Thursday, December 29, 2005

Hanukkah: The Miracle of Spirit

Even more powerful than the "political" Hanukkah story of the Maccabees defending their faith and freedom, there is the spiritual Hanukkah story of the miracle of the oil. When the Jews rededicated the Temple, they lit the menorah which is supposed to burn continuously, even though they only had enough consecrated oil to last one day and it would take a week to prepare more. Miraculously, the small supply of oil burned a full eight days. Thus today, when we light the Hanukkah candles, we say a blessing to G-d "who performed miracles for our ancestors in days of old in this season". That a small amount of oil lasted much longer than it should have was a miracle. It was also a symbol for the spirit of the Maccabees, who lasted through battle after battle, against vastly greater numbers, when no one rationally would have expected it: the miracle of the victory of a faithful few against a mighty tyrant.

As I light the candles, I think not only of those particular miracles of enduring spirit and light, but I think of all of the miraculous spirits who have lit and who continue to light our world. How many stories have we heard of people who faced personal hardships, natural disasters, debilitating illness, or tyrannical oppression, and who amazingly endured, tapping some hidden strength, an inner well of miraculous oil, to carry them on long past when reason would have expected them to be exhausted and quit. The man who loses his home, his family, and everything he's built in a hurricane, but returns after the storm waters subside to the arduous work of clearing out the muck and starting to rebuild. The woman who was gang-raped by men of her own village for a crime committed by her brother, and who faced down the ire of her family, her village, and her people to challenge a vicious and unjust tradition. People like these, and many others whom we may never hear about, these are all "Hanukkah lights".

"Baruch atah Adonai eloheynu melech ha'olam she'asah nisim l'avotaynu b'yamim haheim b'zman hazeh v'asah nisim l'anu b'yamim hazeh ub'col hazmanim."

Let us bless G-d not just for the miracles done for our ancestors in days of old in this season, but for the miracles done for us in these days and in all seasons.

Wednesday, December 28, 2005

2005 Word of the Year

Pronunciation: in-'te-gr&-tE
Function: noun
Etymology: Middle English integrite, from Middle French & Latin; Middle French integrité, from Latin integritat-, integritas, from integr-, integer entire
1 : firm adherence to a code of especially moral or artistic values : INCORRUPTIBILITY
2 : an unimpaired condition : SOUNDNESS
3 : the quality or state of being complete or undivided : COMPLETENESS
synonym: see HONESTY

Surely I'm not the only one who finds it ironic that the Merriam-Webster "Word of the Year" for 2005 is "integrity". The title is earned by the word with the most online lookups. It is easy to understand why the other 9 words in the Top Ten were looked up in 2005 -- refugee, contempt, filibuster, insipid, tsunami, pandemic, conclave, levee, inept -- each of those clearly call to mind events of this year. But integrity? Who was looking that up? It certainly wasn't Tom DeLay, Karl Rove, Judy Miller, Bill Frist, or way too many others who, like the levees, turned out to lack the integrity we expected. Nor was it Ian Fishback, who knows the word well and would have no need to look it up. Perhaps there was a mass of good people who, like Diogenes, were looking anywhere and everywhere to find a man of integrity. Given the sad shortage of integrity in public example, they resorted to the dictionary. On the bright side, we enter 2006 with that many more people knowing what "integrity" means. Maybe it will inspire some new years resolutions.

Tuesday, December 27, 2005

Happy Hanukkah, America

It occurred to me the other day to wonder why more Americans don't celebrate Hanukkah. (Well, aside from the understandable goyische difficulty of not knowing how to spell or pronounce it.) Too many Americans know too little about this holiday, thinking it's just an eight-night-long Christmas with funky candelabras instead of trees. The tradition of the holiday should have a particularly American appeal. Hanukkah is actually a celebration of religious freedom, and a small band of patriot rebels defeating a tyrannical imperial power against long odds. Sound familiar? It's really a lot closer to the 4th of July than to Christmas.

Forget whatever you thought about eight nights of gift-giving, and flash back 2170 years ago. The Jews in Israel were living under the yoke of an increasingly tyrannical emperor in Syria named Antiochus. Antiochus was a political descendant of Alexander the Great, who had conquered most of the known world a century earlier. But after Alexander's death, his vast empire became subdivided into several regional empires, and the rulers after him slowly forgot that allowing conquered peoples to keep their own customs and traditions was a key ingredient for keeping the peace. Antiochus started issuing decrees requiring all of his subjects to worship his pagan gods and to abandon their own religions. The Jews were specifically required to go against their religion by eating pork, not circumsizing their children, and paying homage to Hellenistic gods like Zeus. Copies of the Torah were burned, and people following the Jewish Laws were killed. Antiochus ordered the sacred Temple in Jerusalem to be profaned by slaughtering pigs there and setting up an altar to Zeus.

In the midst of this situation, there arose a George Washington figure by the name of Judas Maccabeus, who along with his father Mattathias, and his brothers (known as the Maccabees), organized a guerilla resistance to defend the Jewish people and their faith. The Maccabees were greatly outnumbered and out-weaponed by the army of Antiochus (just like the American Revolutionary patriots against the British), but fought with the fierce conviction of knowing they had God and justice on their side:

But when they saw the army coming to meet them, they said to Judas: How shall we, being few, be able to fight against so great a multitude and so strong, and we are ready to faint with fasting today?
And Judas said: It is an easy matter for many to be shut up in the hands of a few: and there is no difference in the sight of the God of heaven to deliver with a great multitude, or with a small company:
For the success of war is not in the multitude of the army, but strength cometh from heaven. They come against us with an insolent multitude, and with pride, to destroy us, and our wives, and our children, and to take our spoils.
But we will fight for our lives and our laws:
And the Lord himself will overthrow them before our face: but as for you, fear them not.
1 Maccabees 3:17-22
The Maccabees routed several armies that Antiochus sent, and eventually won the war and established Jewish religious freedom for the next hundred years. The defining moment of the Maccabee triumph was when they were able to purify and rededicate the Temple, on the 25th day of the month of Kislev, exactly two years to the day after the altar had been defiled. It was proclaimed that an eight-day celebration should be held on that date every year, and that is the origin of Hanukkah (a Hebrew word meaning "dedication").

It seems to me that while this holiday is traditionally a Jewish one, it celebrates themes of defending religious freedom that ought to resonate with all Americans. For Americans who are Christian, they may note that Jesus celebrated Hanukkah (see John 10:22-23), and those who are Catholic or Orthodox will find the books of Maccabees included in their Bibles. But shouldn't any American of any faith understand the appeal of remembering rebels defending their right to worship according to their conscience?

Thursday, December 22, 2005

The Christmas Gauntlet

Christmas is a wonderful season, but sometimes it can feel like a bit of a gauntlet. It seems a marathon effort to get the "holiday letter" written, get the cards sent, get the gift shopping done, get everything wrapped, cram all the parties and visits into a crazy calendar, and then we all collapse in a sigh of relief and happy exhaustion on the finish line Christmas Day. While there are occasional moments of despair ("how will we get it all done?"), the goodness of the season always wins me over and puts me in a great spirit. There have been many years where I've been out at the mall on December 24, and even though it's crazy crowded, the register lines are long, the store staff weary, and the shelves picked over, I'm always amazed at how the spirit of Christmas just picks me up. I chat with people in line, and while's there's inevitably a note of weariness, there's also a feeling that we're all part of this wonderful frenzy of giving, and it will all be good in the end. Even if we don't find the perfect gift for everyone, it is truly the thought that counts, the fact that we're together with our loved ones, and all participating in this annual ritual. I think the magic of Christmas is that it lifts us out of our quotidian toils, takes us out of ourselves, and gives us an annual moment of perspective to focus on all of the others we're grateful to have in our lives -- our close loved ones and our friends, including those friends from other times and places that we reconnect with maybe just once a year. Thinking of that, I smile as I'm standing in a seemingly endless line of people at See's Candy store, and with a light-hearted comment, I get the exhausted person next to me to smile, and the contagious Christmas spirit reminds us all why we're there.

Friday, December 16, 2005

Tookie Taken: Ruminations on Capital Punishment

It is bizarre timing that now, in the throes of the holiday season, the execution of Stanley "Tookie" Williams forces us to pause from writing cards and shopping for gifts to reflect on the death penalty. But like it or not, it is upon us. I had never given a lot of thought to the issue before, but I realized I ought to if people are being executed in my name as a citizen of California. I had conflicting feelings about it. On the one hand, some crimes are so heinous that nothing short of execution seems appropriate. But on the other hand, execution seems so, well, barbaric.

I'm more interested in contemplating the death penalty in general than in arguing the particular merits of this specific case. In short, I will just say this about Tookie Williams: if the death penalty is ever appropriate, then it is appropriate for this man. He was convicted of multiple murders of the most callous and cold-blooded kind. While he protested his innocence to the end, and duped a few gullible idealists into believing him, there is no real question on this matter. Though there may well have been cases in which innocent people have been executed, this is not one of them. Moreover, he does not dispute that he was a co-founder of the Crips gang, and there is strong reason to believe that he was guilty of much, much more than what he was convicted of. This was an evil man with a formidable legacy of evil. As to his alleged redemption, he never even admitted what he had done, let alone begin to regret it. His touted efforts to dissuade children from becoming involved in gangs are more likely to be a calculated PR tactic. He certainly didn't dissuade his own son from following in his father's footsteps. To me, that's what makes his case provocative. If capital punishment is only appropriate in extreme cases, where guilt is clear and the crime is heinous, one can scarcely imagine anyone more deserving than Tookie. That clarifies the question: is it ever appropriate to execute anyone, even someone like Tookie Williams?

In considering the question, one must distinguish the legitimate from the illegitimate reasons for capital punishment. One important purpose of the penal system is to protect society from dangerous people. That purpose is equally served by life imprisonment without parole as it is by execution. Another important purpose is deterrence, the pause that one criminal's fate may give to another prospective criminal. On that count, actual results should be looked to. I haven't looked into such studies, but my hunch is that capital punishment as it is practiced in the US is a weak deterrent, because it is such a rare and long-drawn process. (Tookie lived a quarter century between sentencing and execution.) A stronger deterrent effect might be achieved if execution were meted out more swiftly and frequently, but that's not possible to do without transforming the US into someplace more like the old Soviet Union or the Taliban or Singapore (all of which had low crime rates for the crimes that they punished).

Then there are the illegitimate reasons for capital punishment. One most commonly cited is that it is "justice" that capital crimes be answered with capital punishment. But justice is a misnomer here, the proper word is vengeance. This is the old "eye for an eye", and it is as barbaric as chopping the hands off of thieves. Believe me, I feel the allure of it too. It's hard to think of the crimes Tookie committed, and not to wish much more painful deaths on him than the one he suffered. But a civilized society must rise above this, or it ceases to be civilized. It has nothing to do with what the criminal deserves. It has to do with what we as a society become if we stoop to blood vengeance. And I'm coming to believe that if we practice capital punishment, we corrupt ourselves.

Another common justification given is that the family of the victims deserve to see the murderer executed. But this is just another spin on the same blood vengeance. If we truly believed that, then we should have a guillotine or a firing squad, and we should allow the families of the victims to pull the trigger, and enjoy the violence of spilling the murderer's blood. If that sounds barbaric to you (and I hope that it does), then ask yourself whether that differs in any significant moral respect from the clinical death-by-injection carried out on Tuesday.

A different argument is sometimes made that it is expensive to maintain someone in prison for life, and why should the good taxpayers be burdened with supporting a worthless life. If one looks only at the ledger, there seems to be an argument there. But one must look at the non-fungible costs. Killing someone because their life "isn't worth the expense of supporting it" is a monstrous precedent. If we do that, we cease to be a society in which life is sacrosanct, and we become instead a society where each life has a quantifiable worth. Once that bright line is crossed, all sorts of questions become fair game, including euthanasia or medical treatment decisions based on how much a given person's life is worth. Should we go around to state hospitals euthanizing patients who are unlikely to leave the hospital but not dying soon and costing the state a lot to support? If that sounds barbaric to you (and I hope that it does), then ask yourself whether that differs in any significant moral respect from killing a prisoner just because it costs a lot to keep him alive?

To recap: the legitimate reasons for capital punishment are uncompelling. The compelling reasons are illegitimate. And even if some extreme criminals deserve death, we cannot be the executioners without becoming barbarians ourselves.

Thursday, December 08, 2005

Regrettable But Justifiable Shooting

My heart goes out to the family and friends of Rigoberto Alpizar, who was shot and killed in an unfortunate incident at Miami Airport yesterday. My heart also goes out to the federal air marshals who shot Alpizar, who turned out not to be a bomber after all. I can only imagine how having killed an innocent man will weigh on their hearts.

If the facts are as reported, the air marshals' actions were entirely justified. When a boarded passenger leaps out of his seat, charges up the aisle, claims to have a bomb in his backpack, disobeys commands from air marshals to "get down", and then starts reaching for his backpack, I don't see that the marshals had any choice. They don't have the luxury of waiting for a situation to unfold and gathering information ex post facto. They must react to such a situation immediately and make snap decisions, based on their training. Shame on those who are second-guessing the air marshals' decision based on hindsight. Given what they could have known (and what they could not have known) in the instant, and given what could have happened had there really been a bomb, they did the right thing. The incident is unfortunate and regrettable. But as an air traveler, I for one am reassured to see evidence of an effective air marshal program. We'd all heard that they were around, but never really knew for sure. Now we know. And so do the real terrorists.

Tuesday, December 06, 2005

What's FAIR Is Fair... Or Is It?

After today's oral arguments before the Supreme Court, many are predicting that Rumsfeld v. FAIR will be overturned in favor of the Department of Defense. The case puts the question of whether the government can withhold funding from universities whose law schools refuse military recruiters equal access to on-campus job fairs. The law schools argue that this amounts to unconstitutional coercion, infringing on their First Amendment rights to expression and association, by forcing them to compromise their own stated anti-discrimination policies (employers are only allowed to recruit on campus if they sign a statement of non-discrimination including sexual orientation among other categories). The trial and appellate courts have so far agreed. The government argues essentially that "he who pays the piper calls the tunes", and that the universities are free not to compromise by choosing not to accept government funds. From the sound of the Justices' lines of questioning today, it seems most of them may agree with the government. Famous centrist casuist Justice O'Connor seemed content that the law school's First Amendment rights were protected so long as they could protest and even jeer the military recruiters.

Mindful of the direct consequences, many gay people and organizations have argued in favor of FAIR (the law school organization). Commentators (e.g., KipEsquire here) have noted the irony that the appellate decision upholding the law school position was based on the precedents of Boy Scouts of America v. Dale, in which the rights of free association of a private organization insulated the Boy Scouts against government intervention when they booted out a gay scoutmaster. A similar precedent involving gays being barred from a St. Patrick's Day parade was also cited. Yet both of these anti-gay cases were used to support the pro-gay position in this case. What this really shows is that trying to judge a case based on a preferred outcome rather than a principle is a double-edged sword. I haven't seen this analogy drawn elsewhere, but the other case that came to my mind was that of the 1998 San Francisco ordinance that prohibited the City of San Francisco from contracting with companies who did not offer domestic partner benefits. Gay advocates certainly cheered loudly when this ordinance was upheld in large part (with some exceptions) when it was tested in court. Yet the same principle that would enable the City of San Francisco to pull its purse strings to whip would-be city contractors into providing domestic partner benefits is the same principle being argued by the Department of Defense. If one is right, then so is the other. Others have observed that some of the federal civil rights statutes are similarly founded.

I would love to see our military's anti-gay discrimination finally and completely ended, and applaud the law schools who protest against it. And I am certainly queasy about the dangers of a government's "piper-paying powers" when we're approaching $2.5 trillion in annual federal spending. Notwithstanding that, I believe that a court case should be adjudicated on its merits and the principles, and not on a desired outcome. I'd love to see the Boy Scouts accept a gay scoutmaster, but I respect their right as a private organization to set their own policies, and I think Dale (as well as the Paddy's Day parade case) were rightly decided. (Note that also protects the right of Christopher Street West to refuse to allow Fred Phelps and his death-eaters to enter a float in the Gay Pride Parade.) And while I like the outcome of the appellate court in this case, I'm not sure I follow their reasoning. The Boy Scouts were a private organization facing court-ordered contravention of their policies, while the law schools are organizations (some private, some state) facing a hard choice of accepting funding tied to making an exception to their policies for the government. That doesn't seem sufficiently analogous to me. If I were a Supreme Court Justice, I don't think I'd be very receptive to FAIR's arguments either. Meanwhile, the law schools should follow up on Justice O'Connor's suggestion and vociferously protest the military recruiters when they let them on campus.

Sunday, December 04, 2005

FILM: Rent

Rent is my favorite Broadway musical. I've seen it six times, and we chose one of its songs (I'll Cover You) as the processional for our wedding. So we were very excited when we heard a film version was being made. Of course where such near-reverence is involved, the danger is high of the film version not living up to the stage experience. Fortunately, director Chris Columbus has done an awesome job of realizing Rent on screen. Rather than filming it theatrically, he re-envisioned it cinematically, using lush visual imagery, flashbacks, and montages. The result is a vivid presentation, different yet faithful to the original story. The opening number is a visual conceit of dozens of East Village denizens tossing burning eviction notices into the street (the imagery is beautiful, though you must indulge the suspension of disbelief that some broke bohemian squatters could have more candles in their flat than Pottery Barn). One Song Glory shows us Roger's earlier rock star life in flashback, adding depth to the lyrics. Out Tonight starts by showing us Mimi dancing at the Cat Scratch Club. Rapturous scenery of East Village life, New York skylines, and at one point New Mexico vistas all compliment the story beautifully. The film used most of the original Broadway cast, who (despite the grumblings of some churlish critics about their age) all translated wonderfully to film. (Most of this cast is only in their thirties. Do those critics think there are no bohemians over thirty?) And the two "newcomers" fit right in. Tracie Thoms is a feisty Joanne with a knock-out voice. Rosario Dawson looks, moves, and sings Mimi as good as any I've seen, and has such expressive eyes that there's no doubt why Roger writes a song about them. Those who have well-worn cast recordings will recognize some changes: there is a bit of added dialog, and some recitative elements in the original become plain speech in the film. There were a few small sacrifices: for example, Halloween and Goodbye Love didn't make the final cut (though they were reportedly filmed and are on the movie soundtrack, we hope to see them in the extended version on DVD). But the end result is completely faithful and beautifully creative.

Saturday, December 03, 2005

Gay Catholic Anguish

It is sad to see the anguish of those who are gay and are faithful Catholics, facing the recent church pronouncements about gay men -- even perfectly and faithfully celibate ones -- deemed unfit for the priesthood. Andrew Sullivan has been covering this issue daily, and a letter from a Notre Dame grad student published on his site particularly struck me. It's worth reading the whole thing, but here is an excerpt:
Always bear in mind that when God surveyed his creation he deemed it good. Not perfect, good. As creatures we must recognize the value of other despite any deficiencies. . . . We cannot pass this position off as a 'hate-the-sin-love-the-sinner' exhortation otherwise a commitment to celibacy would suffice. The equation of predilection to actual act has dangerous implications for all Catholics. The inclination to sin, common to all humans and part of our imperfection, should never be squared with sin itself lest we abandon the hope for living in a Christ-like way by overcoming the inclination to sin to instead act with love and justice.
To many of us, this new line from the Vatican to exclude men from the priesthood based on who they are rather than what they do appalls the conscience. But perhaps this is because those of us who are shocked have a liberal conscience, which differs from a Christian one. As Jason Kuznicki explains:
To the liberal conscience, there is no sense in which an innate tendency could in itself be morally disordered, and thus the Church’s former position, while regrettable, was at least comprehensible: An alcoholic is sick, not evil, and we try to understand that his actions are not fully his own. Under an analogous reading of the former policy, chastity — a free choice open to everyone — should have been enough.

Under the new policy, however, a strongly homosexual orientation, even among the perfectly chaste, is reason enough to bar candidates from the priesthood. As William Saletan complains in Slate, "Through no fault of your own, you’re doomed."

I hate to say this, but… well, yeah. Complaining about it misses the whole point of Christianity.

To the Christian, every one of us is doomed through no fault of our own, every single day of our lives. We stand condemned not because we have done some specific act, but merely because we are human. We are bound for Hell because of Adam’s sin, and because, in the Christian belief, his taint infects us all.
The analogy of homosexuality to alcoholism is a useful one. If a gay Catholic argues that it is unjust to condemn as evil (or "gravely morally disordered") his very nature regardless of his actions, he plays into the "hate-the-sin-love-the-sinner" reasoning, and makes himself analogous to an alcoholic. At best, this earns him only pity and sympathy, along with support and encouragement to suppress his natural inclinations. And a rational bar from the priesthood. (Incidentally, the Vatican has issued similar instructions to bar alcoholics from the priesthood.)

The only proper escape from this trap is to refute the fundamental premise that homosexual behavior is evil. The Vatican position is that homosexuality "does not represent a social value and even less so a moral virtue that could add to the civilization of sexuality. It could even be seen as a destabilizing reality for people and for society." This is just plain wrong. When two people exchange vows of lifelong loving commitment, tend to one another in sickness, support one another financially and spiritually, putting the other ahead of themselves, and sometimes even take on the additional selfless sacrifice of raising children, how is that not a social value, a moral virtue, and the very fabric of civilization, even when those two people happen to be the same gender? How is it that we can recognize and admire these values in penguins, yet miss the same in humans? That's the argument that needs to be made. Such an argument can clearly be made on liberal foundations, but I believe there is an argument to be made on Christian (and even specifically Catholic) grounds as well.

Thursday, December 01, 2005

Patent Double-Header

The legal equivalent of Katrina and Rita are hitting the high-tech world, with Research In Motion (RIM - the operator of the Blackberry network) playing the role of New Orleans, and eBay as the Gulf coast. These two tech titans have both been hit with patent infringement lawsuits that have been lost, appealed, and lost again. The Supreme Court has now agreed to hear the eBay case, which should be interesting. That valid patents were infringed is pretty much settled at this point. Now all eBay hopes to get from SCOTUS is to get off with "only" the $15 million in compensatory damages awarded, and to avoid a permanent injunction to cease and desist further infringement. However, they face an uphill battle even on that score. Unless the Justices have "activist" intentions in this matter, the precedent goes against eBay, based on decisions undisturbed for a good century.

The relevant case law, Continental Paper Bag Co. v. Eastern Paper Bag Co., was decided in 1908. That case concerned a patent for a machine that could efficiently produce a folded paper bag with a rectangular bottom (you know, the kind you still get in the grocery store today if you don't opt for plastic). Eastern Paper Bag held the patent, and Continental infringed it. That much was already stipulated by the time the case hit the Supreme Court. The matter of contention was whether injunctive relief was appropriate (same issue with both eBay and RIM), and also whether patent rights were curtailed if a patent holder did not put his invention into use (especially relevant to RIM, though eBay may try to make a similar argument). You see, it seemed that even though Eastern had invented the better bag machine, they declined to actually use it, or to let anyone else use it. This offended a number of people (including some appellate judges), and a reasonable argument was made going to the essence of patent law.

Patent law is essentially a contract between society and an inventor, in which an inventor agrees to publicly disclose his invention in exchange for exclusive rights to it for a limited duration. The core of patent law comes straight from Article I, Section 8 of the US Constitution, in enumerating the powers of Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Thus, the appeal was that an inventor who basically "sat on" his invention and denied society its use was not holding up his end of the bargain to "promote the progress of … useful Arts," and thus should forfeit some or all of his patent protection.

Some lower court judges agreed with this line of reasoning, though making a distinction between "reasonable non-use" (e.g., the inventor did not put the invention into practice for lack of funds or practical opportunity) and "unreasonable non-use" (e.g., refusing to put it into use despite having the means to do so, and refusing to license it to others who could use it). However, the Supreme Court roundly smacked this down. Being good textualists, they did not attempt to divine the underlying philosophy or policy intentions behind the law, but instead looked at the law as Congress enacted it. And they found that Congress gave absolute property rights to the inventor (for a limited time period), regardless whether he put his invention into practice or he locked it away for 26 years. They noted that Congress was indeed well aware of the "non-use" issue, since they had in the 1830s made the patent rights of non-citizens contingent on putting the invention into use, but put no such requirement on citizens. (And even the limitation on non-citizens was repealed only a few years later.) They also found that injunctive (and not just compensatory) relief was tantamount to the right granted to the patent holder. (Though they did choose to "never say never", with a parting caveat of wiggle room: "Whether, however, a case cannot arise where, regarding the situation of the parties in view of the public interest, a court of equity might be justified in withholding relief by injunction, we do not decide.")

I'd say things look grim for eBay (and for RIM), but the Court seems to feel there is something worth hearing. Stay tuned. (Although when the decision is announced, the headline may or may not come across on your Blackberry.)