Tag Archives: culture wars

Is the Battle For Same-Sex Marriage Nearly Over?

I hated last summer’s Windsor decision. That is, I loved the result — the Defense of Marriage Act overturned — but I hated Justice Kennedy’s mushy legal logic. What did the decision mean? How would it apply to anything beyond the specific case in front of the Court? How would it apply to state bans on same-sex marriage?

Lower-court judges wondered too. As he was striking down Oklahoma’s ban in January, Judge Terence Kern placed a subtle barb into his decision:

This Court has gleaned and will apply two principles from Windsor.

I unpacked that statement like this:

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Nevertheless, judges all over the country were managing to glean something similar out of Windsor. In one federal district after another — Indiana, Utah, Virginia, Wisconsin — state same-sex marriage bans were going down. The states were appealing those decisions to the Supreme Court, but the Court did not necessarily have to make a ruling, because so far the appellate court rulings were unanimously against the state bans. If one district found them constitutional and another unconstitutional, the Supremes would have to step in. But so far that hadn’t happened.

On Monday, the Court announced that it would take advantage of its right to remain silent: It was refusing to hear the appeals. That instantly established marriage equality in the appealing states, and made virtually automatic its extension to other states in the same appellate districts: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. (The near-automatic ruling in North Carolina happened Friday. Thursday, West Virginia officials dropped their case rather than waste time losing.)

The 9th Circuit Court of Appeals, which comprises much of the Northwest, will hear cases involving Idaho, Nevada, and Hawaii soon. Alaska’s ban went down Sunday, so it might be added to that hearing.

When the dust settles fairly soon, gays and lesbians will be allowed to marry in 30 states — 35 if the 9th Circuit joins the appellate-court consensus. Can anything stop its extension to the whole country before long?

The politics of the Supreme Court. One of the intriguing facts about the Court’s non-decision is that hearing an appeal only requires the approval of four justices, not the five it would take for the appeal to succeed. The Court’s four most conservative members — Roberts, Scalia, Alito, and Thomas — all dissented in Windsor and presumably believe in the constitutionality of state same-sex marriage bans. If they had stuck together, they could have agreed to hear the appeals. That would have stopped the spread of marriage equality at least until the Court ruled, maybe as late as June.

The only reason not to take that course is the fear that they would lose, and that Justice Kennedy would join the Court’s liberal justices — Ginsburg, Sotomayor, Breyer, and Kagan — in establishing a constitutional right to same-sex marriage in all 50 states. Similarly, the four liberal justices could have accepted the appeal and gone for the win rather than for the sizable advance the non-decision represents.

All the justices — especially Kennedy — might want the battle for marriage to play out in a more gradual, more organic way, rather than ending it in a quick thrust with the Court’s fingerprints on the knife.

And both sides can keep their victory scenarios alive, though the conservative victory scenario is shakier: If they can’t convince Kennedy to join them, the conservative justices have to hope a Republican wins the White House in 2016 and has a chance to replace Kennedy or a liberal judge with a conservative.

Nationally, marriage equality has substantial momentum, so a decision upholding it becomes less controversial by the day. And if the Court never decides, in the long run the political process will.

The legal debate. Reading the post-Windsor lower-court decisions, one conclusion is inescapable: The anti-gay side has run out of ammunition. In case after case, they have had no better strategy than to trot out the same arguments all the previous courts rejected, and hope that this judge will be more sympathetic to their cause.

Way back in Lawrence, the Supreme Court rejected the notion that mere moral disapproval (without any substantive injury to those disapproving or to society in general) was an acceptable basis for making a law (against sodomy, in that case). So “I think two men kissing is yucky” is not a rational basis for banning same-sex marriage. Similarly, “The Bible says it’s wrong” doesn’t cut it, because the Bible has no legal standing.

Since those are the actual reasons people oppose marriage equality, the legal arguments against it have always been facades. More and more, they have looked like facades, and judges have routinely knocked them down: There is zero legitimate evidence that letting same-sex couples marry harms heterosexual couples, or the children being raised by either same-sex or opposite-sex couples, or anyone else.

Looking back at the Goodridge decision (that legalized same-sex marriage in Massachusetts in 2003), it’s striking how little has changed on the anti-gay side. The arguments that were unconvincing a decade ago are still the only ones they have.

The political debate. My prediction after Goodridge has been borne out:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Focus on the Family’s James Dobson’s predictions, on the other hand, have not fared nearly so well:

Barring a miracle, the family as it has been known for more than five millennia will crumble, presaging the fall of Western civilization itself.

Same-sex marriage has been legal in my state (New Hampshire) for almost five years. And I live just across the border from Massachusetts, where it’s been legal for a decade. If the family or Western civilization is any closer to crumbling here than in heterosexual-marriage-only states like Texas or Alabama, the signs are escaping me.

Scare tactics like Dobson’s are an all-or-nothing gamble. If you can frighten people out of trying something, they’ll never find out that your visions of doom are baseless. But as soon as somebody does try it, then the sky either falls or it doesn’t.

The sky isn’t falling. The more states that implement marriage equality and the more same-sex couples that are visibly pursuing their chance at marital happiness, the more obvious it becomes that the sky is not falling. Little Bobby’s friend Susie has two Dads or two Moms, and it’s just not a problem. You’ll never be able to explain to Bobby why you want the government to break up Susie’s family.

That’s why the poll results are so age-determined. The main people against marriage equality these days are the grandparents, who don’t have to explain stuff to Bobby.

So here’s what I expect to happen as a result of this latest expansion of marriage equality: The opposition will harden in the states affected, but it will also shrink. More and more people will have a chance to observe first-hand the absurdity of the “pro-family” scare tactics.

Here’s what I don’t expect to happen: The Republican Party will not launch a crusade to get this reversed, or play up the Republican-president-appoints-an-anti-gay-judge scenario in 2016. Because nationally, that’s a losing issue. The public has turned.

The last-ditch resistance. In “Not a Tea Party, a Confederate Party“, I defined the Confederate worldview like this:

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

On the national level, conservatives can’t win this battle either legally or democratically any more, and the number of states where they could win democratically is shrinking every year. More and more, the national Republican leadership wants to talk about anything else — Ebola-infected ISIS terrorists crossing our Mexican border, maybe.

Republican strategist Alex Castellanos put it like this:

Increasingly, there is less room in the GOP for ‘big-government’ social conservatives, i.e., social conservatives who believe in using the power of the state to tell people whom they can love or marry. Instead, there is growing agreement, in an ever younger and increasingly libertarian Republican party, that the role of the state in prohibiting relationships should be minimized.

And northern Republican governors like Scott Walker and Chris Christie are happy to leave the issue behind.

But that pragmatic approach to politics doesn’t sit well with the older Confederate types. Mike Huckabee is threatening to leave the party if it doesn’t fight this. Other voices are calling for civil disobedience, though it’s not clear what form that would take.

The most outrageous response came from Pat Buchanan, who recalled resistance to an earlier act of “judicial dictatorship”:

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Again, it’s not clear what specific acts of violence he’s calling for.

I also cited the reaction to school desegregation as an example of Confederate tactics in the modern era. And Buchanan apparently sees that relationship too (though he views it positively). He ends his article with a quote from Robert Lewis Dabny’s 1867 book A Defense of Virginia.

American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.

Buchanan is arguing against conservatives who believe that the debate about same-sex marriage is over. Dabny was arguing — after the end of the Civil War — with those who thought that the debate about slavery was over. Dabny was a prophet of the insurgency that ultimately won Reconstruction for the South and established Jim Crow.

And he’s an example that Buchanan wants to emulate.

Classism and Corporal Punishment

The Adrian Peterson controversy started a national discussion about parental discipline techniques. What Peterson did is obviously over-the-top and deserves the condemnation it has gotten. But I understand why there has been push-back. The argument has focused mainly on racial differences in discipline styles, but to me this seems more like a class issue.

I fear to tread here, because I have no children myself and my position is complicated. I grew up in the white working class, where it was assumed that all families spanked. My parents stopped when I was four, not because they were against the practice in general, but because it didn’t seem to work very well on me. I have no memories of being spanked. (I’ve heard my father tell the story of the last time he spanked me. He seemed more traumatized by it than I was.)

Having watched most of my professional-class friends raise children without spanking, I think that’s what I’d recommend if anyone thought my opinion was worth seeking out. But I’m appalled at the level of classism I hear whenever this issue gets discussed. Lots of otherwise thoughtful people talk as if working-class parents routinely beat their kids up for amusement.

Here’s what I observed growing up: For the vast majority of the households I knew, spanking was part of a well-thought-out system of discipline. It was rare — used only when a series of lesser punishments had failed — and relied more on its symbolic value than the physical pain inflicted. It was not supposed to be done in anger. (That was the whole point behind, “Wait till your father comes home.”) My friends were not going to the emergency room or showing up at school with visible welts and bruises.

Child abuse seems to me to be something else entirely, and it happens in families across the class spectrum. Slapping your toddler’s hand when he reaches for the burner on the stove is a completely different thing than breaking his collarbone because you had a bad day. It’s not a difference of degree.

In every era, the upper classes rationalize why they are better and more deserving than the lower classes. Usually there is some core of truth behind their justifications. (In Victorian England, the upper classes could quote fine poetry, sometimes in Latin or Greek, which is an admirable skill.) I-never-raise-a-hand-to-my-child has taken on that role in our era. There’s a core of truth; in general, professional-class discipline probably is better for the child than working-class discipline. But this class virtue is being exploited for the sinister purpose of justifying class differences in general: Those working-class barbarians. No wonder they live in squalor.

There’s Something About Todd

I strongly advise you not to read this post. Your browser has a Back button. Use it.


I don’t know what it is about Todd Akin.

The whole point of the Weekly Sift is to filter the junk and hype out of the news so that you only read stuff that is worth your attention. But success in that venture depends on my ability to leave something alone once I’ve determined that it’s not worth either your time or mine.

Todd Akin is not worth your time or mine. So you shouldn’t read this post and I certainly shouldn’t be writing it. And yet, I can’t seem to ignore him. I suppose it’s that infuriating combination of ignorance, self-righteousness, and self-assurance. So many intelligent, thoughtful people could be interviewed on TV, but aren’t. And yet, there’s Todd Akin, displayed in my living room! And why am I writing about him? I’m just making it worse.

But I can’t stop myself, so let’s get this over with: In interviews promoting his new book — which I refuse to link to; I still have that much control — he says he knows what he did wrong in his “legitimate rape” interview: It was just a bad choice of words. He should have said “legitimate case of rape” instead, because then the liberal media couldn’t have slandered him by making it sound like he thought a rape could be legitimate.

Let’s plug that into the transcript and see how it plays:

CHARLES JACO: So if an abortion can be considered in the case of, say, a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

REP. TODD AKIN: Well, you know, people always want to try and make that as one of those things: “Well, how do you—how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate [case of] rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Well, the insensitivity is unchanged: Raped women aren’t real people who deserve our compassion, they’re just a “tough sort of ethical question” that tricky interviewers use to try to trip Akin up — like “Can God make a rock so big He can’t lift it?” or something. And after this tough question gets sorted out by the higher mind, it really just comes down to who to punish — the rapist or the fetus. The woman is a bystander.

The junk science about female physiology is still there; two years later, and he still hasn’t educated himself. And he’s still implying that only violent rape really counts. (What about roofies? Even in Akin’s alternate universe, would an unconscious woman’s body “shut that whole thing down”?)

Most importantly, he’s still saying that women who claim they got pregnant from a rape are probably lying, because “that’s really rare” in “a legitimate [case of] rape”.

So no, I don’t think he fixed anything.

Here’s what’s reprehensible about Todd Akin, and it’s got nothing to do with his choice of words: Even given two years to think about it, he still believes in a legal system in which rape is a viable male reproductive strategy. (They’ll put you in jail if they catch you — and if the woman can prove she didn’t consent — but the law will force your victims to bear your children, so your genes will live on.) He believes in that system so strongly that he’s willing to seek out junk science to justify it.

I’m going to stop writing now. To everyone who made it this far: I’m sorry. I really am. Try to do something more worthwhile with the rest of your day.

#YesAllWomen and the Continuum of Aggression

Men look at Elliot Rodger and say, “I would never do something like that.” Women look at his victims and say, “That could totally happen to me.”


Last week the Isla Vista murders — and Elliot Rodger’s bizarre rants justifying his revenge on the female gender because women wouldn’t have sex with him — were recent enough that I hadn’t processed them. I described my snap reaction as feeling “slimed”. Letting Rodger’s thoughts into my head just made me feel dirty, polluted, unclean. And I wrote, “I can’t imagine how women feel about it.”

This week women told the world how they feel about it. (They were already starting to tell the world last Monday, but I hadn’t discovered it yet.) I have read only a tiny fraction of what has been tweeted with the #YesAllWomen hashtag, but it has been eye-opening.

The struggle for meaning. Every striking news event starts a debate about what it means, or if it even means anything. For a lot of men, Isla Vista didn’t mean much: Crazy people do crazy things. Shit happens.

For others, it restarted the eternal gun-control debate, which always ends in the same place: Yes, a large majority of Americans want at least minor restrictions on guns, and no, it’s not going to happen, because America really isn’t a democracy any more. A victim’s father channeled the majority’s frustration in an interview with Anderson Cooper: “I don’t want to hear that you’re sorry about my son’s death,” he said to any politicians who might be planning to make a condolence call. “I don’t care if you’re sorry about my son’s death. You go back to Congress and you do something, and you come back to me and tell me you’ve done something. Then I’ll be interested in talking to you.”

Bizarre exception, or part of a pattern? To a lot of women, though, Isla Vista looked very different. Rather than a bizarre random event, it seemed like the extreme edge of the male aggression they experience constantly: They get grabbed or groped; men yell obscenities at them or make unwanted “flattering” comments about their bodies; they are harassed online; men demand their attention and refuse to go away; when women try to walk away, men grab their wrists or stand in the doorway or follow them as stalkers; men get angry and abusive when their uninvited advances are rejected; and on and on and on.

And while the exact statistics on rape are hotly debated — the difference depends in large part on how forcefully a woman has to say “no” before you count it — I have a lot of confidence in this qualitative statement: Just about every woman knows somebody who has been raped. (If you don’t believe me, ask some.) Whatever the definition is and whatever percentage that leads to, rape is not a monsters-in-the-closet phobia; it’s the well-founded fear that what happened to her (and maybe also to her and her and her) could happen to me.

So while men look at Elliot Rodger and say, “I would never do something like that”, women look at his victims and say, “That could totally happen to me.” Men divide the world into murderers and non-murderers, observing that the murderer pool is very small. Women look at murder as the extreme edge of a continuum of aggression, disrespect, and threat that affects them every day.

#YesAllWomen. And that is what I see as the point of #YesAllWomen: encouraging women to express and men to feel the oppressive weight of that continuum. #YesAllWomen is at its best when women simply tell their stories, one after another. Read enough stories and the bigger reality starts to break through: The meaning of Isla Vista isn’t that shit happens, it’s that the same kinds of shit keep happening day after day all over the country. And when there’s an widespread pattern like that, sooner or later it’s going to break out into something really horrific.*

The brilliance of #YesAllWomen is in its framing: It sidesteps the objection “Not all men are like that.” True or not, that objection misses the point. Whether or not feminist terms like misogyny or rape culture unfairly tar some good men is a minor issue compared to the environment of danger all women have to live in. Let’s not drop the larger issue to discuss the smaller one.**

And let’s not fall into the trap of interpreting every problem in the forest as the fault of individual trees. Laurie Penny explains:

of course not all men hate women. But culture hates women, so men who grow up in a sexist culture have a tendency to do and say sexist things, often without meaning to. … You can be the gentlest, sweetest man in the world yet still benefit from sexism. That’s how oppression works. Thousands of otherwise decent people are persuaded to go along with an unfair system because it’s less hassle that way. … I do not believe the majority of men are too stupid to understand this distinction

[And before we leave the gun-control issue entirely, can we discuss how the two issues interact? Think about the open-carry demonstrations in Texas or Georgia's new guns-everywhere law. Now picture a woman you care about having a drink after work with some friends, and being accosted by a strange man who won't go away. Now picture him armed. And no, NRA spokesmen, picturing a second gun in your sister/daughter/friend's purse doesn't fix the situation.]

The game. Men, by and large, have not handled our side of this discussion well, attempting either to disown the problem or to mansplain what women should do to fix it.*** But a few men have had intelligent things to say. I thought the Daily Beast piece by self-described nerd Arthur Chu was particularly on point:

[T]he overall problem is one of a culture where instead of seeing women as, you know, people, protagonists of their own stories just like we are of ours, men are taught that women are things to “earn,” to “win.” That if we try hard enough and persist long enough, we’ll get the girl in the end. Like life is a video game and women, like money and status, are just part of the reward we get for doing well.

The game metaphor explains a lot about what was wrong with Rodger’s point of view, and how it relates to a problem in the larger culture. Elliot Rodger’s complaint wasn’t that he couldn’t find his soulmate or that his genes might fail in the Darwinian struggle for immortality. It wasn’t even about pleasure, really, because you don’t need a partner for that. The essence of Rodger’s complaint was that he couldn’t level up — no matter how long he played or how hard he tried — in the multi-player game of sex.

To grasp the full dysfunction of that game, you need to understand who the players are: men. Rodger wasn’t playing with or even against women when he went out looking for sex. He was playing against other men to gain status. Women are just NPCs — non-player characters. Figuring out what to say or do to get their attention or their phone numbers or to get them into bed is like solving the gatekeeper’s riddle or finding the catch that opens the door to the secret passage.

Rodger’s virginity wasn’t just a lack of experience, comparable to someone who has never seen the ocean or been to Paris or tasted champagne. It was his state of being. He was a newby, a beginner, a loser. And it wasn’t fair. He had put so much of his time and effort and passion into the game; he deserved to get something out.

Chu explains the error:

other people’s bodies and other people’s love are not something that can be taken nor even something that can be earned—they can be given freely, by choice, or not.

We need to get that. Really, really grok that, if our half of the species ever going to be worth a damn. Not getting that means that there will always be some percent of us who will be rapists, and abusers, and killers.

What will we pass on? Phrasing the game metaphor in computer terms makes it sound like a new problem of the internet generation, but it’s not.**** Computer games are just a good way of describing an attitude that has been around since Achilles and Agamemnon argued over a slave girl: that women are just tokens in a competition among men. In junior high in the 70s, my friends and I talked about “getting to second base”, and today commercials sell Viagra and Grecian Formula to older men by telling us we can “get back in the game”. We all know what game they’re talking about.

As long as that attitude gets passed down from one generation of men to the next, there’s going to be an aggression-against-women problem. Because that’s how men play: You sneak some vaseline onto the ball, hide an ace up your sleeve, take that performance-enhancing drug, or push away a defender when the refs aren’t looking. If you can get away with it, it’s part of the game. So if it raises your score to grab some body part otherwise denied you, or to intimidate women into submission, take advantage of their unconsciousness, drug them, or even kidnap and imprison them, someone’s going to do it.

No one ever asks a boy whether he wants to play this game. At some point in your adolescence, you just find yourself in the middle of it, being told that you are losing and advised on how to win. There are competing visions that (for most men, I believe) eventually win out as they mature: the search for companionship, or looking for an ally to help you face life’s challenges. In those visions, women can be “protagonists of their own stories” rather than NPCs. But no one ever tells you there is a choice of visions and lays out the consequences.

If we did discuss these competing visions openly with boys, I don’t think the game metaphor would stand up to conscious scrutiny. Few men would openly defend the idea that women exist to be tokens of our competition, and even most teens already have enough empathy and experience for it to ring false. But the game attitude survives because we don’t bring it out into the light and discuss it.

Changing that dynamic would be a fine response to #YesAllWomen.


* I shake my head at the people who want to make an either/or out of whether the blame for Isla Vista belongs to a misogynistic culture or to Rodger’s personal insanity. Growing up, I had the chance to observe a paranoid relative. She went crazy during the McCarthy red scare, so the Communists were after her. If she’d broken with reality a few years earlier it might have been the Nazis; a few years later, the Mafia. Maybe people go crazy because their brains malfunction, but how they go crazy is shaped by their culture.


** One of the prerogatives of any form of privilege is that your concerns move to the top of the agenda, even if they are comparatively minor. Privileged classes of all sorts take this prerogative for granted and have a hard time seeing it as an injustice. So it is here: Men who feel smeared by a term like rape culture tend to think the conversation should immediately shift to their hurt feelings. It shouldn’t. To the extent that this objection is justified, it can wait. Let’s talk about it later. (Privileged classes aren’t used to hearing that response, but under-privileged classes hear it all the time.)

An important reason it should wait, in addition to its comparative insignificance, is that when a man fully grasps the continuum of aggression, it’s hard to claim that he’s never played any role in perpetuating it. (I know I can’t make that claim.) But by changing the subject to their own victimization, men avoid that realization.


*** Most advice about how to avoid rape — how to dress, places to avoid, not leaving your drink unattended — is really about making sure the rapist picks someone else. It’s like, “You don’t have to swim faster than the shark, you just have to swim faster than your sister.” It’s got zero impact on the overall rape problem.


**** And the attitude behind it is not even unique to men. In the pre-war chapters of Gone With the Wind, Scarlett is playing her own version of the game. While she wants to wind up with Ashley eventually, in the meantime she wants every eligible man in Georgia to be her suitor, and she “wins” whenever a bride realizes that she has married one of Scarlett’s cast-offs.

But there’s one important difference between the male and female versions of the game: Men who tire of Scarlett’s game can get on their horses and ride away, and in the end, it’s up to Rhett to decide whether or not he gives a damn. Women would like to have those options in the male version of the game.

Religious Liberty and Marriage Equality

Are the principles that protect religious liberty secure, or are recent court decisions steps on a slippery slope?


One of this week’s big stories was Arizona Governor Jan Brewer’s veto of S.B. 1062, “An Act … Relating to the Free Exercise of Religion“. Proponents claim that this law (and similar proposed laws around the country) is necessary to protect Christians from being forced to participate in same-sex marriage celebrations, in violation of their freedoms of conscience and religious liberty.

There’s one important thing you need to understand about this controversy: It’s symbolic. I went looking for cases where businesses were forced to deal with same-sex weddings and I found exactly five in the entire country.

  • In New Mexico, a photography business was successfully sued by a lesbian couple whose commitment ceremony (same-sex marriage being illegal in New Mexico) it refused to photograph. (I covered the ruling in a weekly summary last August.)
  • The Oregon Bureau of Labor and Industries ruled that a bakery had violated state law when it refused to make a wedding cake for another lesbian couple.
  • A judge in Colorado similarly ruled against a bakery.
  • A Vermont inn was sued for refusing to host a wedding reception for a same-sex couple, which the owners claim was a misunderstanding. The case was settled out of court, so we don’t know what a judge would have said.
  • A suit is pending against a florist in Washington.

Some writers make it sound like these are representative examples out of many, but they may well be the only instances to date.

Last June, the Pew Research Center estimated that over 70,000 same-sex marriages had been performed in the United States, plus an uncounted number of civil unions and legally unrecognized commitment ceremonies like the one in New Mexico. In all but a handful of them, people seem to have worked out whatever differences they had. Wedding planners, photographers, bakers, dress-makers, tuxedo-rental places, florists, celebrants, meeting halls, church sanctuaries … either they approved or they swallowed their disapproval or the couples took the hint and looked for service-with-a-smile elsewhere. Or maybe they found compromises they could all live with. (“I’ll sell you the cake, but you’ll have to put the two brides on top yourself.”)

In short, S.B. 1062 does not address a practical issue. Across the country, people are behaving like adults and working things out without involving the government. Governor Brewer recognized as much in her veto statement:

Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.

The uproar is also symbolic on the other side. Critics of S.B. 1062 warned about “gay Jim Crow” laws, but just as there is no flood of suits against fundamentalist Christian florists, neither are large numbers of businesses waiting for the state’s permission to display “No Gays Allowed” signs. As The Christian Post pointed out, Arizona (like many other states) has no state law protecting gays from discrimination. (New Mexico does, which is why the lesbian couple won their suit against the photographers.) So outside a few cities that have local anti-discrimination ordinances, Arizona businesses are already free to put out “No Gays Allowed” signs without S.B. 1062. If any have done so, nobody is making a big deal out of it.

What this all resembles more than anything is the argument over the constitutional amendment to ban flag-burning. Actual flag-burnings are so rare that most of the amendment’s backers couldn’t cite a particular case, but they felt very strongly about it all the same. The few cases that actually exist are merely chips in a poker game; they are symbols of some deeper philosophical conflict, but mean little in themselves.

That’s not to say that philosophical conflicts are unimportant, but they are also not urgent. Because major injustices against one side or the other are not happening every day — and depending on your definition of “major injustice” may not be happening at all — we can afford to take some time to think this through calmly: What principles of religious liberty should we be trying to protect, and are any of those principles implicated in the cases that have been decided?

In my view, one basic principle is: No one should be forced to participate in a religious ritual. That’s why I don’t want teachers leading prayers in public school classrooms, especially when the children are too young to make a meaningful choice about opting out. For the same reason, it would be wrong to sue a priest who refused to perform a Catholic marriage ritual for a marriage his church did not sanction.

Some supporters of laws like S.B. 1062 (and the pending H.B. 2481) are citing this principle, but I think we need to be careful not to stretch the definition of a religious ritual. For example, civil marriage is not a religious ritual, so neither an officiating judge nor the clerk who issues a license is participating in religion. (If they were, that would seriously violate the separation of church and state.) Requiring that they do their jobs is not a violation of their religious liberty. The fact that you don’t make the laws and may disagree with them is a normal hardship of working for the government, not a First Amendment issue.

Similarly, a wedding reception is not a religious ritual; it’s a party that happens to take place after a religious ritual. Baking the cake or DJing the music or manning the bar are not sacramental roles, and do not deserve that kind of protection.

A second principle is: No one should be compelled to make a statement against his or her conscience. This was used as a defense in the Colorado bakery case. Administrative Law Judge Robert Spencer rejected it like this:

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. The undisputed evidence is that [the baker] categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like. [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage.

So if a wedding-reception singer refused to sing some special gay-rights anthem, I would support him under this principle. But if he refused to perform at all, or refused to perform more-or-less the same collection of songs he does for everyone else who hires him, then I wouldn’t. Leading the friends and families of a same-sex couple in “The Hokey Pokey” is not a religious or political statement that should challenge anyone’s conscience.

Weighing against these exceptions is a public-accommodation principle that got established during the Civil Rights movement: If a business serves the public, then it should serve the whole public. The point of Jim Crow laws wasn’t to protect the consciences of white business owners, it was to exclude black people from the general public. If excluding gay and lesbian couples from the general public is the purpose behind refusing to serve them, that shouldn’t be allowed.

People try to fudge this principle by creating me-or-him situations. I grew up reading Ann Landers’ advice column in the newspaper. Ann used to regularly get questions like: “My good friend says she can’t come to my wedding if my other good friend is going to be there. What should I do?” As best I remember, her answer was always something like: “Invite everyone who you want to see there. If your friend doesn’t want to come, that’s her decision.” The same idea works here: Everyone should be invited to the marketplace. If you feel that the presence of gays and lesbians in the marketplace means you can’t be there, that’s your decision. No one has forced you out. (This is my answer to the U.S. Council of Catholic Bishops, who claim “Catholic Charities of Boston was forced to shut down its adoption services.”)

The other frequently raised issue has to do with venues: Will the law force my church sanctuary to be available for same-sex marriages? The idea that a sanctified site will be used for some unholy purpose strikes many people very deeply.

The case that is always cited — often not very precisely — involves a Methodist group, the Ocean Grove Camp Meeting Association in New Jersey. The OGCMA owned a boardwalk pavilion, which the judge described as “open-air wood-framed seating area along the boardwalk facing the Atlantic Ocean.” The Methodist group used the facility “primarily for religious programming”, but had received a tax exemption for the property the pavilion was on. One condition of the exemption was that the facility be open to the public. The OGCMA had a web page advertising “An Ocean Grove Wedding”, which cost $250 in rent. The OGCMA did not conduct or plan the weddings, and the page said nothing about Methodist doctrines concerning marriage.

Until the OGCMA turned down a lesbian couple that wanted to celebrate a civil union in 2007, no one could recall a wedding being refused for any reason other than scheduling. After the couple sued, OGCMA re-organized its use of the pavilion. It stopped advertising it to the public and sought a different kind of tax exemption available to it as a religious organization. The judge found:

[The OGCMA] can rearrange Pavilion operations, as it has done, to avoid this clash with the [New Jersey Law Against Discrimination]. It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners.

Recognizing that the couple mainly sought “the finding that they were wronged” and that the OGCMA had not “acted with ill motive”, the judge assessed no damages.

In other words, this example is not particularly scary when you know the details. The principle here is pretty simple: If you worry about the sanctity of your holy space, don’t rent it out to the public – which is good advice in general, irrespective of same-sex marriage. If you do rent it out, then we’re back to the public-accommodation principle.

In conclusion, I’m not seeing anything particularly alarming in the five cases (six, if you add the boardwalk pavilion case) that are motivating people to support S.B. 1062 or similar laws. Reasonable principles are prevailing, and I do not see a slippery slope.

So if you’re worried about your minister being forced to bless a same-sex wedding in your sanctuary or go to jail, don’t be. It’s not happening and nobody is advocating for it to happen. Nothing in the cases that have been decided leads in that direction.

Catching Up With the Judges

While the Supreme Court has been relatively quiet lately, a lot has been going on in lower courts. This week I’ll tackle the recent net neutrality and same-sex marriage cases. In future articles I plan to address cases related to the NSA, voting rights, and drug-testing welfare recipients.

Net neutrality. The headlines about this decision said things like “Verizon Wins, Net Neutrality Loses“. But the overall impact of the D. C. Court of Appeals ruling is a little more ambiguous and complicated. Reading it was like watching the tape of a football game where my team gets way ahead, but I’ve already heard that they lost. On its way to ruling in Verizon’s favor, the court trashes one Verizon argument after another. “We lose this?” I kept asking myself.

Net neutrality is one of those important-but-somewhat-technical issues that it’s hard to get the public excited about. The issue will go months at a time without making headlines, so when it comes up again even people who have read about it before are likely to say, “Wait, I know this. What is it again?” Wikipedia defines it pretty well:

Net neutrality (also network neutrality or Internet neutrality) is the principle that Internet service providers and governments should treat all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, and modes of communication.

The practical problem is that you don’t have a lot of choices if you want fast broadband internet access in your home. The local cable monopoly may be the only option if you aren’t near a major city. If you are, you might have a choice between Comcast and Verizon FIOS — a Coke/Pepsi choice where competition is tightly confined to battlefields that don’t rock the corporate boat too much.

In short, broadband providers have a lot of market power. And the technology has shaken out in such a way that they have the power not just to impose a bad deal on you, but also on “edge providers” of services like Netflix or Google. Comcast has its own video-on-demand service, for example, so what if it decided to block its users from accessing Netflix? Or maybe Netflix connections could be inexplicably glitchy, unless Netflix paid Comcast a big fee. (Nice service you got there. It’d be a shame if something happened to it.)

Verizon could decide to compete with Comcast by charging smaller fee (or no fee at all) so that its users got Netflix cheaper. But why not just charge the same fee, give your own on-demand service the same advantage, and make money hand-over-fist? If there were five or six broadband providers, one of the smaller ones would probably break ranks. But with two or three, probably not. (BTW: That’s the same logic why none of the larger wireless companies should be allowed to take over T-Mobile.)

Until Tuesday, FCC rules made that illegal. Those are the rules that got thrown out by the D. C. Appeals Court. But along the way, the Court rejected almost all the arguments Verizon made for why it should be allowed to do whatever it wants with its network and charge whatever the market will bear.

The relevant law is Telecommunications Act of 1996, which gave the FCC the mission to promote the spread of broadband internet access. The main argument is over how to do that: Verizon thinks that making things as profitable as possible for broadband providers (like itself) encourages the providers to build out the broadband infrastructure. Net neutrality advocates argue that letting a few big corporations essentially “own the internet” discourages the real creativity in the system, which comes from edge providers trying to create the next gotta-have-it service like Netflix or YouTube. A Verizon-owned internet will be less interesting than a net-neutrality internet, and hence will inspire less consumer demand.

In short, it’s yet another version of the eternal supply-side vs. demand-side argument.

Anyway, the TCA classifies internet companies into two bins: telecommunications carriers and information-services providers. Telecommunications carriers are regulated like the wired phone companies: They have to offer their services to everyone on a more-or-less equal basis. Information-services companies have more leeway.

The gist of the court ruling is that the FCC has classified cable companies as information-services providers, but that its net-neutrality rules regulate them like telecommunications carriers. So the FCC’s net-neutrality rules can’t stand. But — and this is the observation that snatches victory from the jaws of defeat — it’s totally within the FCC’s current powers and mandate to just reclassify the cable companies.

So net neutrality is dead. But if the FCC wants to revive it, all they have to do is issue new rules. Judge Laurence Silberman dissented from the majority opinion that the FCC has this power, but since Verizon technically “won”, they can’t appeal the ruling to the Supreme Court unless and until the FCC tries to use the power that the Court says it has.

In short, this is all a long way from over.

Same-sex marriage. A month ago, if I had to guess which two states would be the last ones to legalize same-sex marriage, I might have picked Utah and Oklahoma. Since then, though, federal judges have struck down the amendments to both state constitutions that restrict marriage to opposite-sex couples. Both judges build on the Supreme Court’s Windsor decision that struck down parts of the Defense of Marriage Act last summer, but they do it in somewhat different ways.

You may remember that while I liked the outcome of Windsor, I was no fan of Justice Kennedy’s majority opinion, which I labeled “mush” and lumped together with Chief Justice Roberts’ voting-rights-act decision in a subtle, soft-spoken article I called “This Court Sucks“.

Here’s why Kennedy’s Windsor opinion sucked. Same-sex marriage cases all revolve around these three questions:

  • Does the right to marry (which the Court has often affirmed as a fundamental right protected by the Constitution) apply to same-sex couples?
  • Are laws targeting gays and lesbians (like laws targeting blacks or women) inherently suspicious as vehicles for irrational prejudice, and so subject to some form of heightened scrutiny from the courts?
  • Whatever standard of scrutiny you choose, do the laws serve legitimate purposes that outweigh the limitations they put on the couples’ rights?

Kennedy dodged all that. He waxed eloquent for a while on the plight of same-sex couples and the unreasonable prejudices against them, and then announced that DOMA was struck down.

That’s exactly the result I want, Justice Kennedy, but how did you get there? The purposes Congress imagined DOMA serving — whatever they were; you don’t list them or examine them — don’t “overcome”, but are they failing to overcome a high standard or a low standard?

The victims of Kennedy’s judicial malpractice are lower court judges like Terence Kern and Robert Shelby, who have been left to rule on similar-but-not-identical cases without any clear guidance. In his Oklahoma ruling, Kern avoids technical legal terms like sucks and mush, but makes more-or-less the same point I did:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. … Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test .

So Kern does his best to puzzle out the WWJKD question:

This Court has gleaned and will apply two principles from Windsor.

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Lacking clear guidance, Kern avoids declaring either a fundamental right to same-sex marriage or that gays and lesbians are a protected class. That means that Oklahoma’s same-sex marriage ban only needs to have “rational relation to some legitimate end”.

Shelby took a somewhat different path to the same destination in the Utah case. He made an insightful observation about what exactly has changed in recent years: not the Constitution, but our understanding of what it means to be gay or lesbian.

The State accepts without contest the Plaintiffs’ testimony that they cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex. … Forty years ago, these assertions would not have been accepted by a court without dispute. In 1973, the American Psychiatric Association still defined homosexuality as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-II), and leading experts believed that homosexuality was simply a lifestyle choice. … The State presents no argument or evidence to suggest that the Plaintiffs could change their identity if they desired to do so. Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights.

So Shelby is in a position to demand a higher standard of the state, that their ban on same-sex marriage is “narrowly tailored to serve a compelling state interest.” But ultimately, both Kern and Shelby end up arguing that the ban does not satisfy even the lowest standard, the rational-basis test.

In each case, the state trotted out the same justifications: that the state has an interest in promoting “responsible procreation” among “naturally procreative” couples, and that opposite-sex couples provide the ideal setting for raising childrent.

Both judges make basically the same counter-argument, but Shelby says it best:

[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest.  No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. … The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. …

Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Both cases are being appealed and will undoubtedly end up before the Supreme Court. But what’s clear from the rulings is that the opponents of same-sex marriage will have to come up with a new set of arguments if they hope to prevail: It’s not enough to argue that opposite-sex marriage is good; they’ll need to argue that same-sex marriage is bad, which they have not done and may not be able to do, particularly when the person they need to convince is the Supreme Court’s swing vote, Justice Kennedy.

The Filibuster and the War on Women

The abuse of the filibuster is a hard issue to get people excited about. It’s one of those technical political things that takes too long to explain and is hard to connect to problems voters care about.

This week, making those connections was a little easier. If you care about a woman’s right to decide whether she gets pregnant or has a baby, the connection to the filibuster was all too clear. Here are three of this week’s big stories:

  • Senator John Cornyn threatened to filibuster anyone President Obama nominates to the D. C. federal appeals court. He’s not making objections to the specific judges Obama has picked, he’s arguing that Obama shouldn’t be allowed to make any picks at all. The court’s current 4-4 conservative/liberal balance should be locked in, no matter how many elections Democrats win.
  • That same court issued a temporary injunction to suspend ObamaCare’s contraception mandate for certain firms, in anticipation of a permanent ruling that employers’ religious freedom gives them power over employees’ health decisions. The judge who wrote the majority opinion is a radical conservative that Democrats tried to block when President Bush nominated her, but they had to back down when Republicans threatened the “nuclear option” to eliminate the filibuster permanently.
  • Another judge from that same batch of Bush appointees lifted a lower-court injunction against a Texas anti-abortion law that (among other restrictions) instantly closes about 1/3 of Texas abortion clinics, leaving large areas of the state without abortion services, again in anticipation of the law’s ultimate approval.

Let’s take those one at a time.

Filibuster abuse and the D. C. court. Wikipedia describes the federal appeals court for the District of Columbia circuit like this:

While it has the smallest geographic jurisdiction of any of the United States courts of appeals, the D.C. Circuit, with eleven active judgeships, is arguably the most important inferior appellate court. The court is given the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital, often without prior hearing by a district court. Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, the court typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act. Given the broad areas over which federal agencies have power, this often gives the judges of the D.C. Circuit a central role in affecting national U.S. policy and law.

A judgeship on the D.C. Circuit is often thought of as a stepping-stone for appointment to the Supreme Court.

The court has 11 active judgeSHIPs, but only 8 active judges. (It had only 7 — and a 4-3 conservative majority — until Obama finally got his first pick approved in May. It also has six semi-retired senior judges. If you count them, the court has a 9-5 conservative majority.) That’s because there are three vacancies. The Constitution (Article II, Section 2) specifies how those vacancies should be filled:

The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for

The filibuster is a historical accident. The Founders didn’t envision it, and although an 1806 rule change made filibusters possible, the first one didn’t happen until 1837. They were rare until the 1970s, and truly skyrocketed when the Republicans became the Senate minority after the 2006 election.

Filibusters of presidential nominations were rare until the Clinton administration, and then Democrats retaliated during the Bush years. But even then, the justification for a filibuster was always some alleged problem with the individual nominee. (Bush nominee Janice Rogers Brown, for example, was filibustered for a history of inflammatory decisions, having once written of Social Security: “Today’s senior citizens blithely cannibalize their grandchildren because they have the right to get as much ‘free’ stuff as the political system will permit them to extract.”)

What’s new in the Obama years is the use of the filibuster to nullify a federal office by refusing to approve anyone to head it, regardless of character or qualifications. Until Senate Democrats threatened to invoke the so-called nuclear option in July, Republicans were on track to invalidate the entire National Labor Relations Board, essentially nullifying all laws protecting workers’ rights to organize unions and bargain collectively in good faith.

Cornyn proposes an extension of this unprecedented tactic: using the filibuster to nullify the three vacancies on the D. C. court, ostensibly because the court’s case load doesn’t require 11 judges. (He wasn’t bothered by an even lower case load when Bush appointed Rogers.)

If over-staffing of the D.C. court is indeed a problem (and not just a pretext to stave off a liberal majority), the Constitution provides a way to solve it in Article I, Section 8:

The Congress shall have Power … To constitute Tribunals inferior to the supreme Court

In other words, Congress could pass a law shrinking the D. C. court, if that were really a problem. But legislation requires a majority vote in both houses and the signature of the President, which Cornyn can’t get because his party can’t win national elections.

This is what the filibuster has become: not just a way to block new laws or objectionable appointments, but a way for a minority to repeal legislation already passed or to achieve its goals without passing laws at all.

Who needs to win elections?

The contraception mandate. Thursday, the previously mentioned Janice Rogers Brown (of Social-Security-is-cannibalism fame) was the deciding vote in a 2-1 decision by the D. C. appeals court to grant an injunction blocking enforcement of ObamaCare’s contraception mandate on a business owned by two Catholic brothers. The ruling isn’t a final decision in the case, but it reads like one, because one key consideration in granting such an injunction is a belief that the injunction-seeking side is likely to prevail.

Fortunately, Rogers stopped short of declaring that corporations are protected by the First Amendment’s free-exercise-of-religion clause, which would have produced true chaos. But the 400-employee company is owned by two brothers who claim to operate according to Catholic principles (i.e., having pro-life bumper stickers on their trucks), so the brothers’ religious freedom is violated by the requirement that they provide contraception coverage to their female employees.

I’ve stated my position on this issue at length before: I believe these claims of “religious freedom” are actually passive aggression, stretching claims of one’s own moral purity to ridiculous lengths in order to control the behavior of others. I was pleased to see many of my own favorite arguments show up in the dissenting opinion of  Senior Judge Harry Edwards (the only Democratic appointee among the senior judges) (I’m not claiming Edwards reads the Sift or that the arguments are original to me):

It has been well understood since the founding of our nation that legislative restrictions may trump religious exercise. Braunfeld v. Brown, 366 U.S. 599, 603 (1961). Were it otherwise, “professed doctrines of religious belief [would be] superior to the law of the land, and in effect permit every citizen to become a law unto himself.”

and illustrates the point with an example Sift readers will recognize:

A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.

Edwards sees the conflict between the owners’ religious beliefs and the mandate, but does not find that it meets the legal standard of a “substantial burden”, using another analogy I’ve used here.

The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

… The Gilardis do not contend that their religious exercise is violated when Freshway pays wages that employees might use to purchase contraception, and the Mandate does not require the Gilardis to facilitate the use of contraception any more directly than they already do by authorizing Freshway to pay wages.

Edwards quotes a 1982 Supreme Court decision:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

If not for the filibuster, that might be the majority opinion.

Texas abortion law. One of the other Bush judicial appointees who made it through the Senate under threat of the nuclear option was Priscilla Owen, whose appointment the Houston Chronicle opposed with these words:

The problem is not that Owen is “too conservative,” as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It’s saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

No less a conservative than Alberto Gonzales once characterized Owen’s opinion in a Texas abortion case as “an unconscionable act of judicial activism”. In other words, even among conservative judges, she stood out as particularly radical.

The stipulation in the recent Texas abortion law (the one Wendy Davis delayed for a session with her famous state-legislature filibuster) that doctors who perform abortions have admitting privileges in local hospitals is one of a number of regulations designed to close clinics, and is largely devoid of any legitimate purpose. The lower-court judge found that the law was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.” Similar laws in Wisconsin and other states have been blocked by federal judges.

But thanks to Judge Owen, this one is allowed to take effect. Abortion clinics are already closing, and it is estimated the 1/3 of all abortion clinics in Texas — already not that common — will be unable to meet the requirement.

End the filibuster. Right now, conservatives are benefitting from the fact that Senate Republicans have been more willing to play hardball than Democrats. Democrats under Bush attempted to block only the most outrageous nominees, and for the most part they failed. Those judges are on the bench now, fighting the war on women.

That’s just one front of the struggle, the one whose dots were most easily connected this week. Ultra-conservative judges have brought us Citizens United, came close to constructing an entirely novel interpretation of the Commerce Clause specifically to torpedo ObamaCare, and across-the-board have extended the rights of corporations and the rich over workers, consumers, and the general public.

President Bush did not try to be “reasonable” in his appointments or seek uncontroversial nominees. He nominated the most activist conservative judges he could find, and Senate Republicans refused to let the Democrats filibuster even the worst of them.

Now that the tables have turned, the filibuster has been expanded into a general tool of minority rule. It’s time to end it, once and for all.

Keeping the Con in Conservatism

This week RedState.com founder and Fox News pundit Erick Erickson had an embarrassing plagiarism scandal. No, he didn’t steal somebody else’s attack on ObamaCare or their analysis of immigration reform. On Tuesday Erickson emailed his subscribers a 600-word endorsement of an investment newsletter. He didn’t just forward a link, he wrote in the first person with feeling, and signed his name:

[Mark Skousen] is the most brilliant and accomplished financial advisor I know. … Let’s face it: Making money in Obama’s America is tough — and keeping it, harder still. So we can all use as much trustworthy financial advice as we can get. The best investment advice I know of, bar none, can be found in Mark Skousen’s Forecasts & Strategies — and I urge you to give it a try.

Such sincerity. Clearly, if you trust Erickson’s view of the political world, you should trust Skousen’s view of the financial world.

It sounded just as sincere in 2009 when Ann Coulter sent a virtually identical email out to her subscribers.

Ericson’s defense is also striking: He denies he made money. He’s just “happy to support a friend”. Alex Parene points out the problem here:

If, as Erickson claims, he did not get paid for this endorsement (or, rather, if he wasn’t paid to have his name affixed to this boilerplate get-rich-quick scam email), then his claim to moral purity is that he sold out his readers for free.

If you follow the links, you wind up listening to a video explaining “the elite SS-4 income stream” that “can make you America’s next millionaire” which you’ll learn more about if you subscribe for a mere $99 for the first year.  (BTW, Mark is a nephew of Glenn Beck’s hero W. Cleon Skousen.)

There are, of course, people whose business it is to track the recommendations of investment newsletters and rate how they do. That opinion on Skousen is far less glowing. But what do those people know with their “facts” and “data”? Those are the same kind of people who couldn’t see how the polls were skewed to favor Obama, when actually Mitt Romney was cruising to a win — which he totally would have had if not for voter fraud (that nobody can find any evidence of other than the fact that Romney lost).

The dirty secret of the conservative movement is that this stuff happens all the time, as Chris Hayes pointed out in this tweet:

Now why would he say something so rude? Maybe he remembers Glenn Beck pushing his viewers to buy gold while not mentioning that he was a paid pitchman for Goldline, a less-than-upright gold-selling company. Or that Freedom Works paid Beck and Rush Limbaugh to say nice things about them. And Americans for Prosperity paid talk-radio host Mark Levin. Politico writes:

The increased willingness of non-profits to write big checks for such radio endorsements – which appears to have started in 2008, when Heritage paid $1.2 million to sponsor the talk shows hosted by Hannity and Laura Ingraham – seems to be a primarily, if not entirely, a conservative phenomenon.

Former Fox News pundit Dick Morris came up with a great money-making idea. He sent out fund-raising emails for SuperPAC for America, which spent a pile of that money renting Morris’ email list. So money Morris’ followers sent in “for America” just cycled back into Morris’ pocket. (Similarly, Sarah Palin spent PAC money to promote her book, and even to buy copies of it to give away.) Republican candidates also spent money renting Morris’ list, and (totally coincidentally), Morris praised them on Fox.

And then there was the time the Malaysian government paid American conservative bloggers under-the-table to trash the democratic opposition.

You just don’t see this kind of stuff on the Left, where the standards are simply higher. For example, Fox News host Sean Hannity regularly speaks at fundraisers for Republican organizations and Republican candidates, but MSNBC suspended Keith Olbermann just for writing a check to Democratic candidates. In 2010, Fox News was a nice place for Republican politicians to draw a paycheck while they decided whether to run for president. I will be truly shocked if Hillary Clinton or any other Democratic hopeful gets hired by MSNBC. (Eliot Spitzer is the exception that proves this rule. When MSNBC hired him, who imagined he could ever again have a political career?)

So why is this? Rick Perlstein got into the issue a little deeper a few months ago in a Baffler article The Long Con. He signed up for the email lists of conservative sites like Townhall and NewsMax, and started getting a completely different kind of spam: Not just appeals for candidates and charities, which liberals get too, but get-rich-quick schemes and miracle cures. (He quotes Ann Coulter’s Skousen endorsement, not realizing we hadn’t seen the last of it.)

What Perlstein noticed is that the right/left difference isn’t just in conflict-of-interest standards at the top. It’s a cultural difference that goes all the way down. Conservatism is built out of subcultures like multi-level marketing (i.e. Amway), pyramid schemes, televangelist networks, conspiracy-theory groups (i.e., the John Birch Society), and so forth. (The self-promoting conflict-of-interest stuff goes way back too: The one thing I remember from reading the classic None Dare Call It Conspiracy in high school is that the solution is to expose the conspiracy by buying a bunch of copies of None Dare Call It Conspiracy and giving them to your friends.)

The subject matter may be different, but the thought-patterns are the same. If you believe that evolution is a conspiracy of atheist biologists, then why wouldn’t you believe that global warming is a conspiracy of socialist climatologists? And if a secret cabal can launch a decades-long plan like faking Barack Obama’s birth annoucements and grooming him for the presidency, of course those people would have secret investment strategies that keep them rich without effort. If Cleon Skousen can show you the hidden patterns of history, why couldn’t Mark Skousen reveal the hidden patterns of finance?

Across the board, there is a resentment-of-expertise theme, combined with the myth of the Turncoat Expert, who can let you see behind the facade … for a small fee, of course.


[Little did I know when I started writing this that Salon's Alex Seitz-Wald was coming out with something on the same topic the same day.]

Category Error – the problem with that “breadwinner mom” study

Tuesday I had never heard the term “breadwinner mom”, but by Wednesday afternoon everybody seemed to have an opinion about it — and a reaction to everybody else’s opinions. By Thursday, the reactions to the reactions were the story, and the conversation stopped having much to do with the underlying study.

And that’s too bad, because an important point needs to be made: breadwinner mom is an act of statistical malpractice. The term is badly defined and should never have been attached to a hard statistic like “40% of American homes with children under 18″.

The study that defined it generated so much bad discussion because it couldn’t possibly have generated good discussion; virtually none of the statements you might make about the entire 40% are both true and interesting. You can turn breadwinner mom into a stereotype or you can leave it alone, but you can’t talk about it intelligently.

To see why, let’s start at the beginning. Wednesday, Pew Research released a study. It begins with a statement that (as I’ll explain below) is not entirely true:

A record 40% of all households with children under the age of 18 include mothers who are either the sole or primary source of income for the family.

A few paragraphs later we get the definition:

These “breadwinner moms” are made up of two very different groups: 5.1 million (37%) are married mothers who have a higher income than their husbands, and 8.6 million (63%) are single mothers.

You have to be careful when you create a category “made up of very different groups”. Because once you’ve done that, it’s easy to forget how diverse the category is and talk about it as if it were a unified phenomenon.

For example, we might define a category called “minorities” that combines blacks, Hispanics, Asians, Jews, and homosexuals. That would get us a big number — probably almost as big as the 40% Pew claims for breadwinner moms — but at the cost of making the category too cumbersome to say much about. All “minorities” have some reason to feel out of the mainstream and can point to various kinds of discrimination, but it’s hard to find any single issue that cuts across the entire collection. If we started throwing the term around, probably the big number would stick in people’s heads, but the definition would get replaced by a stereotype — poor, dark-skinned people who live in urban ghettos — which would apply to many of the blacks and Hispanics, but would misrepresent most of the Asians, Jews, and homosexuals.

Now imagine being a professional-class suburban Jew who finds himself called to account for the problems “minorities” cause in the urban ghetto.

You might think two groups wouldn’t be hard to keep straight, but under examination, both “single mothers” and “married mothers who have a higher income than their husbands” dissolve into a variety of dissimilar groups.

In a footnote, Pew says:

Single mothers include mothers who are never married, divorced, widowed, separated, or married but the spouse is not in the household.

So some of our “single mothers” are married, and some are not breadwinners. Another footnote says that Pew won’t count single mothers who live with their parents, but think about the range of women still included:

  • A high-school dropout juggles a fast-food job and a baby, and gets food stamps and some money from her parents, but no help from the baby’s father.
  • A professional-class mother (whose youngest child is 17) recently divorced. She plans to restart her career soon, but for now lives on a combination of alimony, child support, and the cash settlement from the divorce.
  • A widow with children has a part-time job, but couldn’t get by without the pension and/or life insurance settlement from her deceased husband.
  • A Murphy Brown type gave up on finding Mr. Right, but has enough money and enough support from friends and family to raise her child well.
  • A lesbian can’t marry in her state, but shares child-raising with a long-term partner.

Couples where the wife out-earns the husband are also diverse:

  • The husband is a good-for-nothing who neither works nor helps around the house.
  • The husband doesn’t have a paying job, but takes care of the house and kids.
  • The wife temporarily supports her husband while he finishes a degree or starts a business.
  • The husband is disabled.
  • The household lives off the income from the wife’s inherited wealth.
  • Two professionals both make good salaries, but the wife’s is slightly higher.
  • Both spouses have successful careers, but the husband’s is in a less lucrative field.
  • The husband is older and has retired before the kids are out of the house.
  • Two unskilled workers struggle to find minimum-wage jobs; this year the wife got more hours.

Now lump all those households together, give the new category a catchy name, and then post this graph about how it’s growing.

What have you accomplished, really? Well, mainly you’ve created a monster, a Rorschach Test onto which people can project all their fears about social change. What you haven’t done is raise a worthwhile topic for discussion, because what true statement can anyone make about all those households?

Deep in those numbers somewhere is a phenomenon that’s actually disturbing: children born to never-married women who are too young and too poor and too uneducated to give them a decent shot at success, especially without help from a spouse. That’s nowhere near 40% of households, but it easily becomes the stereotype for the whole group.

That stereotype is what Fox Business Channel’s Juan Williams was reacting to when he said that this trend “is tearing apart minority communities even more than white communities”. Are minority communities being torn apart by women who get high-paying jobs? Of course not. But they might get torn apart by households that don’t have either the personal or monetary resources necessary to give their children a shot at success. A study of that trend would be useful — is that number growing? I’d really like to know — but it wouldn’t have a big headline statistic like 40% of American households.

It’s no wonder a high-achieving mom like Fox News’ Megyn Kelly lashed back at the male Fox pundits who stereotyped her.

But you know who also should be offended? Dads. By lumping single moms together with primary-provider moms, Pew is saying that the two situations are similar. In other words, a man who can’t out-earn his wife might as well not be there at all.

Think about it. John McCain and John Kerry are out-earned by their wives. Michelle Obama has a book out. What if it became such a wild best-seller that her income went higher than Barack’s? Would it then make sense to lump the President in with men who got a girl pregnant and vanished?

Enough

Three things are never satisfied. Yea, four say not “It is enough”:
the grave, and the barren womb, and the earth that is not filled with water, and the fire.

– Proverbs 30: 15-16

This week everybody was talking about industrial accidents

The death toll from the factory collapse in Bangladesh keeps rising, now at 650.

All week, liberal web sites have been full of socially-conscious shopping tips about what brands may or may not be involved in corner-cutting third-world factories like the ones that ordered their workers back into a building whose walls were cracking. But that’s a band-aid at best.

The fundamental problem here is that workers have no power. Without their jobs they’d be so desperately poor that going back into a crumbling factory seems less risky than standing up to their bosses. As long as that is true, all the incentives in the capitalist system work to circumvent the consciences of shoppers. The most “efficient” way for the system to deal with the current situation is not to improve safety, but to fool socially conscious consumers into thinking something is being done. The system will keep working on that “efficient” solution until it figures out a way to do it, because that’s where the money is.

Just ask Walmart, whose greenwashing campaign is working great for the corporate image, even if it isn’t doing much for the environment.

So sure, change your buying patterns in whatever way seems appropriate. But if you’re doing that instead of pushing for worker rights, the corporate power structure thanks you.

Oh, and in case you think this is just a third-world problem, don’t forget about the fertilizer factory explosion in West, Texas. We hear so much about the costs of government regulation, but the costs of non-regulation are even higher.

and Jason Collins

Basketball player Jason Collins became the first active professional athlete in a major American sport to announce he is gay. His article in Sports Illustrated talks about the pressure of hiding a major area of your life not just from the public, but from teammates as well.

Collins is a 12-season NBA veteran who has never been a star and seldom starts, but consistently fills a role a lot of teams need: a 7-footer who can come off the bench and provide defense and rebounding when your starting big guys are in foul trouble or need a rest. He played for the Celtics and Wizards last season and is currently a free agent. He is in his declining years as an athlete, but Nate Silver’s comparisons to similar players in the past indicates there was a somewhat better than 50-50 chance he would have a job next season before his announcement. (So whether he gets signed next year is not necessarily proof of either prejudice or favoritism.)

Comparisons to Jackie Robinson are appropriate in some ways but not others. Robinson was a uniquely talented athlete whose statistics (compiled over only half a career, since he was kept out of the majors until age 28) could have put him in the Hall of Fame even without his off-the-field significance. Obviously, Collins is not in that class. And I’m sure Robinson would have had an easier time if he could have played 12 years in the majors and then announced he was black.

Still, Collins’ announcement required courage. (Anyone who thinks it didn’t needs to explain why no one has done it before.) He has made himself a symbol. Like Robinson, Collins will be cheered and booed for what he is, not who he is.

Some commenters clearly resent the fact that Collins is being cheered by many. There’s an intentional cluelessness in Ben Shapiro’s tweet: “So Jason Collins is a hero because he’s gay?” What’s striking, though, is the way such views are being rejected in neutral forums. Check out the comments on this anti-Collins editorial by a small-town Illinois sports editor.

Naturally, this popular rejection of bigotry is being spun as some kind of unfair discrimination against bigots. There’s a name for that: privileged distress.

But the biggest significance of Collins’ announcement (and the generally positive response) is on the many closeted gay athletes in high school and college, like the one profiled by Sunday by the Portland Press Herald.

But I wrote about sustainable economics

I reviewed the recent book Enough is Enough in Prosperity Without Growth?

and you also might be interested in …

The observatory at the top of Mauna Loa in Hawaii is recording atmospheric carbon dioxide approaching 400 parts per million “for the first time in human history“. The graph tells the story.

This re-emphasizes a point I’ve made before: When someone says they don’t believe in global warming, or don’t believe humans cause it, ask them which part of the argument they doubt. Here are the steps:

  1. Burning fossil fuels releases carbon dioxide into the atmosphere. (Duh.)
  2. The concentration of carbon dioxide in the atmosphere has been going up more-or-less continuously since the Industrial Age got rolling. (That’s this graph.)
  3. Atmospheric carbon dioxide warms the Earth through a greenhouse effect. (Infra-red radiation that would ordinarily dissipate into outer space gets reflected back to the planet surface.)

Given these rising carbon levels, which we can measure directly, global warming is what a rational person would expect. The argument against it needs to be a little stronger than just “maybe something else will happen”.


The public got its first look at the George W. Bush Library this week. I had been hearing about the Decision Point Theater game, where visitors supposedly hear the kind of advice Bush got at some key point in his administration, then get to make a decision. Now we finally see what that looks like.

You know what it looks like? The whole Bush administration. The single thing most typical of Bush was his shameless spin — rhetoric that made you think of one thing, but then if you challenged it as a lie, his people would explain that it was true because of something else entirely. So Saddam “supported international terrorist organizations” — which was supposed to make you think he was helping Al Qaeda plan the next 9-11. But if you pushed back you’d hear about connections to Hamas or Abu Nidal, not Al Qaeda or Bin Laden. They’d talk about Al Qaeda affiliates “operating in Iraq”, but if you pushed you’d find they were talking about a Kurdish zone Saddam had lost control of. And so on.

Bush is still spinning in exactly the same ways. Rachel Maddow shows clips from the DPT section on invading Iraq, calls BS on it, and then comments:

The case to invade Iraq was not “mistaken”. The case to invade Iraq was cooked up. It was a hoax perpetrated on the American people. And they are still cooking it up, right now.


Here’s one of those polls that makes you wonder if people really believe what they say. By a 44%-31% margin, Republicans agree with the statement “In the next few years, an armed rebellion might be necessary to protect our liberties.” (Democrats disagree 61%-18%.)

If I actually believed that, I think I’d be doing more than just stockpiling assault rifles. (After all, the government has tanks and planes.) I’d for sure have my escape route out of the country planned and a stash of money at my planned destination. Are people really doing that kind of stuff? In large numbers? Or has answering polls become part of some big fantasy game?


If there’s anyplace in America that might need an armed rebellion to maintain democracy, it’s North Carolina. The Republican leadership in the legislature is so intent on getting rid of the state’s renewable energy program that they declared victory in a voice vote and refused requests to have votes actually counted.


Mitch McConnell is catching on to this social-media thing. If your campaign video is getting as many hits as you want, you can buy the extra hits.


I often find myself telling non-religious people that right-wing Christians really aren’t as bad as they think. Well, the science education at Blue Ridge Christian Academy in South Carolina is worse than you think.


It’s been a heavy week. Let’s end with some entertainment:

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