Backdoor Gay Rights

Hillary didn't seem to gain much traction with her "Vote for me because Obama will die" argument, thank goodness. I'm starting to have a new appreciation for the intelligence of the American people, who haven't yet been tricked by the "Obama = Jesse Jackson" or the Obama's not a Muslim "as far as I know" comments. Go America!

But on to other topics ... what are your thoughts on David Paterson's executive directive to recognize gay marriages from other states? I think this is pretty ingenious, for two reasons: 1) it avoids the anti-majoritarian arguments of those who think these decisions should be made by elected officials (while actually avoiding the horrors of legislative decision-making), and 2) it could bring about the sky didn't fall effect of the Massachusetts gay marriage decision.

If New York begins to recognize gay marriages performed in other jurisdictions, it's only a matter of time before residents will reconcile themselves to gay marriage in their own state.

In Soviet Russia, Shark Jumps You!

In the time since Hillary Clinton has been mathematically eliminated from winning the Democratic nomination, her candidacy has jumped the shark so many times that all the jumped sharks have formed a support group, and that support group now contains all the sharks in the world. She's jumped so many sharks that the phrase "jumped the shark" has jumped the shark.

This one, I don't even know what to say:

"My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don't understand it," she said, dismissing calls to drop out.

She's staying in the race that she's clearly lost because someone might shoot Barack Obama?

She's jumped a planet full of sharks. She's jumped the concept of a shark. The shark refused to be jumped, because it was so confused and infuriated by this. There is no shark.

-A

Top 5 Simpsons Quotes that Explain Much of Life

Runner-up) Homer is celebrating the return of alcohol to a previously dry Springfield.

Homer: "To alcohol! The cause of -- and solution to -- all life's problems."

Application: Saturday mornings.

5) Homer is on trial for invading the privacy of celebrities that have moved to Springfield.

Homer: Look, all I'm saying is, if these big stars didn't want people going through their garbage and saying they're gay, then they shouldn't have tried to express themselves creatively.

Application: Explaining why I know the details of Brad Pitt's love life.

4) Homer is watching a comedian on "Evening at the Improv".

Comedian: See, black guys drive a car like this:
[Leans back]
Do, do, ch. Do-be-do, do-be-do-be-do.
Yeah, but white guys, see, they drive a car like this:
[Hunches forward, talks nasally]
Dee-da-dee, a-dee-da-dee-da-dee-da-dee.
Homer: Ah ha ha, it's true, it's true! We're so lame!

Application: stuffwhitepeoplelike.com (nb: this Simpsons episode was fifteen years ago).

3) Moe is hooked up to a lie detector, which buzzes whenever he lies.

Police: He checks out. Ok, sir, you're free to go.
Moe: Good, 'cause I have a hot date tonight. (buzzes) Blind date. (buzzes) Dinner with friends. (buzzes) Dinner alone. (buzzes) Watching TV alone. (buzzes) Alright! I'm going to sit at home and ogle the ladies in the Victoria's Secret catalog. (buzzes) Sears catalog. (dings) Now, would you unhook this already, please? I don't deserve this kind of shabby treatment. (buzzes).

Application: Airport security, where everyone believes they're above this kind of abuse, and they're really not.

2) Homer has just rejected a home security system after learning about the price.

Home Security Salesman: Surely you can't put a price on your family's safety!
Homer: I wouldn't have thought so either, but here we are.

Application: Law and Economics

1) Grandpa Simpson is talking to a teenaged Homer.

Grandpa: I used to be with it, but then they changed what "it" was. Now, what I'm with isn't "it", and what's "it" seems weird and scary to me. It'll happen to you!

Application: My life.

- A

The Wages Of Crying "Backlash"

I'm going to go on record saying that the fallout from 2004 was entirely overrated. Anti-gay social conservatives claimed that the backlash to gay marriage sent Bush to victory, but there is little evidence of this. In fact, the best evidence of a backlash that the anti-gay forces can point to is the correlation between Bush's victory and the Massachusetts decision, but the same can be said of anything that occurred contemporaneously (victory, as they say, has a thousand fathers -- hell, there were a few people at the time saying that he won *because* of the Bush Doctrine and the Iraq War.) By that logic, the Red Sox winning the World Series had a hand in Bush's victory.

The argument that is often made is that these court decisions "mobilize" groups who would otherwise just ignore elections. But do the kind of people who get incensed by out-of-state gays acquiring marriage rights sound like your average wishy-washy on-the-fence voter? Or do they sound exactly like the Republican base? Thinking about it logically, the "damage" would have to be would-be Kerry voters who were so incensed by out-of-state gays acquiring rights that they abandoned Kerry (who was opposed to gay marriage) for Bush (who was opposed to gay marriage).

Does that sound like something that would happen? Or is it more likely that social conservatives, already pissed that courts would reasonably interpret the law to allow for the exercise of a fundamental right, chose to loudly interpret a narrow Bush victory as a "backlash" against gay rights?

But on to your original question: should courts take into account the effect that their decisions will have on elections? I say no. There are already two branches of government that act with an eye to how their actions will be perceived by an electorate, why drag the branch that was explicitly protected from democratic accountability into it? While I agree that courts should look outside of themselves (say, by examining evidence and not simply assuming that both sides present equal arguments), there's no reason to try to predict the effect of their decision on the political scene, because (a) who knows if their predictions will even be accurate and (b) it simply has no bearing on whether the people before the court are right or wrong according to the jurist's view of the law.

To use a historical example, the rise of the conservative wing of the Republican party after a generally Democratic period following WWII has variously been attributed to a "backlash" against Roe v. Wade, the excesses of the 1960s, Cold War weakness, labor unions, and every other bugaboo of the Right. "Backlash" thinking is almost always used to attack decisions/people that the Right dislikes anyway, without regard for whether there actually was a backlash (short answer: there wasn't). By paying heed to this counter-mobilization myth, the courts would just be buying into right-wing thought, failing in their duty to conduct legitimate judicial review, and even then they might not actually avoid controversy (the authors of Roe v. Wade were sensitive to this nonsense, and legitimately thought they were settling a controversial issue ... whoops!).

In reality, the rise of the right-wing in our political culture is not the result of a backlash, but the predictable post-Civil Rights era re-ordering of the country, with Democrats becoming the party of the urban and the north and Republicans taking over the south (not so much a "backlash" as the inevitable fracturing of the New Deal coalition). While there were many, many catalysts for this change, one stands out in light of our discussion: Brown v. Board of Education. If Earl Warren would have known that the court's decision would eventually lead to Ronald Reagan and the rise of the GOP, would he still decide Brown the way he did?

In the end, as convinced as he was as to the correctness of the decision, I doubt that he would have cared one bit. I think that we should adopt the same attitude, celebrate the court for bravely coming to the right legal decision on this issue, and let the right-wing worship at the shrine of the Almighty Backlash.

- A

Again? How Could This Happen Again?

Dearest A,

The California Supreme Court struck down a ban on same-sex marriage today. Same-sex couples everywhere rejoiced. Family advocates cursed the courts.

Democrats shook their heads in disbelief. Gay marriage will again become a political topic in a presidential year.

Courts seem to have a tin ear when it comes to politics. Goodridge v. Department of Public Health -- the Massachusetts same-sex marriage case -- came out in November 2003, about a year before the 2004 Kerry-Bush election. Conservative evangelicals used it as a rallying cry, and pundits credited ballot initiatives banning gay marriage in several states with Bush's victory that year.

This California case will almost certainly become a major issue in the presidential election. Should the court have taken that into consideration before issuing its decision?

I think so, for two reasons.

1) Judicial decisions have real-world impact. We lawyers tend to think of the litigation process as an intellectual exercise, one filled with writing and research and arguments, and neglect the effects a decision might have. Roe v. Wade is a perfect example of this -- Justice Harry Blackmun allegedly believed his decision would stir trouble for a few weeks and then quickly blow over. Thirty-five years later, we're still mired in an abortion debate.

Judges aren't deciding things in a vacuum. What they decide could have a major impact on the democratic process. They should take that impact into account, at least when it comes to the timing of decisions.

2) Courts ARE political bodies. The Supreme Court effectively debunked the notion of courts as neutral arbiters with Bush v. Gore. The situation has only gotten worse with the sharp tack to the right our federal courts have taken. With one Supreme Court, the Supreme Court says schools can use race in admissions decisions in Grutter v. Bollinger. In the next, the Court says school districts cannot use race in desegregation plans. Similar facts, two different courts, two different results.

The judges on the California Supreme Court will likely say that they are neutral in this whole gay-marriage political mess. They issued a decision based on the law and the facts, and they issued it now simply because it was finished now. They may well believe it. But if courts are political bodies, as has become apparently clear in the last few years, then judges should, at the very least, embrace that role and think about the political impact of their decisions (see #1).

Love,
Sammy

Istanbul, Not Constantinople

We're having a process vs. substance debate? What? Why did nobody tell me? All I remember from that earlier exchange was me saying that the media/legal establishment tends to create a false equal-and-opposite dynamic that muddles where the truth really lies. You responded with a post juxtaposing (and thus equating) "Air America" with "Fox News", with no examination as to whether either network was a more reliable source of truth. Alan's trenchant analysis FTW!

As to the Burma vs. Myanmar split, there are several rules that we could follow with regard to country names. Here are the ones I've thought of:

1) What their government designates as the country name.
2) What they call themselves.
3) What they are known as to others.

If you respect 1), then the country is Myanmar. The government -- those who have a monopoly on the use of force -- calls the country Myanmar. No, the government isn't democratically legitimate, but that doesn't make it not the government. Wishing that the men with guns weren't in control isn't going to change the fact that the men with guns are in control. And deliberately failing to call a country by its designated name is not only the most token of token oppositions (how, exactly, is a name supposed to overthrow a junta?), it's also probably the single most petulant form of protest. We might as well call it Silly Bunch of Jerks.

If you respect 2), then survey the country and figure it out. Even that, of course, has limits. Should we call Germany Deutscheland because that's what they call themselves? Even pronouncing the names gets tricky -- I don't go pronouncing Turkey as "Turk-kee-yay" (mostly because I'm not a total douchebag), even though it is the proper Turkish pronunciation. And of course the country's residents may not even agree on the country, let alone the name -- Northern Ireland, anyone?

So I'll go with 3). A country should be called whichever name most easily and accurately communicates the region/country to the newspaper's readers. French Guyana probably doesn't want to be called French Guyana, but we need to call it that to seperate it from the Guyana next door. Sorry, French Guyana. Sometimes names have to change, like when a country turns into a different country (Bohemia + Moravia + Slovakia --> Czechoslovakia, Czechoslovakia - Slovakia --> Czech Republic). But China has always been China, regardless of whether it's the Qing Dynasty, the Republic, or the People's Republic.

Since I have the same level of awareness of Myanmar/Burma regardless of the name -- it's that Southeast Asian country that isn't the one with the good food, the one we fought in a pointless war, the one Nixon bombed, or the one that is Laos -- I say that "Burma" should win out, in deference to Mission of Burma.

Maybe that should be another rule:

4) Whatever is most punk.

- A

And Another Thing ...

Dearest A,

Today's Slate Explainer highlights our process v. substance debate in a slightly different context.

When deciding whether to call that tiny junta-ruled nation in Southeast Asia "Burma" or "Myanmar," different publications use different methods.

The NYTimes apparently allows the country to call itself whatever it wants. Thus, it used "Myanmar" almost immediately after the ruling junta christened the country with that name.

Slate calls it "Burma" because few countries or international bodies recognize that renaming junta as legitimate.

One could say that the Times follows a process-oriented approach, while Slate is more concerned with substance and "legitimacy." What are your thoughts?

Love,
Sammy

When Individual Choice Goes Awry ...

Dearest A,

Good post on individual responsibility and institutional change. Here's another topic along the same lines -- the intractable problems of urban education, most of which can be attributed to individual choices parents make in sending their kids to school.

A recent report on the D.C. schools (public and charter) showed that 90 percent -- 90 percent! -- of its students were children of color. The reason for this shocking statistic: white flight from public schools following Brown v. Board of Education. D.C. schools were less than 60 percent black before that decision; by 1966, twelve years later, 30,000 white children had left the school system.

The individual choices of white and middle-class black parents drained the school system of resources. With less of a tax base for schools, and less interest in the school system among powerful parents who refused to send their children there, the D.C. schools were left to crumble. And crumble they did.

Now, if we want to change the world, education is a pretty darned good place to start. But as long as parents are able to send their kids to private schools, or move to wealthier suburbs with wealthier schools, urban schools will remain mired in the same problems.

The Supreme Court has made this problem even bigger by refusing to allow school districts to use race in their attendance plans. Now, even if school districts happen to have enough white children to fully integrate their schools, the districts can't do so (at least not by taking race into account).

Individual choice created this problem. And now the Supreme Court has prevented an institutional solution. Where do we go from here?

Love,
Sammy

Your Gut Is The Most Correct Gut Of All

Absolutely. The idea that one person can change the world is generally thought of as positive and uplifting, and as a consequence most people miss the fact that such a belief is solipsistic, insanely inefficient, and ultimately very conservative.

We're supposed to be concerned with our "carbon footprint", when what we really should do is elect people who will raise the MPG requirement, invest in better technologies, and provide incentives for denser, less energy-intensive communities.

We're supposed to use our time and energy learning how to master a potentially dangerous product, rather than pass laws forcing the manufacturers to just make the product safer.

And, as per your atrocious-sounding book, we're supposed to scale mountains and build schools on our own out of nothing but will and gumption, rather than vote for a government that makes education spending and school policies an actual priority.

(see also: health care, personal finance, obesity, really anything and everything ...)

Social goals become personal endeavors. Responsibility is shifted from the directly culpable few (polluting companies) to the indirectly culpable many (consumers). The relatively simple and fair (find out how much damage is being caused and reduce it) becomes complex and unfair (how do you calculate a "carbon footprint", again? and nobody else is doing it!). And as we continue to believe that everything lies in the hands of us individuals, the disdain for any kind of collective action grows and grows.

I'm just glad this idiotic meme hasn't stunted us more -- imagine this kind of thinking in 1964. Integration would be a "personal preference", shopping at a segregated store would be a "consumer choice", and, above all, ending institutionalized racism would be a matter of "individual responsibility". Does anyone really think that this approach would have been just as successful as the Civil Rights Acts and the other instances of government intervention? Shouldn't being effective be the most important attribute when we choose a solution to a problem?

Then again, even though that approach would likely lead to decades of failure and no discernible progress, I'm sure all those stories of personal triumph would have been very uplifting.

-A

Doing Good and Changing the World

Dearest A,

The topic on my mind as of late has little to do with THE LAW, but much to do with how we approach problems as a society -- which, after all, is what THE LAW is supposed to do, right?

I just finished reading Three Cups of Tea as part of my book club. The book tells the story of Greg Mortenson, a climber who attempted to scale K2 and instead made it his mission to build schools in Pakistan. The idea is certainly a great one, and I admire Mr. Mortenson for conceiving of and following through on his project.

But here's the problem -- this book taps into that one-person-can-change-the-world meme that may actually be counter-productive. Individuals rarely act alone, and, even in Mr. Mortenson's case, it was all the help from individuals in Pakistan who believed in his idea that made his project a success. And Mr. Mortenson only became truly successful when he convinced wealthy individuals to back his projects.

This kind of collective action means that it is institutions, not individuals, who can actually make the raucous, heard-round-the-world change that will make a difference.

Not only is this cult of personality therefore incorrect, it is also counter-productive because it takes the responsibility off of our institutional actors -- governments, in particular. In our spare moments, we may all wish that there are more Greg Mortensons in the world. The fact is that we Americans, collectively, have the potential to make change on a scale much larger than anything Mortenson has accomplished.

But as long as we believe that the answer lies in more Greg Mortensons, then we will never demand such collective action.

This idea is kind of out there, and it got a whole lot of criticism during the book club session, but my gut tells me it's right. Thoughts?

Love,
Sammy

Is Anyone Else Having a Flashback to First Year?

Dearest A,

Sure, blame it on the press.

I agree wholeheartedly with your point, but there is something to be said for "neutral" and "objective" journalism. Once you abandon even the veneer of objectivity for more "truth-seeking" journalism, you're just as likely to end up with a Fox News as with an Air America.

Legal theorists have been obsessing about similar ideas for decades now. Which is more important -- ensuring a fair process or ensuring good outcomes?

Antonin Scalia and I can probably all agree on the basic tenets of a fair process in the legal system. But this fair process will often produce outcomes I don't like.

Alternatively, we can focus on achieving good outcomes, but Scalia and I have very different ideas on what a "good" outcome is. Who wins that battle? Conservatives have been doing a damned good job at prevailing in the war of ideas so far.

So, like I said, "neutral" journalism and process-focused legal theory are perhaps the best methods for achieving "truth" and "good." Because once you abandon the process in favor of the substance, might will usually make right.