Unplanned and unintended consequences of proof-reading your briefs

Paul D. Clement, the lawyer before the Supreme Court who is defending the DOMA, made a very interesting argument as to why same-sex marriage should not have the same protections and rights as “traditional” marriage: apparently the state has an interest in supporting the “unplanned and unintended offspring” of different-sex couples, and that’s why their parents need the additional rights, protections, benefits and tax breaks afforded by the Federal definition of marriage.  Same-sex couples, on the other hand, have to plan ahead if they want offspring, so they can be better prepared, which means they don’t need government support.

It’s the first time I’ve EVER heard anyone make the case that same-sex marriage shouldn’t be allowed because gay people are MORE responsible, prepared parents. And the first time I’ve heard a Republican-backed legal argument FOR a government-provided safety net for the unprepared and irresponsible. Following that logic, the government has a greater interest in supporting Catholic families over non-Catholic ones, and a vested interest in giving money to people who don’t understand how birth control works.

It’s SUCH a weird argument to make, it almost boggles the mind. If the interest of the state is only in supporting unprepared parents, then marriage is meaningless and irrelevant and deserves no rights or protections at all until an “oops! baby” is born to the couple. And NO rights or protections should be made available to couples who adopt either, since they also have the opportunity to plan ahead.  But here’s the most bizarre part: many of the children that couples (gay or straight) adopt  come from “unplanned and unintended” pregnancies.  And since the brief quotes Baker v. Nelson (1972) by saying there is a legitimate government interest  in providing support for an institution designed to facilitate the raising of such offspring, the brief simply undermines itself on that point: if the government interest is there, then it exists for support of parents of unplanned and unintended babies AS WELL AS those who adopt them, gay or straight.

But he’s making the argument that straight people are a burden on the state, and therefore deserve more government money. 

Sure, I get where he’s going from a legal perspective: he’s trying to differentiate between the classes of people involved on either side, since you can only make an argument of allowable differences in treatment (AKA “discrimination”) if there are, indeed, significant differences between the classes. But this is pretty thin soup on which to base the case.  Granted, it’s not the ONLY argument made in the 60-page brief: it also makes the case that providing Federal benefits to same-sex partners would be an unforeseen and unbudgeted expense.  In essence this means that your rights and protections depend on whether we have chosen to pay for them or not, and if we have it in the budget this year.  It’s amusing that this is the case being made by a legal group paid by Congress (not the Executive branch through the DoJ, who has been told not to defend the DOMA), happily billing taxpayers up to $3 million to do so.

But it’s obviously the “unplanned and unintended” argument that’s getting the most attention, and for a good reason: it’s the weirdest one of the lot.

Clement spends a lot of time describing how the Federal government has the right to define marriage for the purposes of treatment, and to take into consideration how the states have defined it without being constrained by those definitions, but I’m not sure anyone is arguing against that.  And a lot of time making a “uniformity” argument: that the government has the obligation to treat everyone as equally as possible (which is true), but that invalidating DOMA and redefining marriage would inevitably lead to some couples getting one set of Federal rights in one state that recognizes same-sex couples, but no rights in a difference state that doesn’t recognize them.  How he reaches that conclusion is not explored, since the Federal government can easily make the definition of marriage at the Federal level dependent on whether the couple is considered “married” in any state in the Union, and treat that couple the same for the purposes of Federal benefits and protections regardless of the state law.

And of course, the “it’s for the CHILDREN” argument.  As if the only reason to support marriage is to encourage the baby-making and biological parents-only family.  As if all couples get married for the sole purpose of procreation. As if there are no childless-by-choice married couples, no infertile couples, no couples who choose to adopt children (from unplanned and unintended pregnancies) rather than bear their own, no couples who raise children from their spouses’ previous relationships as if they were their own.

Shouldn’t the fact that there are people who can’t have children who want to get married invalidate that argument?

This is apparently the best that up to $3 million dollars of your tax money can buy.


The Indiana Senate has fortunately already solved all the other problems in the world…

Senator Tomes, joined by Senators Kruse and Holdman, of the Indiana Senate, introduced this: a bill to “require” the recitation of the Lord’s Prayer in school.  The content is pretty much this:

Sec. 4.6.
(a) In order that each student recognize the importance of spiritual development in establishing character and becoming a good citizen, the governing body of a school corporation or the equivalent authority of a charter school may require the recitation of the Lord’s Prayer at the beginning of each school day. The prayer may be recited by a teacher, a student, or the class of students.
(b) If the governing body or equivalent authority requires the recitation of the Lord’s Prayer under subsection (a), the governing body or equivalent authority shall determine the version of the Lord’s Prayer that will be recited in the school corporation or charter school.
(c) A student is exempt from participation in the prayer if:
(1) the student chooses not to participate; or
(2) the student’s parent chooses to have the student not participate.

What exactly is the point of introducing this kind of legislation, other than wasting legislative time? The governing body “may REQUIRE” the recitation of a particular prayer, but the student doesn’t have to do it if they don’t want to. I’m not sure they understand what “require” means. It’s such a dog whistle statement to people in certain constituencies, since it will never make it through to be law, but then the Senators can complain that they introduced the legislation and it was struck down because of a “war on religion”… not because it’s a blatant attempt to introduce unconstitutional laws that promote one religion over another.

Regardless of whether or not you are religious, why would you want your child to be forced to perform a rote recitation like this every day? And how about if you are paying attention to the context of the Lord’s Prayer in Matthew 6:5-15, where it stresses the importance of PRIVATE prayer and worship? And how about if you’re religious, just not specifically Christian?

The reasons we have Separation of Church and State are to make sure that the state gives NO preference to one religion over another (or over a lack of religion).  This was actually introduced to protect your religious freedoms, not to limit them: or would you feel this was an appropriate law if a non-Christian prayer were required every morning? Because I guess a Muslim or Hindu prayer can’t teach “the importance of spiritual development in establishing character and becoming a good citizen.”

The wall is there, but some people try to just walk through it.

Americans United for Separation of Church and ...

Wouldn’t it be fantastically refreshing if 7 or 8 of the GOP candidates woke up tomorrow morning after losing badly in the Iowa caucus and admitted that, since they are tanking in the polls and have no real chance to succeed, it probably wasn’t “God” that they heard “calling” them to run for President? And if they accepted with some degree of humility that perhaps, since they don’t have the kind of special revelation, access and/or insight they assumed, they are not the right people to interpret “god’s will” for the whole country??

This is one of the main reasons Jefferson wanted separation of Church and State: it’s not that anyone wanted to completely remove options for people to participate in their religions, it’s that the framers of the Constitution knew that it wasn’t a good thing for people who claimed special knowledge of “God’s will” to develop secular law that applied to everyone… including those who didn’t believe in their version of god. Because, you see, that would actually end up limiting freedom of religion, which was exactly the opposite of what they wanted.

“I guess it wasn’t ‘god’ telling me what to do,” the candidates would say in this fantastic utopia, “and therefore I have to conclude that I don’t really know what god wants. I will henceforth stop trying to pass laws that restrict other people’s rights based on what is very possibly a misinterpretation, and most probably just a projection of my pre-existing personal assumptions and beliefs. Sorry folks: my bad.”

A guy can dream.

MN Marriage Amendment: hypocrisy


Minnesota State Capitol building in Saint Paul...

Thank you, Gov. Dayton. It COULD be this easy if the Legislature chose to drop the “Bradlee Dean Amendment”, and we would save the state of Minnesota millions of dollars and lots of vitriol.

Odds of that happening are pretty small, though.

The actions of the Legislature need to reflect the reality of the culture and population they affect. It is ironic that Ms. Koch now has to experience, through her poor choices, the kind of under-the-microscope analysis and judgement of her personal life that the Legislature is imposing on other Minnesotans via the Marriage Amendment. There are people here in MN who would be ecstatically happy with the chance to experience the union of love, fidelity and rights that she has seen fit to treat with disrespect in her own life.

I am sure that there are many couples here in MN who would treat the institution of marriage with far more reverence than Ms. Koch has: I know many of them. It is painful to realize that thanks to her actions, the Legislature is trying to deny them the chance.

This is an opportunity for the Legislature to do the right thing, get on the right side of history, and seize the opportunity to increase equality in our state instead of trying to decrease it.

Newt lashing out at the Constitution

Newt Gingrich speaking to voters at Des Moines...

Damn you, Constitution!

I’m so tired of these people wailing about “activist judges” when the judicial branch is doing its job of interpreting the law. And of course it comes as NO surprise that the case he’s complaining about is one of separation of Church and State: they never complain about “activist judges” when the ruling is one they personally agree with.

Gingrich knows better, he knows that the case was ruled correctly, he’s been in government too long to not understand that.  He also knows that in a representative democracy, sometimes law rulings don’t favor the opinion of the majority of people in the U.S., especially when the ruling serves to protect the rights of a minority.  That’s EXACTLY how this democracy is supposed to work… but he also knows that railing against this type of ruling is a quick hunk of red meat to people who think that religion is “under attack” in this country, and will give him a sorely needed quick boost in the polls now that his numbers in Iowa are collapsing.

His comments in this matter are no more responsible or truthful than Rick Perry’s accusation that Obama is conducting a “war against religion”, and should be vilified to the same degree.  Maybe Capitol police should arrest Newt for his unconstitutional recommendations, and bring him before Congress so he can explain them. That would make just about the same sense, and be just as justified as his irresponsible comments.  To actually say that judges can and should be arrested to “explain their views” before Congress is reprehensible: what, exactly, would he say Congress should be able to do after that?  Throw the judge in jail?  Overturn their ruling?  Change the law on the fly to make the ruling inapplicable, so that people could be declared guilty for an act that wasn’t illegal at the time they committed it?

If you don’t like the Constitution, propose an Amendment.  If you don’t like separation of powers, go ahead and try to change our form of democracy.  If you don’t like checks and balances, then get rid of the branches you don’t like, see how well that works for you.  But don’t pretend that what is happening here is anything but a natural, BENEFICIAL result of our Constitution and form of government.

Perry wants constitutional amendment for prayer in schools

Let’s take this for what it is: Perry’s doubling down because he knows his Prez campaign is kaput and he wants to make sure he’s still in the good graces of his core base back home.

But even within that context, this is ridiculous.  Children can pray in school whenever they want, as long as they are not disruptive.  If Perry thinks that kids can’t pray, I suggest he lead a campaign of civil disobedience, getting kids to pray in their public schools.  The public would become quickly sympathetic to his point of view thanks to the resulting riots, police beatings and pepper-spraying of praying students, pictures on the front page of the newspapers…

Oh wait, that wouldn’t happen.  BECAUSE KIDS CAN PRAY IN SCHOOL, and they already do, presumably before and during tests.  What Perry seems to be frothing about is Supreme Court cases like Engel v. Vitale (1962), in which it was deemed unconstitutional for state officials to compose an official school prayer and require its recitation in public schools.  And many, many other cases in which it has been found unconstitutional for public officials to force prayer on students, regardless of whether they are religious or not.

Do you see the difference between the two?   Because Perry apparently can’t.

You can’t force people to pray in school.  State officials can’t force your kids to pray in specific ways, to specific god(s), and saying specific words at state-required times.  And you also cannot prevent kids from praying, as long as they’re not disruptive.  That’s the situation we find ourselves in today, and Rick Perry finds it unacceptable.  But other than frothing evangelicals that seem bent on forcing their religious beliefs on everyone else in the country, almost everyone else seems to be fine with it… unless they are presented with lies like “it’s illegal for children to pray in school, therefore we need a constitutional amendment to let them.”

Secretary Clinton – “Free and Equal in Dignity and Rights”

In a very moving and historic speech at the United Nations headquarters in Geneva to celebrate Human Rights Day, Secretary of State Hillary Rodham Clinton called for the protection of rights of gay, lesbian, bisexual and transgender people, and discussed President Obama putting into place a  U.S. Government strategy dedicated to combating human rights abuses against LGBT persons abroad.  Here’s a link to the transcript if you prefer to read it.

This was a great speech, in that it didn’t shy away from recognizing that the U.S. also still has a ways to go in its path towards providing full, equal human rights to those who still suffer from abuse and discrimination thanks to bigotry and small-minded homophobia. Read the whole thing, it’s worth it for the sense of historical context it provides for the long struggle for equal human rights for all.

“The Obama Administration defends the human rights of LGBT people as part of our comprehensive human rights policy and as a priority of our foreign policy.”

That sounds like a great idea, President Obama and Secretary Clinton, so let’s make sure it’s not just words: let’s see a repeal of DOMA, and a formal recognition of equal rights for gay marriage at a Federal level.  Let’s have the U.S. set lead by setting a shining example, and show the world we can overcome centuries of abuse, hatred and bigotry by recognizing and celebrating our common humanity.

Texas Governor, failed Presidential candidate and Separation of Church and State denier Rick Perry immediately pandered to his religious fundamentalist conservative base by responding “This administration’s war on traditional American values must stop.”

That’s right, Perry: if you’re talking about “traditional” pre-21st century “values” like homophobia, discrimination, bigotry and hatred, then there’s an open war going on right now against them.

And you’re on the wrong side.

P.S. to Minnesota readers: Vote “No” on the Marriage Amendment next November, and you too can brag to your grandchildren that you were on the right side of history when human rights were on the line.

Being Liberal

So now we know what being “liberal” means for social conservatives. Newt’s being accused of being one, because he had a relatively humane response to a question on immigration, one that recognized the difficulty of the issue and the ethical and financial problems associated with separating families.

Liberal: someone who makes a humane, considered response that takes into account multiple sides of a difficult issue, shows some compassion and doesn’t assume every problem has a clear-cut, black and white solution.

Don’t get me wrong: Newt “cleared up” his remarks after the debate, probably at least in part due to the howling fantods unleashed by his almost-human response. He’s not a liberal.

But by the above definition, I am. And the people I vote for will be too.  And if your philosophy on practically ANY issue is simple, black and white, then I’m probably not voting for you.  There are too many complex issues on this planet and in this country that require careful, considered thought, and do not have a simple answer. The reality is that if there were a simple answer, they wouldn’t be issues any more: we would have already fixed them.

Life is complex.  Ethical behavior is complex.  Responsibility is complex, and morality is complex.  If being a liberal involves understanding that and recognizing the difficulty and nuance of navigating the solution, instead of bumperstickering the answers, then count me among the liberals.

Keith Mason, co-founder of the group Personhood USA, which pushed the Mississippi “personhood” ballot measure, said before the vote that a win would “send a message” to the rest of the country. But now he says he intends to renew efforts in the state.

So I guess his group’s initiative loss also sends a message, but he chooses to ignore it.

My message to Mason is that if you can’t get this initiative to pass in one of the most conservative states in the nation, you should give it up. But I’m guessing he’ll ignore my message too.

Citizens United, Freedom of Speech and Money in politics

Hmmm… I’m cautious about this one. While I vehemently agree that it’s undemocratic to have the loudest voice be the one that has the most money, there are a LOT of bad ways to implement this, and I don’t automatically trust the Senate to do it in a good way that respects overall freedom of speech.

The right to participate in elections and support a candidate is a critical part of democracy, and there is a fine line between allowing unlimited spending and allowing only certain voices to be heard. Freedom of speech is a critical issue, and in my opinion the SCOTUS had no choice but to to rule the way they did on Citizens United, given the unconstitutional restrictions on free speech that any other ruling might have entailed. As unpopular as the decision was (I don’t particularly like it), it was the Constitutionally-aligned one to make.

To clarify: I hate the amount of money in politics, I really dislike the fact that corporations can spend all they want to buy elections, I hate that they can do so anonymously.  But I also believe we can’t implement restrictions on this type of activity without a lot of careful consideration and forethought: I don’t get the impression we’ll get that.

I agree with the motivation, I can see where they are going with this and agree with the general direction, I just hope they don’t over-reach in way that ends up having unintended negative consequences for our freedom of speech.