Tuesday, January 31, 2006

Mr. Bush's State of the Union

President George W. Bush delivered a remarkably impressive State of the Union address today. On national security his presentation was forceful, confident and unapologetic. He rejected, once again calls to bring our troops home prematurely and abandon those with whom we have pledged our support to a tryannical regime run by adherents to the Islamo-fascist principles of Osama bin Laden. "There is not peace in retreat and there is no honor in retreat," Mr. Bush said.

He rejected isolationism and appealed to our sense of compassion around the world - from AIDS funding in Africa to a better life and fight against human trafficking.

And he steadfastly defended the neoconservative vision of a free and democratic world, calling upon the Palestinians, Saudi Arabians and Egyptian governments to move a step closer to democratic government. He called on Hamas to recognize Israel, disarm and work for a lasting peace settlement and Egypt to open itself up further for a viable opposition party to emerge. He condemend the Iranian government now led by a "clerical elite" for its defiance with respect to its pusuit for nuclear weapons and promised to rally the world against it.

That neoconservative strategy is not shared by The PoliticalHeretic, who to this day questions whether democratic regimes are more peaceful and prone to ally themselves with the United States. Hamas' victory in Palestine was achieved at the polls Mr. Bush cites as our means to bring peace and stability in the world and there is no reason to suggest better results should the Egyptians and Saudis get the same opportunity. Afghanistan was the exception Mr. Bush cited.

Absent too was the means of getting the Iranians and the North Koreans (who also have nuclear aspirations) into compliance.

Notwithstanding these objection, the president's delivery was superb. He appealed to basic American values that few in this country would object to. Liberty is a hope and a right which all do want to fight for. and he cast his vision for American faith into a biblical crusade worthy of support. Retreat from Iraq and we "allow the violent to inherit the earth." Retreat from Iraq and we abandon the Iraqis to a "heartless faith." There is "no honor in retreat."

The president also called for the reauthorization of the misnamed Patriot Act and the "Terrorist Surveillance Program." The latter program was cast in terms which few would like to object to but it can, if upheld by the Courts, grant law enforcement tools which can be used against non-terrorist war dissidents and others who object to a whole wide array of domestic programs proposed by this or future presisdents. In delivery it was superb. "We will not sit back and wait to be hit again."

Of course not, but there are other means to go about it - from closer scrutiny at the airports and seaports to Court and enhanced immigration control at our borders. To the extent that such wiretaps are needed, the president could always go to the FISA court.

Mr. Bush's delivery on the economic front was equally impressive. Unlike his predecessor, the president did not cite a litany of interest group agenda items. He wound them into a coherent whole for delivering on America's promise to be a "compassionate" nation that does not abandon those within its midst to economic despair. The agenda items included some traditional Republican items like the the tax cuts which he would like to make permanent and global trade. Building upon his "No Child Left Behind" Act, the president said he will spend money for teacher training on advanced placement math and science courses and touted the First Lady's "American Youth Initiative" encouraged to get encourage students to stay in school."

Less impressive was the means to pay for his agenda. Mr. Bush set aside for a commission any new suggestion for social security, medicaid or medicare reform nor did he suggest in his speech a means to pay for the health care savings accounts for small businesses, the increased spending on alternative resources (wind, nuclear, or coal) + environment-friendly cars, and the training of 75,000 teachers in advanced placement courses in math and science. Worthy though it is, his call for the elimination in earmark reduction received little support and won't be passed easily.

Not surprisingly the president played to his base when he referred to the "revolution of conscience." He gave credit to Republican and Democrat alike with respect to welfare reform and spoke optimistically for the downsurge in violent crime, drug abuse and abortions. He said parents are worried about the courts "redfining marriage" but to the PoliticalHeretic's relief said little else with respect to that topic. The president's defining cultural agenda item concerns embryonic research and human cloning.

Mr. Bush offered the country a vision. We can agree with it in whole, in part, or not at all but he gave us a vision for the next year. Over the next few months the president will have to show us how he will pay for that vision and the Democrats will have to show us if they can provide us with a better one.

Tim Kaine's Response to State of The Union

Governor Tim Kaine's response, like those that preceded him, wasn't very impressive. He started his response with the word "I" when he should have acknowledged Coretta King's commitment to freedom, equality and justice and then use the rest of his speech to (a) show how the late civil widow's dream will live on through the Democratic Party (b) show how the Republicans under President Bush has fallen short. Instead, he cited a litany of objections which were not connected together in any coherent fashion.

In sum, it was a tepid and pathetic response unworthy of an opposition party. Mr. Kaine would do well to stay out of the television spotlight for now, get onto governing and learn how to speak to the American people.

Sheehan in the House

CNN is reporting that Cindy Sheehan was just arrested while in the Capitol because she was about to post an anti-war banner while attending the State of the Union address and posting banner.

It would have been nice if Congress bent its rules for a protestor. I don't particularly care for Mrs. Sheehan now that she lent her credibility to the anti-American President Hugo Chavez of Venezuela, but our government officials should set the example of expressing tolerance towards dissent.

Freedom of Association for Me but Not for Thee

Virginia's General Assembly, not satisfied with the anti-gay hostility it demonstrated in passing a marriage amendment that bans its local municipalities and any governing authority within the state from recognizing any kind of domestic partnership, civil union, marriage, or even perhaps a signed contract arranged by a gay couple - has now passed a bill that would in effect bar gay-straigh alliances from schools. It obstensibly would bar any group that promotes sexual promiscuity from school campuses but no such groups exist so it must be aimed at the gay-straight alliances being formed in high schools across America.

Oh by the way, it also rejected an amendment which would have barred racist groups from school campuses. Local school boards must accept groups formed to allow racists express how much they hate "niggers" and "dinks" and whoever else they don't like but they can reject those formed to support gay people. Go figure.

The only good news - it has not been approved by the senate yet but if it is will Governor Kaine veto it? And if he signs it will the courts interpret it narrowly enough to protect gay-straight unions that do not promote sex between minors or broadly to deny all gay-straight unions? How will the Roberts Supreme Court deal with this issue should it come before the Supreme Court of the United States?

Hat tip to 365Gay.com which first clued me in on this story.

Justice Alito

The Senate confirmed Samuel A. Alito Jr to the Supreme Court today as expected by a substantially partisan 58-42 vote. With few exceptions, the votes for him came from those representing socially conservative "red" to "purple" religious states while those voting against him came from the socially liberal tolerant secular " blue" states.

The four Democrats representing socially conservative states (Robert Byrd of West Virginia, Tim Johson of South Dakota, Ben Nelson of Nebraska, and Kent Conrad of North Dakota broke ranks to vote for the Third Circuit Court of Appeals judge. Moderate abortion-right Republicans Arlen Specter of Pennsylvania, and Maine's two Republican senators (Olympia Snowe and Susan Collins) voted for him as well but one liberal Republican broke ranks to vote against him, Lincoln Chafee of the socially liberal Rhode Island.

Mr. Alito would do well to keep that in mind when he casts his votes. We are a divided country. Divided by faith, divided by values, and yes, troublesome that it may be, divided by constitutional interpretation. Two very different interpretations of justice hold sway in our country. One group trusts democratic government, even when that instinct leads them to neglect the rights of the minority they don't like. The other distrusts democratic government and would have every political fight combatted in the Court of law.

The PoliticalHeretic generally but does not always find himself siding with the secularlist, liberal and tolerant camp. Mr. Alito, like Clarence Thomas, Antonin Scalia, and the late William Rehnquist, is not The PoliticalHeretic's type of justice. The Democrats had their chance and blew it. He believes these conservative justices will interpret the Constitutional rights narrowly for those with liberal values and broadly when protecting conservative religious values.

Justice Anthony Kennedy's vote is even more important than ever. He is the pivotal swing vote on the Supreme Court. May he provide the balance those more liberal and those more conservative than him have not offered.

Saturday, January 28, 2006

Weekend Preview

I haven't posted the highlights for tomorrow's talk shows for a long time but have decided to bring the practice back. "Face The Nation" wins the big scoop interview of the week - President Bush.

First, the newsmakers:

1. Meet The Press: Senate Majority Leader Bill Frist (R-TX) will be in the spotlight, probably talking about the Alito confirmation vote expected on Tuesday. Then, a roundtable discussion of the upcoming State of the Union speech with David Broder, Kelly O'Donnell, Roger Simon and Byron York.

2. Face The Nation: President George W. Bush in an interview before the State of the Union.

3. This Week: Senators Barack Obama (D-Ill) and Chuck Hagel (R-Nebraska) talk about domestic spying, the president's State of the Union speech and the latest turn of events in the Middle East (Hamas' unexpected victory no doubt will be the highlight of questioning on this topic). The usual roundtable discussion will include E.J. Dionne, Joe Klein, George F. Will, and Martha Raddatz.

4. Late Edition: Former President Jimmy Carter's thoughts on the latest developments within the Middle East. Senators Joseph Biden (D-Delaware) of theForeign Relations Committee and Pat Roberts (R-Kansas) of the Select Intelligence Committee, White House Counselor Dan Bartlett and former Pakistani Prime Minister Benazir Bhutto are guests for the week as well. The State of the Union address is previewed.

5. Fox News Sunday: Howard Dean, Chairman of the Democratic National Committee. Then, a "progress report on the GOP's agenda with Senator John Thune (R - South Dakota) and Representative Mike Pence (R-Indiana).

Then, for Weekend Punditry

1. The Chris Matthews Show: (a). Whether national security will be the "defining" issue for 2006. (b) Whether the Democratic White House strategy would include sidelining Senator Hillary Rodham Clinton for a Democratic governor. Pundits include Mary Ann Akers of Roll Call,
NBC News' David Gregory Elisabeth Bumiller of The New York Times, and Michael Duffy of Time Magazine.

2. The McLaughlin Group: Osama bin Laden's truce "offer" highlights the discussion but there will definitely be talk about the upcoming State of the Union speech and Judge Alito's expected confirmation to the Supreme Court. (At least I think that is the latest).

3. The Beltway Boys: Preview over Mr. Bush's State of the Union speech, Hamas' big victory at the polls.

Other Shows:

1. 60 Minutes: Representative Tom Davis (R-Virginia) wants Assistant Secretary Stewart Simonson of the Department of Health removed from his work on Operation Bioshield, the program designed to create drugs that would be used after a terrorist attack. Also, Morley Safer's interview with Richard Paey concerning his quest for opiate pain relief drugs and how it landed him in prison.

2. Dateline: The Cheryl Botzet story - a mother is charged after her daughter, who was inflicted with diabetes I, died.

For Laughs

1. Saturday Night Live: Dane Cook hosts tonight's show. Musical guest is James Blunt.

Friday, January 27, 2006

Dan Asmussen

Spaceback Mountain and this which I haven't read yet.

Alito Vote

Samuel A. Alito's confirmation to the Supreme Court regrettably is all but assured on when the senate votes on his nomination early next week. Fifty-three Republicans (including three moderates) say they will vote for his nomination as will at least three Democrats. Two moderate to liberal Republicans and at least two Democrats who represent conservative swing states have yet to commit one way or the other. Senator John F. Kerry and Edward Kennedy know they do not have the votes to sustain a filibuster since even those who oppose his nomination (Ken Salazar, for instance) say they will oppose a filibuster.

Mr. Kennedy's grandstanding is particularly maddening. The senator from Massachussetts squandered his opportunity to challenge Mr. Alito about his judicial philosphy when that nominee appeared before the Senate Judiciary Committee. Mr. Kennedy repeatedly bombarded Mr. Alito about his involvment (minimal it turns out) with a racist, homophobic and sexist college organization 30 years ago and hypocritically lambasted the judge for his failure to live up to his promise to hold himself to a higher code of ethical standards and recuse himself from all court hearings concerning the Vanguard companies which held his mutual funds. Mr. Alito's name was not mentioned in the documents which the senate judiciary committee reviewed and the strategy backfired. His wife cried and Mr. Alito presented himself as the rational being that he is.

To filibuster now, after having done little of substance to draw Mr. Alito's judicial philosophy out into the open to justify the maneuver, is politically suicidal and wrong. The senators had their chance to make that case in the committee and they failed. Mr. Bush will rightly brand senate Democrats who vote for the filibuster as obstructionists and the Democrats, having failed to lay the groundwork for such a filibuster by providing a reason to oppose this nominee, will look stupid. Wrong because it lets the Democratic senators on the judiciary committee off the hook for their failure to make the case for it in the first place.

Not that I disagree in substance with the New York Times' editorial board. A filibuster could have been justified on grounds of principle had the senate Democrats made the case during the hearings. Mr. Alito's conservative views may, if buffered by a third Bush Supreme Court appointee bring our country back to the oppressive 1950s.

In his opening statement statement to the judiciary committee, the appeals court judge gave what can only be described by those who value liberty as chilling motivation for his entrance into law - his disgust and reaction to war protests and the cultural breakdown in social mores then conducted at college. This is not a statement of a judge whose temperament will lead him to be wary of excessive war power claims made by the president nor is it a statement of a man who will look beyond the literal text of constitutional law to inquire about the higher principles for which it was designed to enforce. It was a statement coming from a man who blindly follows the literal text without the ackwnowledgement that the laws on the book are only as good and unbiased as the ones who pass and enforce them.

The originalist constitutional interpretation favored by the conservatives of today would not have saved African Americans from slavery (Dred Scott in fact required states to accept the decisions made by other states) or the infamous "separate but equal" decision (Plessy v. Ferguson) that protected the institution of segregation. Slavery and segregation were protected by law but would the conservative priority on social mores, law and order have saved the African American?

Would it now save the very fetal beings conservatives have grown fond of protecting? Today those who would abort their children are protected by a Supreme Court precedent which a majority has to date been unwilling to reverse but if and once it is overturned by a conservative court majority the matter will return to the states. Massachussetts, California, and New York may subordinate the fetal being's liberty interest in life to the needs of the woman who on a whim may change her mind on the desire to carry it to term. South Carolina, Kansas, North Carolina and the Dakotas may force a woman to carry her baby to term even if it all but kills her. A constitution which is designed to protect the rights of those who reside within the land for which it is sovereign must by necessity grant to the federal authorities which enforce it the right to protect those who cannot protect themselves.

Senate Democrats repeatedly and pointlessly insisted that Judge Alito say Roe was "settled law," something which he could not do without undermining his claim to be a fair and neutral judge, but they could have asked him how an overruling of Roe would affect the privacy rulings that came before it (Griswold, Eisenstadt, and Carey). Hypothetically, Roe can be distinguished from the other three cases provided that the Court relies upon the Fourteenth Amendment's Due Process and Equal Protection Clauses to strike abortion rights down as a violation on the fetal beings equal liberty interest in life.

But the more likely approach, the appeal to federalism and states' rights, could severely undermine those privacy rights decisions - decisions which Alito said he agrees with in principle. The Supreme Court nominee says he can safely commit to the rights implicated there because he believes they won't be challenged. So long as Roe and Casey remain "settled law" he is right.

A woman who can terminate her pregnancy at will most certainly can use contraception to bar conception in the first place but if the Court were to say that Roe was wrongly decided because there is no abortion right found in the Constitution the principles invoked to protect the contraceptive rights in the prior three cases would also be refuted. A conservative legislature in the midwest or south may test the Court's resolve to protect Griswold or Eisenstadt and pass a law banning couples, married or unmarried, from using contraceptive devices. And the very reasoning which Mr. Alito used to justify his silence in a re-hearing of the issues implicated in Roe would then be used to discredit his vote when it came time to decide a contraceptive rights case akin to the one publicly supported at the hearings.

Mr. Alito's justification for remaining silent on one but not the other privacy rights is itself troubling, for it had nothing to do with constitutional principles. One issue, he says will be challenged before the Court of law while the other would not. In otherwords, Mr. Alito can endorse the use of constitutional principles used to protect the majority who will never have the need to appeal to them but once those same principles are invoked to protect the rights of an unpopular minority who use them in a disapproving way he must remain silent so he can appear fair and balanced should the issue come before the court. The Supreme Court nominee in effect said he values power over principle but for a man who values social order and "the law" over fairness and those things which our Constitution insists that the law protect that should not be surprising. Woe to the Democratic judiciary committeemen who failed to point that out during the hearings.

The Democratic senators could have asked him how a Supreme Court justice could theoretically distinguish between the privacy rights claim protected in Lawrence (gay sex) from those protected in Griswold, Eisenstadt, and Carey.

But no, they did not. Senator Feingold would only throw softball questions on gay rights issues that even Justice Antonin Scalia could say "yes" to and none of those would in anyway give us any clue as to how he views privacy or civil rights claims in general, or the abortion and gay privacy rights claims specifically.

On searches and seizures the senators trield to nail him on a controversial but ultimately respectable dissenting opinion upholding a "warrantless" (I use that in quotes since there was something which indicated approval for the search) police search of a daughter residing within the home of a drug addict.

Issue after issue was pressed but the Democrats failed. I do not believe, as some editorial boards for center-left newspapers believe, that the president should have his Supreme Court nominee picked because he won. Notwithstanding the arguments made by The Washington Post and The Philadelphia Inquirer, our constitution provides senators with an equally important role in the selection of justices and the editorial writers' respect for democratic principles, however noble it may be, cannot turn into a blind obedience when a person who is selected to a position that would allow him or her to draw the lines between protected and unprotected speech, respected and unrespected privacy, and reasonable and unreasonable searches and seizures is nominated.

The senate will vote to confirm Senator Alito on Tuesday when they should be voting to reject him. The grandstanding has cost the people of this country dearly. But the Senate Democrats on the Judiciary Committee had their chance to win the public support necessary to get that "no" vote (or in the alternative a "yes" vote for a filibuster) and have failed.

Hamas and Israel

Few expected the defeat of Palestinian President Mahmoud Abbas's Fatah party in Wednesday's elections. As of late Wednesday (Eastern time) the polls had the moderate secularlist party winning enough seats to form a coalition government with one or two leftist parties but as it got later and the votes were counted those predicting a narrow Fatah victory were proven wrong. Hamas would not only unseat Fatah, it would govern with or without the support of a third party coalition.

President George W. Bush was definitely caught off guard and now has to explain away his foolish endorsement of neoconservative democratic idealism. Democracy and American interests may (as in the case of Ukraine) but need not be compatible. The president who once expected to rely upon a now discredited and unpopular secular and western-taught leader (Mr. Chalabi) in Iraq has to settle for at least three competing and equally dangerous (and potentially anti-American) factions in Iraq: a fundamentalist and pro-Iranian Shi'ite faction in the south, a secular, quasi-Marxist and nationalist-driven Kurdish faction in the north and an anti-American Sunni faction fighting for its survival as their country is torn apart and the spoils divided between the breakaway Kurdish and Shi'ite regions.

In Egypt, Muslim Brotherhood candidates gained seats in the country's first competitive local elections while the Iranian people rejected Rafasjani for a rabidly anti-Semitic and anti-American Iranian theocrat whose threat to our interests is augmented by his own Hitlerian demagogic speech and his craving for nuclear power.

Does our president still believe that democratization inevitably gains for us new allies in the war on terror and does he still believe it intevitably leads to peace and stability? I hope not, for once again democratic elections helped win the United States and its chief ally in the region a new enemy - a Hamas-governed Palestine.

The elections granted, were close. Hamas' margin of victory in Parliament is slim to say the least. It won 76 of the 132 seats in parliament (or 57% of the seats) and if the election results for the national seats are any indication of what to expect, the radical Islamist party does not have a mandate. (As I noted in the last post, they won 30 of those 57 national seats). Their victory says more about Fatah's weaknesses than Hamas' strengths.

Abbas' moderate party failed to deliver on every level. Corruption and political infighting assuring Fatah partisans of a split vote, allowing Hamas candidates become spoilers. And in hindsight, Mr. Abbas' own political strategy did his party by focusing his attention on a flailing peace process that could only be reignited by confronting Hamas and the other hardliners within Palestine - a feat he lacked the political will and power to do. Hamas, as this article points out, has been providing the Palestinian people with the social welfare programs one would normally expect to be provided by the Palestinian Authority. It has its own army and its own social welfare programs, making it a formidable competitor to the Fatah-dominated Palestinian government.

Twelves years have passed since the late Israeli Prime Minister Yitzhak Rabin and the late PLO Chairman Yasser Arafat signed on to the Oslo Peace Accords providing for a negotiated peace settlement but the euphoria surrounding that event have since died.

The Palestinians failed to stop bombings in Israel proper and any trust Arafat earned from Israelis was lost when his partners intercepted an vessel delivering arms to the Palestinian occupied territories was intercepted.

But the Israelis too deserve some blame. Prime Minister after prime minister steadfastly refused to chastise Israelis who were building more settlements within the West Bank, depriving Palestinians of the land they hope to win through negotiated settlements. Military encroachments into Palestinian-controlled territories provided militant Palestinians new campaign fodder.

Prime Minister Ariel Sharon simultaneously undermined the Palestinian Authority and boosted Hamas' chances for victory by first, recommiting Israel to the construction of a wall marking Israel's preferred (and not bilaterally approved) boder with the emerging Palestinian State and second, by removing Israeli troops from the Gaza Strip. Wall construction deprived Abbas of land to bargain over and the unilateral withdrawal from the anarchic and war-ridden Gaza Strip provided boosted Hamas' claim that continued warfare gains Palestinians new land.

While Hamas's victory shocked Western leaders and peace settlement advocates around the world, it merely confirmed what for now has been left unsaid. Continued political negotiations between the two principled parties, now dormant, should not continue. Mr. Abbas could not thwart Hamas when his party controlled the legislature and he most certainly cannot do so now when his party lost its foothold.

The Israelis couldn't negotiate with Mr. Abbas while he was politically vulnerable and it certainly could not get far with a now chastened and even more discredited Abbas now.

But politics is unpredictable and Hamas' short-term victory may be just what Mr. Abbas needed to strengthen his hand. The party that thrived on being the political opposition will have to govern the country. Hamas, unlike Fatah, has the goods it will need to turn the occupied territories from the failed emerging state that it is now into a viable, thriving and peaceful Israeli neighbor. It has created the institutions which provide for tuition credits, stipends for those who have lost relatives in the Jihad against Israel, and other social services. Ironically, that may lead to the party's own undoing, for as it merges those services it now provides on the outside with those of the government, Hamas will provide the moderate Fatah party or any other party that defeats it in future elections with the same means of providing government services to the people and consequently, the same means of ensuring the Palestinians' loyalty.

Thursday, January 26, 2006

now that Hamas Won Does Bush Want to Rethink Neoconservate Idealismv?

Political corruption, and growing disenchantment with the peace process did Fatah in but the vote was still close. The national list seats were nearly evenly split with Hamas winning 30 seats and Fatah 27. This was no Egyptian election. Two parties with competing agendas fought over their future country's destiny and the incumbent party was booted out.

Hamas exceeded everyone's expectations. Everyone was expecting the radical Islamist Party to gain seats in parliament but until last night most were calling the election for Fatah (well, Fatah if it got a third party to join with it in a coaition).

President Bush did not expect this loss but he should have learned his lesson by now. Democracy does not bring peace or natural allies; it brings unpredictability.

George F. Will on the Oregon Suicide Law

Give George F. Will credit. While some religious right activists claims to fight against judicial activism and condemn the Supreme Court majority which voted to uphold Oregon's physician assisted suicide law (or to be more accurate, reject the attorney general's claim to have a Congressional mandate to do that through the Controlled Substances Actof 1970), George F. Will defends them for, in his own words, judicial restraint.

But why is Oregon not entitled to its own understanding of legitimate medicine?

Besides, if Congress did imply for the attorney general a power that the court says Ashcroft wrongly claimed, Congress can now explicitly do so. And if Congress wants to criminalize physician-assisted suicide, it can do that, too. Social conservatives, unchastened by public disgust about their attempt 10 months ago to drag the federal government into the Terri Schiavo tragedy, might now try to get Congress to legislate for the nation what Ashcroft tried to impose on Oregon—nullification of physician-assisted suicide. But 60 senators might be needed to defeat a filibuster by Oregon's senators.

All this is, in five ways, how things ought to work. First, nine years ago the court held that there is no constitutional "right to die," so such a right must be legislated, not tendentiously tickled from the Constitution's text. Second, the court should construe controversial executive-branch interpretations of laws. Third, Congress can correct what it considers judicial misconstruings of its enactments. Fourth, an intense Senate minority, or even a single senator, should be a serious, if not always decisive, impediment to a congressional majority imposing its will on all 50 states. Fifth, federalism should often mean broad latitude for a single state to be, as Justice Louis Brandeis said 74 years ago, "a laboratory" to "try novel social and economic experiments without risk to the rest of the country."

So, what is conservative about conservatives' complaints about the court's decision?

Exactly. The six-justice majority ruled against the attorney general because Congress did not explicitly give the president authority to overrule the federalist principles protecting Oregon's decision to defend the right to die. Nothing in the opinion denies Congress an opportunity to give the president and attorney general that authority and nothing in the opinion requires other states to enact laws akin to Oregon's.

The politicalheretic believes in the right to die and looks forward to the day (now in the distant future given Mr. Bush's conservative Supreme picks) in which every terminally ill patient would have that right. Mr. Will would probably disagree with me, but our views are not at issue. Unlike his usuall allies, the conservative columnist will submit his views to a higher authority - a constitutional principle which in some will conform with and in other cases, enhance and yet in still other situations, undermine those actions in line with his agenda.

Chalk board v. Chads

And i thought Florida's voter tabulation methods were scary. Attached, a photo from yesterday's New York Times.

Virginia's Bill of Rights and Gay Marriage Amendment

Virginia's senate yesterday voted to approve a ballot calling for amendment banning Virginia's governing bodies and those of its subdivisions from recognizing any marriage or legally recognize any relationship that "intends to approximate the design, qualities, significance or effects of marriage." The Assembly already voted for a nearly identical version of the bill and Governor Tim Kaine (D) expressed support for it, all but guaranteeing a referendum.

In all likelihood, Virginia's residents will overwhelmingly support this referendum depriving gays (the only ones who cannot marry their loved ones) a whole wide array of rights created through civil unions, domestic partnerships and perhaps even private legal contracts written between the couples and their lawyer (given the wording). Gays lost at every ballot box in which a vote on marriage took place.

Virginia doesn't need a law banning gay marriage. It is not recognized and if or when a local court were to recognize their unions the state can always pass a referendum at that time. Such an amendment also deprives citizens of the future from reversing course except through extraordinary means. But to add insult to injury, the senators voted to include the proposed amendment, a law which denies a small minority of Virginia residents of equal legal standing from the majority and perhaps even deprives them of some liberties (by perhaps denying them the right to issue a legal contract through a lawyer), in the Bill of Rights, a document which protects freedom.

Since this amendment is all but certain to pass, gay Virginians who find that intolerable would do well to leave for a more habitable climate in Maryland. Maryland's gays afterall could use the help afterall, when its legislators push for an amendment of their own.

Wednesday, January 25, 2006

Eminent Domain, Religious Neutrality, and a Church

In Employment Division v. Smith, a six justice Supreme Court majority (five for the opinion, + 1 concurrence) voted to uphold Oregon state's right to prohibit sacramental peyote use and deny unemployment benefits to those it discharged for breaking that law. The court ruled against the former government employees because, in its view, the First Amendment does not exempt them from compliance with a law which incidentally prohibits their religious practices if the disputed action can be prohibited when applied against those who use it for nonreligious uses.

In Kelo v. New London, a five justice majority voted to uphold a Connecticut city's decision to invoke eminent domain and seize several homeowners' property so it could sell it to a developer. The city arguably would get more tax revenue from the developers' store than it would from the homeowners living within the community.

Today's New York Times has a story of one church's fight against eminent domain. Who will win? Kelo says the state can legally seize property for its own use and Smith allows the state to compe (and prohibit)l certain activities which incidentally deny individuals their free exercise rights. What legal reasoning will the Supreme Court use to protect this Church if they so choose to do so. Will they revisit Smith and Kelo?

Friday, January 20, 2006

Hillary Clinton, Race, and what the Plantation Quote Means for the Democratic Party

Senator Hillary Rodham Clinton said the Republican-controlled House of Representatives which she is not a part of is "run like a plantation" during a speech she gave to an African American - dominated audience at the Canaan Baptist Church of Christ on Martin Luther King Day.

Mrs. Clinton's remarks were tasteless and the Democratic minority's "plight" can in no way be compared to that lived through by the African American slaves trapped on plantations. They were beaten, endured long hours of hard labor, raped, and exchanged with no consideration of their family lives. Most would cringe if they were alive to hear what she said and resent her decision to exploit for political purposes a day used to honor a man who fought for racial reconciliation.

The commentators on "Hardball" say she is pandering to the base of her party. Senator Clinton voted to give President George W. Bush the authorization to use force in both, Afghanistan and Iraq and up to now has not joined those calling for an American troop withdrawal. If and when she wins the Democratic primary (safely assuming she wins re-election as senator), Hillary Clinton will reposition herself to appeal to swing voters.

I will not dispute what the commentators have said. Most Republicans and Democrats run to their party's base in order to win the primary and then move to the center to capture the swing voters who turn out to vote in the general election.

But the two parties have their differences and Hillary Clinton's political gaffe points to one significant difference - Republicans pander to one interest group's values while Democrats pander to a group of minority groups with different and sometimes divergent interests.

Republicans who appeal to their base are fortunate enough to rely upon a set of moral principles. The Republican base is united behind a cultural agenda shaped by and in fact inspired by the deep religious faith. The conservative base may split on a given issue now and then or they may split as to what part of the Republican agenda they should emphasize at any given moment but there is no serious disagreement on the Republicans' core issues. The abortion rights supporters within the party have a few political figures to speak for them but they have no candiate with a serious chance of winning the Republican primary. The economic conservatives have no real objection to their politicans' conservative stands on abortion and gun rights provided they also support tax cuts.

The Democratic base once had a group of principles that united them. The Democratic Party of FDR, Truman, John F. Kennedy, and Lyndon B. Johnson supported civil rights and government programs designed to help those falling through the cracks in an imperfect capitalist system like ours. Today they lost their zeal. The power of the labor rights movement is fading with globalization just around the corner and their constiuents' reliance upon the government jobs they won has now stifled its ability to propose reform. Its base now includes a myriad of racial, ethnic, and cultural ethnic groups with divergent agendas.

Blacks and Latinos in general support the Democratic Party on affirmative action, gun control, and most government welfare programs but oppose the the church-state separation and privacy rights inroads pushed by other reliable key Democratic constituencies (feminists, gays, and secularlists). Environmentalists may attempt to block housing/retail construction provided by day laborers and unions. The Democratic response to "yes" enough interest group agenda items needd to win its support without appealing to a shared Democratic American vision others can relate to.

Senator Hillary Clinton carried her Democratic Party's strategy to its absurd conclusion on Monday. She chose to relate to her constituents becoming like them (as if the superficial distinctions in accent and past oppressive institutions were enough to deny them a means to relate to or befriend one another). Hillary Clinton fell into the same trap her most recent predecessors fell into. She spoke to her audience as if it as a black (as opposed to an American) one.

The senator from New York did her party (or the country for that matter) any favor when she spoke in her Al Sharton black-preacher like accent and she did it no favor when she spoke to their own distinctive historical experiences in the United States. When she could have used the Abramoff scandal and the House Republican's leadership tactics to unite blacks and white behind a Democratic alternative, Senator Clinton squandered it. Her party and our country is no more united now then it was before her speech.

Wednesday, January 18, 2006

Just some Quotes

Tasteless Race-baiting Hyperbole:
The House "has been run like a plantation, and you know what I'm talking about," said Clinton, D-N.Y. "It has been run in a way so that nobody with a contrary view has had a chance to present legislation, to make an argument, to be heard."

I'll give Senator Hillary Rodham Clinton the benefit of the doubt. In a few days she will tell us who, within the House of Representatives, was nearly beaten to death, who was sent to pick cotton on a hot, humid day, and who on the committee was forced to remain silent as his wife and children were sold to another owner.

On Biblical Racism:
"I don't care what people are saying Uptown or wherever they are. This city will be chocolate at the end of the day," he said. "This city will be a majority African-American city. It's the way God wants it to be." - New Orleans Mayor Ray Nagin

Ah yes. Our very own Tower of Babel on earth.

"How do you make chocolate? You take dark chocolate, you mix it with white milk, and it becomes a delicious drink. That is the chocolate I am talking about," he said. "New Orleans was a chocolate city before Katrina. It is going to be a chocolate city after. How is that divisive? It is white and black working together, coming together and making something special."

No he was not. He said this "city will be a majority African-American city." Conservatives may not like this but affirmative action may be needed to protect the white girls and guys.

Pat Robertson Watch:

Mayor Nagin, who authored the quote posted below, must be watching the 700 Club too much. This is bad. The white New Orleans residents may need affirmative action to help them return to their homes. The racial divisiveness was uncalled for. And now he pulls a Pat Robertson - blaming God for natural disasters.

“Surely God is mad at America. He sent us hurricane after hurricane after hurricane, and it’s destroyed and put stress on this country,” “Surely he doesn’t approve of us being in Iraq under false pretenses. But surely he is upset at black America also. We’re not taking care of ourselves.”

Larry King and Gay Love

Larry King actually had some good questions for his guests for once. Reverend Mohler and didn't do to well. Mrs. Parshall, as usual, sounded like a fast-talking robot who unscucessfully tries to hide her bigotry in our politically correct society and Reverend Mohler comes across as a misguided, heartless priest who doesn't know what he is talking about.

First, there is the obvious question:

KING: Reverend Mohler, if you believe that being gay is a choice, did you choose to be heterosexual?

Mohler's confusing non-answer:

MOHLER: "Well, in some sense yes but when I say it's a choice and I would have to go back before that to say there are desires and even what we might call a sexual or erotic profile that goes back beyond when any of us ever knew we made a choice."

Say what? So Mohler chose to be a heterosexual but a "sexual or erotic profile" that preceded that point in time we ever knew we made a choice? You choose but are not aware that you choose who you will fall in love with?

And shortly after the first phone-call was taken:

KING: Reverend Mohler, do you have any gay friends?

MOHLER: Yes, yes I do as a matter of fact. And I don't think it's fair to categorize anything that's been said here today as speaking of homosexuals as sub-human. As a matter of fact, I think we have learned...

KING: But you speak of them as sinners.

MOHLER: ... Well, I want to speak of myself as a sinner, Larry. It's just a matter of which kind of sin and which pattern of temptation.

KING: You don't seem as angry as yourself. Just a comment.

MOHLER: Well, I mean, we're talking about what you asked me to talk about here and I'm glad to do it."

That's Larry King cutting through their double-standard morality.

"MOHLER: You know, when we talk about the issue of homosexuality I do want to say I think the Christian community, conservatives Christians have learned a lot in recent years that has corrected some of our thinking and some of the ways we've been speaking. And I think you hear a maturing there where we understand that there are choices in sexuality, we're all responsible for the choices we make, but we're also coming to an increasing understanding, consistent with our understanding of sin and our human lives, of how deeply embedded this struggle is.

I hear this mom, I love her love for her son, but you know, we have to be really careful that we don't accept the wrong things when it comes to behavior, and we don't bless the wrong hopes. And that's where -- I want to come back to say, I don't know thinking about sex that's really all that important to know, that other people haven't figured out a long time ago.

But God, our creator has something to say about sex in his word and to that, we're absolutely accountable. But beyond that, Larry, I think one of the sad things about most conversations about homosexuality and especially when you have people like I'm honored to be with on your panel tonight, I don't want for homosexuals to know less joy than they know now.

I want them to know more joy, great joy, eternal joy. And I believe that can only happen as they come to know the Lord Jesus Christ his savior and as they find out what God's perfect intention and design was for their lives all along."

What makes Mr. Mohler believe gays will find joy in heterosexual marriage? And what on earth makes him think that he knows what God has designed for homosexuals? The Bible? I am way past using that book which included no rebuke of Abraham's sexual relationship with the Hagar the whore and no rebuke of his decision to what, cast her and Ishmael (their bastard son) off into the desert like some heap of trash (like some parents do to their unwanted babies today) and no rebuke of polygamy or any number of things the Mohler himself would find horrible. And I have no use or care for the morality of the God portrayed in Genesis - you know, the one who rewards his loyal follower who was about to sacrifice his "one and only son" (since that bastard Ishmael son of the whore Hagar doesn't Abraham cast off into the desert for his jealous wife didn't count) for him.

And now for the real fun. My comments will be inserted within the text but in bold and not italicized:

KING: Let me ask you this way. Janet, why is it your business?

PARSHALL: Well, I think we are all part of this government, and we all have a voice, and I think it's important that we understand in the marketplace of ideas, all ideas should be listened to. Good ideas will last and stand; bad ideas will fall under their own weight. You know, it's interesting, Larry, in this debate -- and I think it was Chad or else it was Guy who said earlier, we're going to debate this for a long time. We are. We're going to debate this until the cows come home. And there will in the final analysis be two mutually exclusive perspectives on this. One will say, hey, anything goes, don't box me in by rules, I want to do my own thing, I want to define it any way I want to. Just give me the liberty to live as I want.

And then the other world view that says, well, you know what, I do have free will and I do have choice. But I bow in submission to a loving God -- not a cosmic bully who wants to beat me to death with his rules, but a loving God who says, here's a parameter. I've made man and I've made woman and I've made the institution of marriage. And when you step outside that institution and you engage in sexual activity, you're going to get hurt. And because our God loves us unconditional, he hates it when we get hurt. And so that's what we do, we speak out and we speak the truth. And it isn't a matter of saying, well, we're the haters and we're pointing fingers.

(Argumentative whether someone who engages in extramarital, premarital, or postmarital sex is getting hurt by doing so. That is a value judgement and it is just as argumentative that the god she describes, one that supposedly requires sex within a heterosexual marriage, created a "reasonable paramater" and was not just acting like a "cosmic bully.")

KING: But Janet, if you choose to do it and you don't get hurt -- some people get married and do get hurt -- something is wrong with the equation?

(Yes, "hurt" was not defined).

PARSHALL: You know what? I have to tell you, Larry, that we are all sinners. The statement that was made earlier that somehow Al and I are pointing fingers at other people -- you know, Al and I got all dressed up tonight and sat here to be with you, and we came here as sinners, but we are sinners that understand that we are loved by an unconditional God.

(So Mrs. Parshall is changing the subject without addressing Mr. King's question undermining her causal link between premarital/postmarital/extramarital sex and an undefined "hurt")

KING: So you're sinners with more understanding than these sinners.

(Yeah, that was very holier-than-thou of her)


KING: You have more understanding than your fellow sinners?


KING: This is a panel of sinners, but two of them have more understanding than the other two?

(I just have to laugh.)
UNIDENTIFIED MALE: We're all sinners, but they get to get married.

KING: Well, you have more understanding than they do.

PARSHALL: Let me tell you what the difference is. Let's take another choice in behavior. Let's call it adultery. How come here in Washington, D.C., I have seen gay rights parades, but how come I haven't seen the National Association of Adulterers who come to Washington and demand all kinds of legal protections...

(so now she is playing the adultery card)

KING: I don't think they have a group.

PARSHALL: And if they did, you and I would be having the same discussion, because it would be another choice of sexual behavior outside the parameters of marriage. And guess what, government does have a say here. Government says that a 55-year-old teacher can't have sex or marry a 14-year-old student.

(wait. I thought we were talking about adultery)

KING: But government also threw out all other adultery laws.

PARSHALL: All other adultery laws?
(yeah, that was a sweeping statement. Still, look at Texas before Lawrence v. Texas. It permitted all kinds of sexual behaviors - adultery, polyamory, bestiality, and heterosexual sodomy. The only consensual intimate activity prohibited was homosexual sodomy.)

KING: That's right. Adultery among consenting adults, there's no such thing anymore.

PARSHALL: That's exactly right. And oh, we're so much better now. That's why one out of two marriages end in divorce.

KING: But the people decided it, Janet. Hey, what can we do? The public decided it.

PARSHALL: Or some activist judges.

KING: Activist -- I've never met an inactive judge. Most of them get up and go to work. Anyway, that's -- inactive judge would be at home sleeping.

(Wow. The politicalheretic never thought too highly of the "activist"/"umpire" distinction either.)

Anyway, let's go to Anderson Cooper for the top of the hour, "360." You figure it out. What have you got coming up?

ANDERSON COOPER, CNN ANCHOR: Larry, thanks a lot. Coming up tonight on "360," at the top of the hour, racial remarks by two high- profile elected officials. We're talking of course about New Orleans Mayor Ray Nagin, who talked about New Orleans being rebuilt as a chocolate city, and Senator Clinton, who talked about the Republican leadership in Congress, comparing them to plantation owners. We're going to talk about the fallout from the remarks, and we've also assembled a panel to take your calls. Are the comments much ado about nothing, or a perfect example of what's wrong with race relations in America -- Larry.

KING: Thanks, Anderson. We'll look forward to that. Problems everywhere. Top of the hour, "ANDERSON COOPER 360." Back with more with our outstanding panel. Don't go away.


KING: Guy Padgett, before we take the next call, what do you need this for? What are you fighting for? You got a nice life. You're the former mayor. You're on the city council. What do you need to go up against this for? So that's the way it is.

PADGETT: Well, I mean, I guess the only thing I can say to that, I mean, it's never enough to simply sit back and say, good enough, let's stop now. We always have to fight for our rights, for freedom, for ourselves, for our society, for our country. And you know, it would be easy to sort of give up and sit back and go for the ride, but that's not good enough.

KING: Lexington, South Carolina, hello. CALLER: Hi, Larry.


CALLER: My comment is directed to Ms. Parshall.

KING: Sure.

CALLER: How she said that it's child abuse for gay parents to have kids. Well, my dad is actually gay, and I completely disagree with what she said. Because I have had a great childhood, and I've not missed out on anything at all. In fact, I think it's -- I can honestly say, I think it's better than what other people had. Because I've not been treated any differently, and my dad loves me so much. And it's just, you can't really comment on that if you don't know the situation. And it's no different from anything else. I mean, our whole community -- our community is really very conservative, actually. And it's kind of people disagree with me, but they don't know. And (INAUDIBLE).

KING: I think she's saying, Janet, why not walk a mile in her shoes?

PARSHALL: Well, Larry, I'll tell you what, I walked a mile in my shoes, and I know what it's like when my children have a mother and a father. Listen to what South Carolina didn't say. She didn't say she had two daddies; she said she had a homosexual father. There's a lot more I would like to ask her as a follow-up question. For example, did her dad leave the relationship? Does she live with her mom? Does she visit her dad? So in other words, is she getting the benefit of both the mother and the father?

KING: But the main thing is, she's happy.

PARSHALL: Well, we hope she's happy, but I bet something...

KING: Well, she says she's happy. Are you questioning her?

PARSHALL: I heard her say she lived in a conservative community. Why do I think she's had a lot of heated discussions with a lot of people trying to defend that which may be in her heart of hearts she (INAUDIBLE)?

KING: Maybe they're ganging up on her. Why would -- you wouldn't -- conservatives don't gang up on people? OK.

PARSHALL: Only liberals gang up on conservatives.

KING: Laguna Niguel, California. Hello.

CALLER: Hi, Larry. I just wanted to ask Mr. Mohler and Ms. Parshall, they both sound so bigoted. And since they haven't seen the movie, would they not consider opening their minds and receiving, as Judge Judy says, just receive and see if they will consider going to see the movie? Thank you. KING: I would think, Janet, or -- well, Reverend, why not go see it? I mean, why not just go see it? Just out of intellectual curiosity?

MOHLER: Well, if I had to see the movie to understand the storyline, I wouldn't have come on to speak about it. But you know, I'm going to say something that is about as countercultural as I can imagine tonight, and that is I'm actually convinced that as a Christian, there are certain things I don't need to see. And that's the reason why, as a matter of principle, I have not gone to see the movie. I wouldn't encourage anyone to go see the movie. I'm unembarrassed to say that.

I think the conversation that we're having here tonight -- and I'm honored to be with Janet Parshall, my colleague, and with Chad Allen and with Mayor Padgett -- I think you started the kind of conversation we need to have. And "Brokeback Mountain" was the catalyst. I'm happy to talk about what I know the storyline to be. But we're really not talking here tonight about cinematography. We're talking about the big questions...

KING: No, I'm not talking about cinematography. Are you, Janet, do you know the full storyline of the movie?

PARSHALL: I do. I do.

KING: All right. Do you know that it deals with heterosexual marriage much more than homosexual relationships?

PARSHALL: Right, and I also know that -- and guess what, both of those heterosexual marriages pay a big price because of the dalliances of these two men, which sort of makes my case, doesn't it?

KING: If you go see the movie, you might learn more than not seeing the movie, where you learn less.

PARSHALL: But what is it, Larry, that I -- what would be my take-away lesson? What would I have to see? For example, we heard...


PARSHALL: ... made earlier about star-crossed lovers. "Romeo and Juliet," "Bridges of Madison County." King Kong?" Unrequited love?

KING: Let's not see them either, right? By the way, did you see "Bridges of Madison County?"

PARSHALL: I did, and you know...

KING: Why?

PARSHALL: ... I walked away thinking, wow, the glorious joys of adultery. Didn't that relationship end well?

KING: But you learned a lot from that movie, right? PARSHALL: What, not to engage in adultery?

KING: And therefore it enhanced your (INAUDIBLE)?

PARSHALL: Not to engage in adultery.

KING: OK, Janet, let's just stay home.

We'll be right back with our -- you learn a lot that way. We'll be right back with our remaining moments. Don't go away.

Yeah. Again. She had no trouble watching a movie about adultery whether she learned a lot from that movie or not yet she will not watch Brokeback Mountain. Hmm. I somehow doubt we are dealing with objective morality here. She just finds it, like gays living together in a marriage-like relationship, "grotesque."

"I think when two people of the same sex get together and they decide to use the moniker of a marriage I think it's a grotesque misrepresentation and actually if that union decides that they want to then adopt children because biology says they can create children then I think what you have in many respects is state sanctioned child abuse because you have purposely taken away either a momma or a daddy and mom and dad are both necessary in a child's life."


Misunderstanding Homosexuality and Brokeback Mountain

Tom Hibbs posted the following critique of "Brokeback Mountain" on The Corner on Tuesday.

Brokeback Mountain was, as expected, a winner. And, like it or not, it's been the source of a lot of discussion. After I wrote an NRO piece on it recently, I received some interesting responses. A few thoughtful readers concurred with Rod Dreher’s Corner-posted criticism, namely, that the naivete of the desire between the two men is a fault of the characters, not the film. I’d like to think Ang Lee didn’t fall for the superficial romanticism that I have attributed to the film, but I don’t see how that conclusion can be avoided.

The false allure of their longing is embodied in the alluring natural beauty of the mountains. But Lee romanticizes nature even more than the romantics; the poet William Blake at least paired “The Lamb” (Songs of Innocence) with “The Tiger” (Songs of Experience). Lee does nothing to communicate the real danger of the natural world, a danger that was, by the way, central to the old westerns. In fact, every opportunity Lee has to emphasize the harshness of nature, he deliberately diminishes its menacing aspects. Jack does have an encounter with a bear, but the threat disappears very quickly and the two men end up laughing about it. There are storms, but the snow from one of the storms is gone as quickly as it arrives. (Rod may be right that this is more a feature of the film than the original short story, which I have not read.)

A number of readers objected to the use of the term “gay cowboy,” which was not my way of describing the film but that of the popular media. One reader offered a pithy counter-description: “They ain’t cowboys. They are sheep herding, blue state, pretty boy, foreign jean wearing adulterous Californians.” I’m not sure about the blue state part but there’s enough truth in that statement to undermine the claim of some mainstream critics that the film deconstructs or subverts the traditional western. Brokeback doesn’t have enough of the traditional western in it even to begin to engage it, let alone subvert it. In a sense this goes back to the first point, the fake wildness of Brokeback Mountain.

As for Rod’s point that the film’s punch line, “If you can’t fix it, you gotta stand it,” is a moral truth to which we ought to subscribe, I’d agree with that in general but add two qualifying comments about its use in this film. The first is that the character who comes closest to “standing it” is neither of the two men, but Ennis’s wife, Alma (Michelle Williams), who struggles mightily to stick to the promises she’s made and to fulfill the debts she’s incurred, especially toward her children. The second is that the film depicts human relations as almost universally degrading and thus borders on a nihilism that would undercut even the mildly noble moralism contained in the phrase “If you can’t fix it, you gotta stand it.” That’s why--despite the stunning scenery, some compelling characters, and a number of memorable scenes--all the sound and fury about thwarted, frustrated passion gets tiresome and even risks turning comic.

Posted at 09:38 AM"

The PoliticalHeretic will leave the critique of Brokeback Mountain's western authenticity to those who actually live iin the west because (a) he has never lived in the west or been exposed to the cowboys' way of life and (b) because it was not compelled him to comment about his argument in the first place (the comments in bold were).

"If you can't fix it, you gotta stand it." Mr. Hibbs say Alma is the character who lives up to that saying the most because she alone tries to raise the children, cook, and raise the children for a man who ultimately does not love her. Alma is indeed portrayed with the sympathy a person in that kind of position deserves. Ennis drops their children off at the store (where Alma works) and forces her to watch them while he goes off to work. She does all of the cooking and is rebuked when it is not made. She is left to watch the children when he goes off to his "fishing trips" and she remains silent when she catches Ennis embracing Jack in full sight to her (unbeknownst to them. She definitely lives up to quote Mr. Hibbs and conservative columnist Rod Dreher consider noble. Alma never deserved to live through that - some of that attributed to the man-centric rules enforced in the 1950s and earlier.

But does Mr. Hibbs actually believe that Ennis makes no sacrifice? Yes. He cheats on his wife and commits adultery everytime he goes up to Brokeback Mountain to see Jack. Whether he is intimate with Jack or not, Ennis is guilty of commiting adultery in his heart. But does that mean Ennis sacrifices nothing? Is Ennis satisfied because he has sex with Jack? No. He returns to his prison a defeated man. Ennis yearns for the love that, however many times Jack proposes it to him, he finds unreachable. He yearns for the right to say he is in love with Jack but remembers that horrible lesson his father taught him. The personal sacrifices are real. Mr. Ennis could have all the sex he wants but he gave up on the life he wanted to share with Jack and and he gave up on the honest life he could have lived. Too often I see conservatives mistakenly and heartlessly dismiss homosexuality as a sex-centric "lifestyle," as if gay couples can have no other basic human needs or emotions. Mr. Hibbs apprently is no exception.

Sunday, January 15, 2006

Mixing Religion and Politics

This is interesting. Ralph Reed is hired to fight the opening of new Indian casinos which would compete for the customers going to those casinos operated by Abramoff's clients. Hmmm. So Reed could in public decry casino growth and consequently satisfy his anti-casino religious base while taking campaign money once held by the casino operators in business. Talk about the corruption of morality!

Representative Gary Miller Has to Go

Representative Bob Ney is temporarily stepping down from his position as Chairman of the House Administration Committee but like former House Majority Leader Tom Delay he will not resign and provide his district residents with a representative who will represent them full time.

But Ney and Delay are not alone, as noted by George F. Will and the Ontario Daily Bulletin here.
The representative joined forces with some campaign contributors to develop a planned retail-housing development and then secured $1.28 million in federal funds for road improvements in front of it. This blatant self-aggrandizement cannot be tolerated. The House must clean house now and his constituents should call for his resignation.

Modified Pre-emptive Warfare

I read this article at my local Barnes & Noble yesterday and hope you will find the time to read it in your library, bookstore, or if you are a subscriber, online as well. The authors, Ivo Daalder and James Steinberg, argue for pre-emptive warfare in spite of our president's misapplication of this doctrine in Iraq but say the unilateralist approach favored by our president should be discarded in favor of one enforced (or at least approved by) bythe United Nations Security Council or the regional alliances that are found near the area in crisis.

The Pakistani protests and the Bombing

I'm with the senators who spoke out for the president on this one. The loss in Pakistani life is regrettable but this is a war. It would behoove the Pakistanis who want to avoid a similar incident to help us search for and detain Osama bin Laden's colleagues after they are done with their protests.

Do we have Rights Because We are a Minority or Because we are Human?

I would like to expound upon principles first layed out in the Princeton University professor's article linked to last week by drawing my readers' attention to this New York Times Magazine article concerning the role assimulation plays in justifying discrimination and how the law is inadequately prepared to combat it. Yale University law professor Kenji Yoshino persuasively argues for a shift away from the identity-driven antidiscrimination legal approach and towards a behavioral-focused defense of individual liberty. The identity-focused approach adopted by many legal scholars has undermined the minorities' cause in two ways:

First, the "have," is allowed to purportedly forgive the the have-not for his or her "flawed" character trait while punishing them for their nonconforming behavior even if that nonconforming behavior which that "have-not" considers an important part of their identity. The employer at a corporation may for instance, punish the Orthodox Jew because he wears a yamulke, the Muslim woman who wears a veil, the Mexican barred from speaking his native tongue in the lunchroom with a colleague, the black with an afro or braided hairstyle, the Christian who wears a cross around the neck, or the homosexual who has a picture of his significant other on his desk or work cubicle.

"Assimilation is implicitly characterized as the way in which groups can evade discrimination by fading into the mainstream - after all, the logic goes, if a bigot cannot discriminate between two individuals, he cannot discriminate against one of them. But sometimes assimilation is not an escape from discrimination, but precisely its effect. When a Jew is forced to convert to Protestantism, for instance, we do not celebrate that as an evasion of anti-Semitism. We should not blind ourselves to the dark underbelly of the American melting pot.

The demand to cover is anything but trivial. It is the symbolic heartland of inequality - what reassures one group of its superiority to another. When dominant groups ask subordinated groups to cover, they are asking them to be small in the world, to forgo prerogatives that the dominant group has and therefore to forgo equality. If courts make critical goods like employment dependent on covering, they are legitimizing second-class citizenship for the subordinated group. In doing so, they are failing to vindicate the promise of civil rights. ...

Second, the identity-trait focused approach needlessly invites class warfare by pitting the "have" and "have not" in any given policy debate or for that matter an entirely accurate reflection on our place in society. We belong to many groups, some which put us well within the mainstream "have" (white) and others which define us as social outcasts (but gay) In religious cases we see that when a school district teaches its students about the Jewish, Muslim, Buddhist children around them while suppressing Christian expression or when the school allows for the formation of a group designed to protect a recognized minority (as a gay) while denying that association right to those whose status as a Christian conform with the prevailing cultural standard (it could also be reversed of course, and one can be a gay Christian who may form an after school Christian evangelism Christian club but be denied the right to form a gay-straight alliance or one can be a gay Christian who may form a Christian club but denied the right to form a gay-straight alliance).

... When I lecture on covering, I often encounter what I think of as the "angry straight white man" reaction. A member of the audience, almost invariably a white man, almost invariably angry, denies that covering is a civil rights issue. Why shouldn't racial minorities or women or gays have to cover? These groups should receive legal protection against discrimination for things they cannot help. But why should they receive protection for behaviors within their control - wearing cornrows, acting "feminine" or flaunting their sexuality? After all, the questioner says, I have to cover all the time. I have to mute my depression, or my obesity, or my alcoholism, or my shyness, or my working-class background or my nameless anomie. I, too, am one of the mass of men leading lives of quiet desperation. Why should legally protected groups have a right to self-expression I do not? Why should my struggle for an authentic self matter less?

I surprise these individuals when I agree. Contemporary civil rights has erred in focusing solely on traditional civil rights groups - racial minorities, women, gays, religious minorities and people with disabilities. This assumes those in the so-called mainstream - those straight white men - do not also cover. They are understood only as obstacles, as people who prevent others from expressing themselves, rather than as individuals who are themselves struggling for self-definition. No wonder they often respond to civil rights advocates with hostility. They experience us as asking for an entitlement they themselves have been refused - an expression of their full humanity.

Civil rights must rise into a new, more inclusive register. That ascent makes use of the recognition that the mainstream is a myth. With respect to any particular identity, the word "mainstream" makes sense, as in the statement that straights are more mainstream than gays. Used generically, however, the word loses meaning. Because human beings hold many identities, the mainstream is a shifting coalition, and none of us are entirely within it. It is not normal to be completely normal. ...

An approach which focuses on any given individuals' right to behave as he or she pleases minimizes this social conflict by removing the zero-sum game imposed on the "have" and "have-not." The Orthodox Jew, afterall, does not deprive the Christian from wearing his or her cross by wearing his own yamulke and the gay who is allowed to marry his or her significant other does not deny the heterosexual couple from doing the same. The "have" loses his or her special status but not the behavior associated with that privilege.

... If the Supreme Court protects individuals against covering demands in the future, I believe it will do so by invoking the universal rights of people. I predict that if the court ever recognizes the right to speak a native language, it will protect that right as a liberty to which we are all entitled, rather than as a remedial concession granted to a particular national-origin group. If the court recognizes rights to grooming, like the right to wear cornrows, I believe it will do so under something akin to the German Constitution's right to personality rather than as a right attached to racial minorities. And I hope that if the court protects the right of gays to marry, it will do so by framing it as the right we all have to marry the person we love, rather than defending "gay marriage" as if it were a separate institution. ..."

The legal system may help by shifting its focus from the protection of traditionally recognized minorities to the protection of liberties which we all could take for granted but it not, he says, the end all or be all solution to our problems. (I need only recall the John Stoessel story of the business that prohibits off-the-job private smoking). No law could fully protect us from conformity when peer pressure (family, friend, neighbor, religious guide/instructor/mediator, or even ourselves) push us back into the closet.

"Law is also an incomplete solution to coerced assimilation because it has yet to recognize the myriad groups that are subjected to covering demands even though these groups cannot be defined by traditional classifications like race, sex, orientation, religion and disability. Whenever I speak about covering, I receive new instances of identities that can be covered. The law may someday move to protect some of these identities. But it will never protect them all.

For these and other reasons, I am troubled that Americans seem increasingly inclined to turn toward the law to do the work of civil rights precisely when they should be turning away from it. The primary solution lies in all of us as citizens, not in the tiny subset of us who are lawyers. People confronted with demands to cover should feel emboldened to seek a reason for that demand, even if the law does not reach the actors making the demand or recognize the group burdened by it. These reason-forcing conversations should happen outside courtrooms - in public squares and prayer circles, in workplaces and on playgrounds. They should occur informally and intimately, in the everyday places where tolerance is made and unmade."

We will all benefit if we take Mr. Yoshino's advice and discard the zero-sum game behavior played by parties on both sides of the culture wars. If the schools protected the free speech views of those of all and no religious persuasion, if the government protected the privacy rights of those who are bisexual, gay, and straight, if it supported the decision of career-oriented and house men and women equally, we would all be better off.

Brokeback Arizona

The Arizona Republic has published an article on a gay rodeo event that is taking place this weekend at one of the largest rodeos in the southwest, which by the way, is opeerated by a gay rodeo association. Brokeback Mountain has met its match. The anti-gay stigma may still be there but gay cowboys have come a long way and corporate sponsorship is expected.

Friday, January 13, 2006

Dan Asmussesn

Cruel, cynical, bad and definitely worthy of its association with all identifiable things heretical.

Thursday, January 12, 2006

Senator Feingold and Alito on Saxe Case

And the last of the transcripts are now posted.

Today Senator Russ Feingold questioned Judge Samuel A. Alito on his ruling in David Warren Saxe v. State College Area School District, which concerned one teacher's first amendment challenge to a school district's anti-harrassment rules. The teacher, fighting for students who may wish to express their opposition to homosexuality, sued in federal courts. The Appeals Court overturned (rightly in my view) a District Court ruling dismissing the petitioners' First Amendment claims.

The relevant parts of the anti-harrassment rule incorporated within the Appeals Court opinion is pasted below. (Bold-faced words my emphasis).


The State College Area School District is committed to
providing all students with a safe, secur e, and nurturing
school environment. Members of the school community are
expected to treat each other with mutual r espect.
Disrespect among members of the school community is
unacceptable behavior which threatens to disrupt the
school environment and well being of the individual.

Harassment means verbal or physical conduct based on
one's actual or perceived race, religion, color, national
origin, gender, sexual orientation, disability, or other
personal characteristics, and which has the purpose or
effect of substantially interfering with a student's
educational performance or creating an intimidating,
hostile or offensive environment.

According to state law (18 Pa. C.S.A. ~2709), an individual
commits the crime of harassment when, with intent to
harass, annoy or alarm another person, the individual
subjects, or attempts or threatens to subject, the other
person to
unwelcome physical contact; follows the other
person in or about a public place or places; or behaves in
a manner which alarms or seriously annoys the other
person and which serves no legitimate purpose.

Harassment can include
any unwelcome verbal, written or
physical conduct which offends, denigrates, or belittles an
individual because of any of the characteristics described
above. Such conduct includes, but is not limited to
derogatory remarks, jokes, demeaning
comments or behavior, slurs, mimicking, name calling,
graffiti, innuendo, gestures, physical contact, stalking,
threatening, bullying, extorting or the
display or circulation
of written materials or pictures.

It is the policy of the State College Area School District to
oppose and prohibit, without qualification harassment
based on race, color, religion, national origin, gender,
sexual orientation, disability, and other for ms of
harassment. Harassment is not only a form of
discrimination, but also disrespectful behavior which will
not be tolerated.

Any harassment of a student by a member of the school
community is a violation of this policy.

The State College Area School District shall act to
investigate all complaints of harassment, either for mal or
informal, verbal or written, and will take appropriate action
against any member of the school community who is found
to have violated this policy.

It is a separate and distinct violation of this policy for any
member of the school community to retaliate against any
person who reports alleged harassment or against any
person who testifies, assists or participates in an
investigation, proceeding or hearing relating to such
harassment. It is possible that an alleged harasser may be
found to have violated this anti-retaliation pr ovision even if
the underlying complaint of harassment is not found to be
a violation of this policy. Retaliation includes, but is not
limited to any form of intimidation, r eprisal or harassment
and may be redressed through application of the same
reporting, investigation, and enforcement procedures as for
harassment. In addition, a person who knowingly makes a
false report may be subject to the same action that the
State College Area School District may take against any
other individual who violates this policy. The ter m "false
report" refers only to those made in bad faith and does not
include a complaint that could not be corroborated or
which did not rise to the level of harassment.

Any school employee or student who is found to have
violated this policy shall be subject to action including, but
not limited to warning, remedial training, education or
counseling, suspension, exclusion, expulsion, transfer,
termination or discharge, and legal action under state and
federal statutes.


School community includes, but is not limited to, all
students, school employees, contractors, unpaid volunteers,
school board members, and other visitors.

School employee includes, but is not limited to, all
teachers, support staff, administrators, bus drivers,
custodians, cafeteria workers, coaches, volunteers, and
agents of the school.

Sexual harassment means unwelcome sexual advances,
requests for sexual favors and other verbal or physical
conduct of a sexual nature when:

(a) submission to that conduct is made either explicitly
or implicitly a term or condition of a student's

(b) submission to or rejection of such conduct by a
student is used as a component of the basis for
decisions affecting that student;

(c) the conduct has the purpose or effect of
substantially interfering with a student's educational
performance or creating an intimidating, hostile or
offensive educational environment.

This applies whether the harassment is between people of
the same or different gender.
Sexual harassment can
unwelcome verbal, written or physical conduct,
directed at or related to a person's gender, such as sexual
gossip or personal comments of a sexual natur e, sexually
suggestive or foul language, sexual jokes, whistling,
spreading rumors or lies of a sexual natur e about someone,
demanding sexual favors, forcing sexual activity by threat
of punishment or offer of educational r eward, obscene
graffiti, display or sending of pornographic pictures or
objects, offensive touching, pinching, grabbing, kissing or
hugging or restraining someone's movement in a sexual

Racial and color harassment can include unwelcome
verbal, written, or physical conduct directed at the
characteristics of a person's race or color, such as
nicknames emphasizing stereotypes, racial slurs, comments
on manner of speaking, and negative refer ence to

Harassment on the basis of religion is unwelcome verbal,
written or physical conduct directed at the characteristics
of a person's religion, such as
derogatory comments
regarding surnames, religious tradition, or religious
clothing, or religious slurs, or graffiti.

Harassment on the basis of national origin is unwelcome
verbal, written or physical conduct directed at the
characteristics of a person's national origin, such as
negative comments regarding surnames, manner of
speaking, customs, language, or ethnic slurs.

Harassment on the basis of sexual orientation is
unwelcome verbal, written or physical conduct dir ected at
the characteristics of a person's perceived sexual
orientation, such as
negative name calling and degrading

Disability harassment includes harassment based on a
person's disabling mental or physical condition and
includes any unwelcome verbal, written or physical
conduct, directed at the characteristics of a person's
disabling condition, such as imitating manner of speech or
movement, or interference with necessary equipment.

Other harassment on the
basis of such things as clothing,
physical appearance, social skills, peer group, income,
intellect, educational program, hobbies or values, etc. may
also cause or effect substantial inter fering with a student's
educational performance or creating an intimidating,
hostile or offensive environment. This type of harassment is
also protected against by this policy and procedures.

Samuel A. Alito (who also wrote the opinion) said he voted to overturn speech that would be protected
by the First Amendment as well as that which could be prohibited. Anyone could, he argued in his opinion,
find something offensive.

Loosely worded anti-harassment laws may pose some of
the same problems as the St. Paul hate speech ordinance:
they may regulate deeply offensive and potentially
disruptive categories of speech based, at least in part, on
subject matter and viewpoint. Although the Supr eme Court
has written extensively on the scope of workplace
harassment, it has never squarely addressed whether
harassment, when it takes the form of pur e speech, is
exempt from First Amendment protection. See Weller v.
Citation Oil & Gas Corp., 84 F.3d 191, 194 n.6 (5th Cir.
1996) (noting that the Supreme Court has "pr ovid[ed] little
guidance whether conduct targeted for its expr essive
content . . . may be regulated under Title VII"); Aguilar v.
Avis Rent A Car Sys., Inc., 980 P.2d 846, 863 (Cal. 1999)
(Werdegar, J., concurring) ("No decision by the United
States Supreme Court has, as yet, declar ed that the First
Amendment permits restrictions on speech creating a
hostile work environment.").7

And here:

We do not suggest, of course, that no application of anti-
harassment law to expressive speech can survive First
Amendment scrutiny. Certainly, preventing discrimination
in the workplace--and in the schools--is not only a
legitimate, but a compelling, government inter est. See, e.g.,
Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U.S. 537, 549 (1987). And, as some courts and
commentators have suggested, speech may be mor e readily
subject to restrictions when a school or workplace audience
is "captive" and cannot avoid the objectionable speech. See,
e.g., Aguilar, 980 P.2d at 871-73 (Werdegar, J., concurring).
We simply note that we have found no categorical rule that
divests "harassing" speech, as defined by federal anti-
discrimination statutes, of First Amendment pr otection.



In any event, we need not map the precise boundary
between permissible anti-discrimination legislation and
impermissible restrictions on First Amendment rights
today. Assuming for present purposes that the federal anti-
discrimination laws are constitutional in all of their
applications to pure speech, we note that the SCASD
Policy's reach is considerably broader .

Alito and Feingold on gays

FEINGOLD: Do you believe -- on another subject -- that Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?

ALITO: I can't think of a reason why Congress would not have that power, but I would have be presented with the arguments.

FEINGOLD: Thank you, Judge.

2001, you wrote an opinion overturning a public school district's anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case Saxe v. State College Area School District violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, "sinful," unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.

ALITO: And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case that students don't lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan's opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student's speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students -- in Tinker it was the wearing of an arm band to protest the war in Vietnam -- is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan's Tinker standard.

FEINGOLD: Thank you, Judge.

Does Congress have the authority to enact legislation that would protect gay students of harassment in schools that receive federal funding?

ALITO: That would fall within the South Dakota v. Dole standard, and the question would be whether the condition that's attached to the receipt of the federal funds is germane to the purpose of the funding, and that's a standard that gives Congress very broad authority.

FEINGOLD: So the Congress does have the authority in general; the question would be scope of it?

ALITO: Congress has the authority to attach all sorts of conditions to the receipt of federal money. It has to be clear so that the states understand what they're getting into, that if you take this money, there are conditions that go with it -- but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.

No real follow up. If Feingold really wanted to nail Judge Alito he would have pressured the nominee into distinguishing "simple acts of teasing and name-calling" (which he and the 3rd Circuit panel hearing this case say are protected by the First Amendment) from those classified as "fighting words." Feingold should have asked the judge if "nigger," "kike," "papist," "faggot," "dyke," are fighting words which schools could ban and then moved on to the less obvious ones like- "papist," "sodomite," "sinner" "bigot" which could and perhaps do function as both, an incomplete description of a set of values. I think this would have posed a challenge to those who try to make this distinction.

And with respect to the discrimination and Congressional acts protecting gays Senator Feingold merely asked Samuel A. Alito to commit to something even Justice Antonin Scalia would support - legislative debate and control over this contentious social issue. Gay Democrats should complain to their allies on Capitol Hill. Senators Charles Schumer, Dianne Feinsten, Edward Kennedy and Patrick Leahy didn't ask Judge Alito any questions about gay rights the gay being's place in America's constitution and society. And Feigold devoted what, four or five minutes to the topic? Had he actually pressed Alito on our constitutional rights (instead of getting Alito to commit to the legislature's prerogative to debate and reach a conclusion on gay rights and harrassment) Senator Feingold would get some kudos from this blogger. He did not.