Thursday, May 29, 2014


It's that time of year again, when the academic year wraps up, and that means it's graduation time.

Graduation ceremonies are full of things that I don't like:  Repetitive, trite music; ridiculous outfits loosely connected to academic and clerical dress from six centuries ago; lots of standing in line; sweating in sweltering heat; and boring speeches, to name a few.

I've been a part of three graduation ceremonies (as a graduate) in my lifetime.  I can't say that I enjoyed more than thirty seconds of any of them.  I did enjoy my brother's high school graduation, mostly because as valedictorian he gave a cleverly incomplete speech that maddened the whole town.  Michelle's college graduation was sheer torture; it was held in the University of Maryland's then-basketball arena, which had no air conditioning, which meant that it smelled like a French subway.  I was, however, proud of her accomplishment, so it was worth it.

My graduation from law school took place during record heat.  We were required to wear dress clothes, which meant a suit and tie; layered over that was a heavy velvet gown--and don't forget the tam o' shanter.*  If forced to choose between going through that again and taking the Bar again, I'll take the Bar.

* - It was also the third time in my lifetime I had been to the main campus of Georgetown University.  The law school--excuse me, the Law Center--is downtown, near the Capitol.  The first time was to borrow a book from the main library.  The second time was to return the book.

College graduations in particular often feature speakers who are awarded honorary degrees and suitcases full of case to offer platitudes and inspiration to the new graduates. Sometimes these speeches are memorable and genuinely worth what the speakers are paid for them.  David Foster Wallace gave one of the best ever at Kenyon College in 2005--it was so good that he turned it into a book titled This is Water.

This year, a couple of incidences of speakers being pressured by the graduates to withdraw made the news.  Condoleezza Rice, erstwhile Secretary of State and George W. Bush "work wife," was offered cash and a door prize to speak at Rutgers this spring.  Many students thought that Dr. Rice's record in supporting and defending the war in Iraq disqualified her to receive a high honor in their name, and after promised protests, she withdrew.

Probably the bigger headline came out of a proposed speech and honorary doctorate offered to Robert Birgeneau, formerly the chancellor of the University of California, Berkeley, by Haverford College, a Quaker-founded liberal arts college outside Philadelphia that few people have ever heard of.  Dr. Birgeneau was a controversial pick because of his role several years ago in suppressing protests by Occupy Berkeley, a group of students who were protesting rising college costs.  Campus police used force to disband the rally, apparently with Dr. Birgeneau's endorsement if not instruction.  It was an ugly, unjustified incident for which Dr. Birgeneau has refused to apologize.

A group of about 40 Haverford seniors and several professors who had been students at Berkeley, wrote a letter to Dr. Birgeneau, indicating that they would protest Haverford's decision to honor him unless he undertook nine steps of contrition, including a formal apology, support for reparations to the students who were injured, and a letter to Haverford students explaining his position, among others.  Dr. Birgeneau also withdrew rather than face protests.

His replacement, however, was not so reticent.  William G. Bowen, who was the president of Princeton University for a long time, and who was largely responsible for the development of JSTOR, the electronic access system for academic journals, used the opportunity afforded him by Haverford to lay into to those who were opposed to honoring Dr. Birgeneau.  Dr. Bowen called the students' letter "an intemperate list of demands," adding that in his view, the students "should have encouraged him to come and engage in a genuine discussion, not to come, tail between his legs, to respond to an indictment that a self-chosen jury had reached without hearing counter-arguments."

Dr. Bowen also referred to the protestors' letter as "immature" and "arrogant."

The thing about Dr. Bowen's remarks I find curious is in his fundamental misunderstanding both of the long history of protest as an essentially American activity and of how commencement exercises work.  These students, many of whom paid more than $200,000 for the privilege of earning their degrees, believed, legitimately, that they ought to have some say in who speaks to them at their graduation ceremony and who receives an honorary degree from the institution from which they are graduating.  It is never inappropriate for those affected by an action most directly to speak out about what they see as an injustice.

As I have said many times, the remedy for speech you don't like is speech you do like, and these protestors were right to do as they did.  They handled this matter in a manner that was neither intemperate, nor immature, nor arrogant--which is more than can be said for Dr. Bowen, who was in the space of his remarks all three.

Moreover, commencement exercises are not a forum for debate.  They are a ceremony with a prescribed format and agenda.  Activities--such as a response to the speaker's remarks--that are not on the agenda are not a part of the ceremony.  Even silent protest, which is the only form Dr. Bowen could bring himself to endorse, is not a dialogue.  I find it hard to believe that a man who presided over more than a dozen commencements at Princeton would fail to grasp that concept.

* * * * *

As for Dr. Birgeneau...I am reminded of part of the profile of Sen. Daniel Webster in John F. Kennedy's Profiles in Courage.  Kennedy, who held Webster's Senate seat more than 100 years later, praised Webster for his role in the Compromise of 1850, calling Webster's defense of the compromise "one of the greatest acts of courageous principle" in the Senate's history.  Students of history know that the Compromise of 1850, which led to passage of a Fugitive Slave Act, held the Union together for about 10 more years, but ultimately became a significant part of the abolitionists' motivation in ending slavery.  Webster's role in the compromise is something I would consider a dubious distinction, although I understand and appreciate the motivation to keep the Union together even at great cost.

But what reminds me of the profile of Webster is how delicately Kennedy tiptoed around Webster's vices.  Webster, as great a statesman and orator as he was, made it known that his vote was easy bought; his constituents routinely paid him outright bribes for favorable treatment.  It was something that Henry Cabot Lodge called "utterly wrong and demoralizing," but that Webster regarded as the natural order of things.

The link to Dr. Birgeneau is in his blindness to his professional failing.  Dr. Birgeneau was, during his time at Berkeley, one of the staunchest advocates for the rights of minority students as well as for undocumented aliens who had lived most of their lives in the United States.  He is rightly regarded as a civil rights leader for those activities.  It is unfortunate that he cannot see that the violent suppression of peaceful protest on the grounds of a public university is a deeply shameful, even criminal, and most definitely un-American act.

Tuesday, May 27, 2014

In search of new ideas about guns

Every few months, it seems, we are beset by a new instance of a mentally ill person who has got hold of one or more guns and decided that the best course for his life would be to kill, more or less indiscriminately, a bunch of people who are otherwise going about their business.

It happened again on Friday night, near Santa Barbara, California, but that was merely the latest in a long string of mass murders by gun.  This time the victims were college students, but it has been schoolchildren and teachers, moviegoers, mallgoers, office workers, and any number of other groups.

On Thursday, one of my best friends wrote the following in response to an announcement by Chipotle, the fresh-made burrito chain, that it prefers that its customers leave their guns at home--an announcement made in response to a pro-gun open-carry rally at one of its restaurants:
Have we lost our humanity? Are we so scared of each other that we have to walk around with guns everywhere? I believe having such high strung anxiety about one's neighbor does nothing but escalate the problem. ... What happened to having faith in community, to seeing the good in our neighbor, and to choosing to believe in the idea that we are inherently good people?
Jon is the right combination of smart, kind, and genuine, and he cares deeply about humanity and about finding solutions to our problems.  Although I share Jon's optimism about people, it seems rather clear that many people do not.  

In many respects, the problem is that we seem to have taken to talking past each other.  In the past, when we had political differences, we at least accepted that there were men and women of good faith on both sides, and we would work out our differences through compromise and reason.  Our entire history consists in the struggle between the forces of conservatism and the forces of progressivism, with each dominating in turn but no philosophy maintaining a permanent hold upon us.

These days, compromise is seen, particularly on the conservative side, as weakness or ideological impurity--something that must be purged from the public discourse, even at the cost of legislative representation, or of an entire government shutdown.  There are some on the progressive side who argue for that same purity, but it would be a lie to equate them. 

I don't have the solution to that problem, but I believe that the road to a solution is paved with dialogue and interaction, not exclusion.

The gun issue is part of that seemingly intractable debate.  The National Rifle Association is firmly dedicated to ideological purity among those it supports, and as a powerful lobby it flexes its muscle so severely sometimes that it can singlehandedly grind the legislative process to a halt.

But, as the saying goes, we must first seek to understand, then to be understood.

My friend Jon is a gun owner--he in fact owns multiple guns--but I am not.  I am not really opposed to owning a gun; I just don't really have a purpose for owning one, so I don't.  If I had a reason to own a gun, I might buy one.  

There are many different reasons why people own guns.  They own them for hunting.  They own them as collectibles.  They own them because they enjoy shooting sports, like skeet and trap, or even simple target practice.  They own them for personal defense.  Some people own them because they use them to commit crimes.  And some people own them because owning, carrying, and shooting guns makes them feel more powerful than they feel without them.

One of the problems with the NRA--an organization that was founded and carried on for many years for good reasons, maybe even great ones, but that has lost its way in recent years--and its position on gun regulation is such that it essentially treats all of these reasons for owning guns as irrelevant, or at least as the same, when they are decidedly not the same.  The NRA's position is twofold:  there is no regulation of guns worth having, and there is no situation involving guns that cannot be made better by inserting more guns.  Now, I doubt they would phrase it in these terms, but that is the NRA's position in effect.

The NRA's position is a reflexive "no," which is the easiest form of involvement in a democracy.  That reflexive "no" makes it an ostrich, apparently unwilling even to acknowledge a problem, much less to offer constructive solutions that preserve our rights while keeping us out of a suicide pact.  I have seen this "no" before--it is a staple of the progressive-vs.-conservative debate--and it is ugly because it forecloses any opportunity for debate.  That "no" can be found in the platitudes the NRA offers up instead of policy:  "Guns don't kill people; people kill people" makes for a nice slogan, but it avoids the point.  Guns may not kill people by themselves, but guns enable people to kill and maim more people, more quickly, more effectively, than virtually any other weapon available.

In his brief point on the subject, Jon also said this:
I contend that there is nothing inherent about the gun that makes it any more dangerous or deadly than a sledge hammer, a nail gun, an air compressor, a saw, etc. This is to say guns are dangerous. Just like a circular saw, guns are not something to play around with or joke about. 
Although I see and respect Jon's point, I'm not sure I can fully endorse his position.  I doubt very much that it would ever occur to Jon to use his guns for anything but beneficent purposes--that is the kind of man he is--but the simple fact is that while all of the tools he mentions are indeed dangerous, even deadly, it is nigh unto impossible to carry out a mass murder with an air compressor or a saw--Hollywood horror films notwithstanding.  There are other implements that can kill many people at once, given the proper circumstances--bombs especially, but cars as well--but the mass murder carried out with something other than a gun is a rarity.

The Santa Barbara shooter apparently killed his first three victims, his roommates, with a knife.  But it was the guns he owned that allowed him to go on a spree, killing three more people, in addition to himself, and injuring and frightening many others.  Taking the guns out of his hands, if we could have done it, would have saved those lives.

The challenge we face is in keeping guns out of the reach of people who would use them to commit murder, who are mentally ill and homicidal, and who are not old enough to appreciate their danger, while respecting the rights of those who would use them for other purposes.  

I'm afraid I don't have the answer to that challenge.  But what we are doing now is not working.  It's time to recognize that and try something new.  I'd like to hear your answers.

Monday, May 26, 2014

What we owe

I have some tough words to say this Memorial Day.

Since the founding of the Republic, more than 1.3 million Americans have given their lives in military service.

On this Memorial Day, we hear the giving of thanks for that service and sacrifice.  There are countless moments of silence.  Cameras pan across cemeteries, showing row upon row of white grave markers.  There are military flyovers and professional athletes sporting camouflage.  We stand exhorted to remember and respect those Americans who "died for our freedom" and those who are willing, but desperately hoping not, to do so now.

These platitudes are nice and necessary, but they are incomplete.

Words are meaningless without action to back them up.

We owe our war dead a debt, but it is not a question of thanks.

It is in the first instance a commitment to ensure that those we send to fight and, if necessary, to die for our country do so because their sacrifice is worth the price they pay.  In World War II, it was easy to see the necessity.  The forces of fascism had marched relentlessly across Europe and Asia.  Powerful enemies were bent on world domination through aggressive war.  Since then, it has been less clear that our military entanglements were necessary, but our actions in Korea and Vietnam were at least driven by the perceived need to oppose the creeping influence of communism.

I am not certain that communism presented the existential threat that it was made out to be, and our opposition to it produced some of the ugliest moments in our history, but we were understandably cautious about the influence of the Soviet Union after our experience with Germany and Japan.

I am certain, however, that our involvement in Iraq and Afghanistan has not advanced any material interest of the United States--not even our broader interests in democracy and other human rights.  All things considered, I believe I'd rather have the 6500 service members we've lost there.  They didn't fail, nor did the many thousands of others who served there.  But they were given a fuzzy objective with little care paid to what would happen, both as they fought and after they left.  That's a failure of leadership.  We owe them an apology.

The second thing we owe to the members of the military, who have given so much, is to fulfill the promises made to them.  When it is provided, the Department of Veterans' Affairs provides excellent care and benefits.  But the VA is chronically underfunded and hamstrung by red tape.  No one who has been paying attention is surprised at the recent scandal about waiting periods for care. 

Even more, however, we owe it to returning service members to take care of their needs--fully--when they return.  The fog of war produces casualties of many types.  We ask our military men and women to do awful, dangerous things in our name, then fail to recognize the impact of those awful things on their mental health.  Veterans come home to joblessness and hopelessness, to broken relationships, to an America full of people who lack understanding of what they've been through because we have not shared in their sacrifice.  It should be no surprise that their unemployment rate is so high, that their divorce rate is so high, that their suicide rate is so high.

We owe them the care we promised them.

The third debt we owe these million-plus Americans is a debt we owe to ourselves and to future generations.  All of these deaths, these glorious and romantic and honorable deaths, are meaningless if we don't fulfill our promise.  In 1787, when the Constitution was being drafted, the framers decided on a preamble that set forth why they were writing this document:

We the People, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

We have not always lived up to the promise of that sentence.  Sometimes, our failure to live up to it has been spectacular.  But I prefer to think of our history as being one in which we push out the frontiers of freedom, little by little.

In some ways, we're still doing that.  There is a growing recognition in this country of homosexual rights, and although there are battles to fight on that front, the ending is plain to see.  But we also seem to have forgotten that our government was set up not merely to secure our liberty but also to secure the blessings of that liberty for present and future Americans.  It means nothing to be free if that freedom cannot be enjoyed because of hunger or homelessness.  It means nothing to be free if you are forced by hard economic times into an ever-decreasing set of rewards for an ever-increasing work schedule.

It means nothing to be free if you have no realistic hope for a better life.

When wealth is increasingly concentrated among the few; when that wealth is seen as, and protected as, speech; when arguments are made in favor of treating corporations the same as living, breathing people; when one party has become so embittered at its losing share in elections that it grinds the entire lawmaking process to a halt and cynically focuses its efforts on depriving minorities of their vote; then it becomes reasonable to question what exactly our brave men and women in uniform are fighting and dying for.

If we aren't still dedicated to promoting the general welfare, what's the point? 

What we choose to do with this thing that so many Americans have fought and died to protect is our living memorial to their sacrifice.  So unless you are prepared to hold your representatives accountable to our most important promise, keep to yourself your platitudes about remembering those who died in war.  Words mean nothing in the end.

Monday, May 19, 2014

Even a broken clock

It comes as no surprise to anyone that I'm a Democrat.  I could go on and on about the reasons why, but it might surprise you to learn that if you asked me what my political philosophy is, I would say that I'm a civil libertarian.  (In fact, I'm a Democrat because I'm a civil libertarian.)

Essentially what that means to me is that I prefer that the laws be implemented in such a way as to provide and protect maximal individual freedom to Americans, but it also means that I want the government to act in ways that support individual liberty by providing help to individuals who need it.

As the old song goes, "Freedom's just another word for nothin' left to lose."  But it doesn't have to be that way.  To make freedom meaningful for people, we need to do more to make it possible for them to experience that freedom. 

Anyway, I'm a big fan of the American Civil Liberties Union.  The ACLU is unfairly maligned in many circles.  Some people have objections to the kinds of people they help--such as when the ACLU supported the rights of neo-Nazis to march in Skokie, Illinois, in the 1970s.  Others view the ACLU as meddlers bent on upsetting conservative institutions.  I can't say I agree with every position the ACLU has ever taken, but they extend their help all comers, even including groups and individuals who advocate positions that are antithetical to the liberal viewpoint the ACLU supposedly champions.

Conservatives, of course, have their own version.  The American Center for Law and Justice--the "ACLJ"--aims to champion conservatives' liberties in the opposite of the manner most conservatives pretend the ACLU champions liberal views.  Needless to say, most of the ACLJ's initiatives are slavishly devoted to partisan ideology, rather than to any particular ideals about freedom (or law and justice, for that matter), and to selective outrage.

As they say, though, even a broken clock is right twice a day.  And the ACLJ is sort of right about this one.

The ACLJ has a petition up, seeking signatures to put pressure on the Air Force to "stop censoring the religious free speech of military cadets." 

I found that to be a bit odd, so I looked into it a bit further.  Much like any college campus, the Air Force Academy has dormitories, and the outside of each cadet's dorm room has a white board that can be used both for official communication and for personal communication.  I recall having something similar on my dorm room door.

A junior-year cadet used his white board to post a Bible verse, Galatians 2:20:  "I have been crucified with Christ therefore I no longer live, but Christ lives in me. The life I live in the body I live by faith in the Son of God, who loved me and gave Himself for me."

After complaints were registered, the Academy required that the verse be taken off the board, and the cadet complied. 

I don't disagree that the verse is offensive by implication.  It is one thing for a cadet to put up the verse in a private area as a reminder of his religious convictions, to provide him with some sort of motivation, or whatever.  Putting it up in a public area suggests that the verse is being used to proselytize others to his faith or, perhaps, as a signal to others who do not share his beliefs that they are disfavored.  Because that cadet is in a position of authority, the danger of that sort of thing is heightened.

There are a few things at work here, and probably the most important one is that the Air Force can and does restrict the speech of its members, and it is certainly Constitutional for it to do so, at least when it is necessary to further unit cohesion and effectiveness.  But what we have here is a situation in which the AFA has provided a forum that it admits is, at least in part, for the personal use of students.

Once the government provides a forum for speech, it cannot then censor that speech without infringing upon the rights of the speaker.  It was therefore wrong for the AFA to require the cadet to take down his Bible verse because it was deemed offensive.

But the ACLJ (along with the right-wing noise machine that follows it) is only partially right.  The AFA most definitely can restrict this kind of speech by confining the use of white boards to official communications only.  If the cadets are using the forum in a way that runs contrary to the effective discipline of the service, the AFA should take away the forum for that reason--which means that all "personal" communications in this place should be forbidden.

The AFA would therefore need to consider whether the convenience or morale boost that having a forum for personal speech provides is worth also opening that forum to communications that are offensive to other cadets, and make its decision.  But the content of the communications cannot be the dividing line.

If I were in charge, I would probably allow the verse to remain, with the proviso that cadets who believe they are the victims, however subtle, of religious discrimination by their superiors are given reasonable opportunities to complain about mistreatment without suffering consequences for doing so--and cadets who choose to use their forums for religious speech might reasonably be disciplined for that mistreatment.  That is the only way I see to uphold individual religious freedom while providing effect to the anti-discrimination provisions of AFI 1-1.  I admit that it's a fine line to walk, but it's worth walking.  Religious freedom, even for military cadets, is important.

Thursday, May 15, 2014


As I predicted in yesterday's analysis of the Arkansas Supreme Court's ruling dismissing the appeal of Judge Chris Piazza's ruling in the marriage equality case, Judge Piazza has now issued revisions to his prior order.  The revised order does the four things I listed:

1) Confirms the unconstitutionality of Amendment 83 and Act 144 of 1997.
2) Finds that Ark. Code Ann. § 9-11-208(b), which prohibits clerks from issuing marriage licenses to same-sex couples, is unconstitutional for the same reasons as Amendment 83 and Act 144 of 1997.
3) Enjoins the State and the state-wide officials--at least preliminarily--from enforcing any of those laws.
4) Directs the clerks who are defendants in these cases to begin issuing licenses to same-sex couples who apply.*

* - Sort of.  See the discussion below.

In addition to ruling on the -208 matter, Judge Piazza broadened his ruling to include all sources of Arkansas law that could be used to prevent same-sex couples from legally married.

Although the revised order does not specifically direct the clerks to begin (or resume) issuing licenses, Judge Piazza did enter a permanent (not preliminary) injunction against enforcement of any of the laws he declared unconstitutional, in a manner that leaves no question as to what the defendant clerks are required to do.  More importantly, he extended that injunction to include the defendants (including the State of Arkansas) and their "political subdivisions," which would include all 75 counties.

Judge Piazza also in a separate order denied the defendants' application for a stay, saying that they have not shown how they would be damaged by the ruling, while the effect of a stay would be to continue to deny the Plaintiffs their constitutional rights--something that creates an irreparable injury.

In a third order, Judge Piazza made today's order retroactive to Friday, which settles the question of whether the issuance of marriage licenses before today's ruling was ultra vires, or "beyond the powers."  (It wasn't.  Those marriages remain valid.)

This order is much more sweeping than last Friday's initial order, and it is plainly designed to counter some of the arguments that the defendants had made.  In fact, I doubt very seriously that any county clerk--not just the six clerks who are defendants in the suit--has a legitimate basis for continuing to refuse to issue the licenses.  Counties are political subdivisions of the State, and the State has been enjoined.

Next up:  This order is immediately appealable, and the defendants will appeal and ask for a stay pending resolution of the appeal.  Will the Supreme Court issue a stay once this matter is appealed?  My guess is probably not, but anything can happen.

Wednesday, May 14, 2014

Hold your horses

This post has been updated for clarity.

So the Arkansas Supreme Court issued a ruling [PDF] a little while ago on a couple of matters that were pending before it in the marriage equality case.  Of particular importance is the fact that the Court denied the defendants' application for an emergency stay.  The Court also dismissed the appeal.

It is tempting to view these developments as indicating in some fashion which way the Court is leaning, but caution is appropriate.

The most important thing that you should understand about appellate courts is that they do not like to decide things they don't have to.  Because people pay special attention to what appellate courts say--and that's especially true of the state Supreme Court, in state cases--it is important for those courts not to say more than they need to.  In practical terms, the purpose of that policy is to keep a court's options open.

In this case, the Court dismissed the appeal because it was too early.  If you read Judge Piazza's opinion carefully, you'll see that it is not a final order or judgment.  The opinion deals with just one aspect of the case--the part in which the plaintiffs asked for a declaration that the laws in question are unconstitutional.  But Judge Piazza has not ruled on the other part of the case, the part in which the plaintiffs asked for an injunction (an order directing someone not to do something) against enforcement of the laws.  He has also not ruled on the defendants' application for a stay of the ruling.

Even though Judge Piazza has made it clear how he is likely to rule on these questions, he has not actually done so.  Until he does, the case is not "ripe" for appeal, and under its own rules and procedures, and probably under the limitations on the Court's authority, the Supreme Court really was not in a position to do anything other than what it did, regardless of the justices' views of the case.

The fact that the Supreme Court has dismissed the appeal and denied the stay does not indicate in either direction how it is likely to rule on the ultimate issue.

Hopefully, Judge Piazza will rule on these questions quickly.  It is not serving anyone's particular interests--either pro- or anti-marriage equality--to have these matters hanging out there.  I expect that relatively soon, you will see a new order from Judge Piazza, which will do some or all of the following:

1) Confirms the unconstitutionality of Amendment 83 and Act 144 of 1997.
2) Finds that Ark. Code Ann. § 9-11-208(b), which prohibits clerks from issuing marriage licenses to same-sex couples, is unconstitutional for the same reasons as Amendment 83 and Act 144 of 1997.
3) Enjoins the State and the state-wide officials--at least preliminarily--from enforcing any of those laws.
4) Directs the clerks who are defendants in these cases to begin issuing licenses to same-sex couples who apply.

(By the way, on that second strikes me as particularly specious for the defendants in this case to suggest that there is some way to reconcile the unconstitutionality of Amendment 83 and Act 144 of 1997 with the constitutionality of Ark. Code Ann. § 9-11-208(b).  They rise or fall together.  That being said, the lack of a ruling on Ark. Code Ann. § 9-11-208(b) gives them the cover necessary to avoid issuing licenses if they so choose--until that issue is corrected, that is.)

The open question is whether he will grant a stay.  There is a four-part test to determine whether a stay is appropriate pending an appeal, but generally speaking, judges issue stays of their rulings when there is a substantial open question about the law, such as when there is an issue of first impression in a court, or when reasonable minds can differ about the ruling, and when there is a right at stake that is so substantial that denying a stay would work an irreparable injury to the party seeking the stay.

Frankly, he could go either way on that question.  However, there is a strong presumption against a stay of an order designed to protect a substantial right against infringement by the government.

Once a final order and judgment has been issued--with the small exception that the grant or denial of a preliminary injunction request is considered a final judgment for purposes of appeal--and the stay has been granted or denied, then the defendants may appeal.

One more point that I fear may get lost in the shuffle here:  Judge Piazza has found, as a general proposition, that denying same-sex couples marriage licenses is unconstitutional under the Fourteenth Amendment of the U.S. Constitution.  Because every elected official swears an oath of office that includes, first and most importantly, a promise to support the Constitution of the United States, any elected official is justified in disregarding an unconstitutional law.  At last check the Pulaski clerk was still issuing licenses, though he may be the only one in the state. (There is some confusion as to whether Carroll County is issuing them.)
The order from Friday provides those officials who issued marriage licenses thereafter the necessary constitutional cover, despite the lack of a specific order to issue the licenses.  However, until a proper order directing them to issue the licenses is issued, the decision about whether to continue to do so rests with those officials--at peril of being ordered later to comply, and of contempt of court if they fail to comply after being ordered.

Once that order has been issued, however, the matter becomes non-discretionary, at least as to the six clerks who are part of the suit.

We'll keep an eye out for further developments.

About that Constitution thing...

So now that same-sex marriage is legal in Arkansas (and Idaho...Idaho!) at least temporarily, I write today to address a horrible travesty that this state of affairs has exposed:  The woeful state of general knowledge about the basic operating conditions of the Constitution.

And we have no one to blame but ourselves.  Poor understanding of science can be blamed on religious leaders and oil company lobbyists.  Math illiteracy (innumeracy?) can be blamed on the fact that math is really hard, and do you really need to balance your checkbook to the penny or be able to calculate the cosecant of 3(pi)/2? Poor English skills can be blamed on the fact that we're not English.  But if there is one thing we ought to be good at, it's civics.  After all, everybody has opinions about politics, and we sure get a lot of practice talking about them, no matter how nonsensical those opinions can be.

Take Republican David Sterling, who's running for Arkansas attorney general.  Now, I assume Sterling is an attorney, which means he went to law school (unless he's 140 years old and got in under the old apprenticeship rules) and probably took a course in constitutional law.  Speaking to a GOP gathering in Hot Springs, Sterling said that "what really offends me is the fact that he [Pulaski County Circuit Judge Chris Piazza] found that the constitutional provision was unconstitutional."  Get it?  How can a constitutional provision be unconstitutional?  That just sounds dumb.

The source of the confusion is that we call the U.S. Constitution a "constitution" and the Arkansas Constitution a "constitution," which makes you think that maybe they are the same thing, and maybe even the same document, when in fact they aren't.  One way that I think the framers missed out is in allowing this to happen.  It would be much easier to understand if we called one of them "constitution" and the other one something else, like "rutabaga."  And since Jamie Madison called "dibs" back in 1787, the edge goes to the feds on that one.

So what Sterling is complaining about becomes a lot more reasonable with the substitution:  "The rutabagal provision was unconstitutional."  Of course.

And if we ever get hungry, we have a nice root vegetable to make into a stew, instead of a dusty old "constitution," which sounds like something you force kids to eat as a punishment.

Speaking of definitions, one commenter asked, "If a judge calls an apple an orange, does that make an apple an orange?"  This sounds like a trick question, or maybe some Zen mind exercise, so I am wary.  But it might have been rhetorical, because the commenter then proceeded to say that a judge calling a homosexual relationship a marriage doesn't make it a marriage.  I'm not sure how he came down on the apple-orange question.  I will, however, point out that watermelon does not--in my opinion--taste anything like watermelon candy, which tells me that calling that fruit "watermelon" is probably an un-rutabagal misnomer.  Maybe I should ask a judge to resolve that question.

One nicely dressed gentlemen appeared yesterday on local television to protest the ruling, claiming that marriage equality is the first step down a slippery slope, at the bottom of which we will find people marrying their pets or possibly their computers.  "Bestiality!" he whispered, horrified.  If you didn't know what that word meant and weren't married to a computer, you might be inclined to think that it was something good, because it starts with "best."  I'm not sure how he thinks folks will be able to get consent from their pets to the marriage contract.  I once asked my lab to marry me, but she just looked at me.  I know that look. It means, "When are you going to feed me?" and my lab wears it on her face 98% of the time.  But imagine the horror if county clerks had to include space on the marriage license for hoofprints, as this gentleman suggested.  (I'm not sure how a computer would sign.  Maybe with a QR code?)

To get back to the point of this post, though, one of the more ridiculous points I've seen made is that one judge shouldn't be overturn the will of 75% of the people.  After all, we--and by "we," I mean "you," because I wasn't living here and didn't vote in that election--voted to make marriage a purely heterosexual burden.  How can the opinion of one judge thwart the will of the people?

It's not that simple.  Consider this:  The people also voted to put that judge in office.  So, was it also the will of the people that the judge be empowered to make that decision?  Did I just blow your mind?

But think about it this way:  A family of four--mother, father, and two kids, just so you can't say it was rigged--takes a vote on what to eat for dinner.  The father and the kids all vote for pizza, while the mother votes for rutabaga stew.  What is that family going to have for dinner?

Rutabaga stew, of course.  Because you can't have pizza every night just because you want to.  What's popular isn't always what's best.  Mom knows what's best even if it's not popular.  And let's face it:  Rutabaga stew is never going to win the popular vote in an election in which pizza is a candidate.

Listen, despite all the tongue-in-cheek comments, there's a serious lesson here.  Yes, it's true that 75% of Arkansas voters in 2004 voted to amend the Arkansas Rutabaga to define marriage so as to exclude include* homosexuals out of it.  But in 1866, two-thirds of each house of Congress passed what would become the Fourteenth Amendment, and by 1868, and three quarters of the states--including Arkansas--voted to ratify it.  If we are going on voting alone, the Fourteenth Amendment has Amendment 83 beat by a country mile.  And that was six years before the current Arkansas Rutabaga was adopted.

* - I apologize for misquoting Samuel Goldwyn.  In my defense, Goldwyn is better known for the saying, "An oral constitution isn't worth the rutabaga it's written on."

We don't go on voting alone, of course.  But if we did...

Yesterday I commented on Facebook that a "judicial opinion is a device for converting high school graduates into constitutional scholars."  Having thought about it, I've decided that's a bit unfair.  After all, there are plenty of people who stopped their formal education at high school and who understand this stuff.  There are lots of people who went to college and--as it turns out, as shown above--law school that don't get it.  It's not a question of intelligence.  It's mostly a question of expectations.  We expect that the law will agree with us, regardless of how much we actually know about it.  When the law disagrees with us, it must be because of stupid, corrupt judges or agenda-driven interest groups.

I'm not sure how we fix that, but getting a better understanding of the law into the general public would lead to more informed voters, which would theoretically lead to better officeholders, better laws, and hopefully more freedom.

Until that day comes, we're going to have to rely on good judges to protect us from ourselves.  And from our rutabagas.

Monday, May 12, 2014

Ring the bells

The Bells

And so it goes
The old, old story made new
Two hearts, bound together true
Today forever ended and began

Ring the bells

So nothing more
Than what was promised all
The promise of equality
Made perfect in a blink

Ring the bells

And so it goes
The whole world not ending
The world not pretending
That love depends on whom you love

Ring the bells

My love, my love
Kiss me and begin
To show the world an end
To hate in the human heart

Ring the bells

So ring the bells
Join and never part
The future now can start
The story isn't fully written yet


The stories coming out of clerks' offices in various places around Arkansas are heart-warming.  It may come to an end soon, if the ruling invalidating the same-sex marriage ban is stayed, but that end will be temporary.  The writing is on the wall.

On Friday, as I read Judge Piazza's opinion, tears of joy were streaming down my face.  I don't cry very often, but the feeling I was feeling was one I'd felt before.  In fact, I can remember exactly when and where I was--it was 2 p.m. on August 9, 1997, in the sanctuary of the Olive Hill Missionary Baptist Church near Little Rock.  The door to the narthex had just opened, and I saw Michelle for the first time decked out in her wedding dress.  She was so beautiful, and her beauty and the gravity of the moment transported me practically out of my skin.  It took a minute to re-compose myself.  She still takes my breath away.

I have read countless negative comments of the most hateful and ignorant kind in response to this ruling.  I won't dignify them by highlighting them.  What they boil down to is the unjustified belief in the superiority of heterosexuals.  These are messages of hate, and despite being delivered by people who claim Christianity, they are most un-Christian.

How do I know this?  Because the Gospel, the essence of Christianity, is full of messages of love, not hate.  The case for Christianity appears in John 3:16:  "For God so loved the world, that He gave His only begotten Son, that whoever lives and believes in Him shall never die, but have everlasting life."  And in John 13:34:  "A new command I give you: Love one another. As I have loved you, so you must love one another."

It is not necessary to accept Christianity to recognize the raw power of these two statements.  

So instead I choose to focus on the joy of this moment.  And what a joyous moment it is, and a relief.  I don't know whether the messages of love and hope outnumber the messages of hate, but I know they surely outweigh them.  Every time we expand our general freedom, our Union becomes a little more perfect.  I am proud to be an American and an Arkansan today.   Freedom marches on, an unstoppable force.  Ring the bells.

He must think we're dumb

And maybe we are.

A week from Tuesday, Arkansans will go to the polls in a primary election.  In the 2nd Congressional District race (which covers central Arkansas), three Republicans are vying for the chance to face Patrick Henry Hays, the former longtime Democratic mayor of North Little Rock, in November's general election.

The Republican candidates are French Hill, a banker who founded Delta Trust & Bank (soon to be sold to Simmons) and who is the "establishment" GOP candidate; State Rep. Ann Clemmer, a UALR political science professor who lives in Benton; and military consultant Col. Colonel Conrad Reynolds of Conway.  That last bit isn't a typo.  Reynolds legally changed his first name to "Colonel."  I am fairly certain that makes him the wacko candidate, but his presence adds a little color to an otherwise boring race.

Hill has a large lead in both fundraising and the polls, and he's almost certain to earn the nomination without a runoff.  His main television ad is a nice piece of political theatre.  In it, over some pleasant banjo music, his kids talk about how cheap he is--relating the story of "Ol' Blue," the car Hill drives, which is falling apart.  Hill ends the ad by saying that he doesn't spend money that he doesn't have, that the government shouldn't either, and that Washington is bankrupting the country.

Look, even though French Hill is a banker who lives in Little Rock's tony Heights neighborhood, he seems like a fairly nice, down-to-earth guy.  I am naturally suspicious of someone who hangs on so tightly to a dollar when he obviously doesn't need to--that kind of person tends to treat the people who supply him with goods and services very poorly--but I have no direct or indirect knowledge of Hill's character in that regard.

The problem with Hill, besides the fact that he's a Republican, is that I expect him as a banker to understand how money works.  His sound-bite approach--at least as he puts it in his ads--is that Washington is "bankrupting" us.  It's not.  It's irresponsible for someone who ostensibly understands money to suggest that it is.

The federal government cannot become bankrupt.  First, it is unconstitutional for the federal government to default on its obligations.  Second, the federal government has the capacity and legal authority to create money at will, even if it does so only for the purpose of paying off those obligations.  Third, the appropriations process is controlled by the House of Representatives, which has been in GOP hands since the 2010 election.  If Hill joins the House, he will be a rank-and-file Republican, at best, who will be unable to do anything to prevent the runaway spending he supposedly derides.

I suspect that Hill knows all of these things.  If he doesn't, that makes him essentially incompetent in his profession.  If he does, that makes his campaign fundamentally dishonest and reliant on a strategy of fooling people.  And maybe we're collectively easy to fool.  People frequently respond to financial analogies between a family budget and the federal government's budget that are superficially attractive but ultimately ridiculous in practice.  That doesn't make it right to offer those analogies.

If you drill down into Hill's comments, you'll see how utterly ridiculous they are.  Hill is a banker.  Bankers make money by taking in deposits and by lending those deposits to others for interest.  It may well be that Hill personally doesn't spend money that he doesn't have.  But most Arkansans do--they borrow money to buy houses and cars and other expensive items, and to cover unexpected expenses.  Virtually everything that Hill has can be attributed to a business model that fundamentally depends on other people's borrowing.

That undermines the only business case for his candidacy that Hill has yet articulated and makes him a hypocrite.  Arkansans deserve better.

Sunday, May 11, 2014

Marriage equality in Arkansas, Part II

On Friday, Pulaski County Circuit Judge Chris Piazza issued an opinion holding that Arkansas's ban on same-sex marriage is unconstitutional.  This is the second of two entries today on marriage equality in Arkansas.  The first focused on setting up the dispute.  This part deals with the opinion itself and "popularity" versus "constitutionality."

So, the big day is finally here.  On Friday, Pulaski County Circuit Judge Chris Piazza issued a 13-page opinion that invalidates the various laws on Arkansas's books that ban same-sex marriage.  Those who read my blog know where I stand on this issue.  I'm not afraid to admit that I cried like a baby--tears of joy--when I read Judge Piazza's masterful, brilliant opinion [PDF].

As of yet, a stay on the ruling has not been issued.  In cases that are particularly controversial, in which appeal is a certainty, and in which the ruling creates changes that would be hard to undo if the ruling is overturned, it is common for a stay to be issued.  Although the defendants in the case asked Judge Piazza to stay his ruling pending appeal, he did not do so in his order, and he has not as yet done so.

The Arkansas Supreme Court can issue a stay as well, and the safe bet is that they will--but it takes time for that to occur, and it won't occur until Monday at the earliest.

However, the first legal same-sex marriages in Arkansas have already occurred.  The Carroll County Clerk's Office in Eureka Springs was, like many clerks' offices around the state, open Saturday for early voting (there is a primary election in a little over a week), and with a little cajoling, the clerk was convinced to issue marriage licenses to the 15 or so same-sex couples who appeared in order to apply.

If the Supreme Court issues a stay, those marriages--and any others that get issued between now and the time the stay is issued--will be somewhat in legal limbo.  It is even more unclear what would happen to them if the Supreme Court should overturn the ruling--something that won't happen for months at the earliest. 

I think these are interesting questions, and I happen to think they are likely to be mostly academic questions.  Judge Piazza's opinion--which is worth reading; it's not larded up with a lot of legalese--is a brilliant expression of the dichotomy between what is "popular" and what is "constitutional."

Without doubt, Amendment 83 was an expression of the popular will:  Some 75% of voters approved the constitutional ban on same-sex marriage just 10 years ago.  I don't think the same amendment would garner that much support today, and recent polling suggests plurality support for marriage equality in the South (there are no recent polls in Arkansas, to my knowledge).  But it is the last time voters expressed their view, and it was overwhelming.

But marriage is a fundamental right, within the scope of the right to "liberty" found in the Fourteenth Amendment, having been routinely found to be so by the Supreme Court.  We do not live in a direct democracy.  There are limits on what even a referendum of the people that results in supermajority passage can accomplish.

It is easy to uphold "popular will" as a justification on an issue on which you believe you have a permanent majority.  I believe that we could garner substantial majorities in this state for adopting Christianity as the official religion of Arkansas, for example.  But such an act would violate the First Amendment.

These questions were fundamental at the founding of the Republic.  In the Federalist, No. 10, James Madison addressed the issue of "faction," which he defined as "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  The problem of a faction of the majority is inherent in a democratic system:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.
 Madison's view was that the solution to this problem was the formation of a representative republic, whereby the levers of power would be entrusted to a group of elected officials from all walks of life, sufficient in number that it would be difficult for them to form a cabal, but few enough that they would legitimately represent a wide array of constituents of differing views.

Our experience has shown that having a republican form of government was insufficient to the protection of minority rights.  What followed were two efforts, about 75 years apart, to set forth and define certain rights that stood outside the whims not only of the democracy but also of the representatives themselves.  The first was the Bill of Rights, adopted by the First Congress and ratified in 1791.  The second was the Fourteenth Amendment, ratified in 1868, and by far the broadest and most sweeping restriction on governmental action in the Constitution.

The Fourteenth Amendment moved away from attempts to enumerate specific rights and into the sphere of more fundamental, broad categories of rights:  the rights to life, liberty, and property, protected by the due process of law.  For my money, the Fourteenth Amendment is the finest, strongest statement of freedom that has ever existed; its adoption, in the aftermath and disarray following the Civil War, was perhaps the finest hour our country has ever seen.  That one amendment has done more to "secure the blessings of liberty" than any other legislative act in the history of the world.

While no opinion is bulletproof, especially on a subject as controversial as this one, and while creative courts motivated to reach a particular result will find a way if they like, overturning this ruling will require a Herculean effort.  Judge Piazza's opinion pays special heed to the long American tradition of expanding personal freedoms.  Liberty is a luxury that, once sampled, becomes a necessity.

There are many Arkansans who have expressed disappointment, anger, defiance, and horror at what happened on Friday.  What is popular is not always right, and what is right is not always popular.  But anyone can support the Constitution when it mandates what we like.  It is when the Constitution produces an unpopular, if principled, result, that the strength of our commitment to it is tested.

But I believe that people want to do the right thing.  I am optimistic that once they see the effects of this ruling, opposition to it will dissipate.  Until that time comes, I could not be happier that this judge, this court, has determined to act as a bulwark against oppression.  It is a good day for Arkansas.

Marriage Equality in Arkansas, Part I

On Friday, Pulaski County Circuit Judge Chris Piazza issued an opinion holding that Arkansas's ban on same-sex marriage is unconstitutional.  This is the first of two entries today on marriage equality in Arkansas, and it focuses on setting up the dispute.  The second will deal with the opinion itself and "popularity" versus "constitutionality."

Marriage equality is not a popular concept in Arkansas (although here, as everywhere it seems, support is growing).  This state is full of deeply religious Christians--people for whom prayer is the most essential act of every day, whose social lives center upon the church, and many of whom take their views about law and government based upon laws set down by God as they understand him.

These people are not merely nominal Christians; they have firmly rooted their lives in their religion.  Because they form a wide majority of the electorate, it is relatively easy for leadership organizations--not just churches, but religious groups that advocate for Christian positions on governmental matters--to summon majorities to elect politicians and to pass referenda that stake out some rather activist positions in the law.  In the last decade, Arkansas's citizens have passed a constitutional amendment banning same-sex marriage and an initiated act that banned homosexual couples from adopting children or serving as foster parents.  It took numerous tries to legalize any form of gambling (other than the long-running racing operations at Hot Springs and West Memphis).  More than half of Arkansas's counties are "dry," and even in wet counties, Sunday alcohol sales are banned, with only a handful of limited exceptions.  If there were a referendum to restrict abortion rights, it would likely pass without much consideration of the actual contents.

One of the hallmark motivations of the framers of the federal Constitution was the avoidance of "mob rule," something they considered to be the chief danger of direct democracy.  I'm not especially a fan of referendum, although in a state like Arkansas, which has a history of corrupt and incompetent government* as well as some quirky features in its governmental structure,** the referendum can be an appropriate tool for undoing the work of politicians that get off track.

* - Arkansas has defaulted on its debt obligations three times--the only state to do so.  Arkansas's first default almost killed the Smithsonian Institution before it started; a large portion of Smithson's original endowment was invested in Arkansas bonds in the 1830s--bonds on which the state defaulted in 1841. Only a timely appropriation from Congress to replace those funds enabled the Institution to begin operating in 1846.

** - For example, the General Assembly can override the governor's veto with a simple majority vote, which effectively neuters the governor.

The problem of referendum, and more generally of popular rule, is when what is popular seeks to invade the general freedoms that belong to all people. 

The court case that was resolved on Friday, at least for now, is an expression of two radically different views of what is going on.  I doubt very much that the people who voted for Amendment 83 (the same-sex marriage ban) did so thinking that it was an instrument of oppression of gays.  For almost all of the people who voted for it, it was an endorsement of what they view as the biblical approach to marriage.  Yes, of course, it disappointed those who wanted to enter into same-sex marriages, but the Bible has an answer for that as well, and the solution--as these people see it--is to choose not to be gay.

Homosexuals view their sexuality as inherent and immutable, whether you want to think of it as inborn, or the product of an environment, or the work of God.  There is no solace in the admonition to "choose differently."  Therefore, the decision to use the apparatus of government to enforce an arbitrary religious principle that leaves them out in the cold is indeed oppressive, whether it was intended that way or not.

In that way, this issue is very much like to struggle for racial equality.  One of the confounding things about how most people understand white people in the South during the Civil Rights Era is that there is the assumption that whites hated blacks and sought to keep them down.  I'm certain that there were some, maybe many, white people who were motivated in their views by outright hatred of blacks.  But the wider majority were motivated by something different:  the preservation of the traditional value of racial purity by enforcing racial segregation.  That comes across as hate, but what it really was, was indifference to what Jim Crow did to blacks, in service of what Jim Crow's proponents viewed as a higher principle.

I strongly suspect that very few of the fervent opponents of marriage equality have spent any significant, direct time with homosexuals.  The church environment--especially in churches that describe themselves as focused on biblical principles--does not seem to be very welcoming to gays.  When substantially all of your social life revolves around such a church, the effect is to exclude homosexuals from your experience.  It is easy to be indifferent to an abstraction.  This is particularly true if what knowledge you do have of homosexuals is based on caricature.

When you have access to more ordinary homosexuals--the boring kind, who have long-term, monogamous relationships, who work as farmers and insurance adjusters and human resources professionals and plumbers and computer programmers--and you see more directly the pain that these policies cause, it is much easier to see these policies as oppressive, and much harder to support them.

I say all of this not as an apology for those who oppose marriage equality, but to try to explain why we have such a disconnect between the two camps.  It is far too easy for each side to demonize the other--and that leads to entrenchment, not understanding and reconciliation.  What is needed is more interaction and more empathy.

I have stated before that the reason why marriage equality has come to be favored by a majority of Americans so quickly is because same-sex marriage was finally legalized somewhere and the world didn't end.  The key to building popular support for same-sex marriage in Arkansas will similarly be the experience we have with it. 

Part II appears here.

Thursday, May 8, 2014


I know next to nothing about Libya.  I mean, I can find it on a map, and I know it used to be run by Col. Muammar al-Gaddafi, whose name has so many different English spellings that spelling theorists do not expect to run out until 2204.  Ol' Muammar proved that he wasn't as egocentric as most evil dictators, since he styled himself a colonel instead of a general.

President Reagan hated Gaddafi so much that he sent bombers after him and killed his daughter.  But the feeling was mutual; Gaddafi was probably behind the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland, which killed a lot of Americans.  In the end, Gaddafi died at the hands of revolutionaries who hunted him down after driving him from power.

And there is one other thing I know about Libya.  Libya is where Benghazi is, and we're about to start hearing a lot more about Benghazi because the Republicans have literally nothing else to talk about now that Obamacare is proving to be a success.

Now, what happened in Benghazi on September 11, 2012, is a tragic occurrence.  Armed militants overran the American facility there and killed four Americans, including the Ambassador.  It is true that the building was undersecured, and because of some communications confusion about what was going on, it took longer than it should have for American forces to respond.

Indeed, I think it's very appropriate to react with anger to what happened.  Diplomatic work is dangerous, especially when it is undertaken in countries with unstable political systems, in which terrorist organizations can operate more freely because of the breakdown in civil authority.  It would therefore make sense to spend money on making our foreign missions--embassies, consulates, and other diplomatic installations--as secure as we reasonably can, while recognizing that this work is both important and hazardous.

I point this out because one of the reasons why the facility at Benghazi--not a consulate, by the way, but an "annex" that was largely a CIA facility, and for which security responsibility fell largely to the CIA--was undersecured is a lack of funding.  The situation is more nuanced than a simple failure to fund.  It's true that the GOP-led House trimmed about $300 million from the State Department's proposed $2.15 billion budget for diplomatic security.  That meant that some facilities, particularly a "temporary" facility like the Benghazi mission, were not as hardened against security threats as they might have been.  The CIA, however, was the lead agency on security.

It's understandable why the GOP would want to talk about what happened.  They need fodder for the midterm elections, and Hillary Clinton, whom they (correctly) perceive is likely to run for President in 2016 (and win) was the Secretary of State during this tragedy.  It's a simple case of two birds with one stone.  But they also correctly perceive that the tragedy itself is unlikely to gain them any political traction.

What has the GOP up in arms is not what happened so much as what was said about it in the aftermath.  A few days after the incident, U.N. Ambassador Susan Rice went on the Sunday talk shows and said, among other things, that the best available intelligence indicated that the attack was spontaneous and ultimately motivated by a YouTube video, "The Innocence of Muslims," that had some very unfavorable things to say about Islam.

It turns out that the video had little if anything to do with the attack.  The video was the catalyst for some protests in Egypt around the same time, and for some protests in Libya, but the attack in Benghazi was itself an organized terrorist operation.

Which, by the way, is what President Obama called it a couple of days after the attack.

But that is not what the GOP is whining about.  It can't be.  The reason?  The day before Ambassador Rice went on the Sunday talk shows, the CIA issued a report saying that the best available intelligence indicated that the attack was spontaneous and motivated by the video.

In other words, what Rice actually said was exactly true.

But even if what she said had been false, so what?  What difference does it make?

Four separate congressional committees have looked into this issue.  There are more than 25,000 pages of documents that have been generated as a result of the inquiry.  But the GOP needs a campaign issue.  Because they were planning to campaign on how miserable a failure Obamacare is, and that has turned out not to be the case, they need something else to talk about, and Benghazi is it.

Never mind that [u]no one[/u] who thinks this is an important issue--not Benghazi per se, but whether the Obama administration's public statements were accurate or not in the immediate aftermath of the attack--would [u]ever[/u] consider voting for a Democrat in any election.
The purpose is to try to motivate the GOP to vote in November's midterm elections, and to score some pre-emptive damage against the Hillary Clinton juggernaut.

And they only need this because their sole legislative record over the last two years has been failing to repeal Obamacare--which becomes more and more popular as time goes on.  They have literally nothing to run on, so they are manufacturing an issue.

But, by all means, investigate away. 

Monday, May 5, 2014

Lost their minds

Earlier today, the Supreme Court handed down a decision that found, among other things, that a New York town's practice of inviting various town clergy members to deliver an invocation before each meeting of the town council was constitutional, even though in practice the prayers were delivered exclusively by Christian ministers, and those prayers almost always invoked Jesus, sometimes in an expressly exclusive manner.

The decision was 5-4 along the usual lines.  The conservative justices endorsed the practice--even concluding that it was unnecessary, and perhaps even impermissible, for the Town to impose content limitations on the prayers, such as a requirement that the prayers be made inclusive of and acceptable to all faiths--largely based upon what it termed a long tradition of such prayers before legislative assemblies.  Indeed, the conservative justices seemed horrified at the prospect of adopting a ruling that would cast doubt on the legitimacy of that long tradition.

The liberal wing, for its part, would have been prepared to accept the prayers if only the town had either made more of an effort to include prayers from other religious traditions, or had instructed those chosen to make their prayers inclusive of all faiths.

I think they have all lost their minds.

"Tradition" is not a sufficient reason to uphold any practice as constitutional.  After all, there was a long tradition of racial segregation in public life; that did not stop the Supreme Court from deciding Brown v. Board of Education unanimously to end that tradition.  As our society evolves, we develop new experiences that inform our understanding of the principles our Constitution establishes.

What I found curiously missing from each of the opinions released today--there were five--is any discussion of the essential conditions that would have led the Court to a decision that honors the Constitution, rather than cheapens it as a statement of principles.  In fact, the assumption underlying all of the justices' views was that this is a matter of ecumenicism, because all comers have a faith to speak of.

To see what these prayers really should be discontinued, first we must ask why they exist in the first place.  If we take the proponents of the prayers at their word, these prayers are meant to solemnize the process of lawmaking by acknowledging the guidance of a supreme being.  I suppose that if you believe in a supreme being who is involved in human affairs, such an acknowledgement might make good sense.

I don't think anyone is suggesting that such an acknowledgement should be prohibited.  Every person who attends a town council meeting in Greece, New York, is free to make that sort of acknowledgement on his or her own.  Where the wicket gets sticky is that the proponents of this measure aren't satisfied with that acknowledgement being "on your own."  They insist that it be not only public but also an officially recognized ceremonial act that precedes every meeting.

There is a similar push among those who want official prayer in schools.  Children are free to pray in schools all they like.  What is prohibited is the thing that advocates want most:  The ability to use the school's seal of approval as an element of coercion to a particular religion.

And, despite the Court's Kabuki-like effort to couch these prayers as an innocuous practice rooted in longstanding tradition, the fact that the Town of Greece hosts these prayers at all is to give special status to religious belief--and Christianity specifically--as the mark of a "good" participant in the political process.

The assumption underlying both sides of the Court is that the perception by anyone of a problem with public prayer is that it is simply not inclusive enough.  One side of the Court, the majority, seems to think that a lack of inclusiveness in these prayers, as long as it is not purposeful, is A-OK.  The other side, the minority, believes that the problem is that an expressly Christian prayer excludes Jews, Muslims, Buddhists, and other religious minorities, so the solution is to force the prayers to become something that everyone's religion can tolerate.

The Court is made up of six Catholics and three Jews.  All five in the majority are Catholic.  What seems not to have crossed the minds of any of these people, all of whom identify with a religious community, is that it is definitionally impossible to craft a prayer that includes everyone, because there is some segment of the public, however small, that is atheist and that will never find any prayer to be inclusive of them.

But there is a process that would be inclusive.  Until 1999, when the Town of Greece began its current practice, the council began each meeting with a moment of silence.  That moment could be used by those present to pray, or to focus their attention on the solemnity of lawmaking, or to think about what they wanted to eat for breakfast.  That was truly inclusive, and it was in fact the only way that could accommodate the religious sensibilities of the majority while respecting the rights of those who dissent from the majority religion.

In the absence of a public prayer, all are free to pray, or not to pray, individually as they see fit.  When there is an official, public prayer, those who prefer not to pray are faced with an uncomfortable choice:  participate in the prayer, or risk being seen as disrespecting those who do.  When that uncomfortable choice is coupled with a legislative and/or public comment process, it amounts to coercion.  The coercion is inescapable; there is simply no way to avoid it, no matter how inclusive that prayer becomes.

Sunday, May 4, 2014

What we deserve

One of the cultural touchstones of my youth is an anti-drug public service announcement that features a stern, mustachioed father confronting his teenage son with the drugs he found in his son's room.  In a scene thick with melodrama, at the end of a series of plantive questions, the father thunders, "Who taught you how to do this stuff?" Reluctantly, tearfully, the son replies, "You, all right? I learned it by watching you!"  The tagline?  "Parents who use drugs have children who use drugs."  For people of a certain age, around mine, that anti-drug PSA is probably second in our memories only to "This is your brain; this is your brain on drugs; any questions."

My memory of this ad was jogged last week, in a most unlikely way, by events in Oklahoma.

Deep-red Oklahoma is hot and heavy to prove its essential conservatism, and it scheduled for this week a rare double-execution that I think must have been designed to put the spotlight on just how far Oklahoma would go to prove its bona fides.  Instead, Oklahoma found the spotlight a little hotter than it expected.

The trend in recent decades has been to shift away from the use of the electric chair and the gas chamber for executions, in favor of lethal injection.  The theory behind using lethal injection, as opposed to more violent means of execution, is that it is more humane.  Instead of having thousands of volts of electricity passed through your body--something that is likely very painful, based upon the reports of people who have been struck by lightning--or being put into an airtight room with a poison gas, the executed person is given intravenous drugs that first anesthetize them, then stop the heart.

In order to conduct a lethal injection, you of course need the drugs to do so.  Drug manufacturers make billions of dollars saving lives, and they depend somewhat upon the goodwill associated with being life-saving companies in justifying those hugs sums.  In recent years, many of the companies that make the drugs routinely used in executions have decided that they did not need the public relations headache of being associated with the death penalty, and that being peddlers of state-sanctioned death doesn't exactly fit with the "lifesaver" public image, so they stopped making them.

(Perhaps they should have gotten some pointers from the GOP, which has no problem billing itself as the "pro-life" party despite being pro-death penalty and largely pro-war.)

The last American maker of sodium thiopental, Hospira, quit making it in 2011.  About the same time, the European Union banned the export of sodium thiopental and other drugs that can be used in executions.  That has put Oklahoma and other states in a quandary.  They have laws on the books that mandate lethal injection, and they desperately want to execute people, but they have had difficulty getting the most effective drugs to do so.  That has resulted in some changes to the "cocktail."

On Tuesday, April 29, 2014, Oklahoma was scheduled to execute Clayton Lockett and Charles Warner at 6 p.m. and 8 p.m., respectively.  Lockett and Warner committed particularly heinous crimes that earned them death sentences.  Lockett was convicted of forcing a woman to watch the gang-rape of a friend, then shooting her and ordering accomplices to bury her alive. Warner was convicted of raping and beating to death an 11-month-old baby.

Faced with a shortage of execution drugs, Oklahoma decided to administer Lockett and Warner a three-drug cocktail that had only once before been used in an execution.  The cocktail consisted of midazolam, a sedative; vercuronium bromide, a muscle relaxant; and potassium chloride, a salt that when injected intravenously stops the heart.  The cocktail had been successfully used by Florida in an execution last year, but with five times as much midazolam as Oklahoma had been planning to use.

When Oklahoma began the execution of Lockett, an IV was inserted into a vein in his groin.  The drugs were administered in sequence, and Lockett was rendered unconscious.  After a few minutes, however, he appeared to awake, according to witnesses, and spoke several halting phrases.  The execution was stopped, and on inspection it was determined that Lockett's vein had collapsed--something that the executioner had not been able to see.  Lockett's groin had been draped for modesty, and in any event the executioner, who controlled the injections by pushing buttons in another room, would not have seen the problem anyway.  When the drugs were injected, they were pushed into the surrounding tissue, not into the vein.

The doctor who was monitoring the execution determined that all of the drugs had been injected, if ineffectually; that the dose was insufficient to be immediately lethal; and that there were not enough drugs remaining to complete the execution effectively.  While prison officials debated what to do--including whether to take Lockett to a hospital for treatment--Lockett suffered a heart attack and died.  His execution was undoubtedly painful and frightening.

Warner was granted a two-week stay of execution pending a review.

I won't waste time crying any tears for Lockett.  He was a criminal of extraordinary sadism.  He died much as his victim did, cruelly and with great pain.

But Oklahoma's experience with Lockett has lessons for us as a society.  Our historical legal tradition extends as far back as Hammurabi, a Babylonian king who lived 38 centuries ago and who, in his innovative written code, prescribed that the punishment for crime should fit the crime:  an eye for an eye, and a tooth for a tooth.  (It is likely that Jewish law, which contains a similar rule, was strongly influenced by Hammurabi, or depending on who you ask, by a common ancestral principle.)

But as a more recent wise man, Mohandas K. Gandhi, is said* to have said, "An eye for an eye will leave the whole world blind."

* - There is actually no historical evidence that Gandhi ever actually said this, although it is entirely consistent with his philosophy.

And if you care about the Constitution, you might look to the Eighth Amendment:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Personally, I've been generally opposed to the death penalty on pragmatic grounds.  The legal process necessary to make the death penalty legally, constitutionally legitimate is so expensive that it would be better simply to decline to impose it.  There is also little evidence that the death penalty is more effective as a deterrent to future crime than imprisonment, and on top of that, the death penalty imposes finality where there is always room for uncertainty.  I have, however, resisted concluding that there is no crime so heinous that the death penalty should be imposed for it.

Lockett and Warner, especially Warner, have committed crimes for which I think reasonable people could conclude that the death penalty is appropriate.

But last week's travesty in Oklahoma, brought on as it was by bloodthirsty officials eager to kill, damn the cautions and consequences, has moved me over into staunch opposition.

When we see men like Lockett and Warner and the unspeakable evil they have committed, it is a most human reaction to want vengeance, to desire to take an eye for an eye.  These despicable humans stir in our hearts a visceral anger, a yearning for compensatory revenge.  How many of us, on hearing how Lockett suffered and died at our hands, reacted with favor instead of disgust?  More than a few, maybe more than didn't.

At the outset I mentioned that 1980s PSA that came to mind.  Is it any wonder that parents who are cavalier about detrimental behavior--be it drug use, or stealing, or whatever--teach their children by example to do the same?  The government is not our parent, but when the government acts as it has in this instance, is it any wonder that the line between the right thing and the wrong thing becomes so blurred in the minds of our citizens?  "Do as I say, not as I do" can only go so far, whether it is a parent or the government speaking.

We deserve a government that appeals to our better selves rather than to our basest instincts.  There are many ways in which we hamstring the government into ineffectiveness because we value certain principles.  This, however, seems to be a blind spot for many people, who insist that justice requires the ultimate punishment.  But if we are going to act as an instrument of justice, we must seek to be better than those whom we would punish.  "An eye for an eye" just isn't good enough. 

Thursday, May 1, 2014

A positive outlook

There was a time when we Arkansans, lamenting our state's lack of fortunes in statistical measures of greatness, as measured by various state rankings, would put a brave face on things by saying, "Thank God for Mississippi!"  Mississippi was often 50th as we were 49th.  (Some wags would respond, "Don't blame God for Mississippi!")

Lately, Mississippi has distinguished itself in the race to make life harder for homosexuals, bucking the recent trend toward equality.  Couching it in terms of a "freedom of religion" bill, Mississippi has a new law that protects business who refuse service to homosexuals.  Arizona's legislature considered and passed a similar bill some time ago, but its governor succumbed to pressure and vetoed that bill.

I have previously discussed why such a law is problematic.  It is unfortunate that some people hate homosexuals so much that they would risk public humiliation to go out of their way to protect those who harm homosexuals.  But businesses in Mississippi have hit upon a great way to show that they don't need that kind of protection.  Equality Mississippi has begun distributing window stickers, like the one at the right, that Mississippi businesses can use to show that they are ready to serve anyone who wants to buy.

It's a positive approach to something that has the potential to be very ugly.  Equality Mississippi--and the businesses that display this sticker--are to be commended for that.

Predictably, the American Family Association is crying foul.  The AFA--the name of which is at least two-thirds deceptive, since what they stand for has nothing to do with American values and is hurtful to many families--contends that making these stickers available is "bullying" by pressuring Christians who run businesses to choose between their values and being driven out of business by conscientious shoppers who vote with their dollars.

That position invites a very unfavorable comparison, but it's an apt one.  Much like members of the KKK, who conduct their activities behind the cloak of white hoods, the AFA would prefer that the "victims" of this "bullying" not be so easily identified; they want to conduct their bigotry in secret.

Well, too bad.  If you are going to ensconce the protection of bigots into a law under the guise of protecting "religious freedom," then you are just going to have to suffer through when the majority of us, who oppose bigotry, use our freedom of speech to make it clear that we're open for business to everybody, not just those who meet the warped sense of morality of a bunch of prudes and repressed-homosexual homophobes.

Come to think of it, this kind of thing ought to be the subject of a national campaign.  After all, there are bigots everywhere.  Maybe it's time for the rest of us to stand up affirmatively to say we don't discriminate.