In Pennsylvania, Halloween happens. In solidarity with their brethren in every other state in this country, some Pennsylvanians are prone to wear offensive costumes.
This is not about the wisdom of offensive costumes, the pitting of nascent libertarianism against the implied need for social responsibility in what we communicate to others, surviving even the implied relief of that responsibility by reliving our childhoods through dressing up in things we bought from thrift stores.
This is about the ability of religion to escape the restriction of generally applicable laws, which seems to be strangely relevant these days.
I hesitate to speak to the unfiltered version of this series of events, as the information available comes from this Opposing Views article, this local ABC news report, and known Islamophobe Andrew C. McCarthy. From what I’m able to tell, though, the Pennsylvania state director of American Atheists, Inc., Ernest Perce V., marched in a Halloween parade as ‘Zombie Muhammed’ alongside a ‘Zombie Pope’. Perce’s costume included a sign bearing phrases insulting to Islam. Talag Elbayomy, a Muslim, confronted Perce and, in some manner, grabbed Perce and/or his sign. Elbayomy was charged with criminal harassment for his actions.
State Magistrate Judge Mark Martin received the case, and ultimately dismissed the charges. Although unclear exactly why he did so, Martin did find it within him to draw on his years as an Army reservist serving in Iraq and lecture Perce (yes, Perce) at length for the offensiveness of his sign (transcript available here).
McCarthy (and many of his fellow travelers on the right) have declared this an unconscionable turn into sharia law, the rise of Islamic domination over American courts. As it turns out, it’s not. As it further turns out, the newly discovered and inviolable right of “freedom of conscience” discovered somewhere between the words “free” and “exercise” in the First Amendment gives Elbayomy a better case for exemption from his harassment charge than it does the Catholic Church for exemption from HHS contraception regulations.
To be clear, I think Judge Martin was likely wrong in his decision – Elbayomy admitted to confronting Perce and attempting to take his sign. The offensiveness of Perce’s language isn’t an excuse for Elbayomy’s actions, and this wasn’t a particularly complex case, barring some evidence or uncertainty not readily apparent here.
That having been said, let’s talk about decades-old Supreme Court cases. In 1942, the court determined that a class of words called “fighting words” lacked First Amendment protection. In Chaplinsky v. New Hampshire, the court said:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
The doctrine has been severely narrowed by subsequent decisions, and no private action or public regulation has ever been held to be “fighting words”. Of course, in the new era of “freedom of conscience”, it’s not entirely clear that matters.
The crux of the argument that freedom of conscience is a constitutional right is that the Free Exercise clause protects private religious belief from any law that conflicts with it. Despite the fact that an absolute rule of this type leads to absurd results (like, say, a believer’s exemption from harassment laws because someone offends his faith) and the fact that such a rule is completely ahistorical (religious exemptions have always been a matter of public policy preference rather than guaranteed right), conservatives are sticking with it.
The Catholic Church believes that it should be exempt from an HHS regulation that it already complies with in dozens of states because it offends their faith. The same principle, applied to Talag Elbayomy, provides no reason why a devout Muslim should not be able to grab an offensive sign if his religion calls on him to defend his faith without criminal penalty, particularly when married to another exemption from the First Amendment. Arguably, Elbayomy has a better case, if for no other reason than that he hasn’t repeatedly violated the ironclad religious principles that serve as the basis of his objection.
Elbayomy should have faced criminal penalties for harassing (more accurately, assaulting) Perce. And the Catholic Church should comply with regulations governing the secular services it provides. This isn’t because of hostility to faith. It’s because we live in a society that never intended to make religion an impenetrable shield to law, and to do so necessarily opens up the door to anarchy governed only by faith.
If you've been listening to cable news for the past few days, two things immediately leap out at you. The first is that there are a lot of pundits who are willing to speak for lay Catholics' simmering sense of outrage at the Obama Administration's decision to mandate contraceptive coverage for Catholic hospitals and other non-clergy religious employers. The second is that this decision violates the free exercise rights of Catholics guaranteed under the First Amendment.
As Michelle Goldberg points out, it's hard to argue that the Catholic Church is somehow suddenly burdened by a rule virtually identical to the rules it complies with in twenty-eight other states. Currently lacking our future moon republics promised by Newt Gingrich, that's easily the majority of states.
At a more fundamental level, though, the HHS rule simply doesn't violate a cognizable free exercise right. In 1990, the Supreme Court decided a case called Employment Division v. Smith, 494 U.S. 872 (1990). Two men, members of the Native American Church, used peyote in their rituals. They were employed in Oregon as counselors at a private rehab clinic. Oregon outlawed peyote, with no exception for religious use. The men were subsequently fired once their drug use was discovered, and applied for unemployment benefits. The state of Oregon denied them benefits because - guess what? - they were fired for committing a crime under state law, and had committed work-related misconduct.
The case found its way to the Supreme Court, where the court set down a new rule. The standard for determining if a regulation burdened the free exercise of a religious adherent or organization was whether the law was neutral toward religion and generally applicable, lacking any pretext designed to obscure a hostility toward religious practice. The court even stated that to permit otherwise under the First Amendment "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
The author of this religion-destroying opinion? Noted Catholic Antonin Scalia.
And you know what? This makes perfect sense. If a private citizen or organization can escape laws that incidentally burden their religious practices, religion becomes a literal "Get Out of Jail Free" card. The purpose of the Constitution wasn't to subsume the rest of society to the wishes and whims of religious practitioners, it was to provide those practitioners a safe space to practice their faith free from direct government interference or mandates.
The burden on the Catholic Church is incidental, at best. The Church is required to provide health insurance coverage to their employees in the same manner as any other employer hiring the same people to perform the same jobs. That it offends them to do so is not unconstitutional.
Whatever the political fallout, the Obama Administration is on the right side of this, legally. And they've got lovable ol' Antonin to thank for it.
UPDATE: Via Felwith, in comments:
It makes perfect sense, but unfortunately it’s no longer the law of the land, at least as far as the federal government is concerned. The Religious Freedom Restoration Act passed in 1993 which required laws that restricted free exercise of religion to pass strict scrutiny, and while the Supreme Court ruled that it couldn’t apply to the states, in 2006 they did rule that it did apply to the federal government. So if this does go to court, I don’t really like their chances.
It’s bullshit, though, since there are many Catholic institutions that already provide contraception coverage to their employees without whining about it. Unfortunately, I don’t think the administration can successfully argue “But that’s not *really* a Catholic belief” in court, even though it’s the truth.
The government would then have to show that it had a compelling interest in its regulation of Catholic hospitals and charities, and that the means of achieving the interest were narrowly tailored to the goal.
Thanks for negating my post, law. And Felwith. Hrmph.
Irin Carmon has a great rundown of Mitt Romney's botchtastic answer on the constitutional right to contraception at Saturday's GOP debate, which can be fairly summarized as such:
"It is silly that you would ask me about whether something is constitutionally protected. After all, nobody is threatening it. It's constitutionally protected!"
Ignoring that personhood amendments by and large do exactly that (as do the initiatives of any number of other conservative religious groups focused on the alleged sexifying effects of latex tubes and daily prescriptions), the question was important for another reason.
Romney (Harvard Law, when he admits it) replied with an ethic of constitutional interpretation that boils down to not thinking about it unless you have to, even when your main legal advisor is a guy who was denied a seat on the Supreme Court in part because of his stance on Griswold. Ron Paul chimed in by saying that the Commerce Clause would prevent the banning of birth control sales by states or localities, which would make a lot of sense if that was in any way what the Commerce Clause did. Earlier in the week, Rick Santorum declared that marriage was a privilege rather than a right, meaning that he's against the Supreme Court's decision in Loving v. Virginia, legalizing interracial marriage.
Add in Santorum and Gingrich's desire to abolish part or all of the Ninth Circuit (which would almost certainly lead to a massive due process and equal protection suit after a third of the nation loses access to federal courts), and the GOP has a widespread problem: their concern now is not stopping "activist judges". It's reliving a glorified costume party from the late 1780s, where we presume that the Founders sat down, calmly discussed every issue that could ever possibly pop up, wrote a document to cover it - except for the part about slavery, which would work itself out after a bit - and then got back to discussing what a pompous dick Ben Franklin was.
Conservatives increasingly aren't having problems withjudges. Conservatives are having a problem with courts.
Courts get in the way of the executive and the legislature. They're supposed to. They constitute a deliberative branch whose purpose is to analyze the actions of the other two branches and determine whether those actions comport with the law. Are they always right? No. But neither are the other two branches.
The GOP field's hostility to courts comes, largely, from the fact that courts are able to say and do things the other two branches can't, without the sort of rapid political changes that have led to Congress' position as a well-respected institution and the foundation of public life. Courts interpret and, yes, enshrine rules that the other two branches missed entirely. No matter how strong an executive is, after he has appointed a judge, his ability to constrain a federal court's discretion is limited mainly to the laws he or she signs.
By threatening the dissolution of courts and even entire circuits, or by deciding that entire swaths of Supreme Court precedents are wrongly decided because of stuff and things despite having almost zero familiarity with the underlying law or facts, the message is not that rogue judges can be constrained. It's that courts are no longer as untouchable as they thought they were, and if they don't step in line and rule along a particular ideological zeitgeist, they'll find themselves subject to the same punishment as a rogue legislator or insufficiently lockstep presidential candidate.
The Founders, of course, put in safeguards for just that purpose. Not that it matters, of course; should those Founders fight too hard for their beloved "Third Article", they're gonna find themselves the Founders of Finland, and we'll replace them with proper historical heroes, like Von Mises and Margaret Thatcher. Check yourself before you wreck yourself, oldheads.
In case anyone was unaware, Newt Gingrich is a professional historian.
Well, okay, not really - he's got a PhD and was denied tenure then went around Washington D.C. generally being the sort of haughty dick who misread an article on Cracked.com and is amused by your lack of knowledge concerning what really happened to Amelia Earhart.
He's also an ideas man, a brilliant ideas man, and is willing to take this country forward into 1915...if only we'll let him. One of his recurring ideas is to seek vengeance on federal judges by abolishing their positions, and from that point sending the clear message that he has no idea how the Constitution works.
The Judicial Reform Act of 1802 abolishe[d] 18 out of 35 federal judges. That doesn’t impeach them, it just says this court no longer exists, we are no longer going to fund it, go home. That was over half of all federal judges at that time.
… take the most bizarre of judges and simply abolish their court. Tell them to go home. Those are the kind of steps. And I think they will lead to a very substantial national debate. There is nobody who has had the temerity now for almost 60 years to stand up and say that this is absurd.
Gingrich defends this idea as "Jeffersonian", because Jefferson was behind the JRA of 1802, and people like the way "Jeffersonian" sounds. It's mellifluent. Also, it abolished 16 positions, not 18, but history's not about accuracy. It's about ideas.
Here's the problem: Gingrich wants to abolish the Ninth Circuit Court of Appeals. The JRA of 1802 abolished judgeships within each circuit, but still kept judges on each circuit. Gingrich's suggestion of abolition isn't just a foolhardy act of political vengeance; it's very likely unconstitutional as threatened.
A basic tenet of due process and equal protection is that all citizens have equal access to whatever form of judicial adjudication the federal government makes available. By abolishing the appellate arm of the Ninth Circuit, roughly 20% of America (the population of the Ninth Circuit states) would have no effective appellate rights in the federal system. Our current system of jurisdiction and venue laws bar the sort of circuit-hopping necessary to afford Ninth Circuit residents appellate rights in other circuits (and the closest states to the Ninth are the not exactly judge-heavy Utah, New Mexico, Wyoming and North and South Dakota).
Gingrich is a poor student of history, and an even worse student of the Constitution. My suggestion: he should hire some poor ghetto children to do some research for him.
SIGH: that is usually my reaction anymore to seeing yet another dude whip out the "I'm pro-choice but Roe was wrongly decided/decided too soon" argument. Scott Lemieux is the champion of shooting that one down, so I tend to leave it to him. But I have to respond to Garrett Epps of The American Prospect ruining what was otherwise an interesting article by arguing that Brown v. the Board of Education was correctly timed and Roe v. Wade was too soon, because the latter had such an appalling backlash. You hear variations of this argument a lot, and the sole evidence for them is that anti-choicers are such loud-mouthed assholes and they're willing to attack the decision directly, in a way that no one is willing to do with Brown. But that's extremely limited evidence for the assertion, especially since it focuses more on what people say than what they do. It's true that people are less likely to openly condemn desegregation than abortion rights, but does that mean the backlash to desegregation (and all it means) was less severe than the backlash to abortion rights (and all they mean)? I think this deserves a look, from a number of angles.
Structural differences in the decisions. If you want to compare Brown and Roe, you should make sure you're comparing apples to apples. Initially, it may seem that you are: both decisions granted rights to oppressed people that were expected to lead to their betterment and help them obtain political, social, and economic equality. Both had political movements behind them. That's where the similarities end, however. The big difference is that Brown addresses what is functionally a structural inequality---they forced schools who had previously closed their doors to non-white students to open them up. Roe, however, addresses an individual right. An individual now has a right to choose to abort or provide abortion. Abortion was a criminal matter, and segregation a matter of public accommodation. This difference structures the backlash to it. Opponents of Brown realized right away that they could re-establish desegregation by changing the systems so they seemed compliant, but with Roe, that's harder to do. When you're dealing with people making private choices, it's much harder to control without invoking law enforcement. In a sense, they don't have a choice but to oppose Roe directly, because without being able to use law enforcement, they're kind of fucked. They've finally figured out a way to get around Roe, but it really hasn't been easy. The fact that Brown openly invoked equal protection and Roe didn't also makes Roe easier to criticize without going on the record as being hostile to the abstract principle of equality.
The backlash to Brown has been more severe than the backlash to Roe in many ways. The National Guard wasn't called to let women get abortions. In fact, what was remarkable about Roe was that it was implemented with relatively little fuss. The violence agaisnt abortion providers didn't start up until the anti-choice movement had really developed into a hardline fundamentalist terrorist breeding camp. They have to work themselves into a frenzy to commit violence. For civil rights activists, violence was a constant problem from the get-go, and it was more frequent, and it was often less tied to organized hate groups. In fact, it still goes on. Not to downplay the ugliness against abortion providers in the slightest, but it's important to understand that both decisions and the movements around them have resulted in a terrorist response.
In addition, Roe was implemented without that much of a fuss in rapid order. Law enforcement immediately stopped throwing abortion providers in jail, and doctors started hanging out a shingle without much concern of running into the authorities. Brown was basically rejected in many communities, however. (My high school didn't desegregate until more than 20 years after the decision, if I recall correctly.) And when the authorities forced schools to segregate, local governments moved in rapid response by redrawing district lines, changing tax structures, and implementing policies that basically reinstituted segregation. Private schools shot up in rapid response to take the white kids that were being yanked from school. Busing was basically abandoned. White flight intensified. The result? American schools are more segregated now than they were in the late 60s. You know, when people were still openly flouting the decision. And Brown has had huge chunks of it functionally overturned in a way that is just as, if not more severe than the restrictions that have been placed on Roe.
Meanwhile, while it's been getting harder to get an abortion in this country than it used to be, women who want one are likelier than not to get it. It's not as good as it should be, but I think abortion rights are still doing better than desegregation of the schools.
The big picture. Brown and Roe cannot be assessed in a vacuum. Both were decisions that were made in response to activist lawsuits from people who had a bigger picture in mind. I'd say it was the same picture, in fact. Anti-racism and feminist activists wanted a world where the group they were advocating for were equal to white men in terms of education, career, personal freedom, personal stability, wealth, and access to those transcedent aspect of human life such as reputation, joy, creative freedom, role models for aspirational purposes, that sort of thing. You know, equality. Both decisions were seen as major moves in that direction. Brown addressed education inequalities that fed into economic and social inequalities. Roe addressed the way that pregnancy and childbirth are used to constrain women's economic and social opportunities.
Again, I have to look at the situation and think feminists have been allowed to go further in their goals. Women's status relative to men has improved more than black people's status relative to white people's. It's a complex question, of course---after all, half of black people are also women, and racism is different than sexism, so it's really hard to measure. One the measure of income, it's clear that race hurts more than gender: black people make 62% of what white people do, while women make 79% of what men do. I believe this is a sign that desegregation has faced more backlash than reproductive rights. Much of what made it hard for women in the past to get access to educational and employment opportunities was the assumption that they would get pregnant and be forced to drop out or downsize their careers in order to get married and have babies. That expectation has been curtailed greatly, especially for average Americans. Women can time their pregnancies and limit their family size, which gives them a great deal of control in the rest of their lives. But black Americans continue to be pushed out of educational and employment opportunities that would help make that income number more equitable.
It's true people are more willing to say grossly sexist things in public than grossly racist things (though the election of Obama has shifted that), but I think a larger look beyond what people say and what they do will indicate that the situation is more complicated than that.
What does this all mean? Well, it sure as hell doesn't mean that Brown was wrongly decided. What it does mean is that we can't judge a court decision granting human beings their full rights based on our fears of a backlash. Often, the only way to change the status quo is to force a confrontation, and courts granting rights are a good way to do that. Just quit pissing on Roe. It was a good decision and it came at a time that the country was actually supportive of abortion rights. The backlash against is shaped by the trajectory of women's gains differing from the tragectory of African-American gains, but reading the tea leaves of specific court decisions isn't really all that illuminating as to why.
The main reason I hate the Supreme Court's overreliance on the use of dictionaries? Dictionaries aren't meant to be prescriptive, they're meant to be descriptive.
Suppose a contract requires that a party google something as a part of its services to the other party. Did they mean that the party would search on the internet generally, or did they mean that the party would specifically use Google for all of its searching? Well, if you look in the dictionary, the first definition that comes up is the brand-specific one. However, Google has also made a concerted effort over the past few years to avoid genericide, the appropriation of trademarked terms for general, non-specific usage (also, not in the dictionary).
It's a lazy, faux-originalist way of figuring out the meaning of words without actually having to delve into what people actually think and how words are actually used.
Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the (Constitution’s)Equal Protection Clause is designed to guard against.”....
Holder wrote to House Speaker John Boehner, R-Ohio, that Obama has concluded the Defense of Marriage Act fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups who have suffered a history of discrimination.
It’s hard to tell what prompted this, and it’s possible it was a why-not sort of thing. But I like to think that the Obama administration sees challenges to gay marriage bans percolating up through the courts, and he’s throwing his hat in with the pro-same-sex-marriage people to send a signal to the Supreme Court. As basically everyone knows, the wild card vote should gay marriage come in front of the court is Anthony Kennedy. I’ve been fairly confident for a long time now that Kennedy would vote to strike down bans against same-sex marriage and legalize it across the country, because he wrote the decision for Lawrence v Texas. Yes, it’s been argued that he hedged his bets in that decision and said that it didn’t indicate the legalization of same-sex marriage, but that’s kind of standard bet-hedging in judicial decisions, from what I understand. What is more interesting to me was that Kennedy was extremely sentimental (in a good way) about Lawrence, reading the decision aloud to please all the people whose private sexual choices he just mandated cannot be made criminal.
Now opponents of gay marriage will find that not only with the Justice Department not back them if this gets to the Supreme Court, odds are high they’ll write an amicus brief suggesting same-sex marriage be legalized. That sort of thing can and probably will have a profound impact on Kennedy.
That’s just my prediction. Feel free to spin your own!
File under one more reason this country has brought its troubles on itself—-a California woman is suing Taco Bell because she says their beef doesn’t have enough beef in it.
[The lawsuit] says Taco Bell’s ground beef is made of such components as water, isolated oat product, wheat oats, soy lecithin, maltodextrin, anti-dusting agent, autolyzed yeast extract, modified corn starch and sodium phosphate, as well as some beef and seasonings.
Wheat oats? Soy lecithin? Oat product?! It seems that if you eat these tacos, especially if some cornmeal sneaks in through the tortilla, you run an alarming chance of having a bowel movement within a month from the scary amounts of fiber your body has absorbed through these poisonous plant products. No wonder she’s so upset. Taco Bell’s products are not destroying the environment fast enough. There’s 70% more room there to create more demand for cheap beef that could help usher in global warming while reducing clean water supplies and arable land available for farming direct to consumer vegetables. And where does this all end? Will fast food joints starting putting actual green vegetables in their food? Horrors.
I’m sorry that America learned today that you learned you actually like the taste of soy products. I know how traumatic that can be. I’ve seen small children, greedily eating a food they claimed to dislike but that has been served to them in disguise, only to be told what it was, which required spitting it out and saying, “Gross!” We, as a nation, are this small child, or at least that’s how it seems from the breathless coverage this scandal has been given in the news. We can’t see ourselves as people who eat soy. It’s gross. No matter how much we like it.
I’m not actually even defending Taco Bell’s alleged ingredients, many of which break the basic rules about telling “food” from “non-food” laid out by the likes of Michael Pollan, Mark Bittman, and Marion Nestle. But the issue that’s driving this is that there isn’t enough beef in the tacos, and no so much that there are all these non-food chemicals in them that are used ostensibly to make the food more appealing. The only real surprise is literally that the tacos don’t come with as much beef and its accompanying saturated fat as assumed. The betrayal runs deep; apparently we hope to be clogging our arteries with haste when we eat there. I’m not sure there’s any way to see this other than as another sign of the decline of a once-great nation.
Plus, it’s not like you can’t add cheese if you’re falling a little short of your saturated fat goals for the day.
What’s fascinating is that in all the alarm over this, there has basically been no discussion over the fact that places like Taco Bell have this disgusting, bad-for-you food, and then they price it so low that it becomes extra appealing, particularly to people who don’t have the privilege of living in a place with better access to healthy food. And that, in turn, contributes to our massive health problems that are killing people and driving up health care costs. Instead, everyone’s just going to be appalled for a day that it’s got a little more vegetable matter than they initially supposed.
Once in awhile, I declare war on a word that’s become widespread because it carries a lot of assumptions with it that I think should be challenged instead of reinforced. (Such as “problematic”, a word I’ve banished from my vocabulary because it’s lazy and allows the person using it to avoid explaining exactly why something is a problem.) And today, that word is “politicize”, which is used to confuse instead of enlighten 90% of the time nowadays, and definitely ended its tenure as a useful word in the wake of the Arizona massacre.
It’s too bad, because “politicize” used to be a useful word. It was the go-to word to describe two very negative behaviors:
1) Making mountains out of molehills.
2) Making things that are not problems out to be problems.
A good example of #1 is a lot of culture war nonsense, such as pretending that Michelle Obama is going to take away your smores or the American Life League declaring jihad on Krispy Kremes for suggesting that the word “choice” isn’t a taboo word that should never be uttered in any context. (They probably then went right back to whining about being called “anti-choice”, even though they’re not literally against those six letters standing in a row.) The latter is a little more tricky, because there are legitimate disagreements about what constitutes a problem, but again, culture war nonsense is a good example. So, for instance, you have the wingnuts in this thread making their resentment of people who make healthier, happier choices than they did the driving force behind their politics. They oppose the theory of global warming and urban planning to make more of the country dense and walkable, which are straight up political issues, because they resent the younger generation for their youthful hipness and wish to punish them, even though the young being young is not really a problem in the traditional sense.
What these two situations have in common is that they presume that politics is about the important, life-and-death issues, and that government exists to govern, which is largely about solving social problems and preventing future ones. Real problems. “Politicizing” then is trying to attach irrelevant nonsense to politics, and it downgrades the importance of it.
Nowadays, however, the verb “to politicize” is used, 90% of the time, to suggest that politics and government are silly little trifles that shouldn’t be involved when something really serious is on the table. That’s how the word has been used in the past week, by right wingers trying to deflect criticism of their very serious actions by suggesting that this massacre is too serious to involve politics. But you see it a lot, and sadly not just from the right—-I’ve seen liberals argue things like health care reform and abortion policy shouldn’t be “politicized”, though literally the only way to leave politics out of it would be to take ourselves out of the game and lose completely. But certainly, the right is eager to use the term in an attempt to bully liberals away from speaking up on important issues at the right times. Thus, burying a politician is something where you should never be “political”—-though only if they’re liberal, of course—-because remembering a person’s life all of a sudden became the wrong thing to do when mourning that person. And now, of course, we’re being told not to “politicize” the shooting of a politician. We’re told that a huge social problem—-in this case, mass shootings that happen on average 20 times a year—-is simply too grave to be handled through politics. You know, that attempting to stop mass shooting is an insult to the victims of them, because of the politicization. (By the end of the decade, we will have right wingers take offense at the idea anyone who voted Democrat should be permitted to attend a funeral for a loved one.)
Yesterday, House Republicans led a reading of most of the Constitution. You see, they decided to leave out portions of it that had been amended. The ongoing rationale for the omission is that you don’t read parts of the Constitution that are superceded, because they’re no longer applicable.
But if the purpose of the reading was to remind people of the contents of our fundamental law and to symbolize Congress’ commitment to adhering to that law, then it makes no sense to read portions of document that no longer apply. The reading Jackson and others wanted would make sense only if this were a history lesson. But it was not. History lessons are for speeches by individual members, each of whom has his or her own view about which aspects of history to emphasize. What all members of Congress have in common is their oath to uphold the Constitution as it stands today.
The predominant conservative view of constitutional interpretation is based on strict textualism and original intent. The short version of this is that we look at the words in the Constitution and we look at the historical background when the words were written to determine the full meaning of the language. The problem with originalism is that it’s both incredibly lazy and remarkably fungible. It allows you to hitch a ride on whatever version of history you find most appealing and declare any competing interpretations apostate. But the core of it, at least, is that every single thing in the Constitution means something, and that it all means exactly what it says and what it meant when it was written.
Originalism and original intent, however, become incoherent when you no longer interpret the Constitution based on the words it still contains. The Three-Fifths Compromise is inoperative, but it still shows a fundamental calculation that went into the construction of the Constitution and the Union. The same thing goes for appointment of Senators by state legislatures. The 21st Amendment needs the 18th Amendment in order to be fully understood. The amendment process is not a deletion process; it’s an override process. If you’re going to tell me that the Founders’ intent is the guiding light for our country, you can’t pretend they didn’t mean part of what they said because it was changed by later acts.
The beauty of America is that we neither forget our history nor find ourselves overly bound by it. But if you contend that we are bound by the understanding of men at the end of 18th Century in all that we do, then you can’t say that a later alteration of the Constitution changes their intent. It’s a self-nullifying argument, and it makes any attempt to interpret or enforce the Constitution through that lens a complete joke.
Heather at C&L posted this 13-second video of Reihan Salam saying that the TSA dust-up is just one of many examples of conservatives getting back to caring about civil liberties. This is naked bullshit, of course, and that he bothered to utter it just proves what I said at the Guardian about this:
The influx of money, tied to a perceived political imperative not to be seen as being “soft on terrorism”, means the battle lines over this are being drawn in such a way that real change over security protocols is unlikely. Conservatives who are up in arms about this will likely shut up if their team wins by getting security privatised, even though it will remain as invasive. Meanwhile, many Democratic-leaning journalists and pundits seem content to attack dishonest and shady rightwing TSA critics – without examining in detail why such security procedures are invasive and need to stop.
It’s been really unpleasant, dealing with conservatives on this. Plenty of liberals think the TSA searches are out of line, but making alliances with conservatives on this is a scary proposition. From my article:
[A]ligning yourself with the American right means bringing on quite a bit of baggage: bad faith arguments, outright lying, racism – and hidden agendas, usually serving predatory corporate interests.
The notion that there’s some great pro-civil liberties sentiment on the right makes as much sense as saying Sarah Palin is a feminist. Which is to say, only if you’re too stupid to figure out how to work a zipper. Those of us who support civil liberties mostly find ourselves fighting the right on this one. We are talking about the conservative movement, to whom the term “ACLU” is a dirty word. Indeed, most of the energy on the right on this TSA thing is about restricting civil liberties—-the problem for most isn’t that there are invasive searches. It’s that white people have to endure them.
As far as I can tell, the right only cares about civil liberties if they can make it about provoking the emasculation fears of a bunch of bitter assholes, thus the gun nuttery aspect of the right. But should said emasculation fears support restrictions on liberty, then they’ll all for it. You can’t take their guns, and no woman should have the right to reject a man’s seed, which is practically like taking his balls from him! Freedom of speech is sorely misunderstood on the right—-their interpretation appears to be, “No one should criticize me when I speak my mind, liberals should shut the fuck up, and how come white people can’t say the n-word, like black people can?” (Which goes up to the first point—-they seem to treat having people snarl at you as an infringement on liberty akin to actual infringements, like going to jail.) Religious liberty only means that Christians should have a right to impose their bullshit on everyone else with taxpayer money, but it certainly doesn’t mean you should have the right to build a community center on private land. There appears to be exactly zero right wing anger, outside of a couple of eccentrics working at libertarian think tanks, over police abuses of the citizenry.
Actual supporters of civil liberties are out there as they always have been, mostly working for the left. Which isn’t to say that there aren’t liberals who buy into fear-mongering and support actual infringements on our liberties—-I’m not naming names, but I’ve seen some pants-wetting about terrorism used to justify the TSA searches on the left. But most of the work done in this area is and will continue to be done by liberals. And we tend to be more whole cloth about it. As I note in a podcast I do every week that’s devoted to a certain aspect of civil liberties, people shouldn’t have to have their junk touched to get on an airplane, but nor should the price they pay for delivering a baby in a hospital while being in an interracial relationship be that their baby is taken from them on spurious grounds.
I haven’t written about MRAs (men’s rights activists) in awhile, because what is there to say about a group of men organized around the principle that women shouldn’t have the right to say no? Because that’s basically what pisses them off: women who think they get to say no to sex, to staying in abusive marriages, to having their time occupied by any man who demands it, to having a baby when they don’t want. And they hide behind patriarchal sentimentality to justify their strong desire to control women. Not much else to say, because going at it with them is a lesson in hearing undeserved self-pity from those who were dumped for reasons obvious to everyone but them, and who have endless amounts of time and energy to dedicate to throwing their own pity parade.
I bring it up, because while most people who play this game are men, some women do it, too. And by “it”, I mean specifically the game MRAs play and teach each other through their organized movement, which is to cling to control over your ex-wife as long as possible by exploiting the court system. Just because she has a right to leave you doesn’t mean you’re going to let her go without punishing her over and over again! And Lindsay linked to an article from one of them. Beverly Willett is protesting New York adopting no-fault divorce because if there had been no-fault when her husband broke it off with her, she would have had fewer options to punish him for rejecting her, and dragging out the pain for years.
It’s interesting to consider how Willett makes exactly the same arguments about marriage that MRAs make, without the whining about imaginary “reverse sexism”, but the audience for it sees through her a lot more quickly than audiences tend to see through MRAs. When a woman hides behind patriarchal nonsense about the sacredness of marriage, she doesn’t bring any male authority to bear to the situation and just sounds like an abusive control freak. I humbly submit that anyone who uses the courts to punish a spouse for years after leaving them is an abusive control freak, regardless of gender. Indeed, I’d say that’s a tautology to say so. What I think is interesting is how these abusive control freaks make appeals to “family values” to justify their own damage.
Willett’s husband left her. He was with someone else. It was abundantly clear that he wasn’t coming back. For all intents and purposes, they weren’t married, except in name. But Willett carries on in her justifications of what she did as if she had a chance to change the facts on the ground. Example:
One night when I was up reluctantly working on the divorce papers, my eldest daughter appeared by my side. “I don’t want you to get a divorce,” she said. I didn’t either. Yet until this moment, it hadn’t occurred to me that I had the power to stop this from happening. I realized perhaps the break-up of my marriage wasn’t inevitable and that by standing up, maybe I could also help others.
The invoking of the children is a classic MRA ploy, and despicable. It’s using your own children as cover for your own inability to act like an adult when a relationship cracks up. But the next part about how the break-up wasn’t inevitable? This is a note she plays over and over in the piece, and it never once makes sense. What did she think would happen if she found a way to keep her husband from actually divorcing her? That he would break up with his girlfriend, move back home, get into bed and make sweet love to his legal wife? Does she think that if the state just forced people to stay legally married, especially in this day and age, that would mean love would flourish? Or is she being disingenuous about the real reason she dragged this fight out for five years and thousands of dollars—-to punish her husband for leaving her and to throw a multi-year pity party for herself? My guess is the last one. She lets the truth slip out a little in all the self-martyring language about “saving” a marriage where one person unilaterally would not participate in spirit even if forced to have this single legal binding.
“Divorce is about money,” Saul said. No one cared about right and wrong.
Right and wrong. Her husband cheated and left; she felt this was wrong. But there are no legal punishments for breaking a person’s heart. So, she decided that if the criminal system wouldn’t punish her husband, she’d punish him. Through 5 years of divorce hell and many judges trying to tell her to grow the fuck up. Her stated desire to “save” her marriage failed, of course. Her mostly unspoken but far more real desire to exact punishment worked like a charm. Except, of course, she did it to herself as much as to her husband.
All of this is why I rolled my eyes when I read this part:
When I refused a quickie divorce on his terms, he served me with divorce papers filled with baseless complaints.
“The whole thing is a pack of lies,” I said to my attorney, sobbing. “He’s the one committing adultery.”
“Then deny it, and sue him for divorce,” Saul said.
“But I don’t want a divorce,” I cried. “I love my husband.”
She loved him so much she was willing to spend the next five years of her life trying to exact punishment. That’s not love. That’s hate.
Twenty years wasn’t something I wanted to chuck overnight. Made of strong Southern female stock, I grew up believing the words “until death do us part” were non-negotiable. Family was paramount, and divorce virtually unheard of. “I don’t think there’s anything in life that can’t be forgiven,” my aunt said when I asked for her advice. To me, that pretty much covered the whole territory.
There’s nothing strong about being a clingy, vindictive control freak. That is cowardly and weak. I want to drive this home, because like this woman thinks of her weak, childish behavior as evidence of some strength, so do MRAs tend to pride themselves on being Big Men, even as they act like toddlers throwing tantrums because other human beings don’t submit completely to them. All of these people are 100% wrong in their self-assessment. Strong people don’t need to exert control over others to feel strong. Strong people don’t waste their lives on revenge. Strong people have the strength to get up and move on. Strong people don’t throw good money after bad.
...“Conservative” icon Glenn Beck, in a conversation with Bill O’Reilly, said basically he doesn’t care about the attack on traditional marriage. Asked if the California ruling will harm the country in any way, he responded: “No I don’t. Will the gays come and get us? I believe that Thomas Jefferson said: ‘If it neither breaks my leg nor picks my pocket what difference is it to me?’”
Rush Limbaugh, the iconic leader of American conservatism, hired the noted homosexual singer Elton John to perform at his wedding. He has not aired one of his bitingly satirical “gay community updates” in years.
“Conservatives,” it seems, are on the verge of not only accepting homosexuality’s domination of the culture, but embracing it.
Count Ann Coulter and Glenn Beck as the latest deserters in the culture war and in the battle for sexual normalcy. They have flinched at “precisely that little point which the world and the devil are … attacking,” and so have forfeited the right to consider themselves any longer culture warriors.
Let’s be clear: Endorsing homosexual behavior is not a conservative position, period. Supporting special rights based on aberrant sexual behavior is not conservative, period. Supporting either civil unions or marriages based entirely on using the alimentary canal for sexual purposes is not conservative, period.
You [Ann Coulter] will be received with a standing ovation [at HOMOCON] for pandering to a group that wants to put open homosexuals in the same showers and barracks with sexually normal soldiers (priority No. 4) and is fiercely opposed to any attempt to elevate protection for natural marriage to the Constitution (priority No. 7 – see GOProud website).
...Glenn Beck has completely and shamelessly surrendered on the issue of gay marriage, and did so on Bill O’Reilly’s program, only the most-watched cable news program in all TV land…Even O’Reilly, who is a notorious squish on the subject of the acceptability of homosexual behavior, was taken aback by Beck’s capitulation and rightly accused him of “ignoring the profound change in the American family.”
Folks, we are starting to see real damage to core of the professional homo-hate machine. The fiscal conservative/libertarian lite wing of the GOP, as well as those like Beck and Coulter, who depended on that demo for their meal ticket in the past, sees the legal handwriting on the wall for the social conservatives (aka loonies) and are publicly making a break for the door to more credibility), with the alignment now toward the burgeoning Tea Party wing.
It’s pretty clear that a corner has been turned, with the green light foor Beck and Coulter likely being the 138-page Prop 8 legal ruling by U.S. District Court Judge Vaughn Walker that decimated the pathetic case presented by the defenders of marriage discrimination. The sorry-ass, religious, culture, and bias-based excuses to prevent opening civil marriage to lesbians and gays couldn’t stand up to the reality-based legal standard, as Olsen and Boies smacked down the so-called “experts” who bothered to show up to testify. Just a peek at Walker’s Findings of Fact alone put those ridiculous arguments completely to bed.
Beck and Coulter, who are thinking about their professional bottom lines, are placing their bets on the legal wind blowing away from the bible-beating theocrat wing of conservatism.
Again, while I can’t always agree with their political positions on issues, credit also has to go to GOProud, which has managed to become a deeply lodged splinter into the social conservative movement in a very short time (the LCR was never this effective). It was first an irritation, and now it’s making the bible-beaters hurt badly if they are taking this infighting public over HOMOCON. Makes we wish I could get up there to cover the event, which is on September 25 in NYC.
“I strongly encourage Mr LaBarbera to head out to his local bookstore, buy an Ann Coulter book and actually read it. For a guy who claims to be a “fan,” he seems completely clueless about what Ann has actually written and said about gay people and gay conservatives.
If Mr. LaBarbera spent less time obsessing about gay sex and hanging out at gay Pride events, maybe he would have a little more time to read one of Ann’s books.”
I’m joking, of course, because Democrats are like the Washington Generals of rhetorical battles, but the conservative push to revise the 14th Amendment has taken on a new and, some might say, terrible messaging push.
“Some” means me. Because it’s fucking terrible.
The 14th Amendment, you see, is the “anchor baby” amendment. I swear to God.
For those of you not familiar with the 14th Amendment, it’s sort of like the catch-all Amendment for all the things we really enjoy, like Due Process and voting and shit like that. It’s the reason that states can’t discriminate between races, that gender protections exist in the Constitution, that a number of fundamental voting rights exist, that you can’t be imprisoned for have sex with someone of the same gender, and so on. To reduce the 14th Amendment to the “anchor baby” amendment is tantamount to a full-on denigration of women, every minority group and, well, fuck it: America itself.
Not even going into whether or not the “anchor baby” controversy is real (there are no reliable statistics on how many people actually do this, and all signs point to this number being vanishingly small), it just seems weird that the GOP, so proud of the 14th Amendment otherwise, is now going all in on portraying one of its sterling achievements as nothing more than a misbegotten provision being taken advantage of by dirty Mexicans. Although they did also have the nation’s first Hispanic governor, who would presumably be recast as the nation’s first potential deportation of a Mexican illegal.
Under the law, also known as DOMA, no state (or other political subdivision within the United States) needs to treat as a marriage a same-sex relationship considered a marriage in another state (DOMA, Section 2); the federal government defines marriage as a legal union between one man and one woman (DOMA, Section 3).
The bill was passed by Congress by a vote of 85–14 in the Senate[1] and a vote of 342–67 in the House of Representatives,[2] and was signed into law by President Bill Clinton on September 21, 1996.
And as a result of this disgusting law, states began passing marriage amendments.
As of April 2009, 29 states have enacted constitutional amendments defining marriage as the union of a man and a woman, and another 13 states have statutory bans, including Maine, which approved a same-sex marriage law that was repealed by referendum in the United States general elections, 2009.[38]
Kate and I married on July 1, 2004 in Vancouver, British Columbia, Canada. At that time it was the only place we could legally marry in North America. Today, our marriage is recognized in a few states—Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.; the Coquille Indian Tribe in Oregon also grants same-sex marriage. New York, Rhode Island, and Maryland recognizes same-sex marriages, but they are not granted.
And then of course, you have the perversion of separate-allegedly-equal civil unions and domestic partnerships, which in theory gives couples (from the perspective of state government) equal legal recognition.
DOMA is clearly unconstitutional from a common sense perspective—there is no sane justification for the fact that when Kate and I get on a plane and fly to New York that we’re married, and when we return to North Carolina we’re not. My state fortunately has not passed a marriage amendment; it does have a state DOMA to ensure our union is not recognized.
Yet my state-issued drivers license is valid in all 50 states
. What’s the difference? It’s really that simple - we’re talking about the culture of marriage, the heterosupremacy, the church/state conflation of marriage. It does NOT help that in the White House sits a president who is a constitutional scholar bleating that “God is in the mix” and that marriage is between a man and a woman. I really don’t care about the political “safety” about this position at this date and time. It’s an absurd position that only underscore what we’ve seen occur over and over—the LGBT community is tossed overboard when it comes to civil rights. The stated positions of this administration always default to pandering toward the bigots, even when those positions fly in the face of common sense. It’s quite sad.
What’s enraging is the Obama administration’s attack on my marriage by using spurious excuses to defend DOMA through the Department of Justice. No one in the administration is willing to answer direct questions about DOMA (and DADT for that matter) related to their constitutionality. For instance, take a look at this exchange between The Advocate’s Kerry Eleveld and Press Secretary Robert Gibbs:
The Advocate: A growing number of people have started to call on the administration not to defend what the president refers to as the “so-called” Defense of Marriage Act – including Steve Hildebrand last week and the Human Rights Campaign, which is the largest LGBT community lobby and, quite frankly, it’s usually fairly favorable toward the administration, so it was a turnaround for them to call on the administration not to defend that law.
The president has called DOMA discriminatory. Does the president believe that a discriminatory law is constitutional?
Robert Gibbs: I don’t… the president hasn’t to the best of my… I have not heard the president intone what he believes the constitutionality of the law is. I know that he believes the law should be changed.
Legal decisions around next steps in that case, I believe, will be made at the Justice Department and I would point you over there to them.
Again, the president believes, in this case, and the president believes in the case of “don’t ask, don’t tell” that those are laws that he has believed for quite some time should be changed.
What kind of answer is that? Reading between the lines, the clear message here is that the administration intends to tap dance around a clear answer until it is forced to by the string of legal cases winding their way to SCOTUS. It’s an embarrassing strategy quite frankly, but as we’ve come to see, this is not an administration we can call a “fierce advocate” based on actions. It talks a good game, but when you have Steve Hildebrand and HRC calling 1600 Pennsylvania Avenue out, this administration is really running out of tap dance time. Hildebrand to Eleveld:
Is there anything you’re disappointed with that you’ve communicated to the administration?
I’m very perplexed on the administration’s continued defense of DOMA in the courts. The Justice Department is not required to defend laws passed by Congress—they have a history of doing it but it’s not a requirement. Their ultimate duty is to defend the Constitution of the United States and if Congress passes a law that is discriminatory and doesn’t pass muster of constitutionality, the Justice Department in my opinion should not defend those laws. In fact, they should find ways to make sure that those laws are stricken down by the courts.
I’d like to see the president and Attorney General Holder announce that they will no longer defend the Defense of Marriage Act and to agree with the judge’s findings in the Massachusetts’ court case.
Meanwhile, as we are up in Maine doing a late celebration of our sixth anniversary, our marriage remains a tattered patchwork of civil rights and obligations in this country, and zero rights in our home state.
Our legislators are behind the times when it comes to cultural change on marriage. We live in North Carolina and have not experienced discrimination when introduced as a married couple. Most of the time we’re asked where we got married and whether it is legal—that is, of course, an ice breaker and opportunity to educate people about the fact that we may be married, civil unioned, domestic partners or strangers in the eyes of the law depending on what state we are in. People are usually perplexed, and even in a state with a good level of cultural conservatism, it’s hard to dismiss us as unworthy of rights when it’s a one-to-one conversation with a same-sex couple willing to speak about the issue.
What will it take for our “advocates” to grow a political spine? The religious bigots will be on the wrong side of history. We know this. The White House knows this. Congress knows this. The cultural change is bubbling up by more married same-sex couples who are out and willing to talk about their love, commitment, respect and desire for the same rights and responsibilities as any opposite-sex couple. Yet they have to also speak about their marriages being dismissed by the “most LGBT friendly administration ever” as less-than because of its own cowardice and political homophobia.
SIGH: that is usually my reaction anymore to seeing yet another dude whip out the "I'm pro-choice but Roe was wrongly decided/decided too soon" argument. Scott Lemieux is the champion of shooting that one down, so I tend to leave it to him. But I have to respond to 
File under one more reason this country has brought its troubles on itself—-
I haven’t written about MRAs (men’s rights activists) in awhile, because what is there to say about a group of men organized around the principle that women shouldn’t have the right to say no? Because that’s basically what pisses them off: women who think they get to say no to sex, to staying in abusive marriages, to having their time occupied by any man who demands it, to having a baby when they don’t want. And they hide behind patriarchal sentimentality to justify their strong desire to control women. Not much else to say, because going at it with them is a lesson in hearing undeserved self-pity from those who were dumped for reasons obvious to everyone but them, and who have endless amounts of time and energy to dedicate to throwing their own pity parade. 
...“Conservative” icon Glenn Beck, in a conversation with Bill O’Reilly, said basically he doesn’t care about the attack on traditional marriage. Asked if the California ruling will harm the country in any way, he responded: “No I don’t. Will the gays come and get us? I believe that Thomas Jefferson said: ‘If it neither breaks my leg nor picks my pocket what difference is it to me?’”
The Advocate: A growing number of people have started to call on the administration not to defend what the president refers to as the “so-called” Defense of Marriage Act – including Steve Hildebrand last week and the Human Rights Campaign, which is the largest LGBT community lobby and, quite frankly, it’s usually fairly favorable toward the administration, so it was a turnaround for them to call on the administration not to defend that law.