Thursday, March 31, 2005
Wednesday, March 30, 2005
At Tech Central Station, James Glassman wants to know where is the real "liberal" party. He notes that the term "liberal" has been misappropriated to those who should be called "socialists". He sees Democrats pushing policies of social liberty but economic intervention, and the Republicans pushing policies of economic liberty but social intervention. (Actually, Republicans are morphing into the party of social and economic intervention.) So where is the party for social and economic liberty? Glassman proposes that we need a new party he would call the Responsibility party.
I say the Republicans and Democrats are obsolete. The Republicans ought to "crack up", and the best way to accelerate that would be to "pull the plug" on the Democrats. Dissolve the Democratic Party immediately, and have all members of Congress join the Republican Party. With no opposition, the fault lines within the Republicans would soon split. With those stale parties out of the way, new alignments could be formed crossing old lines based on actual common interests. Fiscal restraint, for example, has proponents (and opponents) on both sides of the aisle. I say don't nuke the filibuster -- nuke the aisle!
Tuesday, March 29, 2005
It's only been in recent years that I've noticed more of these resemblances, of how much of my husband's parents are in him, and how much of my parents are in me, in lots of small and funny ways. My father is one of those rare people who actually enjoys doing tax returns -- the pleasure of knowing all the rules, putting all the figures in the right columns, and figuring out the best way to maneuver through a complicated system. Funny thing is, I completely get that, because I'm the same way. Mom doesn't understand why Dad needs to keep all those files and papers, but I do. (My husband doesn't understand my need to keep papers either.) How do such things get passed on? As a child, I was vaguely aware of Dad's organizational skills (for instance, the neat graph paper charts on the inside of his closet door to keep track of which suits had been worn when, and when they needed dry cleaning), but I never consciously said to myself "Cool chart - I want to be just like that when I grow up!" These things are in the genes, or just subconsciously absorbed.
What I wonder now is why have I just begun to notice this? Do we grow into our parents, our inherited traits only ripening with age? Perhaps we can only see the contours of the impression after the mold has been removed. Or perhaps it is only in middle age we've accrued the discernment to see what was there all along.
Sunday, March 27, 2005
The approach to Anza-Borrego from the north is along one of California's most beautiful routes. Taking Highway 79 south (and east) out of Temecula, you quickly leave the suburban sprawl behind and come into rural rolling green hills. Occasional California golden poppies and patches of mustard punctuate the green meadows, with darker green mountains beyond. The snow-capped peaks of Mount San Jacinto rise impressively on the northeastern horizon. The road goes through Aguanga and Oak Grove, "towns" you could easily miss without the little sign announcing their presence. The latter has a historical marker for being a stop on the old Butterfield stagecoach line. After a while the road begins to wind and climb, as rounded sandy-colored boulders start to dot the hillscape. The yuccas are in bloom, their white popcorn-like flower bouquets call attention to their long stalks. An occasional handmade shrine by the side of the road reminds the driver not to get too distracted by the beautiful landscape passing by. (Usually just a small cross by the side of the road, often with flowers, sometimes with a little Guadalupe virgin or other saint, these little shrines commemorate the spot where someone departed this earth. I think it's a Hispanic tradition, as I saw more of them in New Mexico. I appreciate their tender personal devotion.) Eventually, the road climbs to a mountain plateau just above 3000' elevation, where the road makes its way through verdant meadows accented by a few different flowers. One of them is absolutely brilliant yellow, very low to ground (shorter than mowed grass), but growing densely enough in certain areas that it looks like bright yellow paint has been thrown on patches of the green meadow. The other is a subtle lavender color, growing just an inch or so taller than the grass. The lavender just catches your eye at certain moments as an overtone when the angle of the light catches it just right, similar to certain fabrics that have one color but have a sheen of an entirely different color when the light catches them just right. In the middle of the plateau is the small town of Warner Springs, whose primary feature is a glider plane airport. (Apparently, this tiny airport is a premier spot for the sport. The appeal of silently coasting above this scenery is not hard to see. One of these years, we'll have to stop and give that a try.) This weekend, the yellow flowers were particularly riotous near the airport. A little further, and you turn left onto county road S2, and shortly left again onto S22. Past the "town" of Ranchita, you come to the entrance sign for Anza-Borrego State Park.
Just past the entrance sign, a huge upright boulder stands sentinel off to the right. The road starts to descend, and suddenly the vast desert valley comes into view, a couple thousand feet below, a breathtaking vista. The valley is mostly flat and brown, with the few roads evident on it by the straightness of their lines, connecting the little town of Borrego Springs to the few golf course resorts in its vicinity, demarcated by rows of palm trees. In the distance are the whiter rock canyons called the Badlands, and on the horizon, the Salton Sea. As the road winds down Montezuma Canyon, blue lupine line the side of the road, and the rocky hillsides are covered with the bright yellow cast of brittlebrush, a plant with grey-green leaves that grows in the shape of a pincushion, with a profusion of bright yellow flowers on the end of tall stems rising above the leafy base like pins in the pincushion. From some vantages, the flowers can seem to float above the leafy base, looking like they're not part of it. In a long view of the hillside, they accentuate the rocky outcrops like a hundred tiny yellow fireworks all exploding at the same time. There are a variety of cactus, some with blooms on them, and as you descend, the flora changes, sensitive to the elevation. Part way down, the yucca disappears and you start to see ocotillo, that distinctive feature of the Colorado Desert (the "low" desert, in contrast to the Mojave "high" desert). An ocotillo bush has a dozen or more shoots all originating at the base and reaching up 12 feet or more in different directions, with the general shape of a clump of grass but 100 times bigger. Each blade grows in its own direction, mostly straight though curving slightly, and then unexpectedly jagging at the end, where the cactus green color gives way to a bright red tip. The overall appearance is fantastic, like something Dr. Suess might have drawn. There are also agave (the "century" plant), which grows for many years (closer to a decade than a century) before sending up an impossibly tall flower stalk and then dying. If you watch carefully, you may see a Gila monster, a large beaded lizard, darting among the rocks.
Once reaching the valley floor, the initial impression is rather brown, dull scrub brush and occasional cactus (except of course where palm trees and other artificial plantings around Borrego Springs have been planted). But get into the right spots, and you'll suddenly notice vast sweeps of colorful blooms. Along Henderson Canyon road, just north and east of "Christmas Circle" (the center of Borrego Springs), is a good spot. There we encountered a profusion of desert sunflowers, sand verbena, and desert primrose. The yellow sunflowers, which are the tallest, have the strongest cumulative effect, but patches of the low verbena provide violet accents. The sunflowers were a favorite landing pad for butterflies, while large caterpillars were busy chomping on the white primroses. Another plant that was mostly just a mass of green twigs (similar to Scotch broom) was covered in lady bugs. The blooms were beautiful on a long view with the tall craggy mountains behind them, but they were even more fascinating to walk into and look at closely. The variety of beauty we experienced in this desert was a wonderful uniquely Californian springtime rite.
Friday, March 25, 2005
Now, from the pages of the New York Times op-ed section comes another "ghost of majorities past", in the form of Iain Duncan Smith, a British MP and Conservative leader, who cautions his American peers about the filibuster:
As Republicans in the United States decide whether to do away with filibusters by changing Senate rules - the so-called nuclear option - they would do well to cast their eyes at their Conservative cousins across the Atlantic. Britain's backbench members of Parliament, whom I led as head of the Conservative Party from 2001 to 2003, are virtually powerless before a determined government majority.Smith shares some historical perspective on how British Parliament came to introduce the "guillotine", a procedure to limit debate (i.e., to end filibusters). His historical perspective from our cousins across the pond should give both Democrats and Republicans something to think about. He warns Democrats against overuse of the filibuster (the British "guillotine" was introduced over 100 years ago in response to full-throttle minority obstruction), and he warns Republicans to bear in mind that they will be the minority again someday. As MP Smith knows all too well.
Thursday, March 24, 2005
The most important thing to do today is to read the Book of Esther. "The whole megillah" (the whole scroll), as they say. It's not too long, and ideally it should be read out loud with everyone raucously cheering Mordecai (the guy who wouldn't bow down) and booing, stomping and hissing for Haman (the arrogant advisor). It's also a commandment that there should be eating, drinking, and making merry. In fact, it is traditional to get drunk enough that you can no longer tell the good guy from the bad guy. (So watch out for drunken orthodox Jews stumbling the streets tonight.) It is also traditional to bring little gifts of food to your neighbors or to the poor.
Some trivia about the Book of Esther: there is the original Hebrew version, but there is also a somewhat later Greek version that has a bunch of extra verses added. (Sort of the like when you buy the DVD and you get some extra scenes that weren't in the original screen version.) The Catholics accept the extra verses as inspired, and include them in their Bibles, but some Protestant translations (and of course the Jewish versions) stick to the original Hebrew. If you stick to the Hebrew and don't accept the extra verses, then Esther is the only book in the Bible that contains no mention of G-d. (Some rabbis say this is to teach that G-d sometimes works behind the scenes.)
Whether you're Jewish or not, whether you believe in G-d or not, the story of Esther is a great story of standing firm for what you believe, being true to who you are, and having the courage of your convictions. So raise a glass for Esther today!
Wednesday, March 23, 2005
Tuesday, March 22, 2005
The case of Terri Schiavo is a vivid and painful reminder for all of us to get our healthcare directives in order. There are forms for this purpose freely available (such as this one for California), though be aware that law may vary from state to state. More importantly, you need to talk about it with your doctor, your family and close friends, so that you understand the issues, and so that your intentions are well known. (Here's some good general advice from the California Attorney General.) Make sure you try to think about various eventualities. Some of the terminology in some forms can be confusing or unclear. For instance, sometimes a form may say "I do not wish to have any heroic measures to prolong my life." But does that mean you don't want to be resuscitated the moment your heart might stop, even if there is a fair chance of revival? Or does that refer only to sustained chronic treatment after some length of time (and what may be a reasonable length of time)? What about potential trade-offs between pain management at the risk of accelerating death? It can be squeamish stuff, but it's important to talk about it.
You may hire a lawyer to prepare your directive, but it is not necessary. In California, the law governing advance health care directives is fairly straightforward. You can find it in California Probate Code sec 4670-78. The only legal requirements for such a document are that it is dated, signed by the patient, and either notarized or signed by two witnesses who meet certain requirements. (Witnesses should be personally known to you, but not related to you, not someone who would inherit from you, not your "agent" for making your decisions, and not anyone associated with providing your health care.)
Even if you have a healthcare directive, it's important to periodically review it. As health technology advances, there may be new eventualities you hadn't considered before, or would consider differently. On a semi-lighter note, David Velleman of Left2Right has anticipated one new eventuality. He has published an advance directive stating that in the event of irreversible brain damage, he is refusing in advance to respond to any Congressional subpoenas.
Monday, March 21, 2005
In the first essay in the anthology, "Embodiment in Time and Eternity: A Syraic Perspective" by Susan A. Harvey, the early Syraic Christian tradition is explored to discover a very different theological perspective on the body. Syraic (a dialect of Aramaic) arose in the first century A.D. in what is now southeast Turkey, and became "the primary Christian language throughout the Middle East and beyond." While our familiar Western theological roots lie in those who wrote in Greek and Latin, a Syraic theological tradition developed further east, less studied in the West, but with arguably equal claims to "authenticity". (I gather that some theologians look to study of ancient Christianity for "authenticity", similar to how some American jurists look to the writings of the founding fathers to find the "original intent" of the Constitution.) Drawing on early Syraic theology, particularly the writings of 4th century theologian Ephrem Syrus, Professor Harvey illuminates a view of the body as an essential part of who we are (not something to be ultimately shuffled off) and as not inherently corrupt. To the Syraics, a soul without a body was like a bicycle without wheels. A disembodied soul would have no way to experience God, nor any way to manifest ourselves to Him. Their view of worldly corruption was not located in the body, but in the artificial separation of body and soul at death, which must be reunited at resurrection.
Harvey writes: "For early Syraic writers, then, Christianity was located in the body because the body, in the most literal sense, was what God had fashioned in the beginning and where God had chosen to find us in our fallenness."
Though somewhat startling to a Western sensibility, this view seems well grounded in Scripture. In the Garden of Eden, we were indeed created as a body. And God came into the world as a body. Even the sacrament of communion is located in the very bodily activities of eating and drinking. From this perspective, the body is essential to our relationship with God, both in the experience of our senses and in the expression of ourselves as "present and active" in the world. As Harvey put its it, "From this view, the body becomes the instrument by which God is known in relation to the believer and the believer in relation to God." Without the body, we could not know God and God could not know us.
Harvey's essay includes extensive quotes from Ephrem, which were quite delightful to discover, both for their insights and their poetic imagery (much of it appropriately sensual). It was also quite interesting to learn about a tradition I was completely unacquainted with (including some colorful characters such as Simeon the Stylist, who stood on top of a column for 40 years, like a human cathedral spire pointing to Heaven). I found this different perspective about the body quite appealing, leaving me to ponder whether the traditional Western notion of the corrupted body is a "dark prison" I should "shuffle off".
Sunday, March 20, 2005
Saturday, March 19, 2005
Return now to Terri Schiavo, who has been forcibly precluded from a peaceful death against her own will (as best as it can be legally ascertained) for 15 years, and let's consider the law as it applies to this case. Applicable law allows life-resuscitating or life-sustaining medical treatment (including forced feeding) to be withheld, if it is the will of a person with no reasonable hope of recovery to be allowed to die. If the law didn't allow this, Michael Schiavo wouldn't have had a legal leg to stand on, and there would be no controversy. But the law does allow this. The question then turns to how we know the patient's will, since she is not capable of expressing it, and did not leave written instructions (a living will or heathcare directive). The law is clear that, in such circumstances, next of kin can testify as to her intentions, and any conflicts presume for her spouse over her parents should they disagree. Again, if this were not the law, Michael Schiavo wouldn't have had a legal leg to stand on, and there would be no controversy. But as this case makes bare, those opponents of allowing Terry Schiavo to die are really not interested in the principles and rule of law, they are only interested in a particular outcome, and are willing to sacrifice principle for their desired outcome. They look to the court to prevent the removal of her feeding tube (despite the fact that such removal is completely legal in such circumstances), or to give custody to her parents over her husband (despite clear law to the contrary). The sanctity of marriage (and its traditional legal preference even over parents) apparently can be tossed out when one doesn't like the decisions made by the spouse. (Can you imagine if it were Michelle Schiavo, a same-sex domestic partner instead of a traditional spouse?) The libertarian value of minimal federal interference in personal decisions also seems expendable. In short, what they want is for the judge to defy the rule of law, to substitute personal preferences for the law, and to re-write the law rather than interpret it.
Friday, March 18, 2005
I find it particularly amusing to look back to the 103rd Congress (1993-94), when Democrats controlled the Presidency and the Senate, and to read some of the debates about the filibuster. Today's Republican cries of "obstructionist" are no different than what the Democrats were saying back then. It may be too much to ask, but I offer this trip back 12 years in time in hopes that people can see that what comes around goes around.
This is not the House. This is the U.S. Senate. And it has a proud history of protecting the rights of a minority, and even a minority within a minority, whether based on party, philosophy, region, or ideology. If the complaining Senators want to see less frequent use of the filibuster, I respectfully suggest that those in the majority consider the idea of greater consultation with us, the Republicans. [Sen. Simpson, R-WY, 9/28/94]
If we had the majority we would not have to filibuster. ... But it is very fundamental, obviously, that we have one way to stop legislation or to bring about change if we are going to be participants in the U.S. Senate on this side of the aisle. I do not fault my colleagues on the other side of the aisle. I assume we would be making the same arguments if we had the majority, and they would be making the same arguments if they were in the minority. [Sen. Dole, R-KS, 5/7/93, recognizing that both sides argue from temporary convenience]
The filibuster has a new best friend: The Republican Party. They embrace the filibuster. They love the filibuster . They use it lovingly. They are proud to put on these filibusters, and they say so themselves. The filibuster party is the GOP. In the past 2 years, filibuster tactics have been used 60 times. Let me repeat that: In the past 2 years, filibuster tactics have been used 60 times. It was used only 9 times in the entire decade of the 1980's. By the way, during that period of time, the Republicans had control of this Senate, so we Democrats understood that you had to get things done no matter which party was in control. We did not stop legislation. I hope the American people will hear that. Filibuster tactics were used 60 times in the last 2 years, compared to only 9 times in the entire decade of the 1980's. [Sen. Boxer, D-CA, 9/27/94, now 10 years later she's the filibuster's best friend]
It is only recently in our Nation's history that the filibuster has come to be used as a party tactic and as a regular occurrence in the Senate. Contrasted with that more than half-century in which there were fewer than one filibuster a year, in the most recent Congress, the 102d Congress, here in the Senate there were filed motions to end filibusters 48 times. Forty-eight times the Senate had to attempt to break a filibuster. It is very clear that what is occurring in the Senate now is without precedent in our Nation's history and is, I believe, most regrettable. We now confront a filibuster on a regular, almost weekly, basis on almost every major bill that we attempt to bring up. [Sen. Mitchell, D-ME, 5/11/93. So if it was unprecedented in 1993, how can it still be unprecedented in 2005?]
They have that power. There is not any question about it. This filibuster is their way of trying to obtain political recognition in the wake of their defeat by the vote of the people last November. [Sen. Hollings, D-SC, 4/3/93. Why does that sound so familiar?]
I remember, I was in the minority, I was the leader in the minority. We may be in the minority again some day. I wanted to protect minority rights. That is what this Senate is all about. That is why the Senate is still the greatest institution, one reason why. I want to protect minority rights. But let me tell you, Mr. President, I am getting a belly full of this abuse of minority rights. There comes a time when the majority has to control. [Sen. Byrd, D-WV, 4/1/93]
Senator being able to come to the floor and under the rules of the Senate--not the traditions of the Senate, the rules of the Senate--exercise his or her right, which I respect, to filibuster a nominee, or to attempt to defeat a nominee. That is perfectly within their right. That is how it should go. That is what we should do. And that is what is happening now. [Sen. Biden, D-DE, 10/7/93, at the Dellenger nomination, a rare Democrat actually defending the filibuster.]
I am glad to see that this issue is coming before the full Senate for a vote on the merits without a filibuster requiring 60 votes for cloture to bring the nomination to a vote. Had there been a filibuster or an effort to stop this issue--Chief Justice Barkett's nomination--from coming to a vote, I would have opposed a filibuster . I think that a filibuster --that is where Senators refuse to conclude the debate until at least 60 Senators vote in favor of concluding the debate--is a procedure which ought to be used very, very sparingly, and not in this sort of a case. [Sen. Spector, R-PA, 4/14/94, a rare Republican actually renouncing the filibuster.]
So I want to make clear my belief that there has been an unprecedented use of the filibuster and obstructionist tactics. It is true that if some Senator stays here long enough, he or she will participate in a filibuster . For most of us, it has been once or maybe twice in 10 or 15 years, somewhat consistent with the historical average. But when you have the number, the frequency of filibusters, even the subjects--here we had filibusters today on whether we are going to promote an Air Force colonel to be a general. And we had to file a motion to end the filibuster on that. And that was filed only after I was told publicly here and on the record it would be necessary, otherwise we would not be able to get to it. What once was reserved by common consent and restraint to issues that were of grave national importance and really were not partisan in any way, has become an everyday mechanism in the Senate. I regret that and I think Senators in the future are going to regret it. If this number keeps spiraling upward as it has in recent years, from once every 6 1/2 years in the last century to less than once a year early in this century to 20, then 30, then 40, now 70 times in a Congress, it is going to be extremely difficult for whoever is running the Senate--and someday that is going to be Republicans. I do not think it is going to be next year, but certainly we know that at some point in our history--we do not know when--Republicans will be in control of the Senate again. When that happens I think they will regret the consequences of the actions taken during this session. [Sen. Mitchell, D-ME, 10/8/94, in closing the session, correctly predicting that obstructionism runs both ways eventually.]
Wednesday, March 16, 2005
Tuesday, March 15, 2005
Monday, March 14, 2005
I have just finished reading the opinion of the San Francisco Superior Court in the consolidated marriage cases, and I am breathless. Judge Kramer found overwhelmingly in favor of marriage equality, smacking down every aspect of every argument made by same-sex marriage opponents. For those who get excited about legal details as I do, here's the one-minute refresher of equal protection jurisprudence: if a state statute treats some people differently than others based on a classification, then the statute must have some "rational basis" (burden of proof on the challengers), unless the classification is against a "suspect class" or a fundamental right is infringed, in which case "strict scrutiny" is required to find both a compelling state interest (burden of proof shifted to the state) and that the classification is necessary to achieve the objective. In this case, here is the summary of what Judge Kramer found: strict scrutiny applies here both because a suspect class (gender) is the basis for the classification and because a fundamental right is involved, and the statute fails both prongs of the test in lacking a compelling state interest and classifying in an unnecessary way to achieve its interest, and moreover, none of the state interests advanced would even pass the rational basis test. It just doesn't get any stronger than that. In layman's terms, the judge ruled that precluding same-sex marriage is wrong, wrong, wrong.
Here are some highlights. In dismissing any of the purported state interests in precluding same-sex marriage, Judge Kramer first considers the two arguments actually advanced by the State in defense of its law. The first argument was that of tradition, that the State was recognizing and institutionalizing what has always been the way. The judge found that tradition by itself is not good enough, that "a statute lacking a reasonable connection to a legitimate state interest cannot acquire such a connection simply by surviving unchallenged over time." The second argument was that California was not acting out of animus against same-sex couples because it provided essentially the same rights under a domestic partnership law. The judge, noting that this "smacks of a concept long rejected by the courts: separate but equal," found this not only to be not a defense, but actually to operate as an argument against the State:
In this context, the existence of marriage-like rights without
marriage actually cuts against the existence of a rational goverment interest
for denying marriage to same-sex couples. California's enactment of rights for
same-sex couples belies any argument that the State would have a legitimate
interest in denying marriage in order to preclude same-sex couples from
acquiring some marital right that might somehow be inappropriate for them to
have. No party has argued the existence of such an inappropriate right, and this
court cannot think of one. Thus, the State's position that California has
granted marriage-like rights to same-sex couples points to the conclusion that
there is no rational state interest in denying them the rites of marriage as
The judge then examined the legislative history of the statute, and could not find any stated purpose that would amount to a rational basis. (California actually had gender-neutral marriage language until 1977, when that section of Family Code was amended to clarify some issues of consent, age of consent, and gender.) He then turned to the argument that the state interest in marriage was procreation (this argument was not advanced by the State itself, but by the "traditional values" interlopers represented by Randy Thomasson and the Proposition 22 Legal Defense and Education Fund). The interlopers had cited a number of precedents in support of this claim, all of which were along the lines of a man obtaining annulment of a marriage because the wife had concealed that she was sterile or pregnant by someone else. Judge Kramer found that these cases were all being misread, that the fundamental issue in each was fraud. Though the language in some of the precedent opinions talked about procreation as a purpose of marriage (and in fact cited other purposes of marriage, such as happiness), Judge Kramer noted of one case that the language about procreation no more supported a legitimate state interest in precluding marriage than it supported a notion that in California only virgins can marry. He summarized that "the facts in the plaintiffs' cases confirm the obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married." He further noted that the language in several of these cases explicitly recognized the legitimacy of non-procreative marriages.
In applying the struct scrutiny test, the judge found that the classification was suspect in that it was based on gender, and that the reasoning was the same as that used in Perez v. Sharp to strike down miscegenation laws, that equal protection applies to individuals not to the groups in which they are classified. He further noted that marriage is a fundamental right. In this regard, the judge considered and rejected the opponents' arguments that the fundamental right was by definition to marry someone of the opposite sex, and that striking down this statute would open the door to incest and adult-child marriages. In response to this latter argument, Judge Kramer noted that it misunderstood how strict scrutiny works. It does not make fundamental rights completely inviolate, rather it limits the extent to which a fundamental right can be regulated. Quoting Perez, "no prohibition of marriage except for an important social objective and by reasonable means." Thus he found that allowing same-sex marriage would not open the door to incest and child-adult marriage.
Finally, the judge gave the procreation argument one final blow by hypothetically applying the "necessary means" test (even though he'd already found it to fail the rational basis, let alone the compelling state interest test) and finding it to fail that too. He found that the current statute does not preclude non-procreative opposite-sex couples, even though it could do so, and that some of the previously cited case law even contemplates and legitimizes non-procreative marriages. He thus finds that the classification is not necessary, in that "unlike other similarly situated classifications of non-child bearers, same-sex couples are singled out."
Of course we must recognize that this trial court decision will be appealed. And I must admit to some trepidation, knowing that this decision will mobilize the "Leviticus crowd" to bring an anti-same-sex-marriage constitutional initiative (likely aiming to repeal domestic partnerships in the process). But at least for the moment, it's great to have such sweeping vindication as provided in this case.
Sunday, March 13, 2005
Saturday, March 12, 2005
Friday, March 11, 2005
Thursday, March 10, 2005
Ironically, just as gender equality makes same-sex marriage more comprehensible, it makes polygamy less so. Polygamy, as it is traditionally practiced, consists of a patriarch and his dependent wives. The roles are very gender-specific: the husband rules the wives, each wife depends on the husband, and the relationship among the wives is that of a "sister-wife" (a side-effect of their parallel primary relationships with the patriarch). Examples of this persist today in specific religious communities, such as fundamentalist Mormon offshoots in Utah, Arizona, and British Columbia, as well as some orthodox Islamic communities. The system requires subjugation of the women, with marriages often arranged while the women are still girls. In contexts such as these, sentiments like those expressed by David Frum for gender-role-dependent "special duties" between husbands and wives are more comprehensible. From a modern viewpoint, the subjugatory relationships inherent in traditional polygamy are harshly dissonant with our sensibility of individual liberty and equality. The instincts for justice and equality that have lead our society to gender equality, and which are leading our society to acceptance of same-sex marriage, are the same instincts for justice and equality that make traditional polygamy especially repugnant. On the other hand, those who cling to traditional gender roles, refusing to accept gender equality, lend unwitting support to the polygamists by defending the very traditions that make polygamy coherent. The modern cultural momentum toward spousal equality points in the direction of same-sex marriage, and away from polygamy. They are in opposite directions. Those who wish to reverse this momentum, moving our society back toward "traditional" (master/chattel) marriage, also would move us toward polygamy. Contrary to "conventional wisdom", it seems the traditionalists, such as David Frum and Maggie Gallagher, are the ones falling down the slippery slope just a step away from polygamy.
Wednesday, March 09, 2005
Under current procedural rules, the judicial nominations can be blocked by a Senate filibuster, which requires 60 votes to override. This is a reasonable mechanism to insure that judicial nominees garner broad acceptance, and to avert the life appointments of partisan idealogues of any stripe. I have written elsewhere why such supermajorities are a good idea, especially in this case. Even some conservative constitutional scholars, Mike Rappaport and John McGinnis, have argued that such a supermajority mechanism is desirable for Supreme Court nominations. (Some people have asserted that the filibuster is "unconstitutional" because the Constitution does not require a supermajority for judicial nominations. But that argument makes no sense if you look at it. Just because the Constitution does not specify something does not mean it is unconstitutional. Clearly the Senate has the power to set its own rules and procedures. If the filibuster is unconstitutional, then so too is the two-party system, which is deeply embedded in the Senate procedures.)
Normally, Senate rules require a 2/3 vote to change. (Again, there's a good reason for supermajorities to make procedural changes, because procedural changes are a sure sign of partisan shenanigans.) The current threat -- the so-called "nuclear option" -- would be for Vice-President Cheney to declare the filibuster "out of order", a dubious parliamentary maneuver that could be upheld by a simple majority vote. Technically, the Republicans could do that, but the stunt would be short-sighted, ill-advised, and seriously damaging to the institution of the Senate. Not to mention hypocritical. If the Republicans exercised the "nuclear option" for the putative purpose of tamping down on "judicial activism", they would be themselves guilty of the worst form of "procedural activism". For the good of the nation, I hope the Senate remains a "nuclear-free zone".
Tuesday, March 08, 2005
Same-sex marriage is a revolution in the definition of marriage for everyone - a revolution not just in law, but in consciousnessness. And one effect of this revolution - and for many proponents, one of the revolution's aims - is to make forever unthinkable the idea that husbands and wives each have special duties to one another, and that a husband's duties to his wife - while equally binding and equally supreme - are not the same as a wife's duties to her husband. Once we lose that knowledge, we lose the basic grammar of marriage. It is one more reminder that in the same-sex marriage debate, we are debating not marriage's change - but marriage's overthrow.As a matter of civics, I would defend his right to hold such a belief. But as a matter of culture, I do find his notion rather unthinkable, or at best, quaint. I'm very curious to hear him elaborate just what "special duties" a wife may have to a husband that are distinct from the duties of a husband to a wife. Unless he's waxing nostalgic about largely discarded notions, such as a wife's duty to stay home, cook the meals, clean the house, and look after the kids, and a husband's duty to be the breadwinner, own all the property, and be the voter in the household, I really can't guess what he might mean. I'm trying to recall if I've ever attended a wedding where the wife made different vows than the husband, but I don't think I have.
While we can acknowledge that the tradition of marriage historically incorporated strong gender roles, this has steadily transformed over the last century as women gained the right to vote, to own their own property, and to participate equally in the workplace, such that marriage is now a completely egalitarian bargain. Certainly as far as the law goes, there remains no vestige of such gender-role asymmetry, which is exactly as it should be. Mr. Frum and like-minded others are free to negotiate whatever gender roles suit them in their own personal marriages, but in the eyes of the law spouses are full equals. The concept of same-sex marriage is by no means the engine of the train of progress that has brought marriage to this point of legal equality, rather it is one of the cars being pulled along by gender equality. Mr. Frum's hopes to stop that train are futile, for it has already left the station (apparently leaving some passengers behind).
Monday, March 07, 2005
It should hardly be surprising that the same is true of gender. Similar studies have shown some differences in skills such as verbal ability or spatial visualization that are correlated to gender. However, gender is much more muddy than handedness in separating out genetic components versus environmental components, since gender has historically had a significant impact on one's upbringing in our society. (In other words, if "men are from Mars and women from Venus", it's hard to tell what is due to Martian genes versus what is due to being raised on Mars.) Studies provide different results depending on the age of subjects tested, and studies have provided different results over time. In fact, one study that compared gender differences measured across different times has indicated that the famous differences in verbal and math aptitude have been shrinking (suggesting an environmental contribution).
It's also important to note that in all of these studies, the correlation between traits such as gender or handedness with other traits or skills are statistical correlations, clearly not random, but by no means dispositive. It's like exercise and heart disease. Everyone understands that there is some correlation between exercise and heart disease, such that those who exercise have a lower incidence of heart disease. At the same time, nobody would conclude from this correlation that everyone who exercises will be free from heart disease, or that those who don't exercise will be stricken by it.
Notwithstanding the ill-advised and much berated remarks of the President of Harvard, and the much berated over-reaction to them, nobody should be alarmed to acknowledge that there are indeed differences between men and women (that go beyond the obvious differences of genitalia). On the other hand, these differences should be taken as analogous to those of handedness. We can derive useful knowledge about human development from studying these differences, but they are weak indicators of correlated traits, and would be fairly useless to apply in specific cases. In particular, it would be ridiculous to make any specific policy decisions based on these determinants. While handedness may have some correlation with artistic or mathematic ability, nobody would expect handedness to be used as a criterion in, say, college admission, such that lefties would be preferred at Juilliard but dispreferred at CalTech. While much primitive baggage has been shed over handedness (which a couple of centuries ago was thought to say a lot about a person's character), let's hope we're nearly shed of the similar baggage that weighs on gender.
Sunday, March 06, 2005
Thursday, March 03, 2005
All this was in the back of my mind as I was listening to NPR on my drive to work this morning, when I realized that I was listening to the "mother of all eminent domain cases": that of the unfortunate Israeli settlers living in the Gaza strip. Their homes and land will be taken by the Israeli government, not to convert to public ownership, but to transfer ultimately in all likelihood to private Palestinian ownership. In one sense, the "public use" could not be more clear or compelling, as the settlement is being vacated in order to purchase peace. If that goal can ultimately be achieved, few would doubt that the price of abandoning some settlements was well paid. But as with Kelo, there is no guarantee that the condemnation will lead to the successful realization of the public benefit sought.
While the power of eminent domain may or may not be much restrained by the constitution, it can always be checked by organized constituent pressure on the elected officials attempting to exercise it. The larger the number of people affected, or the more influential or organized, the more of a spanner they can throw in the eminent domain political machinery. (Which is why, for instance, a couple of Interstate highways stop short in Pasadena.) In Israel, the settlers are all of that: considerable numbers, influential, and organized (especially as the West Bank settlers rightly see their fates closely linked to the Gaza settlers). Yet, the need to break out of the status quo of destructive stalemate is increasingly inevitable. The situation is highly charged and with good reason. The settlers are by nature determined and hyper-patriotic, having chosen to make their homes in dangerous disputed territory in order to serve a once well-agreed national interest. Unfortunately, a new Israeli consensus seems to be emerging that the national interest may now lie in withdrawal from disputed territories rather than hostile occupation. Of course, it's always easier to want a freeway that runs through someone else's backyard. The settlers are the ones being deprived of their homes in order to build the "highway to peaceful coexistence." And they will be well within their rights to speak out, to demonstrate, and to do what they can to shape perceptions of national interest. But I hope the patriotism that motivated them to become settlers in the first place can be re-channeled in new productive directions when they come to realize, as old hard-liner Ariel Sharon has, that this is one "highway" that needs to be built.
Wednesday, March 02, 2005
In a more recent (and sad) development, some lesbian parents have been making cynical use of "defense of marriage" laws and jurisdiction-shopping to evade former partners. In one case, a lesbian couple lived in Vermont, entered a civil union, and co-parented a child. When they broke up and dissolved their union in Vermont Court, the judge ordered visitation rights for the adoptive mother. The natural mother, not wishing to comply, took the child and moved to Virginia, where she is using that state's decidedly hostile position on gay families as a shield against her obligations. Now Vermont and Virginia judges are squabbling over who has jurisdiction and which state's laws apply. (Of course the only new twist here is the lesbian angle, and the conflict of state laws about same-sex families. Equally unscrupulous straight exes have been pulling such stunts for years.) You'd think that the Virginians might wise up to the anti-family effects demonstrated in such a case. Virginia is essentially offering safe harbor to a "deadbeat mom". Fortunately, some judges are doing the right thing and enforcing responsible behavior. In Texas, one lesbian mom sought to nullify the adoption by her now-former-partner of their child, but the judge refused. In Indiana, a judge has enforced visitation rights in one case, and enjoined child support in another. In Ohio, a new case is pending in which a lesbian mother is seeking to deny visitation rights to her former partner for their co-adopted child, based on the new state DOMA amendment. If the judge grants her request, it will show the anti-family flip side of these DOMA amendments, and if her request is denied, then responsibility will have prevailed.
Marriage is difficult, and it's sad but inevitable that some won't last. It's regrettable (and avoidable) that some gay people are willing to exploit the current lack of legal protection for gay families for their own self-serving and responsibility-evading ends. It's encouraging that some judges (even in some "red" states) have a proper perspective on responsibility, among other family values.
Tuesday, March 01, 2005
On the other hand, we have people sympathetic to same-sex marriage who offer definitions along the lines of "a marriage is two people who are in love and live together". But this too fails to satisfy for similar reasons. We certainly know of people who love and live together who are not married, and sadly, we probably know people who are married who are not in love or do not live together. Moreover, this definition makes marriage sound like it is only about self-fulfillment, about "finding love", which is a selfish purpose. And I hope we all agree that marriage is not about being selfish, in fact it's the opposite: marriage is about a specific kind of altruism and responsibility.
It is indeed strange that rational discourse could become so fuzzy about a concept that is so clear in everyday society. In everyday society, the concept of marriage is quite unambiguous and well-agreed. There is no dispute about whether a particular couple is married or not, or if there is any dispute, we all know how to settle it. When a couple is married, we can all point to an exact date on which they became married. After that date they are married, and before that date they were not. Nothing fuzzy about it. This is because marriage is distinctly demarcated by a particular ceremony called a "wedding", which consists in two people exchanging vows of lifelong loving commitment. Or in other words, marriage commences when we hear two people say "I do". We know with certainty that a couple is married because we witnessed their exchange of vows, or we can find someone who witnessed it, or we can find some record of it. Thus, we can start to identify the necessary and sufficient conditions for recognizing a marriage:
- mutual exchange (it doesn't count if only one person says "I do")
- public (someone has to witness the vows)
- lifelong ("till death do us part")
- loving commitment ("to love, honor, and cherish...")
Better than this, we have a pretty clear idea what "lifelong loving commitment" entails, because it is eloquently synopsized in the language of the vows: "for better or worse, for richer or poorer, in sickness and in health". In other words, I stick with my spouse whether he wins the lottery or loses his job. If he suffers a debilitating stroke, I stick around to take care of him. For tomorrow, next week, next year, through our youth and our old age. (It's interesting to note that childbearing, that alleged sine qua non of marriage, is often not even mentioned in the liturgy of marriage, and mentioned obliquely if it's mentioned at all.)
One might ask whether a state license is a necessary condition of marriage. Generally, this question isn't faced as the vast majority of marriages include licenses. However, it is important to make the inquiry. I would respond with several observations. We can conceive of a couple getting married by the captain of a ship in international waters, who may not have a license from any state, and yet still we would consider them married. We can conceive of an elderly couple wishing to have a quiet wedding ceremony performed by their pastor, and explicitly not wanting the ramifications of a legal marriage to mess up their trusts or social security benefits. (Our pastor tells us this happens with some regularity.) Of them, we might say something like "they are married, but not legally". We know examples of couples getting married against the wishes of their parents and their state (Romeo and Juliet, for instance), and yet they are still married. Even the Supreme Court has acknowledged that marriage is prior to our Constitution and laws (see Justice Douglas in Griswold v. Connecticut, for instance). Thus, I would conclude that a state license is not a necessary condition for marriage.
Given this analysis of marriage, it should now be clear that the permutations of genitalia of the participants have no essential part in constituting marriage. We can easily conceive (and probably know) of two persons of the same gender who have publicly exchanged mutual vows of lifelong loving commitment, and are living out those vows. Such instances do no damage to the concept of marriage, and in fact reinforce it by further examples in practice. The answer to the question of whether two persons of the same gender can marry should be clear: We can. We have. We do.