From tragedy to travesty

By now you've almost certainly heard the story.  In the afternoon of Thursday, September 25, Beverly Carter, a real estate agent, telephoned her husband to inform him that she was going to show a house to a prospective buyer at an address near Scott in rural Pulaski County.  By 9:30 that evening, when she had not returned or called, her husband went to the address, where he found her car in the driveway, the front door open, and her purse inside, undisturbed.

As the frightening scenario played out, and word got out on social media about her disappearance and probable kidnapping, the community pitched in to help find her.  By Saturday morning, I saw flyers posted in area stores across Pulaski County.  Volunteers searched various areas where she might be taken.  And the police took fingerprints from the scene, which led them to name Arron Lewis, a convicted felon, a "person of interest" in Carter's disappearance. 

Lewis was involved in a one-vehicle car accident on Sunday and transported to an area hospital, but he left before an arrest warrant could be issued.  Yesterday, after a tip from a citizen who doggedly pursued Lewis at some personal risk, Lewis was arrested.  And early this morning, police announced that they had located Carter's body in a shallow grave near a business where Lewis had once worked.

Lewis has admitted to targeting Carter, but denies killing her--a denial that seems far-fetched.

For Carter's family and friends, this is an enormous, heart-breaking tragedy.  For the rest of us, the story of Beverly Carter's abduction and murder is a cautionary tale.  We live in a world with ever-present risks.  While this kind of thing is fortunately very rare, it is not non-existent.

But for one tone-deaf politician, this tragedy is an opportunity.  State Sen. Jason Rapert (R-Conway) posted the following statement to Facebook:

As we mourn with the Carter family, let us also take positive action.  I don't think Arkansas even needs a parole board anymore.  Let these criminals serve every year, day, hour and minute of the sentences they have been given.  Don't even discuss turning them loose in Arkansas until their crimes against humanity have been FULLY served.  I am sick and tired as a citizen, husband, father and state senator of hearing story after story of criminals that have been turned loose by the parole board who then prey upon innocent Arkansans.  Let Arkansas become the toughest state in America for someone to commit a crime and serve their time - perhaps then these devils will get the message and think twice before committing such heinous acts against humanity.  I will be offering legislation to stop this insanity next session.  You can count on it.

Rapert apparently removed that statement and replaced it with the following:

My condolences to the Carter family on their loss.

How many more tragedies and unnecessary crimes are the Arkansas people going to have to endure until the Arkansas Parole Board realizes that we don't want these criminals turned loose in the streets of Arkansas anymore? I am sick and tired of criminals being turned loose to prey upon our women and children in Arkansas. I frankly don't care what it takes, but we MUST STOP TURNING THESE CRIMINALS OUT OF PRISON BEFORE THEY HAVE SERVED EVERY DAY, HOUR AND MINUTE OF THEIR SENTENCE! ACT 570 HAS BEEN A DISASTER AND THIS MUST STOP. 

It has been reported, and I repeated above, that Arron Lewis is a convicted felon, and it's true.  It's also true that Lewis was on parole at the time he committed this crime.

So, what crime was Lewis on parole for?

Turns out he had been convicted of "felony theft of property" and "felony accomplice to theft of property."  That means that Lewis stole property with a total value of at least $1,000.  That's a serious crime, to be sure, but it is not a violent crime.  In fact, there is nothing in Lewis's criminal history that would suggest he had ever committed a violent crime at all.

Since Lewis was on active parole, meaning that he had not completed his sentence, I suppose it's literally true that he would not have killed Beverly Carter if Arkansas had no parole.  But Rapert's simple-minded solution to the problem--like most of his political "solutions"--ignores the problem's complexity.

These are the facts:

• Arkansas's prison system, despite significant increases in capacity over the last couple of decades, is bursting at the seams.  There are not enough beds to house anywhere close to all of the people serving active sentences.*
• It is incredibly expensive to build new prisons.
• Even if you could build new prisons, it is incredibly expensive to house and feed prison inmates.
• Political pressure to lengthen sentences has forced more inmates into the prison system.

 * - I know whereof I speak.  I have a cousin who is a long-term alcoholic and drug addict who has committed numerous petty crimes either in support of his habits or because of them.  Treatment has proven ineffective for him in the long term.  He was better off in prison when he was serving an active sentence, and he--and the rest of us--would probably be better off if he were there now.  But there is simply no room for him.

 And none of that reaches the impact of imprisonment on the lives of people who do go to prison.  Most people who commit felonies have extreme difficulty obtaining post-sentence employment--a major factor in recidivism.  People will do what is necessary to feed themselves.

The purpose of parole isn't to "turn criminals loose."  Parole is an incentive for good behavior while serving an active sentence.  It's also an incentive to use active imprisonment as an opportunity to obtain education, job training, psychological counseling, and other services that help inmates become productive citizens upon their release.  Perhaps most importantly, parole provides relief to the prison system by establishing an intermediate step between active imprisonment and outright release; parolees are subject to periodic monitoring, and if they commit crimes while on parole, they can be sent back to prison immediately to serve our their sentences, on top of a new sentence for the new crime if convicted.  Parole is far less expensive than active imprisonment, and it allows the prison system to prioritize inmates according to the danger they pose to others.

Simply put, there was no indication that Arron Lewis posed a danger to anyone until this past weekend.  To indict the parole system for any role in his crime is, at best, misplaced anger, and at worst, political opportunism.

Of course, it's not like we should expect more from Rapert.  Asking his opinion on legal matters is like asking your accountant for an opinion about surgery. After all, this is the constitutional non-scholar who suggested, apparently seriously, that the vote on a statewide referendum should outweigh a provision in the federal Constitution.

But this kind of politically opportunistic, ill-considered, knee-jerk reaction demonstrates why the people of Faulkner County need to retire Sen. Rapert.  We don't need his brand of radicalism anywhere near the Arkansas Legislature.

No, you are not in danger

For the last ten and a half years, Michelle and I have owned a pug, Jax.  The story of how Jax came to live with us is a heartwarming one, but I'll save it for another time.  Suffice it to say that for the whole time we've had him, he's been an extremely loyal dog--almost grateful for the second, third, fourth, and fifth chances at life that he's gotten from us.

Jax is the self-appointed guardian of the household.  That's a common trait among pugs; they are hypervigilant, scared of very little, and fiercely defensive of their home and their family.  Of course, our household rarely faces any threats to speak of, but don't tell him that. Whenever he senses a threat, he sounds the alarm for as long as is necessary to get our attention.

When he was much younger, my parents owned an Anatolian Shepherd, whom they called Tolga.  One Christmas, we came to visit, bringing Jax and our other dog, Gabby, who is a Lab mix.  We let the dogs out into their enormous yard to play, keeping a close eye on them.  The pecking order of these dogs was necessarily determined by their size.  At 145 pounds, Tolga was exactly 10 times as heavy as Jax; their similar markings suggested that Jax was Tolga's "Mini-Me."  Gabby was in between at 55 pounds.

Being in a somewhat unfamiliar yard that belonged to another dog, Jax was cautious as first.  But when Tolga got too close to Gabby, Jax sprang to her defense.  He started yapping at Tolga, and when that was ineffective, he ran up to the bigger dog and tried to bite him.  He came away only with a mouthful of loose hair, and Tolga barely noticed--and that's a good thing, because Tolga could have ended Jax's life easily with a chomp.

One thing that I've noticed, working from home, is that in Jax's mind, there is never a greater existential threat to our household than when the mailman comes.  For the few seconds it takes the mailman to come up to our front porch and drop the day's mail in our box, Jax barks louder than you would think a little dog could bark.  It's annoying, of course, but harmless.  Even if he could somehow manage to get the door open in time, and even if he could reach the mailman (who's fast from years of handling a walking route), the worst he could do would be a pinch.  His teeth and jaws aren't really strong enough to do any damage.

I am telling you all of this as an allegory.  Lately, the media and certain politicians (I'm looking at you, Lindsey Graham, in particular) have spent a lot of time ginning up fear of the terrorist organization known as the Islamic State in Iraq and the Levant, or ISIL (sometimes referred to as ISIS).  And, like my dog, ISIL would--in theory--like very much to cause damage to Americans.

But ISIL remains a threat only in theory.  Most people don't have any real grasp of just what would be required for ISIL to commit a terrorist act on U.S. soil.  (It takes a whole lot more money, more planning, and more luck than you would think.)  Even if they were to be successful--say, bringing down an airliner, or setting off a bomb in a shopping mall or movie theater--the chances of you or anyone you know being a direct victim of such an attack are microscopic.  That's especially true if you live in a small town, or even a medium-sized city like Little Rock.


The truth is that ISIL is one of many theoretical threats to Americans in the world.  It is by no means the most significant threat.  It's not even the most significant terrorist threat.  (That distinction belongs to our own homegrown terrorists--the Timothy McVeigh/Eric Rudolph types.)  Spending even a few seconds of your life worrying about ISIL is a waste of time.

The problem, of course, is that all this fearmongering is being used by people who want to drive television ratings, or who want to expand our military action around the world, or who want to score political points in advance of the upcoming elections, to goad us into acting imprudently.  These people do not have your best interests at heart.  They don't care what damage they cause you--and they especially don't care that they are doing a better job of terrorizing Americans than ISIL ever could on its own.

ISIL is a threat that we need to deal with.  But it's not an immediate existential threat to the Union.  ISIL is in no danger of flying its flag over any American soil, much less the White House.  There is no good reason to treat it otherwise.  And there are some very good reasons to be cautious--namely, that incaution took us into Iraq and Afghanistan, costing us thousands of American lives and trillions of dollars we'll never get back.

You're not in danger.  Stop acting like you are.

The best-laid schemes

The best-laid schemes o' mice an' men
Gang aft a-gley.

--Robert Burns

If there is one great disappointment of trivial consequence in my life, it is that the love of my life doesn't speak with a Scottish accent.  There is something about that accent that brings a smile to my face.

The polls have now closed in Scotland, where the people have voted on whether or not to separate from the United Kingdom, dissolving a union that has lasted since 1707 and the time of Queen Anne.  I don't know the outcome yet, and polling has indicated that it's a close question.  I have to question the wisdom of letting such a momentous decision be placed in the hands of a bare majority, but that is what the proponents of independence requested and that is what the government of the United Kingdom agreed to when the vote was set.

But I really don't have an opinion on Scottish independence.  Or, rather, I'm of two minds on the question. 

I worry that Scottish independence will have a detrimental effect on what's left of the United Kingdom after it leaves.  I'm also not a big fan of the sort of nationalism that this represents.  I don't like the idea of our own union being broken up; those bonds ought not be lightly put aside.

But I'm not exactly opposed to a thumb in the eyes of the Tories who are presently running the UK into the ground, either.  And a "yes" vote would definitely be that.

More concretely, however, this is perhaps best viewed as the next step in a process that has seen Scotland gain more autonomy.

I don't plan to stay up late to watch the results come in--and maybe I won't have to, since they're six hours ahead--but I am interested in what happens, not because I necessarily care which side wins, but maybe because I don't care.  As long as I get to keep hearing that accent, I'll be happy.

Uber alles

I wouldn't blame you if you had never heard of Uber and Lyft.  These are two companies that are in the business of arranging car transportation.  The way they work is this:  If you need a ride somewhere, you open an app on your smartphone, you put in the details of your trip, and the company matches you up with a driver who will show up and take you where you want to go.  You pay the driver, and the company earns a commission on the transaction.

That sounds a lot like a traditional car service transaction to me.

Uber and Lyft have been generating controversy around the country for what ought to be rather obvious reasons.  They are horning in on what has traditionally been the exclusive domain of taxi companies.  It is hard to think of an industry that has been more successful at using the apparatus of government to its financial advantage than the taxi industry.  Defense contractors and banks, maybe.

It is a not-uncommon arrangement for airport taxi service to be set up as a single-company monopoly.  For example, if you'd like to take a taxi from Baltimore-Washington International Airport, you have to use BWI Taxi, a company that has a rigidly enforced monopoly.  Their familiar red-and-white cabs have the exclusive on that lucrative business.  In many places, it is illegal for another company's cab even to be on the airport grounds unless it is discharging a departing passenger.

New York City famously controls its taxi business through what is known as the "medallion" system.  Each taxi must be painted yellow and must display a medallion number that has been awarded by the city.  These medallions are extremely valuable, being sold at auction for as much as $700,000 each.  The reason why they are valuable is simple:  Only a yellow cab is allowed to respond to a "street hail"--the process people usually think of when they think of hailing a cab.

(Last year, New York added a new type of cab, the green-painted "boro taxi," which is also allowed to respond to street hails in Manhattan above East 96th or West 110th, the Bronx, Brooklyn, Queens, and Staten Island. But those types of hails constitute only 5% to 8% of all street hails in New York.)

That makes fares expensive, and if you can plan your trip in enough time to call for a car service, it's usually cheaper to do so, due in no small part to the much cheaper permit cost.

Uber and Lyft are seeking to break into that market.  In places like New York City, where there are already established car services and a regulatory process that is fairly easy to navigate, that's not difficult (although it is not without controversy).  In smaller markets, many of which have only a single taxi company, it's provoking a tremendous backlash from the established taxi services and the politicians they own.

For example, Uber started coverage in Fayetteville earlier this month.  It was reported over the weekend that two Uber drivers in Fayetteville were issued citations by undercover police officers for "operating a taxi without a license" and "operating a taxi without an inspection."

I really don't have a problem with cities' attempts to regulate this industry for the protection of their citizens and visitors. These regulations came about in the first place because of some terrible abuses by taxi companies.  I can see both sides of this issue.  Honestly, it can be hard sometimes to see the difference between Uber and Lyft and outright hitchhiking.

There is a certain element of trust required for a ride-sharing arrangement--whether it's a conventional taxicab or a new type of service like Uber or Lyft--to work properly.  Riding in a car can be a tremendously dangerous activity, so if people are going to operate a commercial business around driving, they need to be properly trained, they need to carry insurance, and their vehicles need to be in safe working order.  There also need to be some assurances that they aren't operating while impaired and that they don't have a criminal background that suggests a propensity toward violent crime. 

But the truth is that these things are problems whether it's a new service or a conventional taxi company.  I've been in cabs with drivers who spoke little English, who may not have been living and working here legally, who couldn't find their way around without my assistance, and who drove very unsafely.  Perhaps my worst experience was a cab ride from LaGuardia to Lower Manhattan in stop-and-go traffic, in which the driver repeatedly gunned it up to 35-40 mph, then slammed on his brakes at the last possible moment to avoid hitting the car ahead of us.  This was a Yellow Cab, piloted by supposedly one of the most regulated drivers of all.
Uber and Lyft both claim that they require their drivers to comply with standards that ensure safety and accountability.

It's also true that the reason why Uber and Lyft have found any kind of purchase in the ride-sharing market is because the markets where they operate are underserved in some material respect--taxis and conventional car services are too expensive, or there are too few cars available at peak times, or they prefer not to operate in certain areas of town (either anytime or at night, for example). 

The protection of monopolies is wrong and anti-capitalist.  But allowing an anarchic market to exist, particularly where public safety is at issue, is also wrong and anti-capitalist.  Cities should adopt reasonable regulations that promote public safety but lower the artificial barriers to entry into the market for rides.

Damage control

What makes me uncomfortable about the Ray Rice fiasco isn't that the NFL took so long to act decisively to punish Rice for knocking his then-girlfriend unconscious in an elevator.

I am a big fan of withholding judgment until the facts are known.  There is plenty of time to punish, particularly when incidents occur in the off-season, and to the extent that the NFL is responsible for administering justice, justice comes best when it comes slowly but surely.

Of course, the NFL isn't responsible for administering justice.  That belongs to the authorities in New Jersey, where the incident took place.

What the NFL is responsible for is administering its own image.  This is essentially a matter of public relations.  Not for Rice and his wife, or the people of New Jersey (who of course have an interest in the criminal aspects of what took place)--although the video that was publicly released yesterday makes this a PR issue for Rice as well.  But for the NFL, which is an organization that depends on public goodwill for its continued financial success, doing something to Ray Rice for throwing that punch is about good public relations.

(We aren't to the uncomfortable part yet.  Hang on.)

I am glad that the NFL has been forced to shine the light on domestic violence and to adopt policies that promote awareness of the issues and discourage it from occurring.  This is something that needs doing.  It's true that domestic violence disproportionately affects women.  It's also true that football is a violent sport predicated on using your body as a weapon to impede others' progress, knocking them down to stop them from achieving their goals.

We might expect that individuals of great physical stature, who work in a violent environment, would tend at greater rates than the general public to carry that violence home.  I have no idea whether that's the case or not; there is a counterweight to that, and that is that these individuals are in the public eye, and many if not most of them are conscious that to be seen beating up on women is detrimental to their own public image.

But the raising of this issue has given the NFL an opportunity to demonstrate that it is a good corporate citizen by using the heft of its popularity to increase the cost to those who would perpetrate domestic violence.

When Roger Goodell and others say they hadn't seen the elevator video (which showed that Rice instigated the physical contact and dealt a devastating punch to his girlfriend when she reacted) before yesterday, I believe them.

Where I don't believe them is when they say they didn't understand what had occurred until seeing the video.

The truth is that the NFL--and specifically the Baltimore Ravens, who supported Rice throughout this incident until that support became untenable--already knew that Rice's girlfriend entered the elevator under her own power, that there was an altercation, and that she exited the elevator, unconscious, by being dragged bodily out by her assailant.  Reasonable jurors faced with the evidence the NFL had might disagree that there was enough evidence to conclude that Rice was criminally guilty.  But the NFL had everything it needed to punish him.

So what happened yesterday was that the release of the video meant that the NFL hadn't realized until yesterday just how vicious this attack looked on video, and how it needed to take more significant action to avoid a public relations nightmare.  It's not clear that this will be enough.

(Still not to the uncomfortable part yet.)

Which is fine.  The NFL is all about public relations.  It's not what happened; it's how what happened looks.

The cardinal rule of public relations is this:  "Deny that which cannot be admitted; admit that which cannot be denied."

And the NFL is playing the public relations game.

(Now we're to the uncomfortable part.)

Yesterday, the White House put out a statement about what's happened.  It reads:

The President is the father of two daughters. And like any American, he believes that domestic violence is contemptible and unacceptable in a civilized society. Hitting a woman is not something a real man does, and that's true whether or not an act of violence happens in the public eye, or, far too often, behind closed doors. Stopping domestic violence is something that's bigger than football - and all of us have a responsibility to put a stop to it.

For some reason, the part I've italicized, which has been repeated endlessly, makes me uncomfortable.  There is something that's more than a little sexist about it.  I get that men often have a physical advantage over women; generally, we're larger, more muscular, and more aggressive than women.  And it's certainly true that men commit more acts of domestic violence, and more damaging acts, than do women.  There are women who commit domestic violence against men, but it's not just that.  (EDIT:  There are also women who commit domestic violence against women, and men against men.)

I suppose what I have a problem with is that "Resolving your problems using violence is not something that a civilized person does" would be a much better statement to make.

Of course, I can see why President Obama, or any president, would be reluctant to make that statement, since our recent history is littered with examples of using violence to solve our geopolitical problems.

So I'll take it as it was intended.  If it moves people away from domestic violence, that's a good thing.

The wage is too low

There were a couple of bits of news about wages out of Little Rock this week.  One was the Secretary of State's approval of a ballot initiative that would raise the Arkansas minimum wage from $6.25 per hour to $8.50 per hour over the course of the next three years.  (The federal minimum wage is $7.25, so Arkansas's proposed increase isn't as generous as it appears.)

The other is that a group of McDonald's workers were arrested earlier today when they blocked traffic on Broadway as part of a protest in which they are seeking better working conditions and a $15 per hour minimum.

I was somewhat surprised to see comments from friends and others that were rather frightened by the prospect of fast food workers being paid $15 an hour, and more generally, by the prospect of a $15 per hour minimum wage.  The reasons?  That restaurants and other businesses that run on low-wage jobs would raise prices, that the workers haven't paid their dues through work and education enough to deserve $15 an hour, that they themselves don't make $15 an hour even though they have X degree or Y years of experience, and so on.

I approach this question from a different perspective.  I don't really care where the minimum wage is set in absolute dollars.  My principles are these:  Everyone should have access to full-time employment.  Every full-time job should pay enough to keep the worker out of poverty, taking into account family members who are unable to work.  Whatever that requires, there is where your minimum wage should be set.  It doesn't matter if it's $7.25 or $15 or $100 an hour.

Of course, if you disagree with those concepts, feel free, but let's not pretend it's an argument over where the minimum wage should be set.  It's an argument over whether there should be any minimum wage at all.

If supply-and-demand with respect to labor services were perfectly price-elastic, the people who argue against the minimum wage would have a point.  But it is a simple fact that in a civilization in which there is specialization of labor, the price-elasticity of supply of labor is close to zero.  People have to work to eat and clothe and shelter themselves.  In a rough economy, there is a race to the bottom, as workers are willing to take smaller and smaller wages, just to get work, because if they don't work, they don't eat.  That tends to be a self-reinforcing situation, because less money in the hands of ordinary workers means less demand for goods and services.

The reality is that if McDonald's were forced, either by law or by collective action of its workers, to raise its minimum wage to $15 an hour, McDonald's would not raise prices even one penny as a result.

How is that? you ask.

Think for just a moment about how McDonald's sets its prices.  Now, McDonald's knows to the fraction of a penny how much it costs to produce a Big Mac or a McRib--and I'll talk about McRib in a moment.  And of course it wants to choose a price for Big Macs that will be profitable.  But whether the Big Mac is profitable affects whether McDonald's sells it at all, not how much it charges.

Imagine a Big Mac that cost $10 to produce because of a Special Sauce shortage.  Do you think McDonald's would say, "Hey, let's charge $12 for that Big Mac, because we have $10 in it"?  Absolutely not, because few people would pay $12 for a Big Mac.  They would just stop selling it.  McDonald's charges an amount for the Big Mac that the public will pay, regardless of its costs.  Not one penny more or less.

If you don't believe me, imagine that the cost of producing a Big Mac suddenly plunged from $3 to 10 cents.  Do you think McDonald's would automatically cut the price to $1.10 from $4?  Absolutely not.  The market will bear a $4 Big Mac, so McDonald's charges $4--and they will take that $3.90 profit every time.  (Of course, they might drop the price a little to encourage more people to buy a suddenly more profitable sandwich, but the drop won't be much at all.)

McRib is an interesting demonstration of this principle at work.  Have you ever wondered why McDonald's only offers the McRib occasionally?  It's really very simple.  The major cost of a McRib is the pork that's used to make it.  When pork prices fall, McRib becomes profitable, and McDonald's offers it.  When pork prices rise again, McRib goes away, because it is no longer profitable.  This is true even though the price of a McRib, adjusted for inflation, is essentially the same as it was when it was introduced.

We would all be a lot better off if the minimum wage were raised to $15, which is where it was (in today's dollars) 45 years ago.  We've been conditioned to believe that holding the line on the minimum wage is helpful to the economy at large as well as individuals.  But it's not.  People who make minimum wage are among the poorest people in the country.  If there is one universal economic truth, it is that people who are in the bottom 20% of incomes spend every dollar they can get their hands on.  When they get a raise, they spend more, and that spending causes money to cycle through the economy more quickly.  That means increased sales for consumer goods and services, which more than offset the cost of a minimum wage hike.

Australia has proven this to be the case.  Australians are a lot like us in their approach to economic matters--they value individual freedom and free enterprise.  But a few years ago, Australia moved its minimum wage up, and indexed it to inflation, to the point where the minimum wage in Australia is now $15.87 (US) per hour.  Naysayers of the $15 minimum wage in the U.S. scream that it would crash our economy.  But Australia's economy is booming.  It hasn't had a recession in 21 years (we've had three).  Its nominal per capita GDP is the fifth-highest in the world (22% higher than the ninth-place United States).

It's time for a raise.

Read the Fine Constitution

I don't normally do two posts in one day, but I'm making an exception because of a particularly egregious bit of outcome-based judging by a federal judge in Louisiana today.

U.S. District Judge Martin L.C. Feldman, a Reagan appointee who is around 80 years old, issued an order and opinion today in which he granted summary judgment against plaintiffs who were challenging Louisiana's refusal to recognize same-sex marriage.  Judge Feldman becomes the first district judge since the Supreme Court's decision last year in Windsor v. United States, in which the Court declared the Defense of Marriage Act unconstitutional, to uphold a ban on same-sex marriage.

Although I have previously made my position very clear, I think there is room for reasonable minds to disagree on how to go about deciding these issues.  What we have no room for is a judge who decides the outcome he would like, then fixes the facts and argument around it, ignoring that which is inconvenient to the preferred outcome.

Boiled down, the judge's decision is that Louisiana has a rational basis for confining legal recognition of marriage to opposite-sex couples because of its "historically preeminent purpose of linking children to their biological parents."  Judge Richard Posner, a well respected judge of the Court of Appeals for the Seventh Circuit, recently made news for his pointed questions in oral argument that made mincemeat of this argument.  The simple fact is that marriage has never been confined to couples who are capable of creating biological children, nor has the making of babies ever been confined to those who are married.

Numerous courts before this one have noted, also, that the Supreme Court's 1967 decision in Loving v. Virginia, which outlawed anti-miscegenation statutes, carries direct parallels to the present status quo on same-sex marriage.  In this case, the plaintiffs argued that Louisiana's law banning same-sex marriage must be evaluated under "heightened scrutiny"--that is, to be valid, the law must be necessary to the accomplishment of a compelling governmental interest.  Most courts that have considered the question have agreed, in part because of Loving's use of that standard.  But not Judge Feldman:

Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.

I do not think that Judge Feldman was reading from the same Constitution as the rest of us.  The Fourteenth Amendment does not say one word about race.  What the Fourteenth Amendment actually does say, in the part that's pertinent to this issue, is:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What the Fourteenth Amendment "condemns ... as a constitutional evil" are state laws that deny people their liberty without the due process of law and state laws that treat people differently based upon their characteristics.  Race is one of those characteristics, but it is far from the only one.

The Fourteenth Amendment is precious.  It applies to all of us as a guarantee of the fundamental fairness and respect that the government is compelled to give to all of us as citizens.  It is not confined to race-based classifications.  It is not a gotcha-game, nor is it to be sidestepped or disregarded when it is convenient.

I find it hard to believe that Martin L.C. Feldman could be a federal judge for thirty years without understanding this principle.  This is something that even a first-year law student can get right.  I must therefore conclude that Judge Feldman is a dishonest man, willing to ignore our most fundamental principles in search and support of his base prejudice.  That he had to lie to get the outcome he wanted demonstrates how ridiculous the supporters of these discriminatory, anti-American laws have become in holding on to their bigotry.

* * * * *

One more thing...in his opinion, Judge Feldman exalts the democratic process, arguing that because Louisiana has implemented this law by referendum, that process is entitled to great respect (evidently to the point at which he feels free to ignore the Constitution).

His argument is virtually identical to that of Arkansas state Sen. Jason Rapert, who argued, after Pulaski County Circuit Judge Chris Piazza struck down Arkansas's ban on same-sex marriage as unconstitutional, that the passage of the same-sex marriage ban by a wide majority in a referendum rendered it superior to the Constitution.

Sen. Rapert can perhaps be forgiven for not having a deep understanding of the hierarchy of laws in this country, since he didn't go to law school.*  Judge Feldman cannot.  Both are wrong.

* - He did, however, swear an oath to support the United States Constitution, as the Constitution requires of all state officials, so his forgiveness can only go so far.

Here's hoping for a speedy and unanimous reversal at the Fifth Circuit.

From freedom to equality to fundamental fairness

Some time ago I involved myself in a discussion on Facebook with an old friend about different forms of discrimination.  The details of that discussion, while important in their own right, aren't important to my purpose in writing today, so I'll not share them now. 

In many ways my friend is traditional and conservative, and that brings us into conflict from time to time.  I can't speak for my friend, but I've always tried to treat him and his views with respect.  He works hard and tries to live his life the right way, with compassion and common sense.  He's intelligent, and he can be funny and self-effacing and charming.  And even though we often disagree about how we make things better, I know he shares the modern core American values of equality and essential justice.

Near the end of our discussion, which as between him and me was awfully civil (others couldn't help but insert their own insults and name-calling), my friend asked, "Where are my defenders? Who is protecting my civil rights?"

These are excellent questions.

Earlier this year, we celebrated the 50th anniversary of the passage of the Civil Rights Act of 1964.  It would be no exaggeration to call that law one of the most important laws in American history.  Its importance is attributable in many ways to the fundamental shift it represented in our view of what it means to be American.  Before the Act, and before the Civil Rights Movement generally, the general viewpoint was that the essence of America, our most important value and virtue, was individual freedom--the right to plan and execute one's own life according to individual choice, constrained only by ability.

The changes to the laws that happened in the 1950s and the 1960s, including Brown v. Board of Education (and a handful of cases that preceded it), down through the Civil Rights Act of 1964 and the Voting Rights Act of 1965 and several other pieces of landmark legislation, succeeded in shifting--to some extent--the view that our most important value is equality.  That doesn't mean that we don't value individual freedom now, just as it doesn't mean that we didn't value equality before.  But it's a shift in what occupies the top spot.

These laws, to be sure, were reactionary.  By that, I mean that they became laws in response to situations that had become intolerable.  Title II of the Civil Rights Act of 1964 focuses on (and bans) discrimination in public accommodations based upon race, national origin, skin color, and religion because many individuals and many state governments used the guise of individual freedom to make life harder for minorities.

As such, it's not unreasonable for white people today--most of whom have never intentionally discriminated against racial or religious minorities--to view the Act as a special accommodation for racial and religious minorities that has no application for themselves.

The truth is that there are times when white people are targeted for discrimination, or for something that appears to be discrimination.  Sometimes it can seem that racial minorities in particular are given special, undeserved consideration for things like promotions in employment.  In some cases, that inference is legitimate, mostly because of well-meaning people who inappropriately apply principles, like affirmative action, that were designed to help qualified members of underrepresented minorities get considered for positions, to unqualified members of underrepresented minorities in a bid to appear more racially diverse.  That kind of laziness helps no one, but it perhaps illustrates how far we have to go yet.

Sometimes that viewpoint leads some white folks to believe that minorities have access to a special, more generous form of welfare that white people can't access.  They don't, but the idea that they do has been planted and stoked by conservative politicians who hope to motivate white people to the polls in order to cancel out the influence of "welfare queens" who drive Cadillacs and eat steak on the taxpayers' dime.

As I see it, part of the fundamental difference of opinion that has made us Americans more divided politically than we have ever been is rooted in the silent debate about the shift from individual freedom to equality as our highest American value.  We don't talk much about that in the abstract; instead, we fight proxy wars over the minimum wage, welfare reform, immigration policy, government spending and taxes, and a thousand other seemingly binary issues.

What we don't seem to understand is that these concepts need not be at war with each other.  In the hierarchy of American values, what we are striving for is not individual freedom or equality but both, in the form of fundamental fairness.  We all need help from time to time, some of us more than others.  We all need defenders.  We all need civil rights.  We all need the empathy of others.  Perhaps most importantly, we all need second and third and fourth chances, even if we don't deserve them, strictly speaking. We are all Americans, and we Americans are all in this together. 

Sex! (Now there's a title for you.)

Let's get this out of the way first:  I am a feminist.

To give that some meaning, a definition:  A feminist is a person who believes in the full equality of women with men and in the full agency of women over their own lives.  Feminism does not require that men be hated or belittled or ignored or punished.  Feminism need not be against marriage or motherhood, nor does it require respect for the more extreme, cartoonish views about gender relations that have become associated with it.

What's prompting me to write about feminism today are several mostly unrelated topics that have been in the news lately, including:

• The hacking of the iCloud accounts of numerous female celebrities, coupled with the redistribution of candid nude photos of those celebrities taken from those accounts;
• CeeLo Green's disabling of his Twitter account after he posted some bizarre opinions about what constitutes rape, shortly after he skated on rape charges and got probation and community service for spiking a female companion's drink and having sex with her;
• A widespread social-media meme in which (mostly young) women give reasons why they don't need feminism, based mostly on misconceptions about what feminism is;
• News of the development of a fingernail polish that changes color when exposed to drugs commonly used to facilitate rape, together with a negative backlash about the use of such a product; and
• Significant efforts to get college and university administrators to educate their students about what consent to sex really means, particularly in the context of intoxication.

Culturally, our approach to rape prevention has usually involved educating women about avoiding situations that might lead to their being raped.  When I was in college, two decades ago, women were encouraged to call for a campus police escort when walking across the campus at night.  At the time, I thought that was a good thing, and to an extent I still do.  But when the focus is on telling women "don't get raped," that's just a bit wrongheaded.  The lion's share of the focus should be on telling men "don't rape."

In the same vein, I get what some women are saying about the nail polish.  The existence of the product could be read by some people as putting the onus on women to avoid being raped instead of putting the onus on men not to rape.  In an ideal world, this product wouldn't be necessary, because it would never occur to any man to drug a woman for the purpose of having sex with her.  We don't live in an ideal world.  If I were a woman, and if I felt vulnerable to this kind of attack, I'd like to think I would appreciate having this tool to help me avoid being raped.  But I can also imagine being frustrated that this kind of thing is necessary.

The truth is that we desperately need to educate young men about these issues, but our collective attitude toward sex is part of the problem.  Culturally, we have a tendency to treat sex as a game in which the male is on offense and the female is on defense.  Even our language is infected with metaphors that reinforce this concept.  The goal of the man is to score, while the goal of the woman is to prevent that from occurring. 

For younger women, their fathers often expect to assist on defense.

When you set up this type of arrangement, enforced through millions of interactions between men and women, it is hardly unreasonable to expect that some men will cheat to win, just as players of real sports use performance-enhancing drugs and dirty play to win at their games.

That does not make it right to break the rules, of course.

This entire approach is wrongheaded.  If we want to end rape culture, we are going to have to adjust the cultural understanding of sex away from the game metaphor.  The truth is that both men and women want sex.  They want to have interactions with each other that might lead to sex, or that might not.  But most importantly, both men and women want to choose when, where, and how they have sex, and with whom.  We should not instill in men, through our culture, the belief that getting sex is the result of breaking down a woman's defenses until she gives in and gives it up.  The result of that is almost always something terrible--at best, it is sex that leaves at least one of the parties dissatisfied; at worst, it is rape.

There is a popular T-shirt, aimed at a certain segment of the population--namely, fathers of young women--that lists the rules for young men seeking to date the wearer's daughter:

1.  I don't make the rules.
2.  You don't make the rules.
3.  She makes the rules.
4.  Her body, her rules.

This almost gets it right, and as a bonus, it combats the cultural idea that it is the responsibility of fathers to control their daughters' sexuality.  (It isn't.  Her body, her rules.)

But I say "almost," because we're still not quite there.  This is still focused on defense, to an extent.  If the wearer's daughter chooses to date someone, she doesn't get to make all of the rules.  If she and her date decide to engage in a physical relationship, it's up to both of them.  They both need to agree that it's what they both want.

Of course, that doesn't fit nicely on a T-shirt.

There's more to it, yet.  And that's where iCloud comes in.  It would be easy to blame the victims here--to say that they should have had stronger passwords, or to say that they shouldn't have taken the nude photos in the first place.  Maybe it's not entirely wrong to say those things--just like it's not wrong to develop a nail polish that detects GHB or to encourage college women to call for a police escort when leaving the library late at night. 

But I also have a problem with a blogger at Forbes.com, who called the distribution of these photos a "sex crime." 

I don't think I can go that far.  As invasive of these celebrities' privacy as these acts are, they are only images that are incidentally nude.*  That is, it would be just as invasive if these were private family photos without any nudity at all. By the way, I've previously made myself clear about how to treat celebrities you encounter.

* - Disclaimer:  I haven't seen the photos, and I'm not likely to.

No one is being raped.  No one is being assaulted.  The worst thing about the "sex" aspect of this is that some people that none of these celebrities know will know what these celebrities look like without any clothes on.  Will it substantially modify these celebrities' lives in some way?  Unlikely.

I refuse to get exercised about the nudity aspect of this occurrence.  We place entirely too much emphasis on nudity, and specifically on avoiding nudity and exposure to it.  These celebrities have bodies, with breasts and buttocks and genitals.  So does everybody else.  Big deal.  Last I checked, you can't see someone's personality or intelligence--you know, the important parts of a person--in a nude photo.  After seeing a nude photo of Jennifer Lawrence, the next time you see her in a film, one of two things is going to happen:  One, you'll be picturing her naked (which you would probably be doing anyway), or two, you'll appreciate her acting skills (which you would probably be doing anyway).**

** - Also, I find it frankly disturbing that people are more concerned about their children seeing a photo of Jennifer Lawrence naked than they are about their children seeing Jennifer Lawrence and her "Hunger Games" castmates murdering each other for sport on the big screen.

Calling the release of these photos a "sex crime" cheapens actual sex crimes and reduces these celebrities to mere sex objects, to nothing more than their unclothed bodies.

Of course, that doesn't mean that those responsible shouldn't be pursued.  I just don't see the need for hyperbole.  In the end, this is about these individuals' right to control their own photos, not the content of those photos.