Reports that seem to come from the Court

What I see in the reports on the two days of hearings seems to confirm what I've said about DOMA — there's a strong states' rights argument that DOMA is unconstitutional. The Prop. 8 news seems to be a bit less clear, but it looks as though there's a good chance that the Court will rule that the anti-gay side has no standing, or that the court should not have granted certiorari, and in that case the Ninth Circuit opinion will stand: Prop. 8 in California is unconstitutional, but the status quo will continue in at least most of the 49 other states (legal where it is, illegal where it's not currently legal). This will mean the pro-marriage-equality side will have to keep working where they haven't won, but there is a precedent that will say that wherever gay marriage has been approved, that action can't be reversed. Inexorably, gay marriage will become legal in more and more states.

If all this comes to pass, it's good for advocates of equality. Not perfect, but good.

The two gay marriage cases

Yesterday and today, the Supreme Court has been hearing arguments on two gay-marriage cases, two which in fact are quite different but both bearing on the future of gay marriage. Given that I was certain that last year the Court would find “Obamacare” unconstitutional, I have no credentials as a Court decision predictor, and so I will not try on these, but there are a number of points to be made.

If the court wanted to take a strict “states' rights” position, it would rule that California's Proposition 8 was properly enacted, ending gay marriage in California, but invalidate the “Defense of Marriage Act” as an infringement on the States' rught to define marriage — a Tenth Amendment based decision. So gay-marriage people would have, then, a split decision.

It is, of course, possible that the Court would follow the precedent of Loving v. Virginia, as Ted Olson would suggest, and grant gay marriage rights nationwide as a Fourteenth Amendment (equal protection) right. I really don't expect this, but it would be a great day fopr gay couples if the Court did so

What could more likely happen, and was hinted at by at least two Justices, is that Hollingsworth v. Perry (originally called Perry v. Schwartzenegger and then Perry v. Brown: these changes can be quite confusing!) will not be decided at all; the Court will rule that the supporters of Prop. 8 have no standing to sue, gay marriages will resume in California as a result of a lower court decision, but the other 49 states will be unaffected.

Of course, we will not find out the decision for several months. The Court will do as it did in the Obamacare case, issuing its opinion in June rather than right away. So we are waiting while various analysts examine the questions the Justices asked to try to discern their thought processes.

Jonathan Chait, secular pope?

Yesterday I ran a post which in part referred to a critical column by Jonathan Chait in New York magazine. But in his column, he didn't only make an uncalled-for dig at Senator Rob Portman of Ohio; he also managed to bring in criticism of Rep. Paul Ryan of Wisconsin, recent candidate for the Vice-Presidency. He takes Ryan to task for saying, of universal health insurance, that it was “a new entitlement we didn’t even ask for.”

The construction was so telling — “we” meant the majority who have access to regular medical care and would rather not subsidize those who don’t.

It is Chait who doesn't seem to think that there are people around that he cannot imagine — not everyone who doesn't have health insurance is in that category because he can't get it; some want to take the risk because they are young and healthy, and would rather put the money somewhere else than in health insurance premiums. Others want to purchase bare-bones coverage for catastrophic illness only, because they figure they can afford normal medical expenses; of course “Obamacare” will not permit that.

Universal health insurance really isn't what we needed. What we need is to make health insurance obtainable for those who want it and cannot get it — not the same as all those who do not have it! But Chait thinks that, like the Pope according to Catholic doctrine, he is infallible — anyone who doesn't think the way he does is in error. If Ryan says that universal health insurance is “a new entitlement we didn’t even ask for” it is because he doesn't include all of us in that “we.” That's what Chait says, and that is, therefore, official doctrine. What claptrap!

Bipartisanship at last!

A few days ago I ran a post in which I was somewhat critical of Chad Griffin, the head of the Human Rights Campaign, for sending out an email praising President Obama for the administration's filing a brief before the Supreme Court, arguing that that a law denying gay and lesbian couples the ability to marry is unconstitutional. Mr. Griffin has, in my mind, remedied this to an extent. He sent out another e-mail, praising Republican Senator Rob Portman of Ohio for coming out for marriage equality. It has not been only Obama and the Democrats who have taken pro-equality stands; there are Republicans, who run more risk because of some conservatives' religiously-based bigotry, but have come out on the side of equality as well.

In Griffin's e-mail, he quotes Sen. Portman as saying, referring to his own son's coming out as gay:

It allowed me to think of this issue from a new perspective, and that's of a Dad who loves his son a lot and wants him to have the same opportunities that his brother and sister would have – to have a relationship like Jane [my wife] and I have had for over 26 years.

Nice to see the Republicans' being recognized too.

Chad Griffin is to be complimented. Not so Jonathan Chait, who uses the same bit of news to accuse Sen. Portman of selfishness in his New York Magazine column:

It’s pretty simple. Portman went along with his party’s opposition to gay marriage because it didn’t affect him. He thought about gay rights the way Paul Ryan thinks about health care. And he still obviously thinks about most issues the way Paul Ryan thinks about health care.

That Portman turns out to have a gay son is convenient for the gay-rights cause. But why should any of us come away from his conversion trusting that Portman is thinking on any issue about what’s good for all of us, rather than what’s good for himself and the people he knows?

Chait seems to think that there is an objective measure of “what’s good for all of us,” which is absolute nonsense. What is good for a landlord (increases in the rental values of property) is not good for a renter. What is good for an urbanite who has to buy his food (lower prices on agricultural products) is not good for a farmer who has to sell the products to a wholesaler. Very little is good for all of us. And so we must really decide on the basis of “what is good for [our]selves and the people [we] know.” All of us reason this way, not just Sen. Portman.

Maryland and the death penalty

The state of Maryland, where I currently have my home, is in the process of ending its death penalty. The House of Delegates today voted to do so; the Senate has already acted. Governor O'Malley is a death penalty opponent, so there is no chance he will do anything but sign it into law. And it will not make a practical difference, because Maryland has not executed many people in recent years. What it will say is that nobody's life is worth anything — if someone takes it in an act of murder, he will not be required to pay an equal penalty. My wife — who is against the death penalty — takes the position that if someone is wrongfully convicted and executed, as could have happened to Kirk Bloodsworth, it cannot be reversed. This is so, but if someone is murdered, that cannot be reversed either.

Maryland is making a mistake — but I can't do anything to prevent it. I guess we should change the state motto to “Maryland Welcomes Murderers.”

A new pope

The Catholic Church has chosen a new pope — and broken ground in many ways, though on the other side, shown how conservative they are. The new pope, Jorge Mario Bergoglio, to be known as Pope Francis, is the first non-European pope in nearly thirteen centuries. He is the first ever from Latin America, the first Jesuit, and of course, the name Francis has never been taken by any earlier pope. (Although some people have taken to calling him Francis I, apparently the correct thing is to call him just Francis until there is a Francis II. They did, however, refer to John Paul I before John Paul II became pope, but of course, that was only a 34-day reign.)

Yet for all that is new, ths pope is deeply conservative. Bergoglio has been as anti-gay as any Catholic clergyman around, having stated that same-sex marriage was the work of the devil and a “destructive attack on God’s plan.” Even gay adoption was in his eyes “discrimination against children.” His conservatism has been demonstrated in other ways. He has been associated wuth a group named “Communion and Liberation,” known to be very conservative.

So, despite the new ground broken by the Catholic Church, one can assume that under Pope Francis, it will still be the same in ways that really matter — anti-gay, anti-equality for women, sure of itself as the only true religion. One could perhaps have hoped for a different direction, but I would never have expected it; the previous pope, Benedict XVI, was moving them in a more conservative direction, and there seemed little likelihood of a change.

Cal Thomas returns to form

A bit over a week ago, I posted a message expressing my surprise at finding a column in the Washington Examiner by Cal Thomas with which I actually agreed. well, in Yesterday's Examiner I saw another column by him. And while it is not the very next column after the one I commented on last week (there was at least one more column between the two), I found it striking at just how much this column illustrated just how far apart Mr. Thomas and I are on most issues.

The subject of yesterday's column was, in large part, the improperly-named Federal Defense of Marriage Act of 1996. He begins:

Given his track record on marital fidelity, former President Clinton is not the person I would consult about “committed, loving relationships.” Clinton used those words in a Washington Post op-ed last week, urging the Supreme Court to overturn the 1996 Defense of Marriage Act, which defines marriage as the legal union of one man and one woman, which he signed into law.

In his column, Clinton said that 1996 “was a very different time.” No state recognized same-sex marriage and supporters of DOMA “believed that its passage ‘would diffuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.’” Clinton says he now supports same-sex marriage based on justice, equality and the Constitution.

Now, while the slap at former President Clinton's marital history is, I believe, not entirely gratuitous, it really is out of place here — the issue is not Clinton's sex life, but the right of other people, who may be far more deeply committed, to enter into a relationship that they wish recognized as a marriage. But Cal Thomas is being a smarty-pants here, and bringing up Clinton's history to add an ad hominem reason to come out on the other side of the question. Whatever you think of Bill Clinton's conduct, it shouldn't be the issue in this discussion.

Mr. Thomas actually mischaracterizes DOMA anyway — it is only for Federal purposes that DOMA “defines marriage as the legal union of one man and one woman” — each state in fact can, at present, define it in that way or any other. And in fact, later in the same column, Mr. Thomas actually says:

The Constitution doesn't guarantee the right to marry. States, not the federal government, issue marriage licenses.

And this is a very important reason that DMA should be considered unconstitutional. But he continues:

Current laws restrict “underage” marriage, as well as polygamy. If same-sex marriage is approved, what's to stop polygamists from demanding legal protection and cultural acceptance? … So I ask, if “fairness” and “equality” are the standard, isn't it also “unfair” to “discriminate” against polygamists who wish to live in “loving” and “committed” relationships?

But while there is a case before the Supreme Court that addresses this issue — and I will get to that latter — DOMA does not have anything to do with whether a state should, or should not, permit any given couple (or set of more than two, if you bring in the question of polygamy) to marry. What DOMA says is that, even if a couple is married under the laws of the state of Massachusetts, the Federal Government will refuse to recognize that marriage if the two are both of the same sex. And that contravenes the usual Constitutional relationship between the states and Federal government. A simple Tenth Amendment argument makes DOMA unconstitutional.

Anyway, we aren't seeing suits to legalize polygamy, or “underage” marriage, and as recently as the 1950s, perhaps more recently (I haven't checked on when the law was changed) a 12-year-old girl (but not a boy!) could get married legally in one state. The charge that “if we legalize this, next we will be asked to legalize that,” is always raised when someone is opposed to the first one, but wants to try to scare people who are willing to permit it by bringing up the second, which he believes that fewer will accept. And that is a fallacious argument. If we legalize same-sex marriage, perhaps a movement will arise to legalize polygamy, but if you don't want to see polygamous marriages legalized, the time to oppose them is when that bill comes up. When we lowered the voting age to 18 from 21, people didn't complain that if we did that, soon we would have to lower it to 16, or 14, or 10, or even 7! Yet that's the same type of argument. What the proper voting age is can be debated — and I would be amenable to an age below 18, as I think that at 14, my political beliefs were already formed nearly fully — but the debate should center on what is the proper age, and not whether a lowering now leads to a further lowering later. And the same applies to expansion of who is allowed to marry legally.

Yes, I believe that same-sex marriage should be approved, but DOMA is not about that; it is about the Federal Government recognizing marriages that are already legal under state laws.

What Cal Thomas is really getting at, however, is contained in the next piece of his column:

Since we are rapidly discarding the rules for living and social order set down in a book found in most motel room drawers, what is to replace it? Opinion polls? Clever legal arguments? Fairness? What exactly does “fairness” mean and who decides what's fair? Many things may seem “unfair,” but not all can, or should, be addressed by courts.

Of course, the reference to “a book found in most motel room drawers” is to the Bible — what Thomas, of course, means is the Christian Bible, which has a number of books I do not recognize as scriptural, but let us not get into that debate here — and now we get into the First Amendment. There are people like Mr. Thomas who think that this amendment permits laws that are designed to impose the standards of one particular form of Christianity upon all of us, and clearly the purpose of this amendment was to prevent such laws. And I say “one particular form of Christianity” because, contrary to what Mr. Thomas may wish, there are churches that will perform same-sex marriages, so their clergy do not seem to think the Bible condemns them.

The Court is considering DOMA, and it is also considering the separate issue of whether states should be required to allow gay marriage. These are different issues. DOMA should be ruled unconstitutional because the Federal Government should not prevent a state's legal right to sanction a marriage from being recognized Federally. The other question is more nuanced. Ultimately, however, I think there is an equal-protection issue, and just as the Court held in Loving v. Virginia that people of different races should not be prevented from marrying, they ought to apply the same logic to people of the same sex. But there is a state's rights issue that points the other way. So this decision is less clear.

The worm has turned

Back at the end of last year, the Republicans found themselves in a bad spot. If they did nothing, the Bush tax cuts would all expire Jan. 1. Even President Obama wanted to preserve many of them, so there was bipartisan agreement that doing nothing was unacceptable. And thus, John Boehner and the House Republican caucus ended up surrendering too much to President Obama. There was no better choice.

Now, on the other hand, it is the President who is in the same pickle that the Republicans were in back then. If nobody does anything, the sequester kicks in — the spending cuts go beyond what the GOP wants, but certainly Obama gets none of the tax increases he wants. So the only compromise possible is for the President to give up on some of the tax increases. We are seeing his allies — Nancy Pelosi and the rest of the House Democrats — making wild statements to try to curry favor with the American people. But they cannot win — and President Obama knows it. Finally, he is talking with the GOP leaders in Congress — something he refused to do last December. My, how the worm has turned!

The perils of purism

Yeaterday I ran a post about a column by Cal Thomas in that day's Washington Examiner which surprised me in that I often disagree with Thomas' columns, but found that particular column to be totally in accordance with my thinking. Today I'm also posting about a column in the Examiner, but while I am just as much in agreement with today's column as I was with yesterday's, this time it causes no great surprise, because the column is by Noemie Emery, whose posts I usually find make a lot of sense to me. As it happens, it says much the same thing as a remark in Thomas' column in yesterday's paper:

If the Republican “tent” isn't large enough for Chris Christie, then it will resemble a pup tent for some time to come.

Emery's column is entitled, “Conservative crisis management.” At the beginning of the column, she says:

When in a hole, keep right on digging. That's the attitude of a number of movement conservatives, who, in reaction to last year's shellacking, seem to want to make certain they never climb out.

And, addressing those conservatives, she makes the point (emphasis mine):

…don't complain about Republicans running the Bushes, John McCain, Bob Dole and Mitt Romney, when you run Alan Keyes, Pat Buchanan and Rick Santorum against them. If you want to win nominations, you might try running candidates. (And a better message might help matters, too.)

That's a powerful dig, but they deserve it. The fact is that most Americans are not far-right conservatives. If a conservative is to win their votes, he needs to be moderate enough to get the votes of people closer to the middle of the political spectrum, who would never support a Santorum. Which leads ino her next point:

check the urge to purge heretics, which died out long ago in most of the world. Movement conservatives now scourge their party's most popular governors. Yes, blue- and swing-state Republicans always enrage some conservatives; the problem is that conservatives need them if they want to become a national party. If they like to throw tantrums, they should keep on what they're doing. If not, they should throw them some slack.

Why? Andrew Cline explained this two years ago, just after Scott Brown, having thrilled conservatives by winning the seat of Ted Kennedy, enraged them with one of his first Senate votes. “Scott Brown does not represent the Republican National Committee in the United States Senate. He represents Massachusetts,” Cline said then, correctly. “If Scott Brown voted as though he were from Alabama, the voters of Massachusetts would send him there.”

The really important thing to note is what Emery says a little bit further along:

…Chris Christie, with his Ralph Kramden vibe, is the closest thing they are likely to get in New Jersey — and, though conservatives would prefer a Reagan conservative, in those states this is not in the cards. Christie and Bob McDonnell represent their blue and swing states, not Utah or Texas, and the alternatives to them are not stronger conservatives.

The alternative to Olympia Snowe isn't Ted Cruz, it's Angus King, who votes with the Democrats. The alternative to Scott Brown isn't Rand Paul, it's Elizabeth Warren. We have Obamacare now because of the Club for Growth and Pat Toomey, whose primary threat scared Arlen Specter back to the Democrats, where he became the 60th vote for Obamacare's passage.

In other words, the far right's insistence on purity has driven the center of American politics leftward, hardly a desirable goal from their point of view.

I wish Noemie Emery's words could be read by the people who keep insisting on ideological purity.

Cal Thomas, Chris Christie, and the CPAC

Usually, when I open my copy of the Washington Examiner and read Cal Thomas’ column, I find much to criticize. But today, when I read his column, I was surprised.

It began:

It's a safe bet that most conservative Republicans would rush to support a political leader with the following record, especially in a traditionally Democratic state:

Reversed a $2.2 billion deficit and brought it into balance without raising taxes, largely by reduced spending and eliminating wasteful and unaffordable programs, allowing for a projected fiscal 2014 budget surplus of $300 million.

Bipartisan pension and benefits reforms, saving the state $120 billion over 30 years.

Streamlining government by eliminating 5,200 government jobs.

Vetoing tax increase bills three times while cutting taxes for job creators.

Reforming the nation's oldest teacher tenure law by making it conditional on teacher performance in the classroom.

Reduced property tax increases to a 21-year low and capped them at a maximum 2 percent.

There's more, but shouldn't conservative Republicans be ecstatic by this record compiled by New Jersey Republican Gov. Chris Christie?

Yes, Cal Thomas was singing the praises of one of my favorite Republicans, and taking the Conservative Political Action Conference to task for not inviting him to speak. Thomas was really making the case for Christie as exactly the kind of person the Republicans should be cultivating, using such language as:

… By not inviting him to speak, CPAC invites comparison with a pessimistic and hypercritical political environment of the past. If the Republican “tent” isn't large enough for Chris Christie, then it will resemble a pup tent for some time to come.

Republicans should be focused on deconstructing failed liberalism and styling their alternative in positive terms, not rejecting one of their own. Hating President Obama is not a policy. Intellectually defeating his policies is.

I often believe Cal Thomas is on the wrong side of issues. But not this time. I applaud his sense in calling for Republicans to recognize Gov. Christie’s accomplishments. Of course, I would be happy if he is the 2016 nominee. But just as conservative orthodoxy scuttled former New York City Mayor Rudy Giuliani’s attempt to be the GOP standard-bearer, I am afraid they may do the same with Christie. And it would be a shame.

President Obama, gay rights, and the sequester

Recently, Chad Griffin, the head of the Human Rights Campaign, sent out an email praising President Obama for the administration's filing a brief before the Supreme Court, arguing that that a law denying gay and lesbian couples the ability to marry is unconstitutional. Since HRC is basically a one-issue organization, focusing on gay rights, I suppose that Griffin was justified in sending this email; however, it would have been fairer if he had pointed out that the pro-gay-rights side is also getting support on the other side of the aisle: another brief was filed by a group supported by Clint Eastwood and Jon Huntsman, for example, and one of the two lead lawyers on the pro-gay-rights side is Theodore Olson. Griffin, however, made the email a hearty thank-you to a President whose commitment to gay rights is better to be characterized as more political than heartfelt. This is, after all, a President who could have ended “Don't ask, don't tell” by a stroke of his pen on Jan. 20, 2009; in fact he waited years to do so.

As for me, my attitude is “Sure, Mr. President, you're on the right side here, but you've been such a bad president with regard to other issues that this one act hardly balances it.” From insisting that no solution to the problems arising from the “sequester” is acceptable without raising taxes, to claiming the Senate was in “recess” when it really wasn't, in order to pack the NLRB with pro-union flacks, Pres. Obama has done so much that is bad for this country that he will not get off, in my eyes, just because he's done one thing right for a change.