The issue before the supreme court is not about 'gay marriage;' it is about whether a constitutional framework allowing people to live under the laws they create in their respective states will survive. It's about letting Californians have 'gay marriage' and letting North Carolinians choose a definition of marriage that, in the words of Justice Kennedy (the court's swing vote), “has been with us for millennia.” Ironically, it's all about diversity.
Chief Justice John Roberts' point that he has been unable to find a definition of 'marriage' that did not define it as between a man and a woman ("You are not seeking to join the institution. You are seeking to change the institution.”) aside, the real question before the justices is whether they are a legislature or a court. That is, whether the states must APPLY their laws equally to all; or whether one court will rule for the entire country on what those laws should be. If civil laws defining marriage between a man and a woman are an affront to the 'equal protection' clause of the 14th Amendment because they discriminate against gays, then it is surely true that laws banning the use of drugs, prostitution or usury surely discriminate against addicts, hookers, and loan sharks. Consequently, those laws are unconstitutional and also must be struck down.
Of course, no one has ever suggested that, regardless of whether those regulations are a good idea or not. These issues, like family law and marriage, are left to the states to determine in this republic of ours. The genius of the framers was in large part humility: they simply realized they didn't have all the answers and a that a one-size-fits-all dictate from the central government would allow no room for error. On the other hand, if these 'laboratories of democracy' known as the states got it wrong, why folks at least could vote with their feet and leave one for another. (For much more on this, see "Power Divided is Power Checked" at http://www.amazon.com/Power-Divided-Checked-Argument-States/dp/1935098500.)
The entire issue is especially acute for Anthony Kennedy, whose sympathies to gay rights are widely known. Indeed, when he was the deciding vote in United States vs. Windsor striking down a section of the Defense of Marriage Act (DOMA) which prohibited federal benefits for gay couples, he declared that DOMA intruded into an area “central to state domestic relations law applicable to its residents and citizens." We'll soon find our whether Justice Kennedy was really serious about the vertical separation of powers, i.e., federalism, or whether he stands as the swing vote in a Kangaroo Court.
Tuesday, April 28, 2015
Friday, April 10, 2015
The Arrogance of War
So bombing Iran is the way to go?
That's what some of the more hawkish members of Congress now say, suggesting "air and naval bombing of Iran's nuclear facilities would work" and not lead to a lengthy ground war. The problem is almost every respectable military analyst says the opposite.
Two things are fairly evident from the Iranian negotiations. One, Iran was not months away from making a nuclear bomb, and two, the Iranians want a deal with the 'great satan' to counterbalance their real enemy in the region, Sunni Saudi Arabia. But look, as long as the regime in Iran continues to say the deal means something different from what the Obama administration is telling us, there's plenty of room for skepticism and Congressional oversight.
However, that's NOT what those who advocate bombing are telling us. They do not seek to improve an Iranian deal (which our other partners will ratify anyway); they seek to end negotiations to go to war (which, by all accounts, would only delay Iran's nuclear progress should they pursue it). Given the fact that the Iranians are aggressively fighting ISIS in Iraq, what would this policy do to the situation there? That's easy, it would destabilize it and that's why would need to to go back into Iraq and restore order as we--and the Shia government we installed--see it.
Listen carefully to what some of these folks are saying: increased use of drones and domestic surveillance; detaining more prisoners at Gitmo; leaving 10,000 troops in Afghanistan indefinitely, and prosecuting (under a censorious WWI relic called the Espionage Act) the press for revealing state secrets.
When Richard Nixon opened the door to China in the early '70s it wasn't because he thought Mao Zedong was a great guy; it was because he understood the geopolitical wedge he could drive with the Soviets. That may or may not be true with Iran and Sunni jihadists, but it might be advisable to explore it before we go headlong into WWIII.
Just how long the Republican base will tolerate big spending politicians covering their record at home with bellicosity abroad is anyone's guess, but it behooves everyone to remember what Gen. Dwight Eisenhower once said,"When people speak to you about a preventive war, you tell them to go and fight it. After my experience, I have come to hate war. War settles nothing."
That's what some of the more hawkish members of Congress now say, suggesting "air and naval bombing of Iran's nuclear facilities would work" and not lead to a lengthy ground war. The problem is almost every respectable military analyst says the opposite.
Two things are fairly evident from the Iranian negotiations. One, Iran was not months away from making a nuclear bomb, and two, the Iranians want a deal with the 'great satan' to counterbalance their real enemy in the region, Sunni Saudi Arabia. But look, as long as the regime in Iran continues to say the deal means something different from what the Obama administration is telling us, there's plenty of room for skepticism and Congressional oversight.
However, that's NOT what those who advocate bombing are telling us. They do not seek to improve an Iranian deal (which our other partners will ratify anyway); they seek to end negotiations to go to war (which, by all accounts, would only delay Iran's nuclear progress should they pursue it). Given the fact that the Iranians are aggressively fighting ISIS in Iraq, what would this policy do to the situation there? That's easy, it would destabilize it and that's why would need to to go back into Iraq and restore order as we--and the Shia government we installed--see it.
Listen carefully to what some of these folks are saying: increased use of drones and domestic surveillance; detaining more prisoners at Gitmo; leaving 10,000 troops in Afghanistan indefinitely, and prosecuting (under a censorious WWI relic called the Espionage Act) the press for revealing state secrets.
When Richard Nixon opened the door to China in the early '70s it wasn't because he thought Mao Zedong was a great guy; it was because he understood the geopolitical wedge he could drive with the Soviets. That may or may not be true with Iran and Sunni jihadists, but it might be advisable to explore it before we go headlong into WWIII.
Just how long the Republican base will tolerate big spending politicians covering their record at home with bellicosity abroad is anyone's guess, but it behooves everyone to remember what Gen. Dwight Eisenhower once said,"When people speak to you about a preventive war, you tell them to go and fight it. After my experience, I have come to hate war. War settles nothing."
Wednesday, April 1, 2015
RFRA & Discrimination
There's only one thing wrong with Indiana's (or anyone else's) Religious Freedom & Restoration Act (RFRA): it didn't go quite far enough. That is, why should you have to invoke a religious exemption in order to freely determine with whom you want to work or the kind of benefits you want to offer? I might not want to hire you because your 'lifestyle' (gay or straight) violates the tenants of my company's religious beliefs (the Supreme Court upheld Hobby Lobby's decision not to offer contraceptives for the same reason), but I also might not want to employ you because your ears are large. The former may be protected by RFRA, the latter is not. Why?
Of course, it goes without saying that it's foolish not to hire productive gay people and the market will 'punish' those who do. Leave the government out of private hiring decisions once and for all and the most invidious form of prejudice will collapse. In fact, what made Jim Crow so evil is that the law itself enforced discrimination in the face of companies who wanted to hire blacks. So the slippery slope argument that if states pass RFRA, why the next thing you know we'll be back to segregated lunch counters is silly. Beyond the fact that under the law, anyone's religions beliefs must be 'sincerely held,' are we really to believe that if it were legal, the PGA would boot Tiger Woods? That Oprah's show wouldn't get aired? That Bill Cosby wouldn't get hired...okay, forget that last one.
Freedom of association is a fundamental right upheld by the federal courts for groups as diverse as the NAACP and the organizers of the St. Patrick's Day Parade in NYC. It is a protected form of viewpoint discrimination--however unpopular--reflected by the action of private individuals (public or state sponsored discrimination is already prohibited by the Civil War Amendments as they should be) organizing as they see fit. However, this form of speech embraced by the First Amendment is protected only for those private groups; if you mortgage the house and forego the kids college education to start a business, the government gets to tell you how to run your affairs. At that's precisely what the protestors in Indiana and around the country are want...more control.
Of course, it goes without saying that it's foolish not to hire productive gay people and the market will 'punish' those who do. Leave the government out of private hiring decisions once and for all and the most invidious form of prejudice will collapse. In fact, what made Jim Crow so evil is that the law itself enforced discrimination in the face of companies who wanted to hire blacks. So the slippery slope argument that if states pass RFRA, why the next thing you know we'll be back to segregated lunch counters is silly. Beyond the fact that under the law, anyone's religions beliefs must be 'sincerely held,' are we really to believe that if it were legal, the PGA would boot Tiger Woods? That Oprah's show wouldn't get aired? That Bill Cosby wouldn't get hired...okay, forget that last one.
Freedom of association is a fundamental right upheld by the federal courts for groups as diverse as the NAACP and the organizers of the St. Patrick's Day Parade in NYC. It is a protected form of viewpoint discrimination--however unpopular--reflected by the action of private individuals (public or state sponsored discrimination is already prohibited by the Civil War Amendments as they should be) organizing as they see fit. However, this form of speech embraced by the First Amendment is protected only for those private groups; if you mortgage the house and forego the kids college education to start a business, the government gets to tell you how to run your affairs. At that's precisely what the protestors in Indiana and around the country are want...more control.
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