Category: Current Events and discussions

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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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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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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.

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Leslie Feinberg Remembered

I read Stone Butch Blues years ago just after it came out. A friend of mine told me that I had to; it had affected her so strongly that she had been ill for ten days after reading it. I was a graduate student with no free time to read; I read the book: reread it, and cried both times. Then I recommended it to every TBLG person I knew, or met, and gave away at least a fifteen copies to straight people where I thought it could do some good. One of my friends told me that she read the book from cover to cover at one sitting, only getting up to pee. I visited Firebrand books, the original publisher, to try to order in bulk and arrange to use a chapter in my English classes at Indiana University. I am glad to see that the new edition will be available free online, not because I begrudge Leslie, or her family, well-deserved royalties, but because, in the past, the book has been hard to get and needlessly expensive, at least to my way of thinking. It is an important work that deserves wide distribution and recognition.

I got to meet Leslie when she spoke at DePauw University in 1998; they engaged her to speak to their students for their Diversity Week, and mandated that the students attend. The students were present and polite, but not really engaged and the question period was soon at an end. A book signing had been scheduled to follow, but the only person to attend was me. As a result, I got to talk to Leslie for at least twenty minutes. She presented as one of the most male presences I have met, wearing a man’s suit that I describe as “sharp” because it looked good on her, but more because I believe that you could have cut yourself on the creases. The suit seemed large on her, not ill-fitting, but as though she was protected inside it, as if she were wearing a suit of armor. Her comfortable shoes contrasted with the rest of her attire.

Reading Stone Butch Blues, I had been struck by the remarkable care she displayed in using pronouns throughout; I was just getting launched in the TBLG community, and knew almost nothing about gender variance; I do not believe that I attached the label “trans” in my mind to any of the characters in the novel. Along with the care in assigning pronouns: each character had a pronoun that fit the person, not the body, and such decisions were highly nuanced, not simplistic, I read a lesson to let people be who they are, without burdening them with a label not of their own choosing, and the difficulty that allowing them this dignity can involve. I believe that lesson was very important and has helped me ever since.

In my conversation with her, I mentioned my admiration for her skill with pronouns, and she expressed gratitude, noting that she had expended enormous effort on them, and was glad to see that it had been recognized. It is my belief that such effort is often rewarded even by those who do not recognize why they are so enthralled by a work.

I hesitate to question Minnie Bruce Pratt, Leslie’s spouse, but when she quotes Leslie in her lovely, caring, obituary: “I care which pronoun is used, but people have been disrespectful to me with the wrong pronoun and respectful with the right one. It matters whether someone is using the pronoun as a bigot, or if they are trying to demonstrate respect.” The language persuades me that she has erred, probably in the emotion of the moment. I believe that what Leslie said was rather: “I care which pronoun is used, but people have been disrespectful to me with the right pronoun and respectful with the wrong one. It matters whether someone is using the pronoun as a bigot, or if they are trying to demonstrate respect.”

Because I never saw Leslie using male pronouns for herself, I have persisted in using “she” and “her”, always a little worried that it would not be what she wanted. I am somewhat relieved to see that is what Minnie Bruce called her in her obituary, but even more so to have confirmed my sense that she would have cared more about the effort, and the care, than about the details of the final result even though the details mattered so much to her. I feel that Stone Butch Blues and other writings by Leslie Feinberg constituted a graduate course in the use of pronouns and respect for individuality that was of great benefit to me as I learned to honor people as they wished to be recognized.

In Transgender Warriors, she exposed the slight of hand that makes gender variant persons disappear when they can be classified in some other way. The example that struck home to me was Joan of Arc (who among other achievements invented the modern nation state). I knew for as long as I can remember that Joan was burned at the stake for refusing to wear a dress (yes, there were political influences, but they only served to ensure that the charge was brought and the penalty enforced). Until Leslie pointed it out to me, I did not make the connection in a meaningful way that Joan was trans; she was a warrior, a saint, a visionary, but those qualities did not accrue to the transperson, they overshadowed, erased the trans identity.

Leslie was a Communist. I disagree heartily with her politics, but still admire the person and the writer.

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What happened while we were not paying attention: the language in the Indianapolis Human Rights Ordinance that prohibits discrimination on the basis of sexual orientation and gender identity is now enforceable

It is my pleasure to announce to the community that the language in the Indianapolis Human Rights Ordinance that prohibits discrimination on the basis of sexual orientation and gender identity is now enforceable, exactly as is the language prohibiting discrimination on the basis of sex or race. Let me explain:

In 2005, led by City/County Councilors Jackie Nytes and Scott Keller, the council adopted an amendment to the Human Rights Ordinance adding discrimination based on sexual orientation or gender identity to the list of prohibited motives. This action was the conclusion of a year-long campaign involving every group in the LGBT community and many from outside. The degree of cooperation was remarkable and the determination to keep the campaign inclusive, of gender identity, inspiring. Bil Browning headed the coordinating committee and deserves credit for pursuing inclusion in both the campaign and the ordinance, although the community never wavered in its determination to keep the proposed ordinance inclusive of gender identity.

The one blemish on the victory was the prevalent opinion that, because of an interpretation of “home rule” in Indiana, the new addition could not have the force of law, could not be enforced by a law suit. And there the matter has remained for the past years. The promised chaos did not materialize. In that time, there has been no test of the ordinance, nor of the interpretation, but inclusiveness has been the expectation in Indianapolis, and in other jurisdictions in Indiana that have adopted similar ordinances. Property managers, human resources officers, real estate brokers and many other professions are told, when they receive training, that sexual orientation and gender identity are not acceptable grounds for discrimination, in employment or housing, in our city.

And then, in the last legislative session, the Indiana General Assembly adopted a bill that purported to prevent, for example, the city of Bloomington, from adopting a minimum wage higher than that adopted by the state. Many people objected on that basis, but the bill passed and was on its way to becoming law, when the mayor of Indianapolis complained that the wording of that bill would remove protection against discrimination on the grounds of sexual orientation and gender identity from his city’s Human Rights Ordinance. As we have seen, there was some serious doubt that such protection was enforceable, but that did not come up in the public discussion at that time.

Human rights activists, Democrats and others of my acquaintance exploded claiming that the original bill was merely a ploy to remove any semblance of LGBT rights from the state. As we shall see, if that was the case, the perpetrators are singularly inept. The passion, I think, blinded the LGBT and Human Rights communities from paying attention to what was going on.

The other thing that happened was that Brian Bosma, Speaker of the House, and David Long, President pro Tem of the Senate, immediately said that such was not the intention, and that they would fix it; immediately. While my friends were pursuing their frenzy, I was interested that the legislative leaders did not say that the issue in question was controversial, but market forces dictated that we cater to the desires of large companies and others who wanted to recruit people to come to Indiana or to retain them. They simply said that it was unintentional, and wrong, and would be fixed.

The other remarkable thing was that they did not say that they would propose some unspecified fix in the next session. They proposed a precise fix, named an existing bill into which they would insert it, so that the fix would be law before the offending bill took effect.

And there it lay, until I got involved in a discussion that brought up the whole problem of the unenforceable ordinance. And I thought: how do you pass a law in the General Assembly that makes a city ordinance unenforceable, but at the same time, not affected by a law that says it cannot be enforced. That the new law would have advertised the weakness of the ordinance would be damage of a sort, but how could the legislature fix that?

The answer is: it could not. So I looked up the language of the fix. It is black and white: on the request of our Republican mayor, the Republican Speaker of the House, and the Republican President Pro Tem of the Senate passed a bill, and the Republican governor signed it into law that clearly and unambiguously empowers the City of Indianapolis and all similarly situated “units” (I think that is the term of art) to add any categories they like to lists of protected categories in their ordinances. Since that law was enacted to save the clause about sexual orientation and gender identity, it surely must include those very categories. In other words, the LGBT inclusive language in the Indianapolis Human Rights Ordinance has exactly the same weight as the language prohibiting discrimination on the basis of sex or race.

I am happy to make this report to the community. I do suspect, and have for a long time, that making gay rights, or anything, a partisan issue tends to make meaningful, enduring progress more, rather than less, difficult. I have maintained for some time that my goal is that equality be a Hoosier value (and I believe that it is) rather than a purely Democrat or Republican value.

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Are the judges of the Fourth Circuit expressing irritation at the Supreme Court?

As we wait for the Supreme Court to answer the Fourth Circuit’s refusal to stay their ruling in Rainey v. Bostic, the Virginia marriage case, I wonder what possessed them to make such a refusal despite the Supreme Court’s two previous rulings granting a stay in similar cases, over the objections of the Tenth Circuit. While we would hope for denial of the requested stay, it is almost automatic in such cases, especially where one has already been granted. It says little, if anything about the merits of the case or the chance of success. So why is the Fourth Circuit seemingly asking to be overturned–judges do not like that.

My own thoughts have been that they wanted to dare the Supreme Court to overrule them with the strong likelihood that the case will be resolved in favor of marriage equality in the very near future, and the stay will have been exposed as unnecessary. Of course, I could be guilty of wishful thinking, but over thirty federal judges, including four circuit court judges agree with me.

A friend, who knows well people who clerked for the judges in this case, offered a slightly different perspective, which I adopt. She said that the “cranky old men” on the Fourth Circuit could be expressing their annoyance with the Justices, for erring in Windsor and making the lives of the circuit court judges needlessly difficult. The error, let me hasten to explain, was not that the Supreme Court decided the case wrongly, but that it did not go far enough.

Before the decision in Windsor came down, I hoped that the court would recognize the chaos that would ensue if they ruled as they eventually did, leaving the larger question of the constitutional right to marry the person of your choice for another day. Obviously this decision led to the many cases claiming the right to marry and to have one’s marriage recognized, but it led to many other subsidiary issues that have surely plagued the court system since then. My imagined example was of a couple who worked, at least one of them, for the federal government in Washington, and could have their employment benefits changed by moving from one block to another (from one state to another). That would lead to unequal treatment of two federal employees, similarly situated, and sitting next to each other at work. There would also be the case of a federal employee assigned from a state that recognized her marriage to one that did not. We know that groups such as Lambda Legal have specialists who advise people on how to navigate this mess. Since I do not spend my time worrying about the difficult lives of federal judges, I did not consider that they might well feel aggrieved in their own right.

And so it seems that they may have done; and sent a message to the Supreme Court, by refusing to stay their decision, thus allowing our friends to marry, but at the same time, allowing them to dismiss pending cases as moot.

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Justice Ginsburg’s mistake: why Roe v. Wade is not analogous to the two marriage cases before the court.

Justice Ginsburg has attracted attention recently with her remark that, while she supports the content of the Supreme Court’s decision in Roe v. Wade, it may have been rendered prematurely and thus be responsible for the enduring acrimony that plagues discussion of abortion policy in the country. Her comment, taken in the context of the pending decisions on California’s Proposition 8 (Prop 8), and the Defense of Marriage Act (DOMA), is of interest as a guide to her thinking, and perhaps, that of some of her colleagues; it is less compelling as a justification for timidity in the matter under consideration for at least two reasons: the two issues are distinguishable, and to the extent they are similar, her point must be regarded as not proved.

Taking the last part of that statement first, It is true that there seemed, fifty years ago, to be progress toward a modus videndi, an accommodation between a woman’s right to control her own body, and concerns for the rights of a fetus, or a religious community’s sensibilities. Certainly since then, the acrimony has taken root and flourished. The assumption is that absent the court’s decision, arresting political discussion, comity would have prevailed. Perhaps, but take the parallel case, clearly apposite here, of gay rights, also known as the most recent chapter in the continuing saga of American inclusion. Fifty years ago steps were being made towards greater equality for gays and lesbians; we cannot know what might have happened, and those steps seem small and timid today, but had they continued, even at that slow pace, we could easily have passed into full equality and acceptance by now. Fifty years is a long time. However without benefit of a Supreme Court decision recognizing gay rights for motivation, Anita Bryant took up the challenge to stop that progress and she succeeded spectacularly. So not having a judgement recognizing equal rights, did not spare the gay community from a backlash.

About the same time the court decided Loving v. Virginia trumping the will of 80% of the population and reiterating that the right to marry the person of your choice is fundamental. At the time, I believe that most people would have been more troubled by an interracial marriage than a gay or lesbian relationship, nevertheless the decision passed with scarcely a ripple and today the opponents of marriage equality (ironically called for the purpose of the Prop 8 case “the Proponents”) are unable to see the similarity between their position and the position of opponents of mixed-race marriage fifty years ago despite the striking similarity between arguments then and now. They cannot see that, ignorant of what we now know, those opponents of a generation ago believed as fervently, and for the same reasons, in their cause as do today’s opponents to marriage equality for gays and lesbians.

I must digress briefly to dwell on the court’s phrase: “the right to marry the person of your choice.” Opponents of marriage equality sometimes say that there is no inequality because a lesbian is equally free to marry the man of her choice as any other woman is. That of course, echoes the position fifty years ago that a black man could marry the non-white woman of his choice and a white man was equally barred from marrying a non-white woman. With very few, well justified, exceptions, we hold that marriage is meaningless if it is not to the person of your choice. And that abstract consideration, with very real consequences, does not even include the considerable damage to the spouse of someone who was coerced, by an unjust law or policy, to marry against his inclination.

So Justice Ginsburg’s implication that because the decision in Roe was followed by acrimonious struggle about abortion policy and law, the latter was caused by the former smacks of post hoc, propter hoc logic, which as we all know is a fallacy.

The second problem with her analogy is that the two issues, and the cases that arise from them are dissimilar in material ways. They are similar in that opponents are most often from the same religious background and invoke, as I have mentioned, similar, not to say identical, arguments for lack of the ability, in court, to raise their real objection: “God says it is wrong.” But the reason that Roe has endured as a passionately disputed issue, and that marriage equality seems to have completely vanished as a point of contention wherever it has been tried, is that in Roe there are competing interests to champion. Simply put, what right does the state have to tell a woman what she can do with her own body? Similarly, what right does anyone have to murder an infant? By putting it thus, I beg the question of the intersection of competing rights, and I have no pretence that I can solve the dispute any better than all those who have tried, but with competing interests come enduring passions, and the only possible consensus will come as a result of political accommodation of the concerns of both sides.

In the case of marriage, the real dispute is between the couple and the state that wants to deny the status. There really is no one else involved; that is why the case should be decided in favor of marriage equality. In weighing unspecified, speculative damage to unspecified persons against real and immediate damage to very real couples and their dependants, there can be no hesitation, and there is every reason to believe, even absent the demographic prophecy from recent polling of young people, that the issue will fade as it did with interracial marriage after Loving, and as it has done here since Goodridge in Massachusetts, and around the world where it has been tried. Almost everyone has much better things to do with their time than to fret that their neighbors might be happy.

That is an example of the genius of the framers of our Constitution: they realized the difference between what is called “negative rights” and “positive rights”. Negative rights are those that tell the state what it cannot do to a citizen. As a general rule, they do not cost anyone any money; as Jefferson put it, they do not pick his pocket. And as a general rule they can be close to absolute. The state has no rights; it has powers derived from the citizens such as are necessary to do the citizen’s business, but powers are not rights. In a competition with individual rights the state must lose, and only imminent harm to other citizens can prevail. By contrast, positive rights assert what a citizen can demand from the government, and that almost always leads to a claim against fellow citizens, picking their pocket, so to speak. That is not to say that such claims do not exist, just to say that they are different, surely weaker than negative rights. Where citizens have competing claims, the result must be political. There is no legal solution to the dispute about abortion; we must reach a political solution because there are competing claims, not necessarily equal claims, but clearly competing ones.

So the court would be wise not to follow Justice’s Ginsburg’s advice and defer judgement. While letting Prop 8 stand for California alone, will not change the judicial landscape since nine other states, and the District of Columbia already recognize marriage equality and live with the consequences of unequal recognition by other states, countries, and the federal government, a partial decision on DOMA will surely and swiftly lead to judicial chaos. An activist court is not one that reaches a decision I do not like; an activist court is one that reaches a decision that it did not have to reach to do justice, in the case before it, under our laws, or that refuses to reach a decision when it is necessary. To refuse to reach the decision imposed by the law and the arguments, is to nullify the will of the people expressed in the Constitution; nothing could be more activist, more reprehensible than that.

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What does the Second Amendment Mean, Part II?

After Andrew Cumo, governor of New York, recently used a rant scarily reminiscent of demagogues from past days, to ram a bill through his legislature, a bill so carefully thought out that it served to disarm most of the police in his state; now Colorado is considering seven anti-gun bills. Most of the discussion is not about what happened at Newtown, and how we might prevent its recurrence; not about the daily slaughter in Chicago, a city with among the most restrictive gun laws in the country, but about what is the best way to infringe the right of the people to keep and bear arms, and how much we can get away with if we use the emotion of the moment to drown out reason. Is there a better example of the meaning of the word “demagogue”?

The Second Amendment is part of our national Bill of Rights, the first ten amendments to the United States Constitution, presented as a whole and meant to clarify important aspects of the original document. Knowing the care with which the authors crafted the Bill of Rights, we should study and can draw conclusions from exactly what they wrote. They did not wait for a bill to be passed before they read it. It is well to note that the founding documents are the foundation of this nation. More than anything else they are what define us and what bring us together. The oaths of office of public officials throughout the nation require such officials to preserve, protect, and defend our Constitution. It is not something to be taken lightly, particularly by those who have sworn a sacred oath to uphold it.

Amendment one starts out “Congress shall make no law . . .” meaning that, at the time, the prohibition was on Congress to stay completely out of matters of religion, and free speech. The various phrases work together to explain that, no, free speech cannot be limited by, for example, blasphemy laws, no matter how much believers yearn for such restrictions. And freedom of speech means in public, and with the right to spend money on high technology to spread our individual thoughts and the right to band together so to do.

Amendment two says that the right to bear Arms “shall not be infringed”. It does not limit the prohibition to Congress. The word “infringed” is about as sweeping as I can imagine. I have to assume that limits on this right will have to be very, very well justified.

Much has been made of the preamble to the Second Amendment: “A well regulated Militia being necessary to the security of a free State . . .”, most notably to try to say that it limited that right to a right to join the army or perhaps the National Guard. That idea, rejected by the Supreme Court, is obviously erroneous because, while the phrase “the people” can mean many things, including, for example, the prosecution in a criminal case, or the government in official documents, in the Bill of Rights, we have only to glance at the Tenth Amendment to see that the authors of this document drew a sharp distinction between the United States, the several States and “the people”. It is the people individually who have the right to bear arms, and to keep them. And it is the people individually who make up the militia.

So the Militia referred to is not the army nor the National Guard. It is the people, and therein we find what is at stake here. Remember that at the time, there was no police force, as we now know it. As a rule people not only took care of themselves, they banded together to protect each other and the community. You can see the idea in the modern neighborhood watch, but it is much more profound. A recent court decision holds, so I have read in the New York Times (28 June 2005), that the police have no duty to protect you. Certainly in the recent desperate man hunt in California, the police made it clear that they placed a higher priority on defending each other than on defending the general population. On 9-11, when the government failed to protect the people, Todd Beamer and the passengers of Flight 94 took charge; although unarmed, they were the only American response on that day and it is likely that they saved the White House or the Capitol. We can speculate that if the accepted safety policy at the time had not been to disarm (morally) passengers on airlines, telling them to submit to hijackers with the idea that resistance would only cause needless injury, perhaps one or more of the other flights might have been stopped. In the months following, trying to take over an American air liner was vigorously discouraged by the passengers. I present these musings, not as a well-thought-out policy, but merely as rebuttal to the prevalent assumption that a disarmed population is a safer population. That question has not been settled.

I contend that the Militia referred to in the Second Amendment is the people acting as the first line of defense of their country. In that case the issue under discussion is not the number of bullets in a magazine, nor as the Vice President seemed recently to indicate what is the proper gun with which to murder a six-year-old girl, but to quote Lincoln accurately: “that government of the people, by the people, for the people shall not perish from the earth” The current President misquoted that phrase in his Second Inaugural Address when he said “government of, by, and for the people. . .” I do not believe that this is an inconsequential error. In Lincoln’s speech, “government of the people” meant the people are governed by themselves and for themselves. Pretending that he spoke of a remote government that could be said to emanate somehow from the people, distorts Lincoln’s powerful statement that the American Revolution (not the War of Independence, but the challenge to the very order of things that this country has always represented) was the idea that the people should not be governed by their betters, or any other distinct, distant, group, but essentially by themselves.

People who love to quote Lincoln while holding that there is nothing particularly admirable, nothing exceptional about America, should note carefully that he feared that if, in 1863, the experiment failed here, it would thus vanish from the earth.

As the American revolutionaries had learned, the world was not ready for anarchy, and agreements and institutions were necessary, but they intended that as much as possible the people should be their own government, and when they needed state institutions, those institutions should be answerable to the people and not vice versa. This idea was, and remains, truly revolutionary; I would say that it is the only real political revolution of lasting value to the people of the world.

An armed populace is not necessarily a violent population. The value of respecting the right to bear arms is manifest long before we reach armed confrontation. In the first place, accepting the people’s right to bear arms, recognizes their status as sovereign, and accords them due respect. In the second place, governments are wont to treat an armed populace with more deference than one that they have successfully disarmed. In the third place, the people are the only ones who can be counted on to be present when bad things happen.

We do not honor or memorialize the dead children of Newtown or Chicago by throwing out our birthright; and stripping their brothers and sisters of the American dream. We do not make others more safe by passing laws that everyone knows would not have stopped those tragedies. If we want to honor those children, we should thoughtfully, and without prejudice, examine how we might make such occurrences less likely in the future. If, perish the thought, another troubled person should invade an elementary school, and we know that no measure of gun control, not even total confiscation, will make that impossible, we know that the President, the Vice President and the Governor will not be there. It is very likely that the police will not be there and will take some time to arrive. If we want to help those children on some unhappy future day, we can think about how we could discourage such a person from choosing a school, or even choosing such a course, and we can think about what the people who are present when it comes to pass can do to stop it. Americans should always understand that they are each first responders and the last line of defense.

In case it is not clear, there is much to consider in the wake of recent tragedies, but we should not carelessly, and without discussion, abandon what made this country unique in history and what Lincoln thought was the justification of the carnage of the Civil War.