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Thinking Darwin

I plan to write my thought here. I will edit this post, from time to time, to include information about how the blog develops, and to explain my interests.

I have been: an audio engineer, a newspaper publisher, a Goer cowboy, a micro computer engineer, a software programmer, a university English instructor, a LBTG activist.

I was fired by the extension school of Indiana University for refusing to adopt a grading scale that would prevent students from failing.

I have been: the Secretary of Seymour IN, PFLAG, a board member of Indiana Black Pride, Chair of the Board of the Indiana Transgender Rights Advocacy Alliance, member of the Planning Committee of Indiana Pride of Color.

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Facts, Fact checkers, experts and liars.

First, a few home truths:

In every court case, there are at least two lawyers, and, at least one, of them is wrong.

Alfred North Whitehead reminds us that people usually have honed their arguments, so it is best to attack their assumptions.

In our courts of law, which are ponderous, and expensive, machines to mete out justice, the jury is commonly referred to as the “trier of fact”. The Propaganda Chorus would have you believe that we could dispense with all that time and expense by deploying a fact checker to announce the law and the facts, and pronounce the verdict.

Recently fact checkers have come to prominence in public discourse as a way to silence discussion and win debates with no argument. If you disagree with someone’s opinion, you marshal a pod of fact checkers to pronounce it out of bounds. It is important to repeat the same pronouncement through many sources to add a simulacrum of weight to an empty thought. Fortunately there exists an organization for this purpose called the Propaganda Chorus, or MSM. Some history:

From whence did fact checkers arise? Were they always here? Did they always determine the content of public discourse?

Fact checkers were, only a few years back, poorly paid interns at news papers whose job it was to supply real reporters with tidbits of information to supplement the substance of the article the reporter was composing. If the reporter wanted to know the date of a Supreme Court ruling, the size of last night’s baseball crowed, the population of Albania, he would assign a fact checker to discover it, and return with the fact, and documentation of its source. (Editors could use them to verify such bits of information in a reporters work before publishing it.) In no case was the fact checker the arbitrator of veracity, nor the judge of the substance of the article. The reporter was responsible to develop his own ideas, argue them, justify them, and stand behind them. Nobody, including the reporter, though his work was beyond question.

A few years back, someone came up with the idea that if you disputed your opponent’s ideas, not by engaging them, but by quibbling about bits of data, and did it in the name of “fact checker”, uneducated readers would assume that the fact checker was unquestionably correct, and unquestionably relieved the critic of the need to have any ideas, or knowledge of his own.

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The Myth of the Free Press

Written in August 2018

The myth in question is not that the Press is not free, nor that Freedom of the Press is not essential to our democratic republic, or any society that aspires to some meaningful measure of individual liberty. The myth is that the modern conceit of a free press has its roots in our constitution or the founding of our country. This myth is a self-serving misinterpretation that demonstrates just how illiterate our journalists are. it has been nurtured by the New York Times starting, I suspect, in the 1960s, but I cannot be sure.

To explain, we must explore how to read human language. Human language is not mechanical as is computer, machine, language; although human language is immensely powerful, it is at the same time quite fragile. If you study language and literature, you can gain from the experience of others no matter how remote they be, in time or space, even if you can never know them completely. If on the other hand, as is the practice today, you attack the written word to mine it for data, or to gain an advantage over the writer, you make yourself a fool, and contribute to the destruction of the language itself in the process.

The claim of present day journalists seems to be that they are a singularly privileged and powerful group, or class, based on the First Amendment’s guarantee of Freedom of the Press. That claim can be debunked by simply referring to a dictionary, and confirming what is to be found there, but the question can be raised: Why would I go to a dictionary? What alerts me to the probability that the claim is ill founded, not to say absurd? Why should I question an interpretation that benefits me? The answer is in how you should read a document, if you desire to learn from your effort.

First you should know what you are reading: What is the document? Who wrote it? Under what circumstances? For what purpose? A naive person would have an almost endless tree of ever increasing branches to the above questions, but an educated American should be equipped with some general knowledge and understanding that will inform, and shorten, the examination.

The First Amendment is part of the Bill of Rights, which amends the United States Constitution. The Constitution was written and adopted to strengthen the young country founded on the principles of equality, liberty, and popular sovereignty, and to enshrine the principle of the accountability of all power to the people through their elected representatives. The Bill of Rights was added to detail some of the most important individual rights that arose from the revolutionary concept of the sovereignty of the people, rather than their rulers, which had always been the rule. The First Amendment deals with ideas and beliefs; the sine qua non of individual freedom. One side of the debate about the adoption of the Bill of Rights held that enumerating some rights would weaken or void others that were left off the list; the other side implicitly claimed that the very idea of plenary individual rights was so novel, so revolutionary, that some examples were needed, if only to show the seriousness and scope of such rights. In the event, the Bill of Rights was adopted, and the fears of its opponents were proved well founded, even thought the text itself warns against considering the list complete.

It follows, as night the day, that someone who claims that such a document assures them of a special privilege for their unaccountable group, should face almost insurmountable skepticism and doubt.

It is fashionable today to complain about the lack of objectivity of the corporate media, or about the lack of respect that such media is accorded. The theory, the assumption, seems to be that the founding fathers established, in a list of individual rights, an unelected group of men who they trusted to adhere selflessly to an impartial, objective, truth as a check on the rest of us. In other words, that by innuendo, or metaphor, they betrayed every principle they held, and undermined the project for which they had recently risked everything.

The founding of the United States of American stands four square against the proposition that men are angels and can be trusted unsupervised to operate in the national interest. It stands four square against the proposition that one group of people should have privilege over others. It stands four square against the proposition that any power, under the Constitution should be unaccountable to the electorate. The conception of a free press under discussion, incorporates each of those propositions, and consequently, is odious to that founding.

Armed with the assurance that this conception is untenable, someone who does not understand the plain language of the amendment will have recourse to scholarship about what the language meant, at the time is was written, to those who wrote and adopted it. We have incorporated the metaphor that aligns the practitioners of the trade of journalist with the machine or organization that was their medium; thus “the gentlemen of the press” was shortened to “the press”, but it was not always so; most significantly it was not so when the Constitution was being debated and adopted. So it is inconceivable that the founders referred to journalists when they enshrined “the Freedom of the Press” in the amendment. A quick reference to Black’s Law Dictionary, moreover, reveals that in those days, and before, and since, Freedom of the Press was a term of art, referring to the right to use a printing press–and by extension other advanced technology–to disseminate whatever words and ideas you fancied without prior restraint, or censorship. It was, and remains, an individual right, and thus well-suited to the purpose of the Bill of Rights, and while not utterly absolute, covered all sorts of unpopular, and shocking utterances.

The endless carping about how biased, and unfair, and partisan the mewlings of journalists are can be elided by accepting that they should be thus; the error, the cancer on our polity, is to assume that they should be otherwise. The Bill of Rights does not, sub rosa, seek to establish the Ministry of Truth so desired by some, be it for political power or for personal aggrandizement; the Bill of Rights, on the contrary establishes a raucous free for all, a free market of ideas where all can express themselves, and employ, and contract such means as are necessary to amplify their voice in the public sphere. In this we are different from other societies.

If you could return to 1789 to ask Ben Franklin, Thomas Jefferson, Samuel Adams, Alexander Hamilton, James Madison, John Jay, or any of the others if they envisioned a priesthood of unelected “journalists” sitting in judgement over the discourse of the nation (picture Jim Acosta, Joy Reid, Keith Olberman, Don Lemon, Nicole or Chris Wallace, or Joe Scarborough) I am confident that they would discretely, to avoid shaming your relatives, have had you committed to an insane asylum. There is absolutely nothing to indicate that they believed that such a thing was achievable, nor desirable. If after explaining to them our public space, you asked them which embodied the meaning of Freedom of the Press, as they understood it, the New York Times, with all its pretentiousness, or the blogosphere, they would have no hesitation in choosing the latter, marveling on how it empowered the individual where power should reside.

NOTE: It is not uninteresting that most of the heroes of reporting are not members of large corporations, or associations, but lonely voices crying out from isolation and oppression.

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If you are not confused, you are not paying attention.

The title was created to caution people about transgender matters, but it applies to human affairs generally. It will probably surprise many people to realize that transgender people are people.

Many people are absolutely sure that every human has either XX, or XY, chromosomes. They are wrong.

Many people assume that the sex assigned at birth is the result of chromosome testing. They are wrong.

Many people know that all people born with XX chromosomes develop into normal female adults. They are wrong.

Many people know that all people born with XY chromosomes develop into normal male adults. They are wrong.

Many people know that a female child will, through puberty, necessarily develop into a female adult. They are wrong.

It is true that most of these assumptions will not be challenged very often, but at the limits of philosophy, law, and sport, they will be challenged, and no honest person will be able to deny the complexity of the ensuing disputes.

Recently a nominee for the U.S. Supreme Court was asked to define a woman. She declined (rightly) and declared (rightly) that the problem was the context; she gave as her reason that she was not a biologist. Her reason was absurd, out of context, and disqualifying. In the context of a hearing to determine her fitness for the Supreme Court, the appropriate answer would have been: “That is a matter that is being litigated, and will in all likelihood be taken up by the court, and consequently, I must decline to state an opinion.” The problem with her answer is that it indicates that when asked a legal question in a legal context, she does not think first of the law, but of her own beliefs.

Many people know that she was dodging (she was), and that the self-evident answer (from the dictionary-a bad place to garner debate points) is: “an adult human female”. As a definition of the word, it is unexceptional, mostly because it adds no new information. The problem is that the terms are not self-explanatory. The mere fact that the question is sure to come before the Supreme Court should caution anyone that it is not resolved. “Adult” is usually opposed to “Child”, but the parameters can be debated: a child may be tired as an adult e.g. “Human” seems pretty simple until you start to discuss abortion. “Female” is really the question that the Senator was asking, and thus, in context, that unimpeachable answer is tautological: a dodge.

The Olympic Committee has been wrestling with the question of “what is a woman” for decades. They have learned from experience that people, organizations, and countries will surely cheat when fame and fortune are at stake, and that a robust way of discriminating between women and not women is essential to any idea of women’s sport; without a robust rule for who can, and who cannot compete, you will have chaos, and the league will disintegrate. They have also learned that there is no easy answer. I do not trust the Olympic Committee, as a general rule, but unlike most of the participants in this absurd free for all, they have experience, and they have engaged seriously in the search for an answer. Therefore they are a good place to start, and if you want to discuss elite athletes, you should include elite athletes in the discussion; they know the subject better than most other people.

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Thoughtless Admissions Policies

The (false) assumption behind the attacks on Harvard’s admissions policies is that admission to any school must be strictly according to a single standard. It presupposes a national competition for grades, and test scores, which lead to a national ranking to which all schools must adhere; just as was the case in the Soviet Union. Any deviation from that ranking, any disparate outcome, must be prima face evidence of racism, sexism, or some equally heinous sin.

A century ago, Harvard did admit according to academic ranking (aside from legacies, and racial considerations). Harvard was, and to a great extent still is a local school with a veneer of international dominion. They were able to fill most of their slots with the cream of the academic crop, and they found that they did not like the result. They found that such a policy did not produce a student body that suited their ambitions. So they stopped considering only academic prowess, and determined to create an “interesting” incoming class. (I do not endorse Harvard’s admissions policies, nor its recent behavior, I merely object to the smug, ignorant—by people who assume they know everything, when they have not even asked basic questions, let alone answered them—pronouncements.)

To raise some obvious objections to such a national admissions policy (state schools may very well be constrained to adopt such metrics): should West Point accept students with no potential as future officers, merely because they are academically more qualified than someone else? Should Nortre Dame be prohibited from preferring Catholics, to some degree and become indistinguishable from other schools? Should every school have to apply to the DOE, or a committee of self-appointed pundits for exemptions from the national list?

It is appropriate, it is accepted American practice to object when demographic groups are denied access to (excellent) education, but that is a far cry from a unitary national admissions policy, thoughtlessly imposed even by people who pride themselves on their conservative, or libertarian ideals. Private schools should be free to adopt their own policies and standards, even when they make no sense to the rest of us.

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Apologia pro Trump (an unpublished essay from a year ago)

I wrote the following a year ago. I have not touched it since 31 January 2016. I publish it now because I want to cite it in a discussion. I did not publish it then, because I did not see it doing any good. Now I think I can afford the harm it may do me. To preserve the value of this offering, I have not changed a thing, except to review the spelling.

 

Apologia pro Trump

This is not a declaration of support, but rather an attempt to understand the incomprehensible. The intelligentsia has taken the nuanced view that Trump is a jerk, and his supporters are idiots. I propose to investigate if there is an explanation of this phenomenon that so many have completely misread again, and again, but now have satisfactorily deciphered, using the same tools that have failed them repeatedly.

Trump is infra dig; he is non-U. That is reason sufficient to hate him, for some. For others it is closer to reason to like him. It is interesting that he is well educated in elite schools, with apparent success, but he has not trimmed his sails to the fashion of the day, and that is a mortal sin. He grew his business into a large corporation, creating many jobs and . . .

Then he decided to run for President of the United States in a year when many voters are completely fed up with “Washington”, “the elites”. “the ruling class”, in short those they hold responsible for the condition of the country, and recent inability of voters to make their representatives listen. Conventional wisdom was: 1) that he was not serious, that he would make a splash to stroke his ego, and 2) that he would be “taken out” by serious candidates with experience in the political profession, such as Jeb Bush. As usual, conventional wisdom was correct.

One of the recognized powers of the president is the bully pulpit, named for another rich trouble maker from New York. Candidates vie for the opportunity to occupy the White House so that they can transmit their ideas and dreams to the American public. Trump clearly does not need the title, nor the apparatus, to get his message across. How he does so is not well understood, but clearly he can command the attention of the nation.

There are at least two competing views of a presidential election, and of the presidency that results therefrom: on the one hand, the commentators, pundits, anchors, news persons, political consultants, lobbyists, politicians, and all those who make up “Washington”, or as seen from the country: “they”, determine the salient issues, discuss them and subject the candidates to a competitive exam, where the right answers are not determined by reality, or the voters, but by the establishment, in aid of preserving its stranglehold on the seat of power. Trump has not answered the questions to their satisfaction, but the expected decline in his acceptability is still hanging fire. Trump has given them more opportunities than they would need to excommunicate him, and they have declared him unfit for office, but for some reason the world is turned upside down.

As a theatrical aside, the establishment seems to feel that the United States, as a general proposition is lacking in that it differs from “the rest of the developed world”, that we need to get right with people who really know how to run a country, the old country. It is worthy of note that when General Cornwallis surrendered, his band played “The World Turned Upside Down.”

On the other hand, while I do not know that he has ever articulated it (Trump is an unorthodox commander in that he does not understand the necessity of telling your opponent exactly what you are going to do, so that he can prepare his response) Trump has pursued a different vision. He clearly believes that it is the privilege, or job, of the candidate, and subsequently the President, to determine which issues are important, in consultation with the people, and communicate them. From the outset Trump declared that immigration was one of two most important issues facing this country: from his point of view, without a successful immigration policy, we do not have a country, and it seems pretty clear that the nation agreed. At the same time, he enacted without articulating it a belief that political correctness was a cancer that would destroy this country if not eradicated. Again large numbers of the votes agreed. It is worthy of note that many of the Washington crowd (including the national news organizations) complain about political correctness, but they insist that decorum requires that its dictates be respected nevertheless. Trump clearly concluded that to free the country of the yoke of intolerance it needed to be transgressed, and transgress he did. If you study his outrageous pronouncements, I think you will find that, while they are indeed outrageous, they are much less so than they seem not to say than they can be made to seem and have been so by his detractors, but because of his command of the communications channels, his supporters can see that he is being misquoted, and that what he actually says is often only a little over the line, an opening salvo to clear the air, and the way for a no-holds-barred discussion of the issue.

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She Was a Friend of Mine

In 1964, I had a girl friend in NYC, and a job and radio show in Cambridge Massachusetts. Although the distance between them, two hundred ten miles, presented a challenge, I was young, motivated, and I commuted; for a week or ten days every day, by car, with the help of friends who lent me cars and drove with me and then often, but not daily. I was inured to the trip. One night, I drove a woman who wanted someone to dive her Porsche Super 90, and her, to NYC. She got there in under three hours, including a stop for coffee. I did not get stopped because every police car in Connecticut was sitting on the other side of the freeway on the border, waiting for something.

One winter’s night in 1964, I was leaving Manhattan, rolling up the parkways, tired and paying attention only to that which mattered to safe motoring; I knew the way by heart. It was dark, with a moderate wind, and wisps of blowing snow. The road was clear enough. I found myself following a black limousine, and vaguely remember, perhaps the result of post event suggestion, some movement in the rear window in any case I was thinking of my girl friend, my job, and whom to book for the show: I ignored it, in one sense or the other.

All at once I became aware of agitation ahead. It was a young woman, who had opened the window on the limousine, and extruded her head, shoulders and one arm which she was waving vigorously as the rest of her bounced up and down, as much as possible. It was Mimi, waving to attract my attention. I recognized her, flashed my lights, and waved at her. She smiled contentedly and slipped back inside, looking at me through the rear widow. She smiled and waived again. Her sister, sitting beside her turned her head for a glance, and did not look again for the rest of the night. I could see them talking together as I drove on.

When Mimi moved to Cambridge, although she was a couple of years younger than I, she was married to a successful author, and I always thought of her an adult, whereas I was a college student, at least socially. She quickly became one of the house bands, with her husband, at the Club 47, where I worked, and where I met most of the talent for my radio show. When other acts canceled, the house bands would graciously fill in, and Mimi and Richard, were very generous, filling in on very little notice more than a few times. I dealt almost exclusively with Mimi, and we saw each other a the club, where we both spent a lot of time, and we worked on projects, together mostly for the club.

For rest of the trip that night, she would turn around every fifteen minutes or so, smile and wave. Unable to converse, we traveled together through the night, a strange community based on sympathy and propinquity. At one point, I was running out of gas, but “pay at the pump” was new, and I managed to get in and out of a gas station on the Berlin Strip in Connecticut, in a time that would have pleased an Indy 500 pit crew. I got back on the highway, and found Mimi’s limousine, pulled in behind it, flashed my lights, and with a wave and a dazzling smile from Mimi, resumed our trip together.

When we got to Cambridge, our ways parted; I flashed my head lights, one last time, waved, and pulled out to find my way home. We never talked about it; I never forgot it.

More than a year later, I was at the Club, as Mimi waited, on her twenty-first birthday, for news from her husband, who was in California to sign a new contract. before she would head out to her birthday party. News came, but it was devastating: Richard had signed the contract, and left word he would call her from the signing party. Ecstatic, he left on his motorcycle, ran off the road, into a tree and was dead.

Too few years later, Mimi too was gone, and the world is emptier because she is no longer in it.

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James Brown and the concert in Boston

Forty-eight years ago today, Boston Massachusetts was shut down. Nothing moved; the streets were empty. Cars, buses, all banished from the streets in an attempt to avoid devastating riots such as had burned other cities in the wake of the assassination of the Reverend Doctor Martin Luther King Jr the previous day in Memphis Tennessee. As it happened, James Brown, the hardest working man in show business, was scheduled to perform at the Boston Garden on that day. As a performer who routinely whipped up his fans in to an emotional frenzy, and leader of the movement for Black Pride and advancement, he presented a challenge to the governor and the mayor. Allowing the concert to go forward presented the risk that overheated fans could ignite trouble, but canceling such a concert could also provoke disappointed fans who could believe that the gesture had dubious motivations.

At the time, even absent malice, there was much less mutual understanding between the Black and white communities than there is today, so it is a credit to the powers that were, that it was arranged that the concert would be presented, with two modifications. The local television channels would broadcast the entire concert, and while people would be admitted, they were urged to stay home and avoid large gatherings.

I need to go to the Garden, and so, starting in mid afternoon, I walked from Fort Hill in Roxbury, to the arena, down the center of a deserted Washington street. It was reminiscent of a scene from “On the Beach”. In the more than an hour that it took me to make the journey, I do not remember seeing a moving vehicle, nor more than a handful of people. One or two of them said “Hey, man.” to me.

When I arrived at the Garden, there were discussions about the police presence. There were scores of Boston’s Finest back stage, as might be expected, and I remember them as large, white, burly, Irish cops. The police plan was to place officers in the crowd, to dampen possible trouble. James Brown argued, begged, that they be kept out of sight. He did not ask them to leave, just to remain hidden unless they were needed. He was confident that he could control his crowd. In the end, he prevailed and the cops stood behind the curtain. The stage was large enough for the band, the Famous Flames, and James Brown’s athletic performance. Otherwise it was bare, and surrounded by a plain black curtain that ran from the front of the stage on both sides, around the back. Throughout the concert, right behind that curtain stood an immobile phalanx of Boston cops, shoulder to shoulder, batons in hand.

At the appointed time, the show went on. There were a few hundred spectators, mostly young, of mixed race. They quickly took to the aisles, dancing to the irresistible beat. At one moment the emotion became too much, and they surged towards the stage. James Brown made a motion to the cops, who tensed and started to move forward, and he begged the crowd to contain themselves and show that we could enjoy ourselves without getting out of hand. There had been no menace in the surge, just animal spirits, but they backed away, the cops relaxed into their alert attention, and the moment passed.

There is a documentary of that night, called “The Night James Brown Saved Boston.” As with the surge of fans, the grief and rage of the moment did not boil over and spared Boston, for the time.

I do not know how much credit James Brown gets for his efforts to improve race relations. He is known as an effective champion of the recognition and advancement of Black people, but he worked simultaneously for inclusion of white people and racial understanding. Although it caused him quite a bit of trouble, he traveled south with integrated bands, and when he sponsored local talent shows, in which he participated, he insisted, to the dismay or anger of local authorities that they be open to anyone who cared to participate.

One last memory: Although he had just completed the highest priced one night performance up to that time, a $100,000 concert for Félix Houphouët-Boigny in the Ivory Coast, and his concert appearances had a target price of $10,000 per night (if memory serves), a black high school in the south could book the full show for their prom on Monday, Tuesday or Wednesday for $500.

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Expect Marriage Decision Soon Part II

I have decided to leave the previous blog as it was (save for a typo). I should clarify that it is not the timing of the court’s anticipated decision that is important, except that we should not assume that it must necessarily be delayed until June; it is the question of whether that decision, whenever it comes, is an extensive, reasoned, landmark decision, setting forth reasons for mandating marriage equality, or merely a slap in the face of the Sixth Court—for arguing issues that have no place in an American court (the sociology of marriage), more that for merely being wrong in their conclusions—and terse reversal of their error. American courts are unusual in that they are prohibited from considering general questions, laws in the abstract, or the general welfare; those issues may arise in argument and opinion, but the only issue that an American court may properly adjudicate is a dispute between parties, one aggrieved and the other able to correct the problem. That is why the court denied standing to the proponents of Proposition 8 (the California constitutional amendment): the proponents had no power to rectify the putative wrong done to the plaintiffs. The government of California, in the person of the governor and the attorney general, having withdrawn from the case, and thus, alleviated the wrong, the case before the Supreme Court was moot.

Let me review the recent events that lead me to believe that this issue—marriage equality—was decided long ago:

In United States v. Windsor (2013), the court held, among other things, that the United States could not interfere with a state’s definition of marriage that granted equality to same-sex couples. (That does not mean, pace opponents of marriage equality, that such definitions are exempt from the restrictions imposed on all American governments by the Constitution of the United States.) In doing so, the court accepted, on behalf of the United States, the possibility that the word “marriage” could include same-sex couples. This is important because one of the favorite arguments of the opponents of marriage equality is that it makes no sense to refer to a same-sex couple as married; they insist that violence must be done to the very meaning of the word to allow it to include same-sex couples. While the Windsor court did not explicitly say that same-sex marriage was required by the Constitution, they clearly understood the concept and accepted that it had validity. The court also discussed the grave harm imposed on same-sex couples, notably their dignity, by unequal application of the marriage statutes. The court noted that they were not mandating a constitutional right to marriage equality. Justice Scalia, in his dissent, said that they were doing precisely that (a warning he has been sounding since his dissent in Lawrence v. Texas ten years before), and he predicted that the issue would be back in the following term; the calendar did not oblige, but he was only off by one year, and not even a whole calendar year.

The court did another thing: they imposed on the country a partial solution. Sober reflection on what they wrote in Windsor, and its implications for the lives of citizens affected by it, should have led, maybe did lead them to the understanding that they were visiting a torrent of ambiguity and legal wrangling on the country. (Because of geography much of the legal wrangling landed on the desks of the Fourth Circuit and probably informed that court’s ill-tempered refusal to stay their decision in favor of marriage equality in Bostic v. Schaefer (2014), despite a near certainty that the Supreme Court would reverse them, as it did routinely until October 2014.) A charitable interpretation of the justices failure to address this problem of which they could hardly have been ignorant, is “judicial restraint”: a desire to make the narrowest ruling and await developments before turning to the consequences of their actions; another interpretation would be “judicial cowardice”.

In the event, they ruled narrowly and lawsuits sprung up across the country, like dandelions after a spring rain; some were motivated by the judicial chaos engendered by Windsor, some by perceived opportunity to attain the long-desired goal; and of course the desire of counsel to write their names in the law books.

Cases arose from every state in the union, with varying complaints and issues, all related to the denial of the fundamental right to marry. Some cases had been in progress for a decade or more, some were filed and passed through the appeals courts in less than a year. In almost every case (the initial run was over twenty consecutive cases without a loss) and with near judicial unanimity the verdict was rendered. Judges were citing the opinions of colleagues the day they were published. Interestingly the first victory in a circuit court of appeal was from Utah—go figure!

One important refrain, not universal, but common was that despite the Supreme Court’s declaration, in Windsor, that they were not deciding the issue of the constitutionality of same-sex marriage, court after court, both a the district and the circuit level opined that they most certainly had made that decision in the clear implication of their ruling and their elucidation of it.

Which brings me to October of last year, the beginning of this term for the Supreme Court. As I have written elsewhere, I expected the court to avoid writing a decision, and they did not write. Seized with numerous appeals from three circuit courts, they denied cert. with unusual haste. Denial of cert. does not imply anything in terms of legal precedent, but as I wrote Friday, when it seems to transform a very large percentage of the judicial landscape, questions arise and answers follow. Faced with a landmark issue the court may well deny cert. when it deems the issue is not “ripe”, but usually such a denial is of a single case, or a small group of cases, and, most importantly, leaves the status quo ante undisturbed; it distresses the plaintiffs in the particular case, delays the sought-for resolution, but rarely, if ever, does such a denial allow a sweeping change to settled law stand, when it is the creation of the lower courts. As I wrote on Friday, there was absolutely no pressure on the court to act when they did. They could have waited weeks, or months, before denying cert. without causing any undue curiosity, and we would have arrived at today, with all those cases pending, waiting for the long-awaited pronouncement from the nine justices. They could have waited even longer, but to go beyond June and the end of the current term would have raised questions. It is hard to see how, if there was any intention in their conference seriously to consider reversing those rulings, they would not have waited. Moreover if they had wanted to write an opinion on the subject, they could have waited, or accepted one or more of the cases before them. Their action, in denying cert., accomplished two things: 1) it made marriage equality mandatory across much of the country; 2) it avoided the need for them to write an opinion.

Their denial of cert. caused jubilation in the Fourth, Seventh, and Tenth circuits, and some consternation in friends of mine who found themselves living in a Michigan suddenly behind Indiana, not to mention Utah, in the matter of gay rights. Cases in other circuits ground forward, but the Supreme Court in a change from previous behavior denied stays of lower court orders in favor of marriage equality.

A stay is another action that carries no value as precedent, but stays are granted largely based on two criteria: the relative damage to the parties if the stay is, or is not, granted, and the likelihood that the party requesting the stay will prevail. The most likely significant, short-term damage, in the court’s opinion, is that the plaintiffs would be denied a fundamental right, and if that is the case, any review of the underlying order would elicit heightened scrutiny (in other words it would be hard to deny their right). The likely standard for “probability of success” in such a high-profile case with such sweeping consequences, would, think I, be something like “we will hear arguments, and read briefs, but if nothing substantial changes, plaintiffs will succeed.” Note that Justices Roberts and Alito voted to deny the stay in at least two cases—Scalia and Thomas wrote dissents in both—indicating their evaluation of the combination of the legal damage that a stay would cause and the likelihood of the plaintiffs prevailing was in the plaintiffs favor (i.e. that marriage equality would become the law of the land). Lower courts may have to speculate on the outcome when evaluating a request for a stay: the Supreme Court knows that they will make the final decision themselves.

The court wants to avoid a disquisition that would open further considerations and saying nothing will mandate marriage equality without further action.

So, with baited breath, we await a decision that was written and published almost two years ago.

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Expect Supreme Court Decision on Marriage Equality Soon

[This post is unedited and incomplete. I am publishing it against the possibility that the Supreme Court will release their ruling Friday morning. I will complete the post tomorrow.]

 

As we wait for the Supreme Court to dispose of the question of equality in marriage, we reflect on the oral arguments. I have to admit that my initial reaction was negative, disappointed. There were a lot of questions that I would classify as ignorant. But there were also a couple (perhaps more) that were salient in their clarity: John Roberts asked how denying a man the right to marry someone just because he was a man could be considered anything other than discrimination on the basis of sex; and Justice Ginsberg enunciated the answer to the oft repeated question (by Anthony Kennedy, e.g.) “How can the court over turn millennia of tradition?”, but as Ginsberg pointed out, the court will not rule, cannot rule on cultural or religious tradition; its jurisdiction extends no further than American civil marriage, which has existed for less than 250 years, and in that time has been transformed from an age-old institution that was based on rigidly gendered roles, to one that is completely free from and gender distinction; as the justice opined same-sex couples would not be much interested in a union based on gender distinction, whereas they are just as well suited for an gender-neutral union as are opposite-sex couples.

Most people are hoping for a landmark decision setting forth elaborate explanations of the issues and justification for the outcome; they believe that the decision will be held, as are most significant decisions, until June and the end of term. I would not be surprised to see a terse reversal as early as Friday.

It is a truism that you should not draw conclusions from oral arguments, but the temptation is very great. In this case, I believe that the court disagrees with the populace, the bar, and the press as to what was at stake last Tuesday. The latter groups seem to hold that we witnessed arguments in preparation for a landmark decision and that however misleading the questions might have been, they were intended to elicit information to inform the coming opinions. The court, think I, was doing what the Canadian bar calls “natural justice” expressed as “audi alteram partem” (I hear the other side), demonstrating that they have heard the arguments, such as they are, from the opponents of marriage equality. In lieu of a written opinion, they have indulged the Sixth Circuit and respondents with an audition. What is at stake is not a landmark decision, but a simple reversal of a circuit court that completely misread the law, could not take a hint, and offered an opinion that avoided all the actual issued before it completely.

Another set of actions by the court that are not to be interpreted as binding are refusal to grant cert. and actions on stays. Nevertheless, the court should not be assumed to deny cert. or grant stays without reason, and what may not be binding in a court of law, can certainly inform our understanding.

Last October, the court was presented with a set of cases from the Fourth, Seventh and Tenth circuits. Those cases represented, directly or indirectly more than twenty cases that held, with near unanimity, that the Supreme Court’s ruling in Windsor implied that inequality in marriage was indefensible and unconstitutional. Although near unanimous, those cases presented a wide variety of arguments and opinions argued and presented by some of the finest legal minds in the country; it would be rash to assume that the court denied cert. because the issue was not “ripe”. The fact that opinions opposing marriage equality were underrepresented and weak should not have influenced their decision: the court serves not only as a referee between divergent circuit courts, but also as a check on judicial error from below, and what such error could be more worth of correction than one that affected a large part of the country and so very many judges?

Nevertheless the court denied cert., not only did they do so, they did so with unusual dispatch. The Sixth Circuit, which was considering appeals at odds with the prevailing opinions, might have reflected that, if the Supreme Court wanted to adjudicate the issue, they could easily have waited a few weeks to see what the Sixth Circuit would do, and if necessary, include them in their considerations. The Sixth Circuit would not have been remiss to consider that the unusual haste of the Supreme Court’s denial may have been to warn them off a divergent opinion. In the event the Sixth Circuit did not take the hint, and entered their opinion which is remarkable in that it did not discuss, to any great extent, the merits of the case before it, choosing instead to opine on social issues.