make that sacrifice.
The bare bones version is quite simple: There were approximately 800,000 Jews residing in various Arab countries in 1948, a figure that has crashed to less than 7,000 today. The majority were forced out in the years following Israel's independence, as anti-Semitic pogroms wracked the region and Jews fled to Israel (and other countries) for their own safety. This population displacement parallels the Palestinian refugee problem, where Palestinian residents of what became Israel also were forced to flee in the face of violence and war.
Then we have the population of Jews who lived in parts of what is now the West Bank (e.g., Hebron). The story itself isn't much different (although most of Hebron's Jewish population fled in 1929 after a particularly violent pogrom), but the basics are the same -- Jewish residents who had resided on a given plot of land forced to abandon their property and flee elsewhere. The trick comes, of course, from the fact that much of this territory now is under Israeli jurisdiction. And so this raises the question of whether they should have a "right of return".
My stance has been "no", for the same reasons I oppose return-rights for the descendents of Palestinian refugees, to wit: "I care more about protecting Jewish and Palestinian national self-determination rights and democracy than I do about letting every person live on the precise acre they wish." Insofar as "right of return" conflicts with the projects of creating and maintaining independent Jewish and Palestinian states, it's not worth it. We can query the hypocrisy of "pro-Palestinian" activists who simultaneously call for a Palestinian right of return while protesting in front of Sheikh Jarrah, but the basic principle isn't complicated.
All this is by way of introduction to this letter from the descendent of a Jewish family expelled from Hebron (via). The author is writing to formally disavow any claims to her ancestral property. Noting that her position is in principle no different from Arab families which have deeds to property in Jerusalem or Haifa, she reminds us that it is far too late to turn the clock back to 1948. The project can't be that anymore. The modern project is reaching a territorial compromise so that both a Jewish and Palestinian state can be created and flourish, and that's not going to include letting every person live on the precise parcel of land they might like. It means some Jews' whose families lived in Hebron but were violently forced out won't get to return, and it means some Arabs whose families lived in Jaffa but were violently forced out won't get to return either. It may be tragic, but it is a necessary component of a just peace. Kudos to the writer for a stark demonstration that many people are willing to make that sacrifice.
Google Strikes One For Team America
At an Iranian demonstration, a banner which reads in Farsi as "America can not do a damn thing" is rendered in English as "America can do no wrong."
It looks like the problem was with Google translator (that's how it renders the Farsi phrase into English).
Whoops!
It looks like the problem was with Google translator (that's how it renders the Farsi phrase into English).
Whoops!
Tuesday, February 14, 2012
Let Them Eat Cake
Via @AmandaMarcotte, Pat Archibald in the National Catholic Register enters a plea for a return to "pretty" in women, defined "as a mutually enriching balanced combination of beauty and projected innocence." This stands in contrast to "hot", which is not clearly defined but which he indicates is some sort of raw, sexualized energy. Back in the good old days (the 50s, natch. It's always the 50s), even our stars were more "pretty" than "hot" -- or at least many of them were. They might have still "sinned", but at least they projected "innocence".
But today, alas, women aspire to be "hot". The difference is in how men treat the two sorts of women:
Hmmm.
We might first note that it is hardly universally accepted that the desire for projected innocence is tied into a desire to "protect". Alexander King certainly had a different spin on things -- he wrote "That gentlemen prefer blondes is due to the fact that, apparently, pale hair, delicate skin and an infantile expression represent the very apex of frailty which every man longs to violate." And alas, King wrote in the first half of the 20th century, well before women's liberation ruined everything. Archibald concedes that the prettiness of yore was often a facade, not a true "innocence"; so long as we're explicitly valuing the hypocrisy of it all, we might as well remind ourselves it extends in both directions.
But more to the point, let's talk about commoditization, shall we? If it rings odd to hear it said that the former half of the 20th century was more respectful of women's agency, autonomy, and human dignity, well, it should. Archibald says hotness is a commodity, but what he doesn't say is that prettiness (as he defines it) is too. Being hot makes men want to consume you. Being pretty makes men want to protect you. What makes men want to treat you like an independent agent with her own talents, ambitions, and desires? Apparently nothing: The choice before women is to be the cake that one has versus the cake that one eats. Regardless of whether one prefers the former or the latter, we can hardly say that either option transcends the status of a commodity.
Now, as a man I sort of resent that -- to borrow from the immortal post by Belle Waring -- I am viewed as so much like a retarded kitten in my ability to appraise people that my capacity to determine how to treat women is exhausted by their physical appearance. I have aesthetic preferences in women, same as any heterosexual guy, but I maintain enough of a trickle of blood-flow to my brain to recognize that these preferences do not, in fact, translate onto character traits, much less into "women to consume" versus "women to stockpile" (and what a choice that is!). So in this sense Archibald's prejudice extends to men nearly as much as women.
Ultimately, though, it is bad to commoditize women. It's bad to view them as perishable goods to be gobbled up, and it's bad to view them as precious gemstones to be hoarded away -- put on a pedestal that doubles as a cage. Women are humans -- they have an infinite variety of desires, talents, and ambitions that they should feel to pursue. That includes pursuit of sexual pleasure, and it includes the decision to stay "innocent" of it. It's their call, not yours. That's the difference between a person, and a cake.
But today, alas, women aspire to be "hot". The difference is in how men treat the two sorts of women:
[P]retty inspires men's nobler instincts to protect and defend. Pretty is cherished. Hotness, on the other hand, is a commodity. Its value is temporary and must be used. It is a consumable.
Hmmm.
We might first note that it is hardly universally accepted that the desire for projected innocence is tied into a desire to "protect". Alexander King certainly had a different spin on things -- he wrote "That gentlemen prefer blondes is due to the fact that, apparently, pale hair, delicate skin and an infantile expression represent the very apex of frailty which every man longs to violate." And alas, King wrote in the first half of the 20th century, well before women's liberation ruined everything. Archibald concedes that the prettiness of yore was often a facade, not a true "innocence"; so long as we're explicitly valuing the hypocrisy of it all, we might as well remind ourselves it extends in both directions.
But more to the point, let's talk about commoditization, shall we? If it rings odd to hear it said that the former half of the 20th century was more respectful of women's agency, autonomy, and human dignity, well, it should. Archibald says hotness is a commodity, but what he doesn't say is that prettiness (as he defines it) is too. Being hot makes men want to consume you. Being pretty makes men want to protect you. What makes men want to treat you like an independent agent with her own talents, ambitions, and desires? Apparently nothing: The choice before women is to be the cake that one has versus the cake that one eats. Regardless of whether one prefers the former or the latter, we can hardly say that either option transcends the status of a commodity.
Now, as a man I sort of resent that -- to borrow from the immortal post by Belle Waring -- I am viewed as so much like a retarded kitten in my ability to appraise people that my capacity to determine how to treat women is exhausted by their physical appearance. I have aesthetic preferences in women, same as any heterosexual guy, but I maintain enough of a trickle of blood-flow to my brain to recognize that these preferences do not, in fact, translate onto character traits, much less into "women to consume" versus "women to stockpile" (and what a choice that is!). So in this sense Archibald's prejudice extends to men nearly as much as women.
Ultimately, though, it is bad to commoditize women. It's bad to view them as perishable goods to be gobbled up, and it's bad to view them as precious gemstones to be hoarded away -- put on a pedestal that doubles as a cage. Women are humans -- they have an infinite variety of desires, talents, and ambitions that they should feel to pursue. That includes pursuit of sexual pleasure, and it includes the decision to stay "innocent" of it. It's their call, not yours. That's the difference between a person, and a cake.
Borderlands
This is one of those fascinating stories that you just don't think could happen in the 21st century: South and North Carolina still aren't quite sure where, exactly, lies the border between the two states.
They've got a bunch of surveyors out who are trying to actually retrace the steps of the original 18th century surveyors. It's tough work since the surveyors marked their progress via burn marks on trees, and those trees are no longer present some 200 years later.
Obviously, there's a humorous element to this, but unfortunately it also has the possibility to disrupt lives, given that there are some people who think they live in one state but "really" live in the other. Aside from whatever psychic damage they might receive from losing their identity as a North or South Carolinian, there are more tangible problems -- new laws, new drivers licenses, new phone numbers, new utilities -- just massive headaches all around.
They've got a bunch of surveyors out who are trying to actually retrace the steps of the original 18th century surveyors. It's tough work since the surveyors marked their progress via burn marks on trees, and those trees are no longer present some 200 years later.
Obviously, there's a humorous element to this, but unfortunately it also has the possibility to disrupt lives, given that there are some people who think they live in one state but "really" live in the other. Aside from whatever psychic damage they might receive from losing their identity as a North or South Carolinian, there are more tangible problems -- new laws, new drivers licenses, new phone numbers, new utilities -- just massive headaches all around.
Monday, February 13, 2012
NJ Senate Votes To Legalize Gay Marriage
The New Jersey State Senate has passed a bill legalizing same-sex marriage by a 24-16 margin. Governor Chris Christie (R) is promising a veto, and right now the votes aren't there to override it. But nonetheless, this is yet more evidence of growing democratic momentum on the subject. New Jersey, of course, won't have a Republican governor forever. The tide has turned, and sooner or later, these laws will pass into the dustbin of history.
Saturday, February 11, 2012
Birthday Bash in Chicago
Wooooo!
Well, actually, nothing so dramatic. But it is my birthday, and I am in Chicago celebrating with some friends.
Back in Champaign tomorrow night, but for now, it's the bright lights of the big city.
Well, actually, nothing so dramatic. But it is my birthday, and I am in Chicago celebrating with some friends.
Back in Champaign tomorrow night, but for now, it's the bright lights of the big city.
Friday, February 10, 2012
The Opinion Biz
The Free Beacon, as best I can tell, is seeking to become to Think Progress what The 1/2 Hour News Hour was to the Daily Show. But one of its more high-profile pick-ups was former Washington Jewish Week journalist Adam Kredo. Kredo had an excellent reputation as a neutral, non-biased writer, and certainly gave the fledgling right-wing site a shot of desperately needed credibility.
Unfortunately, what we've seen is an impressively dedicated effort by Kredo to dynamite his prior reputation -- going from "respected journalist" to "third string Jennifer Rubin" with impressive speed. His recent articles include Center for American Prejudice: Leftist Anti-Semitic Propaganda Handicaps National Security (notably, excepting a few six-month-old instances of writers using the term "Israel-firster" -- which they apologized for -- Kredo does not in fact cite any instance of CAP doing anything even arguably anti-Semitic) and Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda (lest you think it's all just about Israel, check out this bit on Obama's "secret" meeting with Carlos Slim).
Now, in a sense, this is all pretty above board. Kredo was a journalist. Now he's not -- he's a purveyor of a particular perspective, and freed from the shackles of such anachronisms like "objectivity" and "neutrality", he's taken on his new role with gusto. If he wants to flush his reputation down the toilet while on this little bender, hey, it's his career.
No, the tragedy here is that Kredo gamely insists that nothing's changed. When criticized about the hit he took out on Peter Beinart (that would be the "Former TNR Editor [who] flaks for Anti-Israel Group"), Kredo had the gall to reply that "I just report what people say. I'm not in the opinion biz. We here FreeBeacon report -- you decide." Uncritical parroting of the Fox News motto as a defense against biased journalism notwithstanding -- for serious? Your piece is titled "Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda" and you say there's no opinion there? Or describing "J Street’s controversial credo" as calling "on the Jewish state to make peace with the Palestinians at any cost, even at the expense of Israel’s longstanding security needs"? Yeah, that's classic, traditional, "just-the-facts, ma'am" journalism that we can all be proud of.
I really can't even think Kredo actually believes it when he writes that. Frankly, he was too good of a journalist to not know the difference between what he was doing at WJW and what he's doing here. And frankly, he's tied enough into the journalism game that he knows the all loopholes -- specifically, that if one says earnestly enough that one is being "objective", then other media actors will have to act as if its true -- or at least, plausible. He's in the opinion biz, and his time outside of said business means he has the potential to be a particularly dangerous player in the opinion biz at that.
But to my eye, a site like Free Beacon may just be too over the top for Kredo to be believed. Adam Kredo was once a strong journalist. Now he's just another conservative hack, toiling on a C-string site. It's an unfortunate fall, but it is what it is.
Unfortunately, what we've seen is an impressively dedicated effort by Kredo to dynamite his prior reputation -- going from "respected journalist" to "third string Jennifer Rubin" with impressive speed. His recent articles include Center for American Prejudice: Leftist Anti-Semitic Propaganda Handicaps National Security (notably, excepting a few six-month-old instances of writers using the term "Israel-firster" -- which they apologized for -- Kredo does not in fact cite any instance of CAP doing anything even arguably anti-Semitic) and Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda (lest you think it's all just about Israel, check out this bit on Obama's "secret" meeting with Carlos Slim).
Now, in a sense, this is all pretty above board. Kredo was a journalist. Now he's not -- he's a purveyor of a particular perspective, and freed from the shackles of such anachronisms like "objectivity" and "neutrality", he's taken on his new role with gusto. If he wants to flush his reputation down the toilet while on this little bender, hey, it's his career.
No, the tragedy here is that Kredo gamely insists that nothing's changed. When criticized about the hit he took out on Peter Beinart (that would be the "Former TNR Editor [who] flaks for Anti-Israel Group"), Kredo had the gall to reply that "I just report what people say. I'm not in the opinion biz. We here FreeBeacon report -- you decide." Uncritical parroting of the Fox News motto as a defense against biased journalism notwithstanding -- for serious? Your piece is titled "Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda" and you say there's no opinion there? Or describing "J Street’s controversial credo" as calling "on the Jewish state to make peace with the Palestinians at any cost, even at the expense of Israel’s longstanding security needs"? Yeah, that's classic, traditional, "just-the-facts, ma'am" journalism that we can all be proud of.
I really can't even think Kredo actually believes it when he writes that. Frankly, he was too good of a journalist to not know the difference between what he was doing at WJW and what he's doing here. And frankly, he's tied enough into the journalism game that he knows the all loopholes -- specifically, that if one says earnestly enough that one is being "objective", then other media actors will have to act as if its true -- or at least, plausible. He's in the opinion biz, and his time outside of said business means he has the potential to be a particularly dangerous player in the opinion biz at that.
But to my eye, a site like Free Beacon may just be too over the top for Kredo to be believed. Adam Kredo was once a strong journalist. Now he's just another conservative hack, toiling on a C-string site. It's an unfortunate fall, but it is what it is.
Thursday, February 09, 2012
The Message of Conscience and Faith
Members of the Minnesota Rabbinical Association have released a statement opposing a state ballot initiative which would bar gay marriage (it's unclear whether the Rabbis were speaking only for themselves or for the Association). The letter concludes by urging "all Minnesotans of conscience and faith" to vote against the initiative -- a nice touch, given the degree to which opponents of gay equality have loved to cast themselves as the sole guardians of "conscience" and "faith" in this dispute. At least in the Jewish community -- which I'd like to think is also recognized as possessing a conscience and a faith -- they are in the distinct minority.
Wednesday, February 08, 2012
And Washington Makes Seven
Congratulations to Washington state, which is about to become the 7th state in America to legalize gay marriage! The State Senate, seen as the final hurdle, passed the bill 28-21 (wider than expected, as sponsors had been trying to scrounge up every last vote), and Governor Christine Gregoire has already promised to sign it.
A Light Unto Candidates
Obviously this is out of season, but still interesting: Rick Santorum's Channukah message to Jews:
Interesting choice of Bible verse there, don't you think? Very demonstrative of Santorum's sensitivity to the Jewish community. But you can't really blame Santorum. I mean, it's not like there is any parts of the Jewish religious tradition which Christians also consider to be there own, and that he might be familiar with. Because if there were, why, the decision to choose a verse like this might be considered gratuitously insulting.
UPDATE: And speaking of things that aggrieve me as a Jew, celebrating a famous historical killing spree by Christian soldiers slaughtering Jews en masse also seems more than a little ill-advised.
Interesting choice of Bible verse there, don't you think? Very demonstrative of Santorum's sensitivity to the Jewish community. But you can't really blame Santorum. I mean, it's not like there is any parts of the Jewish religious tradition which Christians also consider to be there own, and that he might be familiar with. Because if there were, why, the decision to choose a verse like this might be considered gratuitously insulting.
UPDATE: And speaking of things that aggrieve me as a Jew, celebrating a famous historical killing spree by Christian soldiers slaughtering Jews en masse also seems more than a little ill-advised.
Tuesday, February 07, 2012
The Weirdness of the Prop. 8 Decision
The 9th Circuit, in a 2-1 decision, has struck down California's Proposition 8, which had eliminated the right of same-sex couples to marry. This is, of course, a great day for equal rights and liberty in the United States. But the particular way the court went about its ruling is a little strange -- intellectually speaking, if not legally or politically.
The first thing that needs to be emphasized about this opinion is that it did not hold that all laws barring same-sex marriage are unconstitutional. Rather, it held specifically that the decision of California voters to take away the previously vested right for same-sex couples (and only same-sex couples) to marry is unconstitutional. That California briefly legalized same-sex marriage, only to later have it stripped by referendum, distinguishes it from most states (where gay marriage has never been legal at any point in time).
This leads to weirdness part one: California spent many years prohibiting gay marriage, then briefly (through judicial decision) legalized it, then outlawed it again. But how can it be that what was legal for most of the past two decades becomes illegal based on a brief, half-year interlude?
As a matter of law, this actually isn't that difficult: the holding of the California Supreme Court established that the ban on gay marriage violated the state's constitutional guarantees -- in other words, establishing a right to gay marriage. As a matter of formal law, Proposition 8 acted to strip a particular class of citizens -- and only that class -- of rights it had previously possessed under the Constitution. That this move might be considered an expression of particularly malevolent animus, in a way qualitatively different from simply refraining from establishing gay marriage in the first place, is not hard to grasp.
The problem is that this seems to misapprehend the meaning of Prop. 8 as it reflects upon constitutional interpretation. The California Supreme Court's decision in Marriage Cases was that gay marriage was protected under various provisions of the state constitution (equal protection, fundamental rights, etc.). They held, in essence, that equal protection requires recognition of gay marriage; fundamental rights requires recognition of gay marriage. But when Californians went to the polls in 2008, they did not conceive of themselves as deciding whether or not to craft exceptions to these constitutional guarantees (equal protection, except that gay marriage can be prohibited). They thought of themselves as answering whether they believed the California courts original interpretation of these clauses was correct (does equal protection require gay marriage?). It was meant to be a signal as to their belief, not that the constitution was wrong to protect gay marriage, but that the California Supreme Court was wrong to believe that it ever did in the first place.
Now, it may be that as a matter of law this has no bearing -- judicial pronouncements of "what the law is" are authoritative, and any subsequent democratic revision or modification proceeds from there. So in that sense, the 9th Circuit got it right -- the California constitution gave gays and lesbians the right to marry, and then the people of California took it away. But it is notable what this outlook says about popular constitutionalism: it gives so little credence to popular understandings of constitutional meaning that even when they immediately reverse a judicial decision via an amendment that constitutionalized a prior doctrinal understanding of the original clause, that is coded as "changing the constitution" rather than "counterinterpretation of the constitution".
Anyway, the 9th Circuit proceeds to argue that the fact that this was California taking away a right, rather than declining to extend one, makes this case indistinguishable from Romer v. Evans. Romer was perhaps the Supreme Court's first high-profile gay rights opinion, striking down a Colorado constitutional amendment which forbade the state or localities from enacting anti-discrimination laws on basis of sexual orientation (and only that category). The law had been passed in reaction to the passage of such laws in a few more liberal Colorado cities (e.g., Boulder), and the Court found that it was effectively motivated by bare animus against gays.
There are few things that make Romer notable. First, the case does not stand for the proposition that states must have anti-discrimination protections on basis of sexual orientation. Rather, the Court's holding was that the state cannot arbitrarily pluck out a particular class of citizens and make it more difficult for them to garner the protections that others enjoyed. Second, Romer applied rational basis review, which is traditionally quite easy to meet. But Romer implies that the decision to take away a previously vested right is more suspicious (even under rational basis review) than simply not extending a right. It keys the analysis to the stripping of the right, and it is often harder to articulate a rational (non-prejudiced -- Romer and other cases establish that "animus" is not a rational basis) reason for taking the affirmative step of removing a right than it is to explain why one never bothered to grant it all. Third, Romer was a Kennedy-authored opinion, and the 9th Circuit decision is aimed like a laser at Justice Kennedy in an effort to hold his vote (or even avoid a cert grant -- I might have to dissent from Orin Kerr in calling Supreme Court review inevitable given the narrowness of this particular ruling).
In keeping with the Kennedy-focus, the 9th Circuit styled its opinion as a clean extension of Romer. But it did so through oddity #2 -- the narrowness of what Proposition 8 did. All Prop. 8 did was prevent gay couples from calling their relationships "marriage", which the court accurately described as a (quite significant) dignitary harm on gays and lesbians. By contrast, the rational bases typically offered for heterosexist marriage restrictions usually are some chatter about the state's interests in procreation and child-rearing. I think those arguments tend to be irrational gibberish anyway, but for the purposes of this case, the court simply observed that Proposition 8 had precisely no bearing on these topics. California already has well-established procedures for how gays and lesbians can conceive and raise their kids, and Proposition 8 effected those not at all. So since the only thing Prop. 8 did do was foist upon gay couples this dignitary harm, and since simply denigrating the legitimacy of gay people is not a legitimate state interest (falling under the ambit of animus), the law falls under Romer. The implication is that if California voters had done more -- for example, hinging certain childcare rights on marriage in tandem with restricting marriage to heterosexual couples -- it would have been more likely to survive rational basis review (or at the very least, force the Court to make the affirmative constitutional case for gay marriage nationwide).
Again, the court's analysis isn't necessarily wrong here, so much as illuminates an oddity in how broader constitutional doctrines manifest. Judicial supremacy means that we can't even conceive of a constitutional amendment that is meant to correct a "wrong" constitutional interpretation -- there is, in this view, no such thing as a "wrong" constitutional interpretation except when the courts themselves say so. Rational basis means that legislatures need to more aggressively target the rights of unpopular minorities, because if they don't, it is easier to say they acted out of animus.
I should stress that I think that the constitutional case for gay marriage is more or less a slam dunk, and in that sense the 9th Circuit opinion definitely reaches the right outcome. But in its (tactically quite wise) efforts to fit itself within the narrowest box possible, it helps illuminate certain strange elements of our constitutional order which I felt compelled to point out.
The first thing that needs to be emphasized about this opinion is that it did not hold that all laws barring same-sex marriage are unconstitutional. Rather, it held specifically that the decision of California voters to take away the previously vested right for same-sex couples (and only same-sex couples) to marry is unconstitutional. That California briefly legalized same-sex marriage, only to later have it stripped by referendum, distinguishes it from most states (where gay marriage has never been legal at any point in time).
This leads to weirdness part one: California spent many years prohibiting gay marriage, then briefly (through judicial decision) legalized it, then outlawed it again. But how can it be that what was legal for most of the past two decades becomes illegal based on a brief, half-year interlude?
As a matter of law, this actually isn't that difficult: the holding of the California Supreme Court established that the ban on gay marriage violated the state's constitutional guarantees -- in other words, establishing a right to gay marriage. As a matter of formal law, Proposition 8 acted to strip a particular class of citizens -- and only that class -- of rights it had previously possessed under the Constitution. That this move might be considered an expression of particularly malevolent animus, in a way qualitatively different from simply refraining from establishing gay marriage in the first place, is not hard to grasp.
The problem is that this seems to misapprehend the meaning of Prop. 8 as it reflects upon constitutional interpretation. The California Supreme Court's decision in Marriage Cases was that gay marriage was protected under various provisions of the state constitution (equal protection, fundamental rights, etc.). They held, in essence, that equal protection requires recognition of gay marriage; fundamental rights requires recognition of gay marriage. But when Californians went to the polls in 2008, they did not conceive of themselves as deciding whether or not to craft exceptions to these constitutional guarantees (equal protection, except that gay marriage can be prohibited). They thought of themselves as answering whether they believed the California courts original interpretation of these clauses was correct (does equal protection require gay marriage?). It was meant to be a signal as to their belief, not that the constitution was wrong to protect gay marriage, but that the California Supreme Court was wrong to believe that it ever did in the first place.
Now, it may be that as a matter of law this has no bearing -- judicial pronouncements of "what the law is" are authoritative, and any subsequent democratic revision or modification proceeds from there. So in that sense, the 9th Circuit got it right -- the California constitution gave gays and lesbians the right to marry, and then the people of California took it away. But it is notable what this outlook says about popular constitutionalism: it gives so little credence to popular understandings of constitutional meaning that even when they immediately reverse a judicial decision via an amendment that constitutionalized a prior doctrinal understanding of the original clause, that is coded as "changing the constitution" rather than "counterinterpretation of the constitution".
Anyway, the 9th Circuit proceeds to argue that the fact that this was California taking away a right, rather than declining to extend one, makes this case indistinguishable from Romer v. Evans. Romer was perhaps the Supreme Court's first high-profile gay rights opinion, striking down a Colorado constitutional amendment which forbade the state or localities from enacting anti-discrimination laws on basis of sexual orientation (and only that category). The law had been passed in reaction to the passage of such laws in a few more liberal Colorado cities (e.g., Boulder), and the Court found that it was effectively motivated by bare animus against gays.
There are few things that make Romer notable. First, the case does not stand for the proposition that states must have anti-discrimination protections on basis of sexual orientation. Rather, the Court's holding was that the state cannot arbitrarily pluck out a particular class of citizens and make it more difficult for them to garner the protections that others enjoyed. Second, Romer applied rational basis review, which is traditionally quite easy to meet. But Romer implies that the decision to take away a previously vested right is more suspicious (even under rational basis review) than simply not extending a right. It keys the analysis to the stripping of the right, and it is often harder to articulate a rational (non-prejudiced -- Romer and other cases establish that "animus" is not a rational basis) reason for taking the affirmative step of removing a right than it is to explain why one never bothered to grant it all. Third, Romer was a Kennedy-authored opinion, and the 9th Circuit decision is aimed like a laser at Justice Kennedy in an effort to hold his vote (or even avoid a cert grant -- I might have to dissent from Orin Kerr in calling Supreme Court review inevitable given the narrowness of this particular ruling).
In keeping with the Kennedy-focus, the 9th Circuit styled its opinion as a clean extension of Romer. But it did so through oddity #2 -- the narrowness of what Proposition 8 did. All Prop. 8 did was prevent gay couples from calling their relationships "marriage", which the court accurately described as a (quite significant) dignitary harm on gays and lesbians. By contrast, the rational bases typically offered for heterosexist marriage restrictions usually are some chatter about the state's interests in procreation and child-rearing. I think those arguments tend to be irrational gibberish anyway, but for the purposes of this case, the court simply observed that Proposition 8 had precisely no bearing on these topics. California already has well-established procedures for how gays and lesbians can conceive and raise their kids, and Proposition 8 effected those not at all. So since the only thing Prop. 8 did do was foist upon gay couples this dignitary harm, and since simply denigrating the legitimacy of gay people is not a legitimate state interest (falling under the ambit of animus), the law falls under Romer. The implication is that if California voters had done more -- for example, hinging certain childcare rights on marriage in tandem with restricting marriage to heterosexual couples -- it would have been more likely to survive rational basis review (or at the very least, force the Court to make the affirmative constitutional case for gay marriage nationwide).
Again, the court's analysis isn't necessarily wrong here, so much as illuminates an oddity in how broader constitutional doctrines manifest. Judicial supremacy means that we can't even conceive of a constitutional amendment that is meant to correct a "wrong" constitutional interpretation -- there is, in this view, no such thing as a "wrong" constitutional interpretation except when the courts themselves say so. Rational basis means that legislatures need to more aggressively target the rights of unpopular minorities, because if they don't, it is easier to say they acted out of animus.
I should stress that I think that the constitutional case for gay marriage is more or less a slam dunk, and in that sense the 9th Circuit opinion definitely reaches the right outcome. But in its (tactically quite wise) efforts to fit itself within the narrowest box possible, it helps illuminate certain strange elements of our constitutional order which I felt compelled to point out.
Monday, February 06, 2012
Practically Perfect in Every Way
Quite the little ego we have, don't we, Rep. Bachmann?
That is so delightfully petty and petulant that I can't help but smile. Oh, Michele -- we didn't know what we had until it was gone.
Asked by Bloomberg TV’s Al Hunt to name the most conservative candidate remaining in the 2012 race, Bachmann responded by plugging herself.
"I was. I was the perfect candidate," Bachmann said. "America had their chance with the perfect candidate."
That is so delightfully petty and petulant that I can't help but smile. Oh, Michele -- we didn't know what we had until it was gone.
Your Mouth Says No But Your Name Says Yes
In the course of discussing how it is that tensions between Iran and Israel have escalated so much, Jeffrey Goldberg remarks off hand that "I'm opposed to an Israeli strike on Iran; I'm also opposed to an American strike on Iran." Who wants to bet this will have precisely zero impact on the constant stream of articles insisting that Goldberg actually desires the exact opposite? I mean, come on, he's Jeffrey Goldberg. Who could possibly be so naive as to presume his policy preferences bear a relationship to what he publicly states them to be? Come on.
In other news, about six people were protesting near my apartment in favor of world peace and against war with Iran. One poster said "Not to war with Iraq/n", with the "q" turning over to an "n" like an odometer, which I thought was clever. Another said "no war for Israel", which was decidedly less so. It just made me wonder who we should go to war for? The U.S.? Well that just raises the question of what our "interests" are, and whether protecting a friend can count as one. Actually, I imagine the protesters just think we shouldn't go to war at all, but then why is it particularly distressing if we go to war "for Israel" as opposed to "for Kurds" or "for oil" or "for America" or "for freedom"?
In any event, I am in agreement with Goldberg that I'm not particularly keen on American or Israeli military action towards Iran (though I'd note that the odds either party would launch any sort of Iraq-style ground invasion, as opposed to airstrikes akin to what NATO did in Libya, are virtually non-existent, and that the latter has a very different calculus -- moral, strategic, diplomatic, logistical -- attached to it from the former).
In other news, about six people were protesting near my apartment in favor of world peace and against war with Iran. One poster said "Not to war with Iraq/n", with the "q" turning over to an "n" like an odometer, which I thought was clever. Another said "no war for Israel", which was decidedly less so. It just made me wonder who we should go to war for? The U.S.? Well that just raises the question of what our "interests" are, and whether protecting a friend can count as one. Actually, I imagine the protesters just think we shouldn't go to war at all, but then why is it particularly distressing if we go to war "for Israel" as opposed to "for Kurds" or "for oil" or "for America" or "for freedom"?
In any event, I am in agreement with Goldberg that I'm not particularly keen on American or Israeli military action towards Iran (though I'd note that the odds either party would launch any sort of Iraq-style ground invasion, as opposed to airstrikes akin to what NATO did in Libya, are virtually non-existent, and that the latter has a very different calculus -- moral, strategic, diplomatic, logistical -- attached to it from the former).
Saturday, February 04, 2012
Election 2012: Mexico vs. Kenya
It's like the World Cup over here! The birthers turn their eyes to Mitt Romney, whose father was born in Mexico and thus, based on a chain of logic too disconnected from the text and historical interpretation of the 14th Amendment for me, as a budding constitutional law professor, to lay out without wanting to shoot myself, may not be a "natural-born citizen" under the 14th Amendment.
But don't worry -- though they do entertain the argument for a little bit, WND ultimately concludes that "even under the strictest interpretation of Article 2, Section 1 of the Constitution, Romney is a natural-born citizen." Given that WND is still pumping the Obama-birther conspiracy theory, that's no small concession!
But don't worry -- though they do entertain the argument for a little bit, WND ultimately concludes that "even under the strictest interpretation of Article 2, Section 1 of the Constitution, Romney is a natural-born citizen." Given that WND is still pumping the Obama-birther conspiracy theory, that's no small concession!
Friday, February 03, 2012
Econ on the Up and Up
The clownish character of the Republican primary field obviously can only help Obama's chances in 2012. But ultimately, the key factor in any re-election campaign boils down to one thing. The economy. In a bad economy, all sins by the challenging party will be forgiven. And that means that the best way for Obama to win reelection is for the economy to start improving.
And on that front, there is some very strong news flowing out of the December jobs report. 243,000 jobs added last month, with unemployment dropping down to 8.3%. Is 8.3% the most exciting figure ever? Nope. But it is a sign that the last few months improvements are no fluke, and dropping below 9% is a milestone.
Again, with 11 months before election day and each month being better than the last, the trend lines are looking good. It may be that Mitt Romney (or whoever the GOP nominates) will have to win on the strength of his policy and personality. Good luck with that.
And on that front, there is some very strong news flowing out of the December jobs report. 243,000 jobs added last month, with unemployment dropping down to 8.3%. Is 8.3% the most exciting figure ever? Nope. But it is a sign that the last few months improvements are no fluke, and dropping below 9% is a milestone.
Again, with 11 months before election day and each month being better than the last, the trend lines are looking good. It may be that Mitt Romney (or whoever the GOP nominates) will have to win on the strength of his policy and personality. Good luck with that.
Komen's Reversal
The Susan G. Komen Foundation's decision to cut off funding to Planned Parenthood (which provided essential breast cancer services to low-income women) has to rank pretty highly on any list of PR disasters for non-profits. Previously, Komen had managed to stake out a leading position in the field of women's health without having politicized itself. That's no mean feat, but it's completely ruined now. Moreover, they apparently thought they could sneak this decision under the radar and thus were caught completely off-guard by the explosion. And the rationale they relied on -- that this was a "non-political" decision prompted by PP being under (politically-motivated) federal investigation -- was transparent non-sense that insulted everyone's intelligence.
Anyway, Komen has now seemingly reversed its decision. Note that this does not undo all the damage -- having stepped into this maelstrom, any decision they take from here on out will be seen as political. And it is notable that Komen's press release is just ambiguous enough that its unclear just how much renewed cooperation between Komen and PP we'll see -- the release simply affirms that current PP grants will be funded and PP can continue to apply for future grants (but obviously, there's no guarantee they'll be accepted). Under normal circumstances the vagueness wouldn't be enough to worry me, but when you shatter your organization's integrity over the space of a week, suddenly you don't get the benefit of the doubt.
One thing that this controversy did demonstrate is that pro-choice forces still can shake the earth when they need to, and they can do so even when they're taking on a (formerly) venerable organization like Susan G. Komen. It's a paradoxical sort of optimism -- being forced to demonstrate that yes, your movement still has bite -- but it is worth noting.
Anyway, Komen has now seemingly reversed its decision. Note that this does not undo all the damage -- having stepped into this maelstrom, any decision they take from here on out will be seen as political. And it is notable that Komen's press release is just ambiguous enough that its unclear just how much renewed cooperation between Komen and PP we'll see -- the release simply affirms that current PP grants will be funded and PP can continue to apply for future grants (but obviously, there's no guarantee they'll be accepted). Under normal circumstances the vagueness wouldn't be enough to worry me, but when you shatter your organization's integrity over the space of a week, suddenly you don't get the benefit of the doubt.
One thing that this controversy did demonstrate is that pro-choice forces still can shake the earth when they need to, and they can do so even when they're taking on a (formerly) venerable organization like Susan G. Komen. It's a paradoxical sort of optimism -- being forced to demonstrate that yes, your movement still has bite -- but it is worth noting.
Thursday, February 02, 2012
Occupational Therapy
I'm obviously sympathetic to Occupy Wall Street's general ambitions, such as they are. I think income inequality is a very important thing. I think we have to have a serious conversation about insuring a true participatory democracy and a serious conversation about corporate influence over politics. I think we have a political and economic system that is overly concerned with the needs of the well-off and nowhere near enough with those of ordinary Americans (much less poor Americans).
But Occupy Wall Street also can be infuriating. I gestured at it in this post, when I talked about how OWS seemed afraid to flex its own muscle because that implied the chance of true failure. Instead, they portentously declared that things like "making demands" would be just giving into the very system they were trying to challenge, that it would be in essence selling out to the man, and then launched into some sanctimonious sermons about changing paradigms and shifting mindsets and other rejected high school debate counter-plans.
And so, about half a year later, where is OWS? Effectively nowhere. And what has it accomplished? Effectively nothing. It managed the impressive feet of mobilizing a massive number of progressive-minded citizens, and then managed the even more impressive feet of walking away without having gained anything. Okay, yes, it put income inequality "on the table". But does anyone see any concrete changes going anywhere? I don't. And so, I suspect, pretty soon we'll see it slide right back off the table.
But Occupy Wall Street also can be infuriating. I gestured at it in this post, when I talked about how OWS seemed afraid to flex its own muscle because that implied the chance of true failure. Instead, they portentously declared that things like "making demands" would be just giving into the very system they were trying to challenge, that it would be in essence selling out to the man, and then launched into some sanctimonious sermons about changing paradigms and shifting mindsets and other rejected high school debate counter-plans.
And so, about half a year later, where is OWS? Effectively nowhere. And what has it accomplished? Effectively nothing. It managed the impressive feet of mobilizing a massive number of progressive-minded citizens, and then managed the even more impressive feet of walking away without having gained anything. Okay, yes, it put income inequality "on the table". But does anyone see any concrete changes going anywhere? I don't. And so, I suspect, pretty soon we'll see it slide right back off the table.
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