The Supremes, Marriage, and Civil Rights in the 21st Century

When the Supreme Court hears oral arguments in two seminal cases concerning the equal legal treatment of LGBT Americans this coming week, the justices will squarely confront the question of marriage equality for the first time in the Court’s history. At the outset, it should be noted that the Court’s decision to grant certiorari in the first place is a sign of the extent of the progress that’s been made: the last case to even remotely address the question, Baker v. Nelson (1972), was a mandatory appeal from a decision by the Minnesota Supreme Court, and the case was disposed of in a summary dismissal “for want of a substantial federal question” (translation: the denial of nuptials to gays and lesbians is so obviously constitutional that we need not even dignify the question with arguments or an opinion explaining our reasoning). This year, the Court will hear arguments after full briefing, and the outcome (whatever it may be) will be accompanied by a full explication of the justices’ legal reasoning. Whereas in 1972 the legal academy did not consider the exclusion of LGBT couples from marriage to present a substantive constitutional issue, in 2013 numerous federal courts throughout the United States, including two federal appeals courts, have invalidated prohibitions of same-sex marriage. We’ve reached a watershed, and the outpouring of public support and breathtaking pace of societal acceptance of gay rights may indeed be judged by constitutional theorists as one of Bruce Ackerman’s “constitutional moments.” Only time will tell.

I am a second-year law student, and approach discussions of this particular issue from that perspective. After two years of legal training, I really can’t help it. For many advocates, I suspect that the Supreme Court is viewed as merely a means to an end: “we believe in the cause of gay rights, and we don’t care how it happens. If we get it through the action of state courts and legislatures, so be it; if the U.S. Congress takes action, so be it.” This is the political/policy advocate’s perspective, and I’ll leave issue advocacy to those who are involved in that sort of thing. For me, the importance of the upcoming oral arguments in two cases, Hollingsworth v. Perry (the litigation surrounding California’s Proposition 8, which amended that state’s constitution to define marriage as limited to unions between one man and one woman) and U.S. v. Windsor (challenging the constitutionality of the Defense of Marriage Act passed in 1996) entails a basic question, an age-old debate we’ve been having in this country in respect to the approach we use when interpreting our Constitution. For those who think that this is about a “cutting-edge,” “novel” culture wars clash limited to the second half of the twentieth and twenty-first centuries, think again. This is about a philosophical divide which first manifested itself in the Supreme Court’s jurisprudence in 1798, when the justices were called upon to pass on the constitutionality of an act of the Connecticut legislature. Although the court was unanimous in the case, Calder v. Bull, in holding that the statute under review did not violate the Ex Post Facto Clause found in Art. I, §10 of the federal Constitution, today’s constitutional law students do not generally read the case for that holding. The otherwise obscure litigation has become famous in constitutional legal history because of the divergence between the reasoning of Justice Chase, who wrote for the majority, and Justice Iredell, who wrote separately in a concurring opinion. Justice Chase framed the Court’s power of judicial review in the context of natural law: there is a higher-order source of individuals’ legal rights, and no legislature may properly infringe these rights. Essentially, the idea is as follows: we do not possess individual, inalienable rights because of the constitutional text; rather, the text of the Constitution, a foundational charter containing broad principles to be elaborated over time, is a reflection of those rights. Justice Iredell rejects this view in his concurring opinion. Iredell, and those who hold his view of constitutional interpretation, believe that our founding charter operates more like Hammurabi’s legal code of antiquity: individual rights are derived from the text, and government’s power to infringe individual liberty is only narrowly circumscribed by the express limitations contained therein.

In the parlance of modern day constitutional theory, this is essentially the debate between what I’ll call the “foundational charter” view and originalism. Advocates of the former approach to interpretation believe, as Chief Justice Marshall said in McCulloch v. Maryland, that “it is a Constitution we are expounding” (emphasis added). In other words: the framers and ratifiers crafted a foundational charter of principles, articulated in broad-sweeping terms, the application of which to specific legal disputes would be for the courts and the people over time. How could it be, after all, that a document forged out of bitter compromise between delegates to the Constitutional Convention, men who bitterly disagreed over slavery and indeed the very nature of the powers to be exercised by the new national government, could have intended for the Constitution to ossify around a singular, fixed meaning, tethered to the world of the eighteenth century? Essentially, advocates of the foundational charter view (sometimes referred to as “pragmatism” or “living constitutionalism”) believe that, while the Constitution has enduring principles, such as equal protection and due process, it is for each generation to interpret those principles in the context of new legal questions which the framers and ratifiers could never have anticipated. In other words, the principles protected by the Constitution remain the same, but the growth and evolution of a dynamic society require our courts and legislatures to give them meaning in our modern world. 

Then, there is a view the growth in popularity of which is of relatively recent vintage: originalism. More than any other single jurist or legal mind, this view may be ascribed to Justice Antonin Scalia and his ideological companions. Justice Scalia would describe it in the following way: how do we know whether or not the Equal Protection Clause of the Fourteenth Amendment or the equal protection component incorporated in the Fifth Amendment’s Due Process Clause protects the right of LGBT people to marry? Well, we look to the marriage statutes extant at the time of the Fourteenth Amendment’s ratification in 1868. Were gay and lesbian people permitted to marry in those days? Why, no, so therefore the Constitution “says nothing about” the question and thus it is the province of state legislatures to make policy in this area. Justice Scalia would say that this theory of interpretation minimizes the level of subjectivity that is involved in constitutional jurisprudence. Nevermind that sexual orientation as a category of identity did not even really exist in 1868, and thus the absurdity of the inquiry into whether or not gay persons were given the right to marry at that time or the significance of that fact for constitutional purposes.

What is the problem? First of all, despite the growing trend of GOP senators in the confirmation hearings of federal judges to presume that this is somehow the “Correct” and only valid approach to interpretation (and any judge who thinks otherwise is “activist” or “legislates from the bench”), there is nothing inevitable about originalism. The Constitution did not, regrettably, come with a user’s guide (although the Federalist Papers give us some clue about what three of the framers had in mind, these are largely focused on the structure of the nascent federalist system and say virtually nothing about the approach judges should employ in judicial review). Originalism is one of numerous competing theories of interpretation, and the fundamental divide is, as Calder v. Bull illustrates, one that is as old as the American republic itself.

So when everybody listens to the oral arguments this coming week (or reads the transcripts before they’re available in audio, if they’re nerds like me), I hope they’ll remember that this indispensable debate remains always in the background. On one level, yes, this is about the extension of the right to marry to all people, regardless of sexual orientation. On a more basic level, though, the inquiry is really this: does the principle of equal legal treatment embodied in the Fourteenth and Fifth Amendments to the United States Constitution encompass our gay and lesbian friends, family, colleagues, brothers, and sisters?  Can it be so interpreted, despite a tradition and history of treating LGBT people differently under law and in our society? In 1973, the Court answered that question in the affirmative with respect to gender discrimination in Frontiero v. Richardson. In 1954, the Court answered that question in the affirmative with respect to race in Brown v. Board and Bolling v. Sharpe. In the 1967 case of Loving v. Virginia, the Supreme Court said of the right to marry: it is “one of the ‘basic civil rights of man.'”

Does that affirmation, that marriage is a basic civil right, foundational to an individual’s happiness and implicating the most intimate of choices and associations, resonate in the case of Edie Windsor, the named plaintiff in U.S. v. Windsor? Ms. Windsor loved her partner and wife of forty years, Dr. Thea Spyer, but Thea passed away without ever seeing marriage equality come to New York State (the pair married in Toronto in 2007). Edie was a computer programmer with IBM; Thea was a clinical psychologist.

The debate I’ve outlined above, in closing, is about two different types of people. People in the first category look at Edie and Thea’s story and see difference, they see the “other,” they don’t see anything that resembles the loving commitment that heterosexual couples exchange in vows every day. People in the second category learn of Edie and Thea’s story and see, at bottom, the love and commitment of married couples throughout our history. They are touched by the strength of these two women in their love for each other, a love so strong that no criminal law, no Proposition ratified in California, no crime of hatred, not even Thea’s own debilitating and ultimately fatal illness, could extinguish its flame.

Whether or not more flames of light will emerge from the darkness depends, in part, upon these two very important cases that the Supreme Court is about to decide. A principle no less than the nature of liberty and equality embodied in our Constitution is at stake.

So-Called “Religious Liberty”–Why Does the GOP Seek to Wage War on Birth Control?

More than a century after President Theodore Roosevelt first proclaimed the need for universal health care in the United States, the dream of one of our nation’s most storied Republican presidents has been come to define the legacy of one of its most historic Democratic ones.

Even without health care reform, President Obama’s first term has been marked by remarkable accomplishments (the economic stimulus, the turnaround of the American auto industry, the repeal of “Don’t Ask, Don’t Tell,” and the apprehension and killing of Osama bin Laden are a few that come to mind). Indeed, conventional wisdom and the experiences of numerous presidents, from TR to Richard Nixon to Bill Clinton, suggested that health care reform was an unwieldy, elusive goal that ought to be de-prioritized in favor of other, more feasible legislative initiatives. Supporters of the President, by this logic, ought not get their hopes up regardless of the promises made on the campaign trail; after all, many previous presidential administrations had attempted to take leadership on the health reform issue, and none had succeeded.

But President Obama pursued health care reform with unwavering commitment. Democratic leadership in the House and Senate expended crucial political capital for the cause, even while their GOP counterparts remained cynically and opportunistically on the sidelines, refusing to participate in the legislative process in order to turn the health and welfare of tens of millions of Americans into a campaign issue in the 2010 midterm elections. The debate surrounding the law’s passage was contentious, vigorous, and comprehensive–as is only appropriate for a law with the breadth and complexity and import of the Affordable Care Act.

And, finally, the Patient Protection and Affordable Care Act, the law which will forever be known to history (affectionately for some, derisively for others) by the moniker “Obamacare,” was passed by both houses of Congress and signed into law by President Obama. Disagree we may as to the efficacy of all of the law’s provisions, under Obamacare the United States will finally join the ranks of the rest of the Western world in ensuring that all of its citizens have access to the care they need. No person should ever have to suffer ill health or debilitating sickness because he can’t afford the exponentially rising and all too often prohibitively expensive costs of medical care. No child should ever go without coverage for basic check ups and preventive care because of the economic circumstances of her family. This is the moral imperative of a wealthy nation which seeks to extend equal opportunity to all.

Beginning today, August 1st, 2012, the provision of the Affordable Care Act that requires insurers to cover women’s contraceptive care in their policies go into effect. Going forward, women who pay insurance premiums can expect to have access to the reproductive health products and services they need without having to pay out of pocket. Perhaps in the political climate of, say, 20 or even 10 years ago, such a policy would have been terribly uncontroversial. Birth control and other contraceptive health measures are critically important; in addition to preventing unwanted pregnancies, many women take birth control products to derive numerous other important health benefits. Services such as preventive screenings for cervical cancer and breast cancer are the first line of defense in detection and prevention.

The benefits of increased access to these basic women’s health services are incontrovertible, and yet many Republican lawmakers have taken up the cause of repealing Obamacare, waging a zealous crusade against sensible measures to strengthen women’s health in the name of so-called “religious liberty.” I would like to take a moment to unpack the religious liberty objections of the evermore extreme GOP in the Age of the Tea Party, because a nation that values freedom of conscience and religious liberty should not allow those bedrock principles to be cheapened by politicization. Men and women of faith, take note: nothing in Affordable Care Act does anything whatsoever to influence your personal religious beliefs or interfere in your free exercise of religion. Pre-Obamacare, the government could not establish a religion or prohibit its free exercise; post-Obamacare, this remains the case.

So why, then, one might ask, do we hear the rally cries of religious persecution? How can Obamacare be neutral towards religion when GOP lawmakers repeatedly vilify the law as an affront to religious liberty? Well, apparently requiring employers to provide health insurance plans which, in turn, are required under the new law to cover women’s contraception is the new Republican definition of religious persecution. Even after the Obama Administration carved out an exemption under the ACA for religious employers, the GOP continues to launch its assault on birth control. Apparently, in the Age of the Tea Party, we are no longer interested in reducing the rate of unwanted pregnancies or promoting women’s reproductive health. And apparently, too, the mere assertion that a particular provision of a law which is facially neutral and universally applicable offends one’s religious beliefs is enough to invalidate it.

This is not how “religious liberty” works in a secular democracy. Individuals’ personal policy preferences do not trump the valid enactments of our legislatures. Sadly, religious discrimination and intolerance are a reality for many Americans, and the Tea Party Republicans demean their claims for equal rights and fair treatment by suggesting that women’s health care offends the First Amendment. It surely does not.

To illustrate just how ridiculous the argument is, allow me to posit a hypothetical. What if a man’s sincere, genuine religious beliefs taught that interracial miscegenation and marriage are wrong? Does he have a right to be exempt from federal and state law, which require his business to serve interracial couples? Is that an assault on religious liberty? The fact that there may be an attenuated connection between a neutral law and one’s personal religious beliefs does not a First Amendment problem make.

Health care reform is not by any stretch of the imagination an assault on religious liberty. The REAL assault on our freedom of conscience comes when religious institutions seek to impose their preferences on the rest of the public by declaring their inexorable right to be exempt from the laws of this country. We cannot, and should not, abide this insanity any longer.

Justice Scalia: It’s Time to Retire

Justice Antonin Scalia’s tenure on the Supreme Court has been one of the most visible and influential of any in recent memory. I say this not as an admirer of Scalia’s interpretive approach to the Constitution (I am squarely in the Brennan-Blackmun-Ginsburg-Breyer camp), but rather as one who relishes vigorous legal argument, powerful persuasive writing, and strong reasoning. He may not have won over ideological opponents with his acerbic diction and often provocative turns of phrase, but certainly he has represented a point of view (namely, originalism in constitutional interpretation and rigid textualism in statutory interpretation) that has steadily gained traction in the legal community with intelligence, sharp wit, and even, on occasion, humor. A member of the court for the better part of the last three decades, Scalia has become something of a fixture of the conservative wing. 

Although Article III of the Constitution says that federal judges serve “during good behaviour,” and thus receive lifetime appointments, it is perfectly common for justices to resign well before the natural expiration of their appointments (i.e., death). It is not only common, but healthy, for justices to critically evaluate the sensibility of their continued service on the court. Justice Souter retired in perfectly good health, and after a relatively abbreviated (compared to some of his more senior colleagues) period on the court (19 years). Sandra Day O’Connor and John Paul Stevens, too, were both recent members of the court to step down.

Antonin Scalia should follow their example. At age 76, he is the second-oldest justice currently serving on the court. (Only Ruth Bader Ginsburg, at age 79, exceeds him in years.) In the 5-3 opinion handed down this past Monday in Arizona v. United States, an appeal of the federal government’s lawsuit seeking to enjoin the enforcement of the draconian S.B. 1070 in Arizona (more commonly called Arizona’s “show me your papers” law), Scalia delivered an unprecedented piece of political commentary from the bench in which he roundly criticized the federal government’s immigration enforcement scheme and launched a thinly-veiled attack at the recent announcement by the Obama Administration that it will allow illegal immigrants brought in as children by their parents to remain in the country. 

In his oral remarks from the bench, Scalia said the following: “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.” 

It is not the place of a federal judge, particularly a sitting Supreme Court justice, to opine about political issues which are wholly beyond the scope of the case at bar and how different social conditions “boggle the mind.” The outburst of nakedly political commentary is perhaps the most blatant disregard for judicial propriety the Supreme Court has seen in its recent history. And it is not as though the written dissent Scalia filed in the case was any more availing; the dissenting opinion was one of the least rigorous pieces of judicial writing I have ever read by Justice Scalia. His analysis of preemption doctrine was thoroughly lacking, and it was substituted with irrelevant citations to political science treatises that have no bearing on the legal issue to be decided whatsoever. As Washington Post columnist E.J. Dionne recently observed in an op-ed piece, “It was a fine [opinion] for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling.” 

Indeed, Justice Scalia seems to have lost not only his restraint, but also his capacity to strike a fiery tone while still engaging the canonical tools of impartial, objective legal inquiry. It is one thing to articulate a LEGAL opinion in a strongly-worded fashion; it is quite another to depart from the narrowly-defined legal issue presented in a case to embark upon a wider critique of social policy. 

After twenty-six years on the Court, Scalia owes it to the institution to which he has contributed so much to do the right thing: resign. 

Genetic or Not, Gay Won’t Go Away

Genetic or Not, Gay Won’t Go Away

Say It Ain’t So, Mr. Huntsman

http://firstread.msnbc.msn.com/_news/2012/01/16/10167444-huntsman-ends-campaign-decrying-toxic-politics

 

I was very sorry to see Jon Huntsman’s somewhat abrupt–though inevitable–departure from the GOP presidential race.

There is no question that Mr. Huntsman is by far the most qualified candidate in the race. His politics are moderate, and his intellect is obvious to those who have listened to him in the (seemingly endless) series of debates. He was well-liked and productive as Governor of Utah, and meanwhile he represented the interests of the United States as Ambassador to China in exemplary fashion. Most impressively, he served under a Democratic president without regard to the political risks to his own presidential aspirations.

Pro-environment, pro-reasonable regulation of the activities of large financial institutions, pro-civil unions, and pro-flatter taxes, Huntsman’s brand of politics seems to have found the nation’s political pulse at the moment.

More importantly, though: he offers a way forward for a Republican Party that seems hell-bent on turning back the clock on the progressive social change that we’ve fought so hard to achieve over the last several decades. The GOP would be wise to embrace Huntsman-like candidates in the future, or risk becoming entirely irrelevant in the 21st century.

Why the Supreme Court Got it Wrong on the Religion Clauses

A critical evaluation of the role of religious institutions in American life must begin with one, unwavering acknowledgment: America is not a theocracy.

In a theocracy, particular deference and reverence are conferred upon the clerics, the theologians, those who exercise authority in the religious sphere. Religious tenets and doctrine are sufficient (and, indeed, the ultimate) bases of public policy. Although some theocratic regimes may cede a degree of space to secular authority, ultimate power lies with the religious class. Such is the case in Iran, for example, where a highly powerful class of clerics presides over a government in which the populace “elects” a president as the secular head of government. Such a system cannot countenance laws or policies which in any way undermine the state’s pre-ordained religious imperative.

The United States, as I stated at the outset of this piece, is not a theocracy. That may seem like an obvious statement, but it is a concept the development of which in terms of the American legal system has changed rapidly over the last several decades. The First Amendment of the United States Constitution states, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Collectively known as the Religion Clauses of the First Amendment, and separately as the Establishment Clause and the Free Exercise clause, these clauses establish robust protections for religious freedom, but a fierce debate persists concerning their proper interpretation. Certain interests, notably what I will refer to here as “Political Christianity”—by which I mean the collection of structures such as the Catholic Church and the mega-churches of the Evangelical movement—argue that the Establishment Clause simply prevents the federal government (and, via incorporation doctrine, the states as well)  from forming a state church. What the authors of the Constitution really meant, according to this view, was that ALL CHRISTIANS would be permitted the freedom to practice freely without interference from the state. Catholics and Protestants could lay down the arms they’d carried against each other in the bloody wars of religion that had ravaged Western Europe for centuries.

Since the beginning of European colonization of the North American Atlantic seaboard, however, there have been non-Christians. The Jewish population of Newport, RI, for example, dates back to the seventeenth century, with the first Jewish families arriving in Newport in 1658, and the dedication of the Jewish Cemetery at Newport in 1677. The Spanish and Portuguese Synagogue in New York City is the oldest Jewish synagogue in the United States, established in 1654. Islam, too, has deep roots in America. Historians estimate that out of the roughly 500,000 African slaves in the United States by 1800, between 15-30 percent of all enslaved African men, and some 15 percent of all enslaved African women, were Muslim. The late nineteenth century saw a significant wave of Muslim immigration to the U.S. from the Ottoman Empire as well. Despite this diversity, few American courts were inclined to read the First Amendment to include the protection of minority faiths from indoctrination in public institutions; hence, organized denominational prayer in public schools was not only acceptable, but essential in the education of children.

However, as society changes, so, too, does our understanding of the Constitution. As more and more Orthodox Christians and Jews came to the U.S. throughout the latter part of the 19^th century and the 20^th century, the continuation of formal Christian/Protestant prayer in increasingly diverse public school settings made less and less sense. What value do the religious protections of the First Amendment have, after all, if, say, a Jewish family is forced to support the Christian indoctrination of their child through school taxes? In 1962, the Supreme Court agreed, prohibiting organized school prayer in the landmark case Engel v. Vitale. Public institutions cannot endorse any religious agenda, even a non-denominational one. Thus, courts have come to distinguish between the civil and religious spheres. Civil government ought not interfere in the life of America’s religious institutions, but, similarly, religious institutions may not impose on the functioning of civil government. Those two ideas are logically equivalent, so it makes sense that proscribing civil interference in the affairs of religious institutions must also require religious interests to refrain from disturbing the confessional neutrality of the civil sphere.

I say all of this as preface to a brief commentary about the Supreme Court’s decision handed down on January 11^th in Hosanna-Taboor v. Equal Employment Opportunity Commission. The facts of the case are as follows: a school teacher at a Lutheran synod in Missouri, after going on leave to treat a medical disability (narcolepsy), is discharged after the synod determines (despite the insistence of the teacher’s doctor and her own assertions to the contrary) that the teacher will no longer be able to fulfill her duties.  After the teacher threatens to file a lawsuit, the synod summarily terminates her employment. Subsequently, the teacher filed a lawsuit with the EEOC, alleging improper discharge on the basis of disability and retaliation under the Americans with Disabilities Act and Michigan state law.

A federal district court held that a civil court could not second-guess the synod’s decision to terminate, citing what is known as a “ministerial” exception to federal anti-discrimination laws. The logic: a religious institution must be able choose its “ministers” (i.e., religious officials and preachers of the faith) without government interference pursuant to the Establishment and Free Exercise clauses of the First Amendment. Thus, a “minister” cannot bring a lawsuit under the ADA against a religious employer. The matter is simply off-limits for the courts. The Sixth Circuit Court of Appeals reversed on the grounds that Ms. Perich (the wrongfully-terminated teacher) did not qualify as a “minister” and thus  the district court should have considered the merits of the discrimination lawsuit.

The Supreme Court heard the case, and, in a landmark opinion for a unanimous court by Chief Justice Roberts, found that the Sixth Circuit had gotten it wrong. The High Court recognized as a matter of law a so-called “ministerial exception” to federal antidiscrimination statutes, and further found that this school teacher qualified as a “minister” under that exception.

Not only do I take issue with such an exception, but  I would make the case that this unanimous ruling reflects a deeply flawed understanding of what the relationship between religious institutions and civil society ought to be. The Establishment Clause does not allow religious institutions to use their beliefs and practices as a premise for violating neutral laws that do not regulate religious belief or activity. This is not just my opinion; the Supreme Court said so explicitly in Employment Division v. Smith (1990). In that case, the court held that a Native American who had used peyote in the course of religious ritual could be denied unemployment benefits by the State of Oregon due to the unlawful consumption of a controlled substance. The fact that peyote consumption is essential to a group’s sincere religious beliefs? The court said that states may enforce “neutral laws of general applicability,” even if a religious group can present a valid case that the law infringes upon their religious practices. The opinion, in my view, correctly finds that the Establishment and Free Exercise clauses compel the state to allow people and institutions to practice and maintain their beliefs and rituals freely; it does not accord them absolution from complying with the law or supremacy over civil laws.

Why? Because, as I said at the beginning of this whole spiel: religious institutions are supreme only in theocracies.

This idea is an uncomfortable one for powerful institutions like the Catholic Church. They don’t like the fact that civil society no longer tolerates certain medieval practices to which they stubbornly cling: gender inequality, employment discrimination, and so on. The Church may continue to insist upon hiring only people who share their beliefs. That’s their prerogative.

But when a religious institution can unlawfully discriminate against a person with disabilities merely because that person works for a religious employer, we should reject the notion that somehow the affair is off-limits for a court of law in the United States.

Quite simply, it comes down to this: in order to enjoy the religious liberty afforded by our laws, religious institutions ought to be expected to comply with the same.

Because, once again, this is America. Not Iran.

Santorum’s Folly

http://firstread.msnbc.msn.com/_news/2012/01/05/9985080-santorum-booed-in-contentious-exchange-over-gay-marriage

As a current law student, it is unfortunate to think that Santorum has a legitimate legal degree. His argumentation is both poor and factually incorrect. I will briefly respond to his contentions:

(1) The bridge-building analogy is erroneous. While I’m heartened to see that Santorum suddenly has such deference for the lawmaking function of legislatures, he is actually incorrect. Whenever Congress, for example, passes a law which in some way restricts behavior or conduct, a constitutional challenge to the law makes it incumbent upon GOVERNMENT, not those who oppose the law, to affirmatively demonstrate the state’s basis for the law. In a constitutional democracy we are inherently skeptical of laws that seek to restrict personal liberty. Santorum also ignores the equal protection problems with prohibitions against gay marriage.

(2) The bigamy argument is a tired conservative trope. Taken ad absurdo, we could use Santorum’s argument to just not have any government involvement in marriage at all. “Once a man and a woman can marry each other, who knows what might happen! A man might then go ahead and try to marry multiple women!” And, actually, that does happen, and bigamy is a crime in all 50 states. But bigamy is illegal for good reasons: it has historically been used by men to the detriment and economic disempowerment of women. It has also been used for the purposes of tax fraud. Gay and lesbian Americans do not seek the right to marry multiple people, and it is unclear how the bigamy inquiry is at all relevant to the marriage debate.

(3) I would agree with Mr. Santorum that children deserve two loving, stable parents and strong households. That is a policy goal that the state can pursue by implementing many of the economic measures that Mr. Santorum opposes: stronger unemployment compensation for struggling families, universal health care, and so on. But that is beside the point. Mr. Santorum and those who espouse his views, tellingly, never actually show HOW a prohibition on gay marriage at all furthers his goal of increasing the number of straight marriages. I suspect Mr. Santorum believes that gay men and lesbians are just making some sort of a voluntary, conscious lifestyle “choice,” and that only were there no gay marriage there’d be a floodgate of gay men and lesbians just itching to get married to members of the opposite gender. I have news for you, Mr. Santorum: if that is what you think, you will be sorely disappointed. This is about how people are hard-wired, and in the 21st century I’d like to think politicians wouldn’t presume to know better than the American Medical Association, the American Psychological Association, the American Sociological Association, those groups’ European and Canadian counterparts, etc. The former senator says he wants a reason-based debate? Give me your reasons, senator! I’m still waiting to hear a sound legal argument against gay marriage.

GOP=Ghastly Outdated Prejudice

The Party that Boos a Gay Soldier

 

(First of all, let me start by saying: L’shana tovah! May it be a healthy and sweet Rosh Hashanah to all who are celebrating!)

It should come as no surprise to us by now that Republican politicians are consistently hypocritical, paradoxical, and incoherent when it comes to articulating a set of policy positions.

Long gone are the days of Eisenhower, Goldwater, and the so-called “Rockefeller” Republicans who espoused a fundamental belief in the importance of competitive markets as the engines through which the most wealth and well-being could be produced for the greatest number of people. The notion of a moderate Republican has truly become an anachronism, or rather a species in hiding—hiding from the puritanical purges of the Tea Party, seeking to refashion the contemporary Republican Party in the image of their theocratic, extreme-right ideology. The moderates refuse to stand up to the Tea Party for one simple reason—the Tea Party conservative faction of the GOP has effectively become the GOP. There is no longer the possibility of political viability for a Republican candidate who would dare to repudiate the hard-line, xenophobic extremism of their Tea Party counterparts. And so the cycle continues, with the Tea Party gaining more traction and attention without a peep of dissent from the ranks of moderates (those who have not yet been ousted by Tea Party primary challengers, that is).

What’s really scary about the toxic impact of the Tea Party has been put on full display in the recent round of Republican presidential debates. I’m sure many are by now aware of the disturbing exchange that took place in a recent debate in which a gay United States soldier directed a question about the now-defunct “Don’t Ask, Don’t Tell” policy at the panel of candidates. The soldier’s announcement that he was gay was summarily greeted by resounding “boos” from the audience. And not one of the GOP candidates condemned it. Not a one. If you haven’t seen the video of the exchange yet, I would highly suggest taking a second to watch it:

http://www.youtube.com/watch?v=hKtzOjAWGIE

Think about the cruel irony: a member of the United States Armed Forces, addressing the alleged pro-war and pro-strong-national-defense party, is booed and cussed at, and not a single candidate for that party comes to the soldier’s defense. By not condemning the inexcusable bigotry and vitriol of their audience, these candidates have taken a decidedly ANTI-SOLDIER position, siding with the civilians over the men and women (gay and straight) who give the ultimate sacrifice on behalf of their country.

It’s almost too easy to show the GOP reversal on this issue. For years and years, Republicans supported DADT because they claimed that the decisions about what’s best for the military should ultimately be decided by the Pentagon, not so-called considerations of “social policy.” There could be no ideology or partisanship injected into debates over defense policy, the GOP argued, and most Americans bought that argument.

Fast-forward to today: the Pentagon has concluded that the Don’t Ask Don’t Tell Policy does not contribute to our military’s readiness or effectiveness, does not improve unit cohesion, and has now rescinded the policy. Seems like Republicans, if they were being consistent and not rigidly clinging to their own sensibilities on “social policy,” would have to be in support, right? After all, the Defense Department, the Joint Chiefs, all of those in their capacity in charge of formulating military policy have made a determination with respect to DADT. How can they argue with the military making decisions about its own policy after they’ve already said that is precisely how the issue of DADT should handled?

Because, of course, it was never really about the troops for them. It’s about politics. They don’t give a damn about the soldiers, or else they would give a damn about the gay man who risks his life for his country and wouldn’t give a damn about what the gender of his partner happens to be. If they’re really so confident in the military’s ability to train a professional and highly-disciplined cohort of soldiers, they would not imply that certain (i.e., gay) soldiers are more likely to violate the military’s already-well-defined sexual harassment rules than others.

Santorum’s warped, 19^th-century worldview leads him to view the question of fairness in treatment of gay and lesbian soldiers in the military as one about “sex” (as the Youtube clip makes abundantly clear). He does not, as most Americans now do, see it as one of honoring and upholding the dignity and worth of every human being.

So I now pronounce that the Republicans have shown their true colors: politics instead of patriotism, bigotry instead of fairness. I hereby pronounce, then, that the Republican Party has rightly earned itself a new name: GOP.

Not, of course, “Grand Old Party,” but rather: “Ghastly Outdated Prejudice.”

Deficits, Debt, and Spending–Oh My!!

I suppose my decision to begin blogging may be as much a sort of catharsis as anything else.

For those who’ve been paying any sort of attention to the ongoing farcical discussions taking place in the nation’s capital over whether or not to vote to increase the nation’s borrowing limit, feelings of disgust and disillusionment undoubtedly are starting to become overwhelming. I have a strong sense that most people, regardless of political ideology, can’t understand how it is that a group of extremist whack-jobs (also known as the Tea Party) has actually managed to dictate the terms of the debt ceiling debate and, consequently, hold an entire nation hostage to a narrowly-defined, myopic political agenda. It has reached the point where repeated head-banging seems an utterly natural reaction, and I take up writing in this space since it is an outlet at my disposal which will not result in brain trauma.

Tea Party acolytes and their representatives in Congress espouse a most curious brand of populism indeed. For them, a vote to extend unemployment compensation for millions of Americans who, despite their best efforts, remain unable to find work is anathema: the welfare queens! How dare they mooch off of ordinary, hard-working Americans??!! And plus all of those entitlements are just running up the debt, part and parcel of the “spending binge” which is Washington’s perennial problem.

But as for two wars, a prescription drug program for seniors, the creation of an entirely new executive branch agency (the Department of Homeland Security), and tax cuts for the wealthiest Americans, you ask? Surely these small-government Tea Party activists would decry expensive hand-outs to corporate America and the wealthiest earners? Undoubtedly they also direct their ire at companies which pay their executives multi-million dollar severance packages but fail to hire any new middle class workers? Nope. We hear hardly a peep when it comes to the excesses of the Bush years. Instead, they parrot the same old far right fallacy that if we fix the inefficiencies in the tax code which benefit corporate jet owners and hedge fund managers somehow we will be, in the words of Speaker of the House John Boehner, “killing jobs.” I would humbly suggest that tax advantages for American corporations have created many more jobs in China and India over the last decade than they have in the United States. Unless, of course, we consider jobs for those in occupations associated with the yachting industry, since it is the case that many hedge fund managers and corporate executives who manage to hoard even more cash via the tax code rewards themselves with state-of-the-art yachting vessels.

The situation has turned from slightly perturbing to absolutely critical as the GOP, compelled by the machinations of its Tea Party faction, refuses to even be remotely associated with any debt reduction bill which has even tacit support from the President. Those who are surprised by the Republicans’ obstinacy have yet to grasp the fundamental paradox of the Age of the Tea Party: the government is increasingly becoming populated by a group of people who seek its destruction. I can only hope that President Obama is successful at galvanizing those lawmakers who do recognize the urgency of the situation, and are able to reach a palatable solution before we find out just exactly what’s at stake.