TMS - RIP

Whatever else you may have thought about the circumstances leading up to this morning, we should all be glad for Terri Schiavo, that she is now, finally, at peace. Thankfully, she was in all likelihood oblivious to the horrendously bitter disagreements swirling around her and of which she was the vortex. For if she had any awareness at all, she'd have sensed the strife between her husband and her parents, which surely would have compounded her suffering. Requiescat in pace, Terri.

Are Democrats and Republicans Obsolete?

The blogosphere seems to be abuzz with the "conservative crack-up". Pundits such as Andrew Sullivan and Glenn Reynolds are observing that the Republican party is a marriage between conservatives and libertarians, and that the marriage is fraying at the seams. The federal over-reaction to the Terri Schiavo case has laid bare the contradictions in the party. Meanwhile, Arianna Huffington diagnoses the Democrats as being in a "persistent vegetative state". Chuck Muth opines that all the worthwhile policy debates are among conservatives, concluding that "the left, intellectually speaking, are brain-dead. Maybe it's time to pull the plug on them."

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!

Family Inheritances

The other night, I wrote about the drive to Borrego Springs. My Grandma and Grandpa lived there the later years of their lives, and their inheritance to the family was their mobile home in the desert. They would be delighted to know that it has become the site of an informal gathering of scattered cousins every spring. Borrego is inextricably linked to thoughts of Grandma and Grandpa, and we fondly retell stories about them every year. This year, I was struck by a subtler but deeper legacy. I was struck by how much Grandma and Grandpa live on in their son and daughter. Susan favors her mother, and inherited Grandma's ebullience and love for life and people. I realized this weekend how much I see Grandma in her smile and hear Grandma in her voice. Bruce fathers his father, and inherited Grandpa's easy nature and pranky sense of humor. It's easy to see Grandpa in him. Obviously Susan and Bruce are different people from their parents, but their parents are a part of who they are. It's a wonderful thing.

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.

Desert Rites of Spring

The Anza-Borrego State Park, in the southeast corner of California, is known to surprisingly few people, especially as it is California's largest state park. Most of it is completely primitive and pristine wilderness, a low desert valley surrounded by tall mountains and bordered on the east by the Salton Sea. Many people don't associate "desert" with "beauty", but that's mostly because most people haven't experienced the desert, especially in the springtime, and most especially in a year like this one when the rains have made the wildflowers extraordinarily spectacular.

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.

Ghosts of Majorities Past

Last week, I dug up a bunch of quotes from the 103rd Congress (1993-94), when the minority Republicans were big proponents of the filibuster, and the majority Democrats were blustering about the gridlock of Republican obstructionism. I conjured this Dickensian "ghost of Congress past" not to point out the irony of politicians flip-flopping their rhetoric (amusing though it is), but as a cautionary tale for the Republicans, who are a majority today, but have been a minority in the past and inevitably will be again. (Sure, the current Republicans think they're ensconced in power for at least a generation. But the post-Watergate Democrats of the 1970's thought the same thing, until their titanic ambitions met the iceberg that was Ronald Reagan.)

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.

Cheers for Esther

Tonight begins the Jewish feast of Purim, one of the most joyous of holidays, commemorating an ancient deliverance of the Jewish people from near extermination. The story is found in the Book of Esther, and it tells of civil disobedience, religious persecution, and courageous action. The 30-second summary: Esther is the king's favorite wife, but he does not know that she is a Jew. The king is deceived by an arrogant advisor to decree the extermination of all Jews in his empire, because "they keep their own laws and do not obey the king." (The arrogant advisor was just annoyed that a Jew refused to bow down to him when ordered.) Esther, at risk to her own life, pleads with the king to save her people, in the process revealing that she is Jewish. The king realizes the right thing to do, revokes the decree, and exterminates the arrogant advisor instead.

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!

Building a better strawberry

Until I started regularly shopping at a farmer's market, I had no idea that there were different varieties of strawberries, and that you can tell the difference. I have now learned to seek out Gaviota strawberries, which have a superior flavor in my opinion, as well as a beautiful deep red color. I just got my first batch of the season, and it's been worth waiting for. We'll probably have them through June, but they seem to stop earlier in the summer than some of the other varieties. (Camarosas will do when Gaviotas can't be had any more, but they're not the same.) The Gaviotas tend to be more expensive. Perhaps it's because their yield is lower, as I've read in some reports, despite the claims of the University of California to the contrary. (Turns out that the University of California developed the Gaviota variety, among others, and commercially licenses it.) Actually the claim is that the Gaviota's more upright growing form allows more plants to put on the same acreage, making the per-acre yield higher, even though the per-plant yield is lower. Who knew that such things were so studied, but I guess while engineers are always working on a better mousetrap, the agricultural scientists are working on sweeter, good-colored, higher-yield strawberries.

Advance Directives

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.

Theology and Sexuality

One of the things I'd resolved to blog about was religion, and so far I haven't done much of that. Though I was a Computer Science major at Princeton, I was a Religion department "groupie". One of my classmates, Gene Rogers, has gone on to be a Professor of Religious Studies at the University of Virginia, and among his accomplishments has been to edit the book Theology and Sexuality, an anthology of classic and contemporary readings on the topic. I've been meaning to read it for a while now, and recently received a copy as a birthday gift. I'm sure that the essays in it will provide good springboards for blogging. Many of the essays in the collection address homosexuality, but I think Gene uses that focus as a useful lever to theologically examine sexuality in general. Often one can learn a lot about the essence of something by probing its boundaries. From the introduction, Gene promises to explore such interesting questions as "What is the body for? What does marriage mean? What is the purpose of Christianity? What does God want with sex, anyway?" No doubt the theology at times may get thick. (I have to confess to only dimly comprehending the title of Gene's senior thesis, let alone its content.) As I embark on this new occasional series of blogs, a note of caution and explanation for the general readers of this blog (all two dozen of you). If you see a post tagged "Theology", you are invited to proceed at your own risk. Risk of getting lost, of glazing over, or perhaps of developing a new interest in theology.

THEOLOGY: A Different View of the Body

Western thinking about the body has been traditionally informed by a body-soul dualism, assigning purity to the soul and corruption to the body. The body is thought of as a "dark prison" for the soul in this life, a "mortal coil" to be "shuffled off". Sensuality and sexuality, being located in the body, are viewed as prone to corruption. In this dual mode of thinking, the pure soul becomes subject to corruption because it is trapped in the body. This same dualism spills over into our epistemology, where the "inner life" of our rational cognition is deemed "purer" than our "outer life" of sensual experience.

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".

ARTS: The Goat or, Who is Sylvia?

Edward Albee's "The Goat or, Who is Sylvia?", winding up this weekend at the Mark Taper Forum, is a galvanic drama that mentally sears. Albee, long famous for his explorations of the underbelly of marital relations, pushes transgression of the boundaries of marriage and society to its shocking limits. This play is difficult to pull off, as the director has to walk a tightrope balancing comic relief against intense drama, where tipping one way would let the audience off too easily from the powerful and intentionally disturbing issues raised, and tipping the other way would be unbearable. As the character Stevie recognizes, "some things are just so awful that you have to laugh". But then she's forced to confront why she's laughing, which stops the laughter cold. Director Warner Shook occasionally wobbles, but ultimately pulls off the balance, a feat that requires strong faith in the script, his actors, and his audience. While the audience had a good laugh at times, by the second scene, in the breaths between the explosive drama on stage, the transfixed audience was stone silent. And in some moments of shock punctuated by a few nervous laughs, the discomfort was palpable. The actors deserve tremendous credit, particularly Brian Kerwin, who succeeds in making us believe the unbelievable, and Cynthia Mace, who makes us imagine the unimaginable. (I'm reminded why I loved Cynthia Mace as Harper in the original production of Angels in America. Kudos too to Patrick J. Adams in his professional debut playing the highly emotional adolescent character Billy.) This was the second time I've seen this play, the first being an even more intense production at the small Actors Express Theatre in Atlanta. While both productions took the risk of plumbing the weight of the play (in contrast to other productions I've heard about where they went for more comedy), the notable difference was in the interpretation of Ross, who in this production was played by James Eckridge with "George Costanza" overtones, leavening the initial shocking revelation with comedy, but at the cost of not being as credible as a true friend, and making Ross not as full and even a character as he can be. (On the upside, the mid-century modern set of this production added a subtle compliment to the play, particularly the inspired use of the kidney-bean-shaped couch.) Overall the production succeeded, and brought the audience to its feet at the end. As I noted, this play is particularly difficult, requiring an alchemy of directorial balance, credible acting in incredible roles, and an audience open to being challenged. With any ingredient missing, the alchemy fails, leaving only lead. When it works, you get theatre at its provocative best. Last night, we saw the gold.

Principles vs Outcomes, Activist Judges and Terri Schiavo

The case of Terri Schiavo, whose feeding tube has finally been removed (again) yesterday, underscores how many people truly don't care about the rule of law. Sure, it's very popular these days to complain about "activist judges" who "defy the rule of law" and "substitute their own personal preferences" to "legislate from the bench". And it's occasionally true that that happens. But more often than not, these charges are raised against judges whenever people are unhappy about the outcome, regardless of the principles that may have been applied to reach the outcome. In recent discussions about the San Francisco marriages court ruling, these "activist" charges are flying everywhere, to which I reply "have you read Judge Kramer's opinion?" The answer is inevitably "no", because the people crying "activist judge" really have no interest in how Judge Kramer arrived at his conclusion. It's enough for them that his conclusion is not the outcome they wanted to see, so that's enough to make him an "activist", and his opinion an imperious imposition of personal preference. Yet for anyone who cares about principles, and who bothers to actually read the judge's opinion, it is thoroughly well-reasoned and not the least bit arbitrary. The judge applied the well-established standards of jurisprudence, and by following their logic (not his own preferences), came to his inescapable conclusion. In fact, the conclusion may well not have been his personal preference (he happens to be Catholic and Republican), but the man merely did his job the way he's supposed to, applying the law and not making it up.

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.

Filibuster: Deja Vu All Over Again

With the President Bush's recent renomination of 7 judges who failed to be confirmed in his first term, attention is being focused once again on the so-called "obstructionist" tactics of the minority Democrats, particularly the filibuster. One of the claims I hear recently is that the use of the filibuster against judicial nominations is "unprecedented". This claim can only be earnestly made by those who suffer from selective memory (often a symptom of extreme partisanship). The Senate rules as far back as 1949 explicitly anticipated the use of cloture on judicial nominations. The filibuster was famously used to defeat the nomination of Abe Fortas to Chief Justice in 1968. During much of the Clinton administration, when Republicans controlled the Senate, the filibuster was not needed as they had other "obstructionist" tactics at their disposal, such as not even letting nominations get out of committee, or the infamous "secret hold". (63 of President Clinton's nominations never made it to the Senate floor.) However, when in the minority, the Republicans did indeed attempt to filibuster judicial nominees (e.g., Judges Paez and Berzon in 2000; Paez who had languished 4 years in committee). It was also used in 1993 against an Asst Attorney General nominee Walter Dellenger, and defeated the ambassadorial nomination of Sam Brown in 1994. The whole history has been documented by the Congressional Research Service.

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.]

More Food for Thought

About a month ago, I posted my own wrestlings of conscience about the morality of eating meat. I said at the time (and still believe) that the most compelling argument for me is the economic / environmental one, to the effect that meat-eating may be very resource-wasteful. In response to this post, I received some very thoughtful comments from Smallholder, pointing to me to several of his own posts on the topic and to further quite interesting information. He makes the very convincing point that the economic / environmental considerations point not against meat-eating entirely, but against a particularly wasteful kind of farming, the large-scale industrial farming that is becoming increasingly dominant in the US. Smallholder makes good arguments that if farmed appropriately, animals can be an efficient, environmental, globally conscious and healthy part of our food consumption. I'm now persuaded that the moral food choice is to eat meat less often, and to be selective about buying meat from farmers with good sustainable farming practices. This means free-range chicken, grass-fed beef, and open-pasture pork. These farming techniques have numerous benefits, including more humane treatment of the animals, more efficient use of food resources (because range-fed animals are not "taking food away" from hungry people elsewhere in the world), more sustainable and environmental use of the land, and healthier food for us (for instance, grass-fed beef is substantially leaner). The ideal source for this are smaller local farms practicing these techniques, such as Tawanda Beef or Lindner Bison here in California. A good resource for learning more and finding sources of pastured meat is EatWild.com. Fortunately, enough people are starting to pay attention to this that a market is developing. Niman Ranch is a great example of a larger-scale consolidator / distributor of pastured beef (grain-finished), pork, and lamb, whose products can be found in markets such as Trader Joe's and Whole Foods Markets. Both of those also carry free-range chicken and cage-free eggs. Even better, Trader Joe's also carries kosher chicken. As part of the kashrus compliance, kosher chickens are raised free-range, fed only grain (no animal products), killed humanely, and brined! (We used to brine our chickens before grilling until we realized we could purchase pre-brined kosher chickens!) So now we'll be doing our part to support sustainable farming.

Clinging to Fiction Too Long

Sometimes it happens that people knowingly create a fiction in order to hide some skeleton in their closet, or to protect someone's feelings. "Mommy and Daddy might get back together again," separated parents might tell their young children, knowing full well it's not true. But such fictions are generally ill-advised and not durable. So what's up with China threatening a military response to "protect its territorial integrity" should Taiwan seek independence? I am aware of China's tenet that Taiwan is somehow a "temporarily independent" renegade province to be eventually reunified with the mainland. But they have clung to this fiction for over 50 years now, and to continue to cling to it is beyond obdurate. It is delusional. They have insisted that the rest of the world humor them in their delusion, as embarassingly exhibited in their desultory behavior precluding Taiwan's national participation in everything from the Olympic games to the United Nations. Enough is enough. Time for China to wake up and smell the tea.

Let Freedom and Wedding Bells Ring

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
well.

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.

FILM: Walk on Water

We saw the Israeli film Walk on Water last night. This is a very intriguing film about baggage. Heavy emotional baggage. Not just "I'm haunted by my wife who committed suicide" kind of baggage (though there is that too), but even deeper collective cultural / national undercurrents, the burden of guilt of entire peoples and entire generations. Not just Israelis and Palestinians (though there is that too), but Israelis and Germans, younger Israelis and older Israelis, younger Germans and older Germans, and the inevitable 700-pound gorilla in that room, the Holocaust. And as if there's not enough psychic conflict to be mined in all of that fodder, layer on top of it a macho straight man confronting homosexuality. If this sounds like a recipe for a massively iconic story full of plot and characters contrived to effect the necessary symbolic gestures, it is indeed that. But the amazing thing is that the characters are genuinely and engagingly enacted, and I found myself pulled into their unusual story. The symbolism crept in disarmingly, not pedantically. The symbols were inhabited by dimensional people with real charms and flaws. Or perhaps it was just that each character was animated by multiple symbolic types at the same time, making them complex and multi-dimensional, rather than flat stereotypes. Either way, I found it fresh and engaging. (And along the way, a nice scenic Israel travelogue as well.) The title comes from an early scene with one character standing at the Sea of Galilee, and musing that he thinks it is possible to walk on the water, but you have to cleanse yourself first, completely unburden your heart. The film of course then shows us that completely unburdening one's heart is as easy as walking on water. You may not be completely unburdened of your baggage at the end of the film, but at least you'll know where some of the handles are.

Homestead!

Last night, as a new line of family history research was keeping me up until 3am, I stumbled onto a new resource that hadn't occurred to me before: the government land office. In the 19th century, as our American ancestors were settling in previously unsettled lands, they would purchase land from the federal government, or after the famous Homestead Act of 1862, they could claim a 160-acre parcel at no cost just for having settled on it and made improvements after 5 years. Apparently, records of many of these transactions have been digitized and are readily Internet-searchable at a Bureau of Land Management website. We discovered that my husband's great-great-grandfather, Elmer E. SLATER, established a 160-acre homestead in northern Wisconsin in 1897. This was very useful information, as it pins down the precise location of his home (once you decode the range/township land description, aka rectangular survey system, and can figure out how that maps onto Wisconsin), and tells us that he settled there as early as 1892 and stayed put for at least five years. (This SLATER family seemed to have moved around a number of times, making records of them hard to find. Of course the loss of the 1890 census doesn't help.) The homestead document itself is quite impressive, with florid prose and writing-style. Having discovered this very handy resource, I was able to find some land purchases made by my own great-great-uncle Thomas CHATT in southern Wisconsin in 1858 and 1861. The reward of genealogy is making great discoveries like this, and touching our history in a personal way.

No Deficit of Chutzpah on Capitol Hill

Yesterday, the Senate passed legislation that would tighten bankruptcy laws, making it harder for bankrupt parties to dissolve their debts in court. The sentiment behind the bill was that bankruptcy was being abused to shield gamblers, compulsive shoppers, spendthrifts, and deadbeat dads. In short, it would be unfair for the majority of honest Americans who pay their debts to have to shoulder the burden of those who have been irresponsible in overspending their means. Meanwhile, the House and Senate budget committees have both submitted budget plans that slow the growth of spending ("cut" may be too strong a word), while continuing to cut taxes. By making optimistic assumptions about economic growth, while keeping the costs of Iraq, Afghanistan, intended further tax cuts, and intended Social Security fixes off the books, they can stretch to make a claim to cut the deficit in half (relative to an inflated starting point) by 2009, a claim that requires some serious suspension of disbelief. Some Congressmembers, concerned about responsible spending, proposed amendments to the budget bill to require a balanced budget and a "pay-go" provision: no tax cuts without offsetting spending cuts, and no spending money we don't have. But while Senators pontificated about saving America from irresponsible spendthrifts in the bankruptcy courts, their colleagues down the hall were roundly defeating a balanced budget amendment that was about saving America from the irresponsible spendthrifts in the Congress. I note that the new bankruptcy bill requires bankrupt consumers to pay for their own credit counseling. Perhaps we can find a little money in the budget to pay for credit counseling for members of Congress. Or just put it on the national credit card, like everything else.

Slippery Slope from Traditional Marriage to Polygamy

The other day, I responded to David Frum's assertion that acceptance of same-sex marriage was making the traditional gender-specific roles within a marriage "unthinkable", pointing out that gender roles within heterosexual marriage had already evolved to a more egalitarian bargain on their own, independently of same-sex marriage. Frum, in fact, has it backwards. The traditional husband-master / wife-chattel model of marriage has been transformed into a more modern notion of a partnership of two equals, driven by an evolved understanding of gender equality more resonant with our instincts for liberty and justice. The concept of same-sex marriage has not been any kind of driver in this process, but rather has been a beneficiary. From a traditional understanding of marriage, with gender-specific roles, the concept of same-sex marriage is indeed a conundrum, raising the question of two same-sex partners: which one is the "husband" and which the "wife"? With an evolved understanding of marriage as a partnership of two equals, same-sex marriage becomes readily comprehensible. A modern husband and wife reach their own personal decisions about who plays what roles in earning of income, maintaining the home, and raising the children. It is no different for two husbands or two wives.

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.

Procedural Activism

With President Bush's renomination of 7 of the 10 judicial nominees who were blocked last term, the Senate seems geared for a partisan showdown, possibly culminating in the "nuclear option" of scrapping the filibuster. Some cooler heads, such as Senators Spector (R-PA) and Salazar (D-CO), are urging President Bush to withdraw his controversial nominees. With 214 judges confirmed by the Senate last term, surely the President can find a few more like those 214 broadly acceptable judges, without having to be so stubborn about a handful who failed to garner broad acceptance. Senator Shumer (D-NY) is right to characterize the renomination of those 7 as a "thumb on the eye of bipartisanship." Why indeed wouldn't the President build on his .955 "batting average" of successful nominations, rather than obtusely harping on a few "foul balls"? And in sending previously rejected nominees back to the Senate, who is really playing the obstructionist?

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".

His and Hers Spousal Duties?

Yesterday I expressed the hope that gender differences would lose their primitive baggage, as have handedness differences. That we are not there yet can be seen in some of the arguments against same-sex marriage. Here (hat tip: Andrew Sullivan) is National Review's David Frum:

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).

Righties are from Mars, Lefties from Venus

Over many decades, neuropsychologists have studied the correlation between handedness and various other traits. It is well-known that the brain is divided into a right and left hemisphere, and that different activities are associated with the different hemispheres. In simplistic terms, the "left brain" is the center of speech and calculation, while the "right brain" is the locus of visualization and creativity. With the neural wiring crossing as it comes down from the head, the left brain generally controls the right side of the body, and the right brain controls the left. Thus, right-handedness is associated with left-brain orientation, and left-handedness is associated with right-brain orientation. While it is not at all dispositive, there is some correlation between left-handedness and artistic skill, and between right-handedness and verbalization skill. Of course, when you get down to the science, it's much more complex than that, and even the left/right-handed dichotomy is not so clearcut. But scientific studies have correlated handedness with all sorts of skills, such as reading ability or dexterity in moving pegs, and other seemingly unrelated traits, such as whether the hair-whorl on your scalp goes clockwise or counter-clockwise. These sorts of studies are interesting and useful in understanding the complexity of genetic expression in human development. And we can indeed say that left-handed people are different from right-handed people in ways that go unexpectedly beyond handedness.

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.

Inflection Point

I've been blogging for two months now, so I thought I'd take a brief moment to reflect on what I thought this blog might be and what it has become. In other words, time to write my first meta-blog. I had a number of goals in the back of my mind. One of them was simply to write something every day. While there have been a few gaps, especially when I've been away for a weekend (like this one), I have mostly succeeded here. Another goal was to avoid partisan polemics. It's hard for me to judge how well I've succeeded there, but if I have succeeded, then anyone reading me should have some difficulty pigeon-holing me with any of the standard political labels. (Comments?) Yet another goal has been to keep my topics diverse. While the issue of same-sex marriage is much on my mind and my heart lately, I have written 8 articles on that topic, but also have written 9 film, concert, opera, and restaurant reviews, 3 or 4 articles on social security, a dozen on various other political issues (world, national, and state), and occasional other topics (genealogy, Martin Luther King day, Valentine's Day, birthdays, home-cooked meals). I'm pleased, but if I seem to be becoming a one-track on marriage, or if I veer in bizarre directions, feel free to let me know. Yet another goal was to be always substantive. I have endeavored never to write a post that was barely more than a link or a quote, without adding some analysis, rebuttal, or commentary myself. Lastly, I didn't have an explicit goal of getting attention or developing a readership, although it is certainly gratifying to know that the effort I put into this is not just entirely for myself. On that count, I'm very pleased to have what the site-meter tells me is about 20 readers a day, and even more gratifying, to have been blogrolled and linked by a number of fellow bloggers I much respect. So, so far so good. I'm enjoying how it's turning out, and hope that you are enjoying it too!

The Most Eminent Domain

The Supreme Court recently took up the issue of eminent domain, the taking of private land for public use. (Hat tip: Kip Esq.) The law on this topic hangs on the Fifth Amendment, which says "nor shall private property be taken for public use, without just compensation." Eminent domain is most commonly associated with a city or state buying out private homes in order to build a highway or school or other public development, where the property taken is converted to public ownership. Over the years, the understanding of "public use" has been stretched beyond public ownership. In the 19th century, the power of eminent domain was used to transfer private land to railroad or canal operators, who were private companies, but operating an important service for public use. In the 20th century, the power was used more broadly to confiscate private land for private use, arguably to achieve a public benefit. Such broader uses have included condemning private homes to redevelop blighted areas, or simply to allow a major employer to build a new plant and create local jobs. The case of Kelo v. New London asks the Court to decide whether the power is practically unlimited, since some public benefit argument could probably be mustered for just about anything. Here in California, eminent domain was nearly used to keep the Oakland Raiders from moving. And with our famous Proposition 13 forestalling property tax reassessments until homes are actually sold, a city or county could theoretically decide to force longtime homeowners to sell just to bump up the tax base.

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.

50 Ways to Leave Your Partner

With Vermont civil unions, Massachusetts marriages, California domestic partnerships, and more on the horizon, the old Paul Simon tune gets a new twist. For lesbians and gay men, there's a handful of ways to legalize our relationships, and then there must be 50 ways to leave them: one for each state. When Vermont civil unions first arrived on the scene, many non-residents flocked to Vermont for the chance to legally affirm their relationships. As was inevitable, some of them didn't last, and the participants then sought to have their unions terminated in the courts of their home states. The courts have been mixed in their response to requests to dissolve civil unions. A judge in West Virginia has granted such a request, while a Texas judge has denied a similar request. An Iowa judge also granted a dissolution, but a meddlesome religious group has appealed that judge's ruling to the Iowa Supreme Court, arguing that granting a "divorce" would be tacit acceptance that there was a marriage. (I'm hoping the Iowa high court will do the right thing and toss the interlopers out for not having any standing to appeal.)

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.

For Better or Worse

When discussing marriage, it's useful to have a clear definition of what marriage is. From my observation of discussions about same-sex marriage among generally rational people who disagree, it is apparent that a proper definition is lacking. For those who wish to preclude same-sex marriage, it has become standard practice to abandon honest philosophical analysis, and instead worked backwards from their desired conclusion to come up with a self-serving definition: that marriage is the union of one man and one woman for the purpose of procreation. While at first glance this description is indeed applicable to most marriages, upon consideration it fails to satisfy as a definition, for it captures neither the necessary nor the sufficient conditions for marriage. None would dispute that there are marriages whose purpose is not procreation (a marriage of two elderly people, for example), and likewise that there are procreative unions of a man and a woman which are not marriages. Obviously this definition does not do a good job of capturing the essence of what is meant by marriage. This definition "succeeds" in precluding same-sex marriage only by tautology and dogma.

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:

1. vows
2. mutual exchange (it doesn't count if only one person says "I do")
3. public (someone has to witness the vows)
4. lifelong ("till death do us part")
5. loving commitment ("to love, honor, and cherish...")

We can summarize our definition of marriage thus: marriage is the public mutual exchange of vows of lifelong loving commitment, and the living out of those vows.

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.