Same-sex marriage and democracy

            For the past year or so, the District of Columbia’s city council has been engaged in a tug-of-war between factions as it has attempted to conduct the people’s business: first, it was a meddlesome Congress that tried to supersede all local direction of the city’s gun-control policy.  Then, an ongoing proxy battle with an arrogant mayor resulted in clashes related to education, recreation, and contracting policy.  Now, the Archdiocese of Washington is threatening to withdraw from its Catholic Charities partnership with the city—in which the Church provides social services to some 68,000 homeless and poor residents—if the council proceeds with its plan to legalize same-sex marriage next month.

            There are plenty of freedom-of-conscience provisions built into the bill: the Church would not be required to marry same-sex couples or allow them access to non-public spaces of their property.  They would, however, be required to follow non-discriminatory guidelines for entities receiving government money—e.g. extending health insurance to and facilitating adoptions for gay couples.  Since Catholic Charities would not, out of moral reservation, be able to meet those requirements, it would thus not be eligible to do business with the city.

            Reactions have been mixed: some council members say that the Church is not indispensible to the city and should not dictate its policy.  Other people are sure that more concessions could be made to satisfy Church tenets without subjecting gays to wholesale prejudice.  Still others have argued that the measure should be put on the ballot, as has been the case in dozens of states.  Mostly, this argument has come from gay marriage foes, confident that a law will be rejected if submitted to voters (a board of elections and ethics has twice denied a ballot initiative or referendum to go forward). 

            One recent opinion article in The Washington Post presented an alternative version of that argument: a gay man in D.C. who writes, “I yearn, too, to be married someday, but at what cost? To force same-sex marriage into law through the caprice of judges, the sympathies of a majority of various legislatures or even the fiat of a president can be viewed as a kind of tyranny.”  While it’s common for parties who are on the losing side of policy fights to rail against “activist” judges and legislators that don’t respect the “will of the people,” it is strange to see that sentiment from someone who is benefitting greatly from those two sources of legal redress.

            There are two main points to be made about this controversy: one, is that not all opinions are equal.  I can, at a basic level, understand why the Catholic church would deny religious services to gay couples: for the reason that spiritual beliefs cannot be legislated out of existence, nor are they something that the believer can choose to have.  To have faith or not is hardly a free and simple choice for most believers—although the same can be true about being homosexual.  (And yes, I realize that the religious community is not monolithic—there are undoubtedly Catholics who would gladly marry two homosexuals.)  However, governmental protection to practice one’s beliefs does not mean that discrimination is legal.  To say that the Church’s views on sexuality should be given equal consideration as should views on sexuality from a scientific, cultural, or human rights perspective is erroneous.

            Secondly, the will of the people is a fickle protector of civil rights.  Even though it is our duty to resist governmental encroachment on our liberties, the legislatures and the courts were never intended to be a reflection of popular opinion.  As dysfunctional as our Congress appears at times, the elected men and women always have to take a view of what the greater good to society is when they cast their vote, which sometimes entails offending their constituents.  The courts, to an even greater degree, do not merely affirm and clarify policy that the legislature has passed, but they sometimes must overturn it when it violates the Constitution.

            People (conservatives in particular) abhor the notion that one unelected judge can alter the course of history by deciding which laws are appropriate or inappropriate by the principles of our society.  Take these words of an ambivalent Supreme Court justice in the early 1950s: “how is it that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved?”  The case he was reviewing was Brown v. Board of Education.  The man was Robert Jackson, a liberal who was having doubts about overturning segregation laws (even though a decade earlier he was in the minority of justices who voted to uphold the rights of Japanese-American citizens who had been placed in internment camps).

         In the end, of course, he voted to end segregation.  But for him and others like him who have spurned the popular will to uphold the Constitution, I would hope that the people who are elected or appointed to run the government are chosen not just for their knowledge of policy, but for their ability to listen to all sides and create laws that demonstrate the greatest good for the greatest number of people.

Healthcare passes—at the expense of women

            Healthcare reform is inching along and if the close vote in the House is any indication of the deep split between liberals, moderates, and conservatives, then the Senate—with a higher concentration of the latter two groups—will have to dilute the bill even more to surmount a filibuster.  Still, the House’s bill is not a resounding victory.  It takes two steps forward and one step backward—in that for all of the great features that will expand health coverage and crack down on insurance companies, this comes at the expense of women’s reproductive rights.

            While abortion coverage (along with illegal immigrant coverage) was always a contentious point of reform, the settlement over the weekend on the Stupak Amendment is not only against women’s rights, but is against working-class women’s rights.  The language of the amendment denies federal funding for abortion services (an already-established provision of the law), but also denies women who are receiving subsidies from the government to purchase public or private insurance in the new Exchange from getting an abortion even if they pay out-of-pocket into their monthly premiums.  A far more sensible amendment was offered by Rep. Lois Capps (D-Calif.) in which federal funds and private funds would be segregated in premium payments, and only the non-subsidized money would be used for the operation.  However, detractors called it an accounting gimmick that could not be enforced.

            The glaring irony is that small-government conservatives of both parties voted in favor of this amendment, even though it expands the reach of federal prerogative right into a woman’s physician’s office.  What’s more, the vast majority of those voting for the amendment would not have voted for the final bill even if the language was not approved.  But alas, the art of politics requires that a tiny fraction of lawmakers be appeased for the country as a whole to progress.

            While the language makes an exception for women whose life is endangered, or who have been the victims of rape and incest, that is little consolation.  A pregnancy is more than a medical condition.  It is an obligation to the woman, the child’s father, and the families of both parents.  But the weight of obligation is sometimes too much for women to bear.  The child might be unwanted or the woman might be physically, mentally, or financially unprepared to bear such a burden.  No one wants any abortion to happen, but when a woman needs more time before  entering into motherhood or when she must weigh the costs of rearing a child to whom she cannot dedicate herself or her material resources, it is unfair for a group of (primarily) men to stipulate that a woman must be dying or traumatized for her to have any choice in the matter.

            It makes little sense to me that this bill will bring opportunity for treatment to millions of working-class and young women—both of whom are most subject to false information and interest group tug-of-wars on the family planning front—so that if they accidentally get injured, they will be fine—but if they accidentally get pregnant, they are out of luck.  Would it not be more practical to simply regulate abortion providers to ensure that women who seek the procedure are not put in jeopardy by back-alley, unlicensed abortionists?  The last time I checked, the Constitution charged our government with promoting the “general welfare” of all its citizens, not simply the welfare of those who are wealthy and already have access to employer-based private coverage and who have an unbiased accounting of their options regarding reproductive rights.

            While the bill should not be sunk on the basis of this one anti-woman provision, it just goes to show that sex discrimination is still acceptable by the majority of elected representatives, even if it takes away a long-established legal right.

Sen. Graham’s obtuse questioning

            It is a cruel twist of irony that Sonia Sotomayor’s Senate confirmation hearings have actually told us very little about the Supreme Court nominee herself.  Instead, we have found out far more about the lives, the judicial philosophy, and the personal grievances of the individual senators.  In a way, it is fitting: judges resist the glare of the spotlight, preferring to be reclusive and studious in order to render dispassionate dispensation of justice.  Politicians, on the other hand, leap for the cameras at every chance they get.  Sotomayor has done what she does best—sitting quietly and patiently, giving each senator their chance to be heard, taking copious notes, and not trying to let on to her true feelings.  She is the anti-politician, something we knew about her from the very start.

            But with Sotomayor deliberately remaining uncontroversial and unprovoked, the senators must try and outdo each other.  Democrats attempted to outpraise their colleagues (Sen. Al Franken ended yesterday’s questioning with a Perry Mason-related compliment) and the Republican side became an echo chamber for “wise Latina” grumblings.  Sometimes, their complaints bordered on incoherence.

            Take this excerpt from Sen. Tom Coburn’s opening statement:

During the campaign, [President Obama] promised to nominate someone who’s got the heart and the empathy to recognize what it’s like to be a young, teenaged mom. The implication is that our judges today don’t have that.

Do you realize how astounding that is? The empathy to understand what it’s like to be poor, to be African-American or gay or disabled or old. Most of our judges understand what it’s like to be old.

            I think the “implication” that none of the Supreme Court justices knows what it’s like to be a teenage mother is more than that—it is more like a fact.  And I’m not saying that’s a bad thing, as long as we have empathetic judges.  (That’s empathetic, not sympathetic.)

            Sympathy is passive, it simply requires an acquiescence to the condition of the individual.  It represents the unification of feelings, and it is something you give to your loved ones in their time of need.  Empathy is active, in that it allows one to identify with the afflicted individual while remaining a separate entity.  It is realization without participation.  As a person, I could probably sympathize with a struggling single mother, but I couldn’t empathize with her—probably because I would have little idea what raising a child is like.  Sotomayor could probably come a whole lot closer to empathizing with single mothers than any male colleagues, yet still keep her sympathies separate.  This is to be expected of human beings, and I would wager that this is what President Obama wants in a judge.

            The other questioner who raised eyebrows was Sen. Lindsey Graham.  I don’t fault him for being frank in his questioning or in his willingness to wean Sotomayor off of her carefully-vetted responses.  But a good portion of his time was spent lecturing and condescending to the judge in a way that could only have been meant to humble her and aggrandize his own role.  For example, was it really necessary to quote anonymous ratings of Sotomayor from lawyers who called her “angry”, aggressive”, nasty”, and “a terror”, before finally asking outright, “Do you think you have a temperament problem?”

            A legitimate concern?  Yes.  Could it have been asked in a more dignified manner?  You bet.  And to be fair, these were lawyers who were rating Sotomayor.  Talk about the pot calling the kettle nasty.

            The other part of Graham’s questioning with which I took umbrage was in his repudiation of the “wise Latina” comment by Sotomayor—the phrasing of which, so many senators seemed to overlook, in part owes its syntax to a comment attributed to Justice Sandra Day O’Connor.  If Sotomayor were not trying to parallel her response to the assertion made by O’Connor, no doubt the wording (and perhaps the meaning) would have been different.  But I digress; here are Graham’s comments at length:

If Lindsey Graham said that I will make a better senator than X, because of my experience as a Caucasian male makes me better able to represent the people of South Carolina, and my opponent was a minority, it would make national news, and it should.

Having said that, I am not going to judge you by that one statement. I just hope you’ll appreciate the world in which we live in, that you can say those things, meaning to inspire somebody, and still have a chance to get on the Supreme Court.

Others could not remotely come close to that statement and survive. Whether that’s right or wrong, I think that’s a fact.  Does that make sense to you?

            It makes perfect sense to me for a simple historical reason: Caucasian males have been at the head of the executive, legislative, and judicial branches; the corporate sector; the military; sports and entertainment; and academia for most of the past 230 years of our republic.  And they have not always used their powers to show empathy to the impoverished, the segregated, and the disenfranchised.

            Once wise Latinas have run this country for a couple of centuries, then us white males can claim racism.  But it is going to take a lot more than an academic musing over the extent to which experiences affect our ideology to make me cry bigotry.  And where does Graham get off trying to make Sotomayor feel guilty about what she said?  The whole premise of her “still having a chance” is insulting.  What he means is, “We’re willing to overlook the fact that you’re a racist and a sexist if you say you’re sorry about that speech you gave.”

            If Graham is truly committed to greater representation for women and minorities in government, what message is it sending when he warns against the acknowledgement of socially-constructed identity?  Or, to put it another way, who would you trust to mete out justice in cases involving historically disenfranchised social groups: a white male, or a woman who grew up in an era when more law firms were looking for female secretaries than female lawyers?

            But who needs hypotheticals when we can look at actions.  Earlier this year, Graham was one of 36 Republican men not to vote for the Lilly Ledbetter Fair Pay Act.  It was passed by all the Democrats and all four Republican women.  What did this wise Caucasian male know about unequal pay that seventeen of his female colleagues did not?  Ah, but of course: men and women always reach the same conclusions, regardless of experiences.  Right, Senator Graham?

Sotomayor’s confirmation: too staged to be democracy

“[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….”

            That singular sentence of Article 2 Section 2 of the Constitution has given rise to the much-hyped spectacle that arises once or twice during a president’s term of office: the ritual Inquisition of the Supreme Court nominee.  By any measure, the confirmation hearing is a dull screenplay masquerading as vibrant democracy.  It doesn’t matter what party the senators belong to or their individual curiosity toward a particular subject; 90 percent of the give-and-take during the hearing goes according to this dialogue:

Senator of the president’s party: Can you please describe to me your position on the Second Amendment, and whether the federal government is obligated to protect individual citizens’ fundamental right to possess handguns?

Nominee: Senator, the Supreme Court has already affirmed the right to obtain firearms and is settled law vis-à-vis Heller.  As such, I would be compelled to treat that precedent with the utmost of respect and deference.  I would note, however, that the Second Amendment has not been incorporated to states, but I would very much prefer to refrain from expounding on this principle further, since there are matters pending before the Court on this question and I don’t want to give the impression that I am prejudging the issue.

Senator: Excellent answer.  That shows precisely the kind of restraint and scholarship that would be a valuable asset to the bench.  I wish we had two of you to confirm today, rather than just one.

           

         Sonia Sotomayor, like George W. Bush’s nominees before her, has been coached extensively to not say anything that would remotely require her to weigh in on what kinds of rulings she would deliver on a whole host of constitutional issues.  Which is a shame, because her legal expertise and judicial philosophy are sterilized and stifled.  Not that the senators mind having their questions deflected: they are too busy schmoozing for the cameras to notice the obfuscation.  They either want to give the impression that they vigorously support Sotomayor (and by extension, President Obama and the Latino community as a whole)—e.g. Sen. Dianne Feinstein’s gushing praise, “If there’s a test for judicial temperament, you pass it with an A-plus-plus”; or they want to shame the unabashed leftist judge before the nation for her racist views in a valiant attempt to humble her or, by proxy, any Democrat in swinging range—e.g. Tom Coburn assailing “President Obama’s stated intent to nominate someone who is not impartial, but instead favors certain groups of people.”

            Indeed, it’s almost unfortunate that these hearings are televised, because that allows senators to repeatedly toss around labels and concepts that have little bearing on reality, but that rile emotions.  Republicans don’t want an “activist” judge who “makes policy.”  Sen. Sheldon Whitehouse pointed out, however, that the “point comes when these words become slogans, not real critiques of [Sotomayor’s] record.”  I’ll keep it brief: if you’re a fan of Marbury v. Madison, you’re a judicial activist.  If you respect Brown v. Board of Education, you don’t mind a policymaking judge.  These labels have been twisted and given negative connotations, but in reality they just apply to routine aspects of judging statutes in light of the state and federal constitutions.  Don’t drink the Kool Aid and think that judges are not supposed to change society; they do, with or without the support of the other two branches.

            To be fair, Democrats are not afraid to use coded language.  They have harped on Sotomayor as having more “experience” than any other Supreme Court justice of the last 20 or 30 or 250 years—whatever their number is.  So what?  Priding oneself on nominating a career judge is a relatively recent phenomenon.  Once upon a time, veterans, legislators, bureaucrats—in a word, politicians—ruled the Court.  But Americans are under the spell that judges should not be anywhere near elective politics.  Chalk it up to Bush v. Gore perhaps, but having experience as a judge does not absolve one of having a political ideology.  I’m not saying it’s a good thing or a bad thing.  I’m just suggesting that we stop kidding ourselves that the amount of time spent interacting with people in a society as a civic or political leader is somehow incongruous or subservient to the quantity of philosophizing a judge has produced during her career.

GOP asks about Sotomayor’s positions on “unborn”, “undead”

 

Washington, D.C.—Even though Republicans have pledged to give President Obama’s Supreme Court nominee a fair and impartial hearing to discuss her legal opinions and controversial remarks regarding race and gender, a group of senators is also seeking assurances that Sonia Sotomayor will protect both the rights of the “unborn” and of the “undead.”

            Appearing on The Sean Hannity Show, Sen. Jeff Sessions (R-Ala.) of the Judiciary Committee aired his concerns about Sotomayor.  “Sean, I think it’s important that we ascertain this woman’s views on how to protect the unborn.  But even more importantly, I want to know how she plans to protect the undead.”  He added, “Of course, I’m referring to those creatures haunting the dreams of children, feasting on the souls of humans, etc.”

            White House press secretary Robert Gibbs declined to answer for Obama, saying “We have no idea whether or not she is pro-zombie, and frankly the president did not make an issue of it when he met with her.”

            Duane P. Frankenstein, vice-president of the Brotherhood of Otherworldly Occupants, said he was “encouraged” by Sotomayor’s open-mindedness to the issue.  “I and everyone else at BOO would love to sit down and chat with her over a cup of B-negative about the general public’s intolerance for our lifestyle,” he said.  Most people are too busy wielding pitchforks and torches, he said, “to realize that we have feelings too.  Well, some of us…I’m not entirely sure about the poltergeists.”

            Sotomayor has only ruled on one creatures-of-the-dark-related case during her tenure as a judge on the Second Circuit Court of Appeals.  In Dracula v. Fort Greene Municipal District (2004), she upheld a lower court’s ruling that local governments do not have to grant petitions to remove street lights in ethnically-vampire neighborhoods.  “While the Court is understanding of the adverse affect that light has on the plaintiff’s skin, it is more proper to adhere to established precedent insofar as the aim of government is to provide for the common welfare—of which the act of erecting streetlights is included,” she wrote.  “Besides, can the plaintiff just wear a hat or something when he goes outside?”

            Sen. Kay Bailey Hutchison (R), whose home state of Texas has large werewolf, mummy, ghost, spectre, and ghoul segments of the population, wanted assurances from the White House that Sotomayor would respect their rights.  “Brains…I need brains…” she said.