Memo From Chicago

Footnote -- July 3, 2008: At dinner tonight, the subject of Wesley Clark's attack on Senator McCain came up. I reminded The Wife of what happened -- "Wesley Clark is the guy who dissed John McCain." A friend interjected, "That's going to be his epitaph now. Not 'Commander of NATO,' not 'Professor at West Point,' not 'Presidential Candidate.' From how on, he's always going to be 'The guy who dissed John McCain.'" Funny but sad, both because it's true.

I Find I Enjoy Being Stimulated

At long, long last -- four months after it was promised -- our stimulus money arrived today. Woo hoo. Undeserved money drawn from public debt in an improbable attempt to salvage the economic legacy of a failed government. But, like I've said before, I get to pay interest on this money whether I get it or not, so I may as well take the money when it's being handed out even though I thought it was a bad idea to begin with.

Criticize The Content Itself, Not The Hypocrite Who Spouts It

To call someone a “hypocrite” is usually a pretty bad thing. No one enjoys being called that and it seems to be a fairly stinging sort of insult. For instance, Senators Larry Craig and David Vitter are both “family values” Republicans who got elected to their high offices, in no small part, based on their aggressive appeals to social conservatives. I suggest here that although these men may be fairly called "hypocrites," their poor position to make certain statements is not nearly as important as what they have to say.

hyp·o·crite (n) 1 : a person who puts on a false appearance of virtue or religion 2 : a person who acts in contradiction to his or her stated beliefs or feelings.

Senator Craig, as you will recall, was rather publicly humiliated by being arrested for lewd conduct in a men’s room in the airport in Minneapolis. Specifically, he rubbed his foot on the foot of an undercover vice cop sitting in the next stall, which the cop said was a common way that gay men cruise for anonymous sex. The implication being, of course, that Senator Craig was cruising for a gay quickie in the men’s room while on the way back home from work in Washington. He pled guilty to a reduced charge of disorderly conduct, so he has formally and legally admitted he did something wrong after being accused of this. Craig denies being gay, but no one believes him. Senator Vitter, as you will recall, was rather publicly humiliated by being named as a client in the black book of the late “D.C. Madam” Jeane Palfrey. The firestorm surrounding the prosecution of Ms. Palfrey grew so intense that Ms. Palfrey apparently committed suicide rather than deal with it. His no-doubt humiliated wife stood by his side at the press conference when Senator Vitter admitted patronizing Ms. Palfrey’s services while serving in Congress.

So when Senators Craig and Vitter co-sponsor a resolution to adopt something called the “Marriage Protection Amendment,” which would render every same-sex marriage in the United States invalid, it is easy to call them hypocrites because they have treated their own marriages casually. But their attempt at lawmaking may well be a genuine expression of their ideals, even if their personal conduct falls short of realizing those ideals. They are only human, after all, despite the lofty atmosphere of power, privilege, and pretense in which they function. If we exclude from the category of people who can dispense moral guidance everyone who has fallen short of their moral ideals, there would be no one at all who could expound on issues of morality. So to some extent, we are all hypocrites, and yet we must nevertheless move forward as best we can with our moral lives.

These Senators may well be hypocrites for trying to “protect” your marriage and mine, after having trashed their own marriages. But that doesn’t necessarily mean that their own personal failings should be used to measure the merits of their proposal.

Consider a doctor who smokes. She will tell you not to smoke, that it causes cancer, that you’ll be healthier if you don’t smoke, and that the sooner you quit, the better it will be for you. She’s right. The fact of her own smoking habit does not make her advice about smoking in any way incorrect. Her behavior may render her advice a little less persuasive than it might otherwise be, but objectively, she’s right.

So I don’t think it’s right to attack the “Marriage Protection Amendment” because some of its legislative sponsors have less than perfect personal records for protecting their own marriages.

I think it’s right to attack the “Marriage Protection Amendment,” because it’s not gong to “Protect” anyone’s marriage at all. Remember – no one’s heterosexual marriage has been invalidated or diminished in any way by the adoption of same-sex marriage. Straight couples (like The Wife and me) are just as married now as we were before the Marriage Cases decision was announced. The only thing this proposed Constitutional amendment would do is take away someone else’s marriage.

That does not sound like “Protection” to me. No one has ever been able to explain to me how my marriage is in any way endangered by gay people marrying one another.

And think about the magnitude. We’re talking about a phenomenally small number of people who are actually taking advantage of this law. Since same-sex marriage licenses were made legal in Los Angeles County, it looks like about 2,000 licenses have been issued. Assuming proportionally similar numbers around California, that’s a total of about 7,000 same-sex marriages in the state. That’s 14,000 people in same-sex marriages out of 36.5 million – .038% (that’s thirty-eight out of every hundred thousand people).

Canada has roughly the same population as California. Same-sex marriages were first recognized in Ontario on June 10, 2003 and nationally in 2005. A total of 12,438 licenses were used as of October 31, 2006 in the entire nation of Canada, which had a national population of 32,987,532 that year. That means that after more than a year of same-sex marriage being legal in Canada, .075% of its population is in a same-sex marriage; that is to say Canada’s rate of same-sex marriage is about double California’s -- although California has had same-sex marriage for 11 days now, and Canada has had it for more than five years. So if California’s experience is anything like Canada’s, we can anticipate the number of same-sex marriages not quite doubling over the next five years, until something like 30,000 or so Californians are in same-sex marriages. Meanwhile, the national average is that very close to half of all Americans are currently married, and with a miniscule exception from Massachusetts, they are all in opposite-sex marriages.

If you were to expand this projected experience to the entire nation, that would work out to under 113,000 same-sex marriages, total, for the whole country. That would make the proportion of same-sex marriages to opposite-sex marriages 674 to 1. For this you want to amend the Constitution, Senator Vitter? This is a threat to “traditional” marriage in a nation that has 76 million opposite-sex marriages, Senator Craig? To foreclose upon even the possibility that less than a quarter million people might do something that does not affect their fellow citizens at all?

Senators, do you really hate gay people that much, that you would use the great power and dignity that has been given to you, to go to that much effort to hurt so few of them? Shame on you both!

This is treating the Constitution like a plaything. That this is motivated by bigotry makes even more offensive. So don’t be mad at Senators Vitter and Craig because they’re hypocrites. Be mad at them because they are poor custodians of our fundamental national law.

Chicago: Making Less Of Its Own Gravy When It Rains

Let me conjure up a visceral image for you – runoff rainwater in an alley in Chicago. Your reaction is probably “Ech.” Well, even after this program to create “green” alleys you probably still wouldn’t drink it. But at least it will be a little bit cleaner when it runs off into Lake Michigan. Kudos to Chicago for taking on a scarcely-noticed problem – even if it is a little bit slow (they’ve only done 40 alleys and only allocated funds for 48 more; I suspect there are substantially more than 98 alleys in the city of Chicago).

Sincerity

Yeah, they really mean it. You can totally tell.

Guns Guns Guns

One of the most important decisions I will ever see was handed down by the Supreme Court today. The Supreme Court today definitively (if by only a narrow margin) resolved the question of whether the Second Amendment confers an individual or collective right to keep and bear arms. The author of the majority opinion will tell you what the outcome was: Atonin Scalia.

The 5-4 majority opinion, finding an individual right to own firearms, is actually fairly modest in its scope – it does not purport to set forth the contours of the right, nor the applicable standards for jurisprudence concerning the right, nor does it muse on the question of what kinds of regulations on the exercise of the right are Constitutionally permissible.

All we know is that a law that is, in effect, a flat ban on owning handguns violates that right. The rest, according to the majority, will be left to future cases. That is the basic holding of District of Columbia v. Heller.

John McCain has a good issue to run on now, one that will sound a little bit familiar to others interested in the interplay of law and politics: “My fellow citizens, you are one vote away from losing your individual right to have a gun. How do you think a Justice appointed by President Obama would vote if this issue came before the Court again?” An interesting political tonic to the invocation of Roe v. Wade as the holy grail of Constitutional law, I should think.

More importantly, Scalia is right on this one. If the right to own weapons is one that resides in groups – specifically the military and more specifically the National Guard – then the concept of a “militia” is eviscerated and the Second Amendment is rendered ultimately a nullity. The National Guard is already an organ of the state. The state is an entity which, by definition, has the legitimate right to use force to achieve its goals.

There was never any doubt (at least to me) that the National Guard or other military organs of the state could use guns. If the Second Amendment did not exist, there would still be a military (other sections of the Constitution authorize the creation and maintenance of an Army and Navy). So the Second Amendment must be aimed at something more individualized than the military.

That means it is an individual right. What’s more, the Bill of Rights was created to protect individual rights, and it is entirely consistent with history to note that several states enacted portions of their Constitutions to state rights they believed already existed. So to say that the right was there all along and the Second Amendment just explicated it seems to me to be a perfectly valid insight into the way the Framers were thinking back in the 1780's and 1790's.

I don't own a gun myself. No real desire or interest. But I'm very glad that I have the right to if that desire should change.

How TL And His Cat Defused A Ticking Time Bomb And Kicked Six People Out Of Their Homes Before Lunchtime

6:15 a.m.: My alarm goes off. I arise, wash my face, and step out of the bedroom witn an intent to get a cup of coffee. The cat attempts to sneak in to the momentarily-open bedroom door but is deterred by a nudge from my foot, and announces my presence in the hallway with a loud "meow."

6:17 a.m.: The Wife hears the commotion and says, "Honey, something's making a strange noise in my bathroom, can you look at it, please?" I stop my trip to the kitchen to get coffee and instead go to her bathroom.

6:18 a.m.: I slide past The Wife and indeed, there is a strange humming noise. It sounds like a busted motor or a fan with something obstructing it. "It's coming from the ceiling," The Wife says and indeed that seems right. But oddly, there is nothing in the ceiling from where the sound seems to be emanating. "Go get the stepladder and see."

6:19 a.m.: "No, that's the wrong stepladder. It's too short. Don't rest the edge of the stepladder on the toilet. You need the big one from the hall closet."

6:20 a.m.: The cat chases me into the living room, meows loudly again as I stumble over her trying to avoid kicking her ribs. She runs in fear from the stepladder as I pull it out.

6:21 a.m.: I take the stepladder into the bathroom. "Here, I'll do it." The Wife unpacks the bigger stepladder and looks around on the ceiling. "I don't know, but it's annoying and been going on since I took my shower. I'm afraid it's going to start a fire." I agree that this sounds like a reasonable sort of threat at this point.

6:25 a.m.: I go to the garage and gather what seem to be likely tools -- screwdrivers and pliars. I suspect I'll need to remove the can light and the two vents. The HVAC vent has locking hex bolts and I'm not sure how I'll be getting those off.

6:27 a.m.: I move the stepladder to the side of the bathroom where The Wife is not putting on her makeup and look up on the ceiling from where the humming seems to be emanating. It's about a foot to the side of a can light, and about three feet from the HVAC vent, and about five feet from the fart fan. Just a spot of drywall on the ceiling. The ceiling and surrounding walls are dry, cool to the touch, and not vibrating at all. The Wife: "Maybe you have to call your dad, he might have an idea."

6:33 a.m.: I have checked the swamp cooler, the air conditioning unit, and the water pressure. Everything looks fine. So I go outside and turn off the circuit breaker to the front rooms. Upon returning inside I see that yes, all the lights in the bathroom are off but the noise continues. Maybe it's one of those last four circuit breakers that we've never been able to figure out what they do.

6:36 a.m.: Nope, turning those breakers off does nothing, either.

6:38 a.m.: As I return out to the garage, something warm and hairy slithers between my ankles and rolls on her back on the floor, batting her paws in the air. What's that damn cat doing underfoot? I almost tripped over her.

6:40 a.m.: Turning off every circuit breaker in the house does nothing. The noise continues. It's clearly not something related to the electric system, and I turn the circuit breakers back on.

6:43 a.m.: My handsfree headset will not communicate with my parents' cell phone and instead calls The Wife's phone. The Wife leaves for work.

6:45 a.m.: I call my parents to see if they have any bright ideas. My handsfree set does not connect with their phone and all I get is silence.

6:47 a.m.: Get that damn cat out from underneath my feet!

6:51 a.m.: I call from a different phone and my parents ultimately suggest looking for a fan in the attic. If there is no fan in the attic, maybe it's some kind of plumbing or water issue? This makes sense; after all, if it's not electric, then the only other thing that would move would be non-electric ventilation equipment (like a fan or a turbine) or something involving water. And something is very obviously moving.

6:59 a.m.: I pull the stepladder out to the hallway in front of the bathroom, which is where the attic access panel is. I push the drywall panel aside, and instantly my right eye is in an astonishing amount of pain. I cry out, and step in the bathroom. A fiberglass fiber has fallen in my eye. A small speck of unidentifiable crud came with it, and my eye requires several rinses and touching my iris with my finger to remove it.

7:01 a.m.: The cat decides that the right place to lay down and lick her ass is directly below the foot of the ladder, at the precise time I need to step down and take the fiberglass out of my eye.

7:08 a.m.: My eye cleared out, I go to the garage to gather safety equipment.

7:15 a.m.: The cat has somehow snuck in to the laundry room and wants to shoot through my legs into the garage. She has been waiting to pounce for seven minutes, and meows loudly in protest when I nudge her with my foot back into the house.

7:17 a.m.: I put on goggles and stuff a paper towel inside the goggles and wrap it around my nose and mouth. Then I put on work gloves. Again, I ascend the ladder. I can move the panel aside and a large square of pink insulation falls in its place, dropping itchy fiberglass on the uncovered portions of my face. The "bigger" stepladder is too short and so I need to get the adjustable aluminum ladder from the garage.

7:20 a.m.: While moving the adjustable aluminum ladder past my car, I drag my knee across a headboard recently removed from the bed in our spare bedroom. The lumber-induced equivalent of road rash breaks out all over the side of my knee. I find this unreasonably painful, although it really shouldn't have been all that bad. Again, however, I cry out in pain. And frustration.

7:23 a.m.: The cat, once again, wants to help out, this time by caressing against my leg and purring loudly in the faux-loving maneuver that all cat owners quickly come to translate as "Hey, you. You're my bitch. Give me a kitty treat, right now, or I'll scratch your eyes out. Don't think I won't do it, bitch."

7:25 a.m.: After wrestling with the ladder to extend it to the appropriate height, I re-don my improvised insulation safety gear and ascend the ladder again. This time, I can get high enough to push aside the insulation brick and look in the attic. It is dark.

7:29 a.m.: I descend, retrieve a flashlight from another room, and again ascend into the attic. My head pokes, Kilimanjaro-like, atop a sea of fluffy pink insulation. Atop the location where The Wife's bathroom is, reflective flex-tubes of ducting and an electrical conduit go to their assigned places on the floor of the attic (which is, of course, the ceiling of the house). No additional mechanisms are visible. There are no fans. There seems to be no plumbing, but it is impossible to tell without moving aside the insulation.

7:33 a.m.: I e-mail my progress to The Wife, leaving out a few of the details set forth above.

7:34 a.m.: The cat sails between my legs as I try to walk back out through the laundry room to get outside.

7:35 a.m.: Thinking that perhaps a bird or some other kind of thing has become trapped in a roof turbine, I conduct a perimeter walk of the front of the house and perform a visual inspection of the roof. There are no turbines on the roof of Soffit House. Another theory excluded.

7:37 a.m.: The Wife calls to find out what's going on. We share theories and I repeat my progress report to her verbally.

7:45 a.m.: I have court in forty-five minutes. I must shower and get to court. I put the ladder to one side and leave the tools and other things on a shelf.

8:05 a.m.: Still coffeeless, I depart for the office with a rueful heart, leaving the buzzing noise behind me.

8:20 a.m.: Once at the office to drop off my dry cleaning, I tell my story to a partner in the firm, who used to be a contractor. He concurs with my father's idea that if it isn't electrical, it has to involve water somehow, and this makes him nervous. We vow to consider the matter further upon my return from six, count 'em, six eviction trials.

11:20 a.m.: I return from court with a half-dozen eviction orders in hand, and speak to the head of the property management company who holds an office in our suite (it's a long story). She gets in touch with her "smart" handyman, and determines that he is free to help out later tonight. I speak with him and arrange that he will come to our house around 4:00 to help solve the problem. Fearing a flood or a fire, I return to Soffit House to check up on the animals and the condition of hy home.

11:30 a.m.: Upon approach, I determine visually that the house is not on fire. So far, so good.

11:32 a.m.: The buzzing noise is audible from the laundry room. As I've set the ladder aside and I am wearing my suit, I do not want to get back up in the attic. What I'm really concerned with is whether I will find the wall weeping with accumulated water or a build-up of heat in some location.

11:34 a.m.: The walls are not visibly weeping. I decide to deal with the Wife's irritation at smudge marks on the bathtub later, and wearing my wingtips, I step on the edge of the bathtub with one foot and put my other foot on a tiny ledge across the tub so I can reach up to the ceiling.

11:35 a.m.: I wonder why the buzzing sound has changed in pitch all of a sudden. But the walls are not vibrating, not warm, and not damp. What's that strange feeling in my toe?

11:36 a.m.: My toe has come to rest on a vibrating razor blade in its plastic cradle. I move my foot, ever so slightly, and the buzzing sound surroudning my head stops. I step down, pick up the razor, and look for where to turn it off. Unlike my vibrating razor, the button is not on the handle but on the very end, and when I locate the switch, I turn it off.

11:37 a.m.: Silence. The buzzing noise, the underpowered-motor-straining-to-turn-over noise, the fan-with-a-dead-bird-in-it noise, the oh-shit-the-house-is-going-to-burn-down noise, is gone. Gone, I tell you. The whole thing had been caused by the razor somehow being turned on in its cradle and the vibrations transmitted through the plastic shower stall cover. A trick of the acoustics in the bathroom made it seem like the noise was coming from the ceiling.

11:38 a.m.: I confirm the result by turning the razor back on again and returning it, cradled, to its original location. Sure enough, the noise returns, exactly as before.

11:40 a.m.: I e-mail my blogworthy findings to The Wife. I start thinking, maybe a nice Greek salad for lunch would be good.

Getting Creative

I'm looking for creative things to do for The Wife on her birthday this weekend. Yeah, sure, I can pay attention to her and do chores around the house and listen to what she says and assure her that she's the world's most amazing woman. All of which I'll do, of course. But I want to try and go above and beyond. And funds are limited at the moment (just paid the mortgage, you know). So if anyone has any clever ideas, e-mail them to me. TIA.

Obeying The Law Will Get You Pulled Over In Tennessee

Driving ten miles an hour below the speed limit? That's a perfectly good reason for a police officer to pull you over, at least in the Volunteer State. And then search your car for drugs. Which is what I suspect this opinion was really about.

Only in Tennessee can you get a ticket for obeying the law.

Death of a Comedian

Atheists, particularly in the United States, have lost an engaging and effective spokesman today in George Carlin. CNN's eulogy (linked) does not mention Carlin's personal non-belief, which is fine; Carlin was a remarkable entertainer for a variety of other reasons. But he skewered religion with as much zeal as he did politicians, and he did it with the same acerbic and vulgar wit directed at other targets (warning -- video contains lots of profanity):

I can just see religious apologists starting to say, "Well, sure, when you put it that way..." Yes, do put it that way! The challenge an apologist should meet is to point out what is unfair or inaccurate about what Carlin said, to demonstrate that the routine was based on something inaccurate. I can do that for the apologist -- God doesn't need money; rather, a church does. But that concedes, of course, you've demonstrated that the church is not God, and also shown that God does not provide for the church's material needs which is why people need to do that in God's place, which in turn implies that the church does not enjoy God's blessing for some reason.

I can also see an objection to Carlin's comedy because it contains so much profanity and some people just don't care to hear language like that. That's a valid criticism. Was Carlin's brand of comedy offensive to some? Oh, yes. That's part of the reason why he did it the way he did. Was it intentionally crass and crude? Oh, yes. That gets your attention. But yes, I agree that he probably could have cut out more than half the "f-bombs" and gotten the same result. (His use of the word "bullshit," though, does not seem to have an adequate substitute, as least not one that packs the same emotional punch.)

More important than the profanity, though, the real power of Carlin's routine comes not from the outrageousness of the comedian's language but rather from the basic truth of the subject. The comedian, like the court jesters of old, gets license to point out obvious facts that social convention prevents others from saying.

Stand-up comedy must be the most difficult form of entertainment imaginable. You rarely get help from anyone else. Few, if any, props to assist with your message. No images, no noises, nothing. Just a microphone, and dude, it's all you. Only your words, your delivery, your personality. The audience is live, and generally it's skeptical. If the material isn't good, they'll boo your ass and heckle you. A friend of mine did this for a few years and he put an immense amount of work into putting together a five-minute routine. That's also not something the audience sees; it's supposed to flow and look effortless, like the comedian is just up there talking. Carlin did that really well; he looked casual and relaxed and comfortable as he threw grenades all over the stage. Carlin was a huge success in a demanding vocation. Now he's gone, but thanks to the magic of modern recording technology, we'll have his words with us.

Revisionism

A challenge to the Defense of Bigotry Initiative has been lodged. I think it should be rejected, for some of the same reasons that Eugene Volokh suggests.

A "revision" to the Constitution is something that changes the basic structure of the government -- requiring tax bills to originate in the Assembly instead of either in the Assembly or the Senate, for instance; or splitting the functions of the Supreme Court into multiple bodies (like the way Texas does it with one Supreme Court for criminal appeals and another Supreme Court for everything else, something I kind of like). It cannot be done only through the initiative process; it requires, instead, a series of constitutional conventions held in the various counties, reporting the results of their deliberations to the Legislature, followed by confirmation of the revision by initiative.

So the question is whether adding this clause: "Only marriage between a man and a woman is valid or recognized in California" is a "revision" because it effectively takes away the power of the Supreme Court to interpret that state's Equal Protection Clause, or in the alternative, whether such a language "revises" the scope of that clause, such that it would require the more elaborate, expensive, and politically challenging process of constitutional conventions to be put on the ballot in the first place.

I just don't see it. We can create entire new executive offices, including new Constitutional officials, by initiative -- for instance, the California Department of Insurance, headed by an independently-elected Constitutional officer, the Insurance Commissioner, was created by initiative. We created the lottery by initiative, modifying the prior Constitutional prohibition against lotteries to permit the state to run one. Although I disapprove of and will vote against the Defense of Bigotry Initiative, its proponents seem to have gathered enough signatures to qualify it for the ballot, and it therefore has earned the right to an up- or down-vote by the people in November.

Whichever side loses the vote will have to live with the results, because that's how democracy works. With that said, I urge my fellow Californians to vote "no." How would you like it if the voters came along and rendered your marriage void, especially if they did it because they were prejudiced against you for religious reasons? Just consider that before you fill in or punch the circle for "yes."

Jesus And Mo

The premise: Jesus and Mohammed share a bed (but they don't have sex) and hang out at a pub with a sarcastic atheist barmaid. It's deliciously blasphemous. A sample:
Go read them all; the first one (from November of 2005) is here and there's lots of them. Most are pretty funny. If you're really uptight, you'll probably want to invoke a curse or call a fatwa against me. I can live with that.

Es Nondum Praefectum, Obama

Politics is not subtle. Never that. But I think this is oh, just a bit on the arrogant side:


The Obama campaign unveiled this today, at a meeting in Chicago with most of the Democratic Governors of the various states. This decorated the podium from which Senator Obama spoke.

The resemblance to the Seal of the President of the United States and the Great Seal of the United States of America is, of course, quite deliberate. But my favorite touch is the Latin in between the eagle's wings. Vero possumus means "Yes we can." Nice touch, putting it in Latin. So I've got a message in the title back to the good Senator from Illinois.

This is an important political function, and one in which you're dealing with people who have real power and real ability to influence things. Some of whom backed Hillary Clinton. Some of whom are expecting to be considered as short-list selections for Obama's running mate -- and some on that list probably deserve to be there, too. Some of whom want to be President themselves. (Who am I kidding? All of them do, which is why they're in politics in the first place.)

If I'm taken aback by this, and I don't particularly have political ambitions myself, how do you think they'll react? My guess would be that the Governors will have a sentiment akin to my own.

Two Year J.D. Program -- It's About Time

Northwestern University School of Law has three very good ideas here. The first is reducing law school to a two-year, rather than a three-year degree. Three years is too long and too expensive for what law school teaches (although I think one year is not enough); the third year of most law students’ educational programs is simply a grind to accumulate credits for the sake of accumulation of credits. The second is eliminating a break in the educational calendar for summertime. It’s the early twenty-first century. Law students in Chicago are not needed back home in the summer to harvest crops on their family farms. The practice of law is a profession that works 12-month long; courts do not take summer breaks nor do they step up their trial calendars for the summer. And third, they are including some basic business skills like accounting, finance, and statistics, and the “legal services behavior” class sounds like it would be a welcome addition to any law school curriculum. The idea is to take a younger person (under 40) who has typically had an excellent record of academic achievement and a small amount of life experience, and turn that person into a lawyer. Lawyers tend not to work at their maximum potential when flying solo; they need, at minimum, some support staff and a background of intensive academic study is not a good indication of whether someone has the ability to be a part of, or to lead, a team of people. This idea meets with this lawyer’s hearty approval and his high hopes for its success. Good luck to Northwestern and the students who are trying this out.

Liner Notes

I've got two good suits and two only-okay suits. Today, putting on my pants in one of the (formerly) good suits, I tore the inside lining of the pants with my toes. This is, I guess, wear and tear on the clothing, and it's one of the reasons that clothing gets replaced periodically. But suits are expensive and I think I'll just put up with it for a while.

Pronto, Azzurri!

It’s been easy to ignore the European Cup going on, because I don’t have a TV at home and I only see it on monitors out at restaurants and bars which play the matches at lunchtime. The Azzurri simply do not look as strong for Euro 2008 as they did for World Cup 2006. Russia and the Netherlands look like they're the best teams in the tournament to me. Italy has qualified for the elimination rounds, and plays Sunday against Spain, but they did it after getting squashed by the Dutch, tying Romania, and then beating former World Cup championship rivals France. They have some of the same players from their World Cup-winning team in 2006, but of course there always has to be new blood and European football (we call it “soccer”) is not a sport for old guys. Like me. The only person on the Azzurri this year older than me is the coach. But, I'll monitor their game on Sunday against Spain, and hope for the best.

Missing Stimulus Payment? No Probalo!

At least the wait time for the automated IRS hotline has dropped down to the point that I could work through the voice mail and figure out what's going on with that damn stimulus money. The check won't be mailed out until next week and if there's a problem, the IRS can't take action on the stimulus until a month after that. All that electronic transfer information I included on my electronically-filed tax return? Disregarded. It's getting to be mighty inconvenient to take free money from the government. Actually, I wouldn't be so irritated by this if I'd have received the notice in the mail that the IRS claims to have sent me. But the government lies, it lies like a rug.

Sue OPEC

Suing OPEC for antitrust practices doesn't strike me as such a good idea. Not that I have any great love of OPEC -- it is a cartel, it deliberately engages in market manipualtion to raise the price of oil, it has periodically fallen under the political control of nations that are overtly hostile to the United States. Because the price of oil is rising precipitiously and there seems to be little that anyone can do about it.

But OPEC has been overtaken. Its favorite market manipulation trick -- restricting supply -- is most certainly not going on; every oil-producing nation is pumping up the stuff at maximum capacity and every refinery in the world is working at maximum capacity. Still the price of oil rises.

Demand for OPEC's product has so far outstripped supply that OPEC doesn't need to do anything to jack up the price of a barrel of crude. Nearly two-thirds of the world's supply of crude oil comes from non-OPEC nations. Indonesia is going to withdraw from OPEC at the end of this year. This is not to minimize the power of OPEC on the market; it is to say, though, that if the Russians ever got their act together, they could exert as much influence as OPEC. Russia, fortunately, has so far decided to go the western capitalism route and leave oil extraction and refining to private enterprise and competition on the open market. Yet still the price of oil rises.

It would be difficult, I expect, to collect on any judgment. Oil is bought and sold on the international commodities market and it is entirely possible that the oil you burn in your car today was purchased by your gas station from a refiner who bought it from a trading house in New York who bought it from another trading house in London who bought it from another trading house in Athens who bought it from another trading house in Hong Kong who bought it from a speculator in Kolkata who bought it from a broker in Dubai who got the future from a broker in Riyadh but the oil was actually pumped out of the ground in Venezuela. Who, along that chain of transactions, is to blame for the ultimate price being $140 a barrel? Where in the process would the judgment levy be attached? And still, the price of oil would rise.

Like it or not, a smooth, constant flow of imported oil is necessary for our national infrastructure to work. OPEC could easily react to the passage of this law with another embargo. If you think gas is expensive now, just wait until we piss off OPEC enough to cut us out of one-third of the global petroleum market. The price of oil would rise then!

OPEC is a political symbol of Arab/Muslim/non-Western wealth and power. It is a sign to other nations that they can become wealthy and powerful without kowtowing to Washington or Brussels. An American law attacking OPEC would therefore quickly turn in to the Al-Qaeda Recruitment Assistance Act of 2008. Who knows, we might even produce a blowback of increasing OPEC's power and prestige such that its membership expands. The last thing we want is for Mexico or Russia (now the world's largest producer of crude oil) to join OPEC. That would make the price of oil rise to breathtaking heights.

So it's not that I like OPEC or approve of its tactics. It's partially that I fear what it can do. And it's partially that I think there isn't much OPEC can do that would change economic conditions anyway. And it's partially that I suspect that success would leave us worse off than having done nothing.

What I want to know is, with oil at $140 a barrel, why isn't shale oil extraction moving along faster? The U.S. and Canada could swamp the world market if the price of oil doesn't fall below about $70 a barrel with existing shale oil extraction technology. That's half the current market price. Are there people who really think the price of oil is going to fall?

Shameful Trivia Performances

I have, in the past twenty-four hours, been unable to remember Presidents #12, 14, 19, and 22; one out of forty-seven European nations, and the name of Gerald Ford's Vice-President. Mouse over for the name of this mysterious person below:

Nelson Rockefeller

I like to think I'm good at trivia. But at this rate, I wouldn't last ten minutes on Who Wants To Be A Millionaire. I'm afraid I'd be like this woman:

(That's not fair. The picture is photoshopped; she actually did quite well for herself.)

Another Good Non-Endorsement For McCain

If Donald Rumsfeld had endorsed McCain, I'd be thinking twice about McCain's strong suit of foreign and military policy. But it looks like the Rumsfelds backed Romney and the former Pentagon head honcho and living press conference quip factory is still a little bit bitter about McCain's prediction that he will “go down as one of the worst secretaries of defense in history.” Go figure.

Suspended Astrology

After blowing the doors off of the academic establishment for its Nazi-like suppression of intelligent design theory in biology departments, Ben Stein and the producers of Expelled: No Intelligence Allowed may want to pick up the banner by these folks. Would you be surprised to learn that a respected institution of higher learning would actually fire an astrophysics professor who taught astrology? Well, it's not just one! Watch the trailer -- if you dare.

The deteriorating state of academic freedom in this nation is appalling. Of course, if you had done your star charts correctly, you'd have seen this coming. If you did them wrong, that's just proof that the academy needs to study the subject more so that our understanding of the manner in which celestial bodies govern our sex lives will grow and flourish. H/T to Hemant Mehta.

The People's Republic Of The United States Debates Nationalization Of Oil Refineries

Some nutjobs in Congress, and some policy proponents, have floated the idea of nationalizing oil refineries. The linked video clip is from FOX News and the interviewer (Neil Cavuto) is far from neutral in his questioning:

But then again, I wonder if this idea merits a neutral examination. It's so obviously a poor idea, so obviously would result in there being less gas, and the gas costing even more than it does now, and much higher taxes in other areas of life to "subsidize" the price of gas, that it's quite obviously a non-starter.

To be sure, highly socialized oil-producing countries like Saudi Arabia and Venezuela have ridiculously low prices for gas at the pump. But would you accept a hike in your income tax rate to 60% of your annual income in exchange for dollar-a-gallon gas back? Allow me to submit the proposal that if you are making more than $20,000 a year, you would be worse off under such a system than you are now, even if you have to pay $4.50 a gallon.

If someone took to the airwaves and seriously suggested, "Babies. You know, for the food shortage. We should get people in third-world nations to eat their own babies. They're rich in protein!" you wouldn't really expect the interviewer to provide a fair and balanced evaluation of the pros and cons of that suggestion. This isn't quite that far over the top, but it is over the top. So I give Cavuto a pass for his sneering, incredulous tone, because that's the natural reaction of a sane, rational person to the idea that the United States government should nationalize oil refineries. The only critique I have of Cavuto here is that he seems to go out of his way to identify the wide-eyed nationalization advocate as an "Obama supporter." Barack Obama has not, to my knowledge, indicated any embrace or even friendliness to this half-baked idea.

By the way, I don't think the advocates have thought through one thing about their nationalization proposal -- the Fifth Amendment would require the government to pay the oil companies that currently own those refineries the "market value" for them if they were to nationalize the industry. Seeing as those refineries produce a critical commodity, represent some of the most advanced chemistry technology on Earth, occupy tens if not hundreds of acres of land, and as business propositions are at the highest level of profitability in the 150-year economic history of the petroleum industry, that would represent a payment on the order of tens of billions -- no, who am I kidding, hundreds of billions of taxpayer dollars directly to the oil industry. All so the government could run a formerly profitable business at a loss.

I've yet to come across a proposal more worthy of the "Really Bad Ideas" tag than this one.

More Sharia in U.S. Courts

This time, it's the Blackwater Worldwide corporation, asking for Shari'a law to be applied to a fatal airplaine crash that took place in Afghanistan. It's actually a pretty routine sort of lex locus delecti argument, but some find it ironic that a military services contractor would try to invoke Shari'a law in a U.S. court. I'm less impressed with the irony; it just seems like good, aggressive lawyering to me. And an argument like this comes from the lawyer, not from the client. Interestingly, the motion cites as precedent the case of Bridas Corp. v. Unocal Corp. (Tex.Ct.App. 2000) 16 S.W.3d 893, one of the cases I analyzed when I first got interested in this issue and one of the cases I spoke about in my presentation to the local legal professionals association.

Short-Term Effects Of Gays Getting Married

I'm just as married to The Wife as I was three days ago.

The world has not stopped revolving around its axis.

Families around California have just as many kids as they did before, and those kids are just as gay, or not, as they were last week.

I'm still not gay.

My religious beliefs have not changed. Nor have anyone else's.

No church has been forced to recognize any marriage contrary to its own doctrines. No one has been asked for their moral approval of any marriage.

Industry and commerce proceed apace.

Kurt Cobain is still dead and Courtney Love is still not dead.

State tax revenues are functionally the same as they were last week. No one's taxes have been raised. Sadly, they have not been lowered, either.

The divorce rate is the same as it ever was.

The terrorists are not winning, any more than they were last week.

Police can still track down and arrest criminals. They are doing so at the same rate as they did last week.

No one has married their brothers or sisters; no polygamous marriages have been recognized; no one has married their toaster ovens, televisions, bicycles, Corvettes, skip-loaders, or backhoes.

A republican form of government still prevails in California. The people will have their say, directly, soon enough.

What's different? A number of gay people are happy that they're married, or at least can be if they want to be. A number of straight people are happy for them. And a number of people who don't like gay people are upset that gay people are happy.

The Navy Doesn't Do It This Way And They're Got A Reason For That

A case I've been handling has given me a ton of stress recently. It's not just that the court has made bad rulings, although that's not helping. It's not just that my client is disorganized, but that's really not helping. It's not just that the case is of keen interest to the partners in the firm, although that does up the pressure somewhat. It's not just that the other attorney is a -- an unpleasant person, we'll just leave it at that to keep the PG-13 rating. It's not just that it looks like a bunch of documents have been mishandled and lost. It's not just that we've had to bring in some other attorneys who do things a different way than us. It's all of these things. It's the feeling that we've got about ten people who need to be involved in making something happen, and it all had to happen by today at the absolute latest, and so many of us have had to move heaven and earth to make it happen that we're all mentally exhausted. I think I've been eating more than I normally would recently because of stress from this case (and a few others but mainly this one).

When the Navy sends a ship out to sea, it puts a Captain in charge of that ship. It doesn't put a committee on the bridge. I don't have to be the Captain of every ship. Often, I like it when someone else captains the ship. But I like to know who the Captain is and I like to know who the XO is and who the other officers are and what their duties are. Here, it seems that the identities, contact information, and responsibilities of a whole lot of people involved in steering this ship are being kept secret, because -- I don't know why. There's no reason for it other than that no one has ever stepped up, said, "I'm the captain," and organized all of the people and all of their information into a single place.

It's not anyone's fault, in particular, which makes it everyone's fault. Mine, too. I, too, could have stepped up and taken charge. I, too, could have seen to it that all the details were just right. I didn't do that any more than anyone else did.

One captain per ship. No more, and no less. Lawsuits are not democratic procedures. That needs to be how we do things in the future.

Churches Rally To Overturn Gay Marriage

It seems some local churches are organizing, and maybe even leading, efforts to organize voters to pass the anti-gay marriage amendment on the ballot this November.

Me, I wonder whether this activity would cause the churches to forfeit their tax-exempt status under Internal Revenue Code § 501(c)(3). Churches are presumed by law to be exempt from paying taxes of all sorts. However, this tax-exempt status of a church is dependent upon the church not engaging in political activities. Registering people to vote, encouraging people to vote, and in particular, telling people how to vote, are all quite obviously political activities. Under the applicable test, a church can conduct “public education” in the form of holding meetings and distributing material to “inform” “voters” about pending legislation (which includes referenda like the initiative amendment in question). I put the phrases “public education,” “inform,” and “voters” in quotation marks because that’s not what’s really going on here – what we’re talking about is the church urging its parishioners to vote a particular way on a particular issue. This is often done by creating what the IRS calls a “voter guide,” and while such a guide is supposed to be neutral, one wonders whether a church could possibly be neutral on this issue – for instance, a reference to a Biblical citation condemning homosexuality would rather obviously be an attempt to influence a voter reading the guide to vote in a particular way.

On this point, The Wife goes further than me and wants to know why churches don’t pay taxes anyway – she is of the opinion, although she does not articulate it as such, that exempting churches from paying taxes constitutes an explicit governmental subsidy of religion and therefore violates the Establishment Clause. After all, we pay property taxes on our house, which go to pay for things like the sewers and roads. But churches also use sewers and roads – debatably, they use them more than we do, because they service hundreds if not thousands of people, especially on Sundays (and Wednesdays for some of them). But the churches pay no taxes for these public services. In effect, I am required to subsidize the church down the street to have a sewer taking poop away from its restroom and a road leading to it so people can go poop in that restroom as part of their visit for religious purposes. The Wife’s concern is not a frivolous opinion – far from it – although existing case law holds that because the tax-exempt status goes to all churches, a tax-exempt status for a church isn’t a subsidy of any particular religion and therefore permissible under the Constitution, and indeed, some have argued that an attempt to tax a church would violate the Free Exercise Clause.

Maybe these churches are so intent upon denying gay people the happiness of marriage in fulfillment of their interpretation of God’s will that they’re willing to start paying taxes in exchange. If so, God bless them. (Or not, since God doesn’t really exist, but that’s a different story.) But I have a feeling that they’ll continue to demand tax-exempt status despite this violation of law. Or, maybe they’ll suck it up and admit that they violated the law and agree to pay the excise tax and related penalties for doing it, since the church typically faces a maximum of $10,000 tax penalty for such a violation and a $5,000 tax penalty levied personally against the “managers” of the church who authorized the political activity. This may not be a harsh enough penalty – provided the church keeps its tax-exempt status – to deter a church from deliberately breaking the law to lobby for something it considers important. And many churches consider this issue very important indeed.

Isn't it outrageous that the penalties are so low? That enforcement of this section of the law is so lax and abuse so easy to accomplish? That churches that are made subject to this tax may well be able to rally public support to their side? No one with any kind of political ambition wants to be called the prosecutor who sued a church -- even if the church was really breaking the law. The whole thing seems like a very cynical manipulation of the law. And for someone like me, who does not concede that a church is operating for a high noble purpose, this is particularly obnoxious.

Also, thinking about the initiative’s chances of success or failure: a politically astute friend (the one of whom I wrote yesterday) correctly cautions that there are a lot of voters out there who will simply vote “yes” on any initiative – he calls them “yeah, whatever” voters. “This doesn’t really affect me, but someone thought it was important, so I guess I’ll vote for it,” they think, and check “yes” without really thinking about the issue all that much. Now, I don’t’ want to diminish the impact of such voters; a good case can be made that such voters caused things like the lottery (more people voted for the lottery than actually buy tickets, and plenty of non-voters buy lottery tickets) to come into law. Query if there are a comparable or appreciable number of people who reflexively vote “no” on initiatives for similarly unreasoned motives. Kind of like the libertarians who routinely vote “no” on all bond initiatives just because they are bond initiatives, and without regard to the need or wisdom of the particular initiative on the ballot.

I Like Getting The Hookup, Too

I’ve enjoyed reading columns on CNN from Roland Martin. He comes from a very different perspective than me (he’s a Protestant minister) and I don’t always agree with him. But his commentary is always lucid and thoughtful. And today, he’s dead-on right. A bunch of public officials, both incumbent and recently-retired, got favorable loan terms from Countrywide Home Loans on a “VIP program.” And any one of us would have taken those loans, too; we’re only mad about it because we’re not VIPs ourselves. Had Countrywide offered me a good interest rate and other favorable terms, would I have said, “No, no, give me the same high rates and penalties you make all those plebeians and shlubs pay because they can’t get any kind of loan otherwise.” No way! I’d say, “No points, interest rates fixed below the prime, and no prepayment penalty? That’s the loan for me!” And you would, too.

The problem, of course, is that these are influential people and so it looks like bribery – especially as Countrywide looks like it will be the recipient of a bunch of money in the coming expensive and likely ill-advised bailout of the home mortgage industry. The real issue is whether they got terms better than people who were really good credit risks but don’t have the same kind of beltway juice as, say, Christopher Dodd. Senator Dodd is a reasonably wealthy man. If his personal credit rating were anything other than stellar, I’d be quite surprised. So it seems likely that he could have qualified for very good terms for a loan from Countrywide or any other lender anyway. So I rather doubt he was really bribed by Countrywide. It just wouldn't be enough.

Graduation Complication

It’s difficult to get lunch, anywhere, this time of year. Graduation parties take over all of the restaurants. A lawyer from our office reporting having to wait an hour for take-out today. I went to lunch with a partner in the firm today and it took over an hour to get a burger and a coke. It’s cool that families want to take their graduates out for a celebratory meal. But jeez, why do they have to do it twenty people at a time?

Victoria's Secret Sued For Thong-Induced Injury

I don’t practice lingerie law but now I know who does, in case I ever need to make a referral for a case like this. And usually, when a G-strong causes an injury to someone’s eye, you’d expect the injured party to be male.

Three Hours In The Valley

I had a deposition today that took less time than I had anticipated it would. The deposition was held in beautiful Chatsworth, a denser-than-suburban neighborhood between Van Nuys and Granada Hills.

It feels hot in the Valley this time of year. Temperatures are higher up here in the High Desert, but it feels hotter in the Valley. I think that's because the Valley is simply more humid than the desert. And more urban; there's more concrete, more cars, more smog. That may or may not elevate the temperature, but it sure felt like it did.

Fortunately, I got to hook up with a friend for lunch. I was chastised to be reminded that we owe these friends the visit, because I had thought it was their turn to come up here. An easy matter to fix; it will take a few weeks to get everyone's schedule lined up but of course we will go. Apparently I'm not the only one doing handy-projects around the place; my friend put in a fountain on the rooftop of his condo. I'm very curious to see how that worked out.

It's also good to have my ideas and thoughts tested in the crucible, and my friend certainly provided that! My friend and I race through political discusion quickly and he is both well-informed and persuasive. I think our banter on politics is every bit as insightful and entertaining as Sullivan and Ambinder at The Atlantic. It's a great pleasure to get a thorough grilling upon matters political. And a reminder to focus on rational, objective things rather than emotional ones. Nothing focuses one's mind and sharpens one's arguments like having a good sparring partner. So thank you, friend, when you read this as I'm sure you will.

I got the job done, I got a nice lunch with a god friend, I got more garlic sauce from Zankou Chicken, I got a reminder of how unpleasant city traffic can be, and I got back home. We'll go back, for a relaxed social night, in a few weeks. Until then, three hours in the Valley was just enough.

Am I An Obamacan?

Here's the thing. I've never voted for a Democrat for President, ever. I always thought Michael Dukakis was a bigger doof that George Bush the Elder; I never, ever trusted a word that came out of Bill Clinton's mouth; Al Gore was too close to Clinton to be trusted but not nearly as interesting; and as for John Kerry, see above viz. Michael Dukakis.

That's not to say I liked the Republicans all that much, either. But each Democratic candidate managed to do and say enough things to alienate me that I just couldn't sign on to them. Twice in my life I've been so fed up with the awful results of the primary process that I voted Libertarian.

But I'm not looking at Bob Barr real closely. John McCain is different from the current administration. He is willing to consider different sorts of ideas and he is well-positioned to deliver on the promise of a strong America. He impresses me as a generally ethical man in a generally unethical business; one who early in his career got into a little bit of ethical trouble but learned from his experience. I really like the idea that the President can learn from experience.

So why am I still tempted to vote for Obama?

The answer is, I think Obama takes the Constitution seriously. And I think that's very important after eight years of an Administration admittedly intent on expanding executive power to the broadest degree possible. He would undo the damage that has been done -- or at least attempted -- to the concept of separation of powers over the past eight years. I'm unconvinced that McCain fully appreciates how important it is to have a President whose powers are limited. McCain understands that torturing our prisoners is wrong -- at a deep, personal level, he understands that, in a way I hope to never understand it. But I think McCain thinks the solution to the problem of a powerful chief executive abusing that power is not building structural limitations into the power inherent in the office, but rather for voters to elect good men (and in the future, women) to that office so they will use that power wisely and with moral rectitude.

I think McCain is such a man. I think Obama is such a man, also. But I Obama clearly understands that it's not enough to have a good man as President. Obama understands the need to have a President and not a Commander; he understands that there is a Congress for a reason and a judicial system for a reason. He understands this because before going to Congress, he's moved lawsuits and clients through the judicial system. McCain's pre-Congressional experience was in the military.

Not to slight McCain's military experience. Far from it. It surely taught McCain how to lead people. That counts for a lot. It surely taught McCain how to achieve things, both as an individual and as a member (and leader) of a large group of people. It surely taught McCain honor -- no surfeit of honor resides with the Senator from Arizona. It surely taught McCain the value and cost of lives defending America and her allies, a lesson that he would keep close to the front of his mind as commander-in-chief. But a military background does not necessarily lend itself to the suggestion that President McCain would restrain executive power.

But I've been wondering if I haven't put too much emphasis on military and security matters, and not enough attention on issues of civil liberties and the rule of law. Obama has the edge there, I think.

It's a matter of degree, of course. Obama will not eviscerate the military or leave America's friends overseas without a strong and ready ally by their side. Nor, I think, will McCain conduct a full-frontal legal assault on the Constitution the way that Bush has done. Both mens' actions and statements need to be considered through the lens of the campaign, too -- McCain condemned the Boudemiene case, for instance, but he could hardly do otherwise and he hasn't really pressed the issue, either.

I'm not dissatisfied with either choice. It's refreshing to be able to actually make a choice using a criterion other than "least bad available option." Obama is the most appealing Democrat I can remember running (Paul Tsongas was appealing to me, too), and McCain is about the most appealing Republican I can remember being nominated. I'm still leaning McCain, I guess, but I can be convinced otherwise.

Tiger Putts

When I'm 66 feet away from the pin with three strokes to par, I'm generally daydreaming. In those rare instances when I'm 66 feet away from the pin with three strokes to par in real life, I'm weighing the difference between my wedge and my 9-iron. But then again, I'm not Tiger Woods. Tiger pulls out his putter and sinks it for an eagle. With a blown-out knee. Then five holes later, he does it again, for another eagle, from 50 feet away with the hole on the edge of a slope so steep it must have looked like a cliff. For his efforts, Tiger tied Rocco Mediate, and got an eighteen-hole playoff against Mediate today. With a blown-out knee.

Kern County Non-Discriminates For A Discriminatory Reason

Tonight, at 5:01 p.m., county clerks throughout California will be under orders of the Supreme Court to issue marriage licenses to same-sex applicants and opposite-sex applicants alike. The clerks have no discretion but to obey the Court's order, in light of the Court's refusal to stay application of its holding in the Marriage Cases pending the outcome of the constitutional amendment initiative that will be on the ballot this November.

But one thing that county clerks do unquestionably have discretion to do, or not, is perform a solemnization ceremony concurrent with the issuance of the marriage license. Some county clerks provide that extra service, either as a courtesy or for a nominal fee, which gives an extra convenience for applicants for marriage licenses -- one-stop shopping, as it were.

Here's the interesting thing. The Clerk of Kern County used to provide solemnization ceremonies. She is rather obviously objecting to the idea of same-sex marriages by doing so -- reasoning (correctly) that if she or the employees working at her direction perform ceremonies for straight couples, they will have to also perform ceremonies for gay couples, which she refuses to do. Therefore, she will no longer perform ceremonies for anyone.

On the face of it, this is a non-discriminatory policy. No one gets ceremonies, so people are being treated equally. Here's the deeper question -- the reason for the change of policy is to make it that much more difficult for gay couples to get married, and/or to express distaste for having to issue marriage licenses that she would not issue unless she were under orders to do so. She has even asked the County Counsel for assurances that she would be defended in the event of a lawsuit, and when she didn't think she got a straight or fast enough answer, she went outside the county to ask a public-interest law firm to defend her (the Alliance Defense Fund, an arm of James Dobson's group, said that it would defend her).

That leaves us with an interesting conundrum. The former policy, if left in place, would require ceremonies to be performed for same-sex couples to avoid discrimination. The new and substantively different policy is, on its face, not discriminatory. But the motive for the change from one non-discriminatory policy to another non-discriminatory policy clearly is discriminatory.

When people do good things for bad reasons, we probably shouldn't punish them; we don't punish people for bad thoughts alone. But what about when people do neutral things for bad reasons?

Let's take an easier and more obvious example. Imagine A restaurant that formerly served "Whites Only" in Alabama in 1965. With the enactment of the Civil Rights Act of 1964, the owner is now forced to sell to everyone. Rather than suffering "Negroes" in his restaurant, the owner instead closes his doors completely and moves out of state. Has he violated the Civil Rights Act of 1964? No. He has engaged in no overt act of discrimination. It's a shame that he's so obstinately prejudiced that he would do that, but it's also within his rights to shut down his business if he wants to.

Now, this isn't exactly like the stubborn bigot closing his restaurant. This is a public official discharging public duties. While public officials have discretion about the way they perform discretion, they cannot abuse that discretion; they cannot exercise their discretion in an arbitrary and capricious manner. (Con law geeks will immediately recognize the import of the italicized terms of art in the previous sentence.) So the plaintiff's argument, were the clerk to be sued, would be that she has arbitrarily decided to exercise her discretion in a manner that targets gay people.

I think it's not a good argument. The new policy is not "arbitrary and capricious" as I understand that term -- it will be uniformly applied; there will be no case-by-case decision about who gets a ceremony and who doesn't. Many other county clerks have the exact same policy and have had the exact same policy for years.

Some county clerks are keeping their offices open late today. Some are conducting business as usual. This seems to be within the scope of discretion that clerks have as well. If a clerk decided to close the doors at 5:00 p.m. tonight and not issue any marriage licenses to anyone until 9:00 a.m. tomorrow morning, and the reason was to have a few more hours of discriminating aganst homosexuals, well, I suppose that would also be a neutral, non-discriminatory act done for a discriminatory reason -- and another thing that would either not be legally actionable at all, or not worth the fight. "You're suing me for closing my office at the exact same time I've closed it every day for years?" This is not a good case.

So while it kind of bites in this case, I think you've got to have an act of actual discrimination, not just a bad motive. Providing ceremonies at all is within the clerk's discretion to do or not do. And suing her to continue providing the ceremonies would mean a court would be interfering with the exercise of the clerk's discretion about how to perform her duties in a non-discriminatory fashion. There's no discrimination going on here; everyone is being treated equally and inconvenienced by the new policy equally. I also think same-sex marriage advocates would be best-advised to leave Kern County alone on this one. They would run up against prudential concerns and likely lose, thus handing opponents of their movement a victory that they otherwise would not have got. As it is, the clerk just looks like petty and spiteful bigot -- so shake your head in dismay that the voters pick people like that to hold office and move on to a better battlefield than this one.

Is George Bush Going To Convert To Roman Catholicism?

For those who follow stories about religion, this could be quite interesting. President Bush, on his European "farewell tour," met with Pope Benedict XVI and their meeting included a half hour meeting in the Tower of St. John, whose gardens are typically reserved for the Pope's private use. There are plenty of rumors aswirl today that Bush may follow in his brother Jeb's footsteps, and those of his other good friend from Europe, former British PM Tony Blair, and convert to Roman Catholicism after leaving office.

If you're a Catholic, you may find this cause for celebration or at least quiet appreciation. If you're an evangelical Christian and have been proud and happy that a President of the United States has been among that number, you may find this news a little bit disconcerting and perhaps a bit disappointing. This is particularly so if you're one of those people who, upon asking me my religion, see through the pat response of "I was raised Catholic," respond by saying some comment like, "Well, no wonder you're not religious anymore." Of course, if you're like me, and you have already rejected Christianity in general and Roman Catholicism in particular, your reaction may be more like this.

Photo from the Daily Telegraph (UK).

Enemies In The Mirror

Today's big intellectual stimulation was a thorough dissection of Taxi Driver, the 1973 Robert De Niro - Martin Scorcese movie. De Niro's character, Travis Bickle, is a mass of irreconcilable contradictions, driven past the edge of psychosis by the demons fighting one another in his psyche.

My friend made the point early on in our discussion that everyone is self-contradictory, at least to some extent. All of us, despite our best efforts to focus our lives and our energies and our goals in one direction, sometimes find ourselves working at cross purposes to what we want. That is, I think, something inherent in the condition of being human. The psychiatrist leading our discussion agreed enthusiastically -- everyone is like that; but most of us learn how to keep things under control and keep ourselves more or less focused. And if we didn't, if we might be thought of as obsessive.

It makes me wonder about my own contradictions. Certainly I cannot hope for 100% consistency in all of my writings. I write what I think, and sometimes the way I think about something changes. Maybe not permanently, but based on recent experiences, based on different developments in my life, based on new things I learn or new opinions I hear, I may find my own opinions and preferences changing. I didn't used to like olives. Now I kind of do.

("I didn't used to like olives." That just seems like really bad grammar. But how else should I phrase that idea?)

Now, whatever internal contradictions I might have I can keep under control enough that I don't wind up behaving like De Niro's character did in that movie, but on the other hand, it's hard to say. De Niro's character thought he was behaving in a perfectly reasonable way. And it's in the nature of a self-contradiction to not perceive that one's behavior is truly contradictory.

In some cases, it's easy. I say I want to lose weight, and vow to eat less and exercise more. Then I turn around and have beers and brats with my neighbors instead of even going to a yoga class. I say I want to save money. Then I try and score Green Bay Packers tickets for an already-expensive vacation.

These things may be more on the order of "failures of willpower" than self-contradiction, though. I wonder if I'm also party to more subtle, and more powerful, kinds of self-contradiction.

I think it's almost impossible for someone to make an accurate assessment of oneself that would reveal that kind of thing, at least about something important. It's easy to watch a movie or even observe a friend's behavior and think, "Gee, you want X but you turn around and do everything imaginable to prevent X from happening." A friend of mine really wanted -- wants, still -- to meet a nice guy, fall fantastically in love with him, get married and have kids. But she seems to do everything imaginable to make herself distant from men, to make herself emotionally unavailable to them or to pick men who are emotionally unavailable themselves; to find a minor problem with the man and elevate it to a "deal-breaker;" or something. It's frustrating to see this. It's more frustrating to know that she can't see it herself; to know that if confronted, she would offer elaborate and reasonable-sounding justifications for her behavior.

Maybe we can never really know ourselves if we're behaving like that. How does one even know that one's every reasonable-seeming move really lays the foundations of one's own destruction? Hopefully a friend can point this out before it's too late. Maybe we don't all go to the very edge of the precipice -- and, in the case of Travis Bickel, all the way over before being pulled back from the fall by a bizarre twist of fate -- but surely, there are things within all of us that make us our own worst enemies.

Mileposts

More than three years.

More than 2,000 posts.

More than 40,000 page hits.

Not bad for a rank amateur blogger with no commercial support.

On The Difficulties Of Adopting A European Constitution

Ireland voted against the Lisbon Treaty a couple days ago, scotching efforts to knit the European Union ever closer to a single political entity, a United States of Europe. Irish voters saw too many downsides to Lisbon, too many infringements on their individual lifestyles. Likely each voter had their own reason, and many Irish voted for the treaty, but the result was what it was.

The hand-wringing comes from the issue that Ireland represents less than 1% of the EU's population, and particularly EU advocates are suggesting that giving so small a proportion of people the right to have their way is profoundly anti-democratic.

But the EU is not like the USA. From the beginning of its revolutionary origins, there was a sense of commonality between the various American colonies, a sense of solidarity and mutual identity. People in Virginia took it personally when Boston's residents were shot by the redcoats. Philadelphians saw a threat to themselves and their way of life when North Carolina merchants had their cargo seized by the Royal Navy. This is not the case in the EU -- while Europeans identify with one another much more than they ever have at any point in history, Europeans still think of themselves as citizens of their nations first, and citizens of the EU second. What happens to a Spaniard is not necessarily something a Swede is going to identify with on a personal or emotional level they way it would if it had happened to another Swede. Canadians do not think of themselves as NAFTA citizens first and Canadians second; so too does someone born in Munich think of herself as a "German" first and an "EU citizen" second.

Politicians have had visions of a United States of Europe since at least Winston Churchill, and probably you could go back to Metternich. And other leaders have dreamed of a united Europe brought together under the sword and rifle; Napoleon and Hitler most prominently among them in the modern era, and Charles V and Charlemange most successfully. But if something like a united Europe is ever going to come about through democratic means, it must do so on a nation-by-nation basis, and everyone involved must see some advantage to coming together. The Irish get to say, "Hey, that might look really good in Paris and Milan, but it doesn't make much sense to us."

So EU advocates need to appeal to nations as well as to Europe as a whole. If Ireland doesn't get a decisive vote, then Ireland's sovereignty lacks meaning, and the more populous EU nations (France, Germany, the UK, Spain, and Italy) are simply imposing their will on the rest of Europe. The EU politicians make the mistake of thinking that all Europeans already think like them, in pan-European terms. They've lost sight of the fact that democracy consists of individual people, making individual choices, about what is in their individual best interests.

My real question: Adoption of things in the EU doesn't have to require the unanimous consent of every member nation. The British opted out of using the Euro, for instance, and kept the Pound Sterling because that works better for them. It's an inconvenience for EU citizens traveling to the UK, but they deal. Why couldn't some nations adopt and bind themselves to the Lisbon Treaty while others could not? Let's say only the Five Big Dogs in the EU signed on to Lisbon and the other EU nations didn't. If politicians in Sweden saw that Germany was doing better because of Lisbon, they'd get Sweden to sign on to it. That's the model used here in the USA -- a little thing I like to call federalism. Europeans are smart enough to understand this idea.

Another question: why are the various elections for EU referenda staggered around the various nations on various dates? Seems to me that staggering elections for various localities made sense in the days when information traveled from place to place on horseback, but now that the Euros have the internet and cell phones, it seems to me that every country could vote on the same day.

From The Sports Page

Fantasy baseball players who thought they had it made with the Cardinals' best pitcher, Todd Wellmeyer, should nevertheless have been apprehensive going into yesterday's game against the Phillies despite Wellmeyer's 7-2 record. You expect good pitchers on good teams to play well in good games. Sadly for Wellmeyer's owners, though, the result was a 20-2 rout which began with Wellmeyer giving up three home runs in three pitches in the first inning. Time to load up on Philadelphia hitters!

A Naked Appeal To Your Prurient Interest

This just in -- hot young princess caught frolicking naked with other young college girls. The young lady in question, whose antics are described as nothing more than end-of-the-semester hijinks, is Princess Eugenie Windsor, who is sixth in line for the British throne.

No actual news value to this story. College kids getting naked and doing silly things isn't news, nor are the amusements of the idle rich. It's just there to attract eyeballs in the media, and I admit of occasionally being susceptible to the widespread and peculiar fascination with the anachronistic institutions of monarchy surviving in Western democracies.

What Matters In The Voting Booth?

NAPP voters were given an impressive array of choices about what would matter most to them in choosing between Obama and McCain come November. The result: A three-way tie between three subjects -- "Change," "Economic Recession," and "War in Iraq and/or National Security."

The runner-up in fourth place was "Immigration," a subject upon which it seems very little has been said recently. Also receiving votes were "Gas Prices," "Gay Marriage," "Race of Candidate," "Taxes," and "Affirmative Action."

Receiving no votes at all were "Fear of Inflation," "Religious Beliefs of Candidates," "Running Mates," "Gestures of Patriotism," "Supreme Court Appointments," "Social Security," "Medical Insurance Reform," "Balanced Budget," "Gun Ownership Rights," "Education," and "Abortion."

I am not surprised at the overall winners in terms of the issues. I am surprised that "Affirmative Action" attracted a vote; no candidate or pundit has even mentioned it as a campaign issue and I put it in the list as kind of a throwaway. So I wonder if the that poll voter was taking things seriously... But an answer is an answer.

For myself, I think the most important thing for me will be national security. I am not sure, though, whether that will steer me towards Barack Obama or John McCain. I think McCain would certainly promote a more robust military and security profile for the country than Obama, which is very appealing, and I think he would use our military assets in a smarter way than the previous Administration has (note that the military itself has done the very best that could be done with the missions and materiel it has been given; my criticism is directed at Bush and Rumsfeld and their minions, not at the "boots on the ground").

But Obama seems to better understand that we have to be strong, smart, and principled. I fear that his diplomacy will be risky, especially early in his administration. The rest of Obama's platform sounds really expensive and I can't help but imagine to afford his health care program, we'd have to make painful cuts in the military budget. But on the other hand, I don't think Obama would allow the military to grow so weak we could not effectively defend ourselves or assert force abroad when really necessary. And he seems at least amenable to the idea of making America both strong and free -- I remain convinced that both goals can be achieved simultaneously within a single four-year Administration if the President crafts the right policies and leads the political mood of the country in the right direction. Obama certainly is better-equipped to do that than McCain.

So I'm leaning McCain as the safer national security choice, but Obama could still convince me if he tries hard enough.

Thanks to all who participated in the poll.

Superstition Kills

Many have made this point before me. But adherence to irrational supernatural beliefs can be deadly. Like when mobs go after "witches." Not black-hat-and-broomstick witches like you'd see at Halloween or in a Harry Potter movie, but animistic witches, practicing "sympathetic magic" like voodoo dolls or placing hexes on their enemies. Belief in such witchcraft is a powerful facet of the religious beliefs of people living in various parts of the world, like the Kenyans described in the linked story.

It seems obvious to us Westerners that the victims in the linked story were not witches, because there are no such things as witches. Witches, witchcraft, and other kinds of magic are facets of fairy tales, fables, and folklore, not the world of reality. But to pooh-pooh the belief in these African witches is to denigrate someone's religious beliefs as "mere superstition." Were I to denigrate the religious beliefs of, say, a Catholic who thinks that torture combined with prayer can exorcise demonic possession as the credulous, hysterical, and harmful exercise of "mere superstition", I would run a serious risk of being condemned as being prejudiced against Christians.

I'm not sure how to be respectful of the beliefs of other people -- something I want to do because it seems normatively good and in conformance with the high ideal of tolerance -- while still condemning something like this. And I can't help but condemn the mob murder of people who probably did nothing more than participate in a meaningless but otherwise harmless ritual. At what point do we defer to "religious belief" and at what point do we condemn "mere superstition"?

Remember, the folly of a large number of people is still folly -- Christians, for instance, must surely think that the one billion or more Hindus on the planet are subscribing to a false religion, and the fact that a billion people share that set of beliefs in no way redeems the validity (or lack thereof) of Hinduism. And Hindus no doubt feel the same way about Christians. At least one of those two sets of beliefs must be wrong; Hinduism is logically incompatible with Christianity (even though Hindus and Christians can certainly be friends and may share a great many moral values).

So it can't be "when lots of people subscribe to the belief, it's worthy of respect." Lots of people once believed the sun revolved around the earth, not the other way around. They came to that belief based upon a reading of their religious texts. But they were wrong. The Earth orbits the sun and spins on its axis; we now know this to be objectively true. The "inerrant" holy books, or at least the way doctrine told people to interpret those texts, were simply and objectively wrong. People died because of those doctrines. People like the "witches" in Kenya are being killed today because of obviously incorrect religious beliefs. Debatably, the Christianized west is at war with the Muslim middle-east because of fundamental and long-standing disputes about religion.

I think Richard Dawkins is right about this: religion does not make the world a peaceful place. Religion causes violence.

It's easy to want to be respectful of people whose beliefs are different than your own. It's more difficult in practice to actually be tolerant. And by the time someone else's weird belief in the supernatural moves them to violence, it's time to drop tolerance and start condemnation.

Objectors Take Note

The most significant objection I have seen or heard to the Boumediene v. Bush decision is that it extends habeas corpus protection to foreign lands, beyond the borders of the United States and into places we do not consider part of our own sovereign territory.

So, the argument goes, habeas corpus simply doesn't apply in Guantánamo Bay because Guantanamo Bay is part of Cuba, not part of the United States. Therefore, the five Justices in the narrow majority of the Boumediene Court, led by Anthony Kennedy, are akin to traitors who want to help the terrorists detonate nuclear weapons in American cities. This last sentence is not only not that far removed from the criticism of the case, its roots are found in Justice Scalia's alarmist and undignified dissent, which begins with a recital of the irrelevant facts of terrorist acts committed by people the military released from Guantánamo Bay on its own and without any judicial intervention at all, yet darkly intones at its conclusion, "The Nation will live to regret what the Court has done today."

If that is your objection, then you should take note of another habeas corpus case, also decided yesterday. This case was decided by a unanimous Supreme Court, in an opinion written by Chief Justice Roberts. Munaf v. Green involved two American citizens (Munaf and Omar) who traveled to Iraq and there "committed crimes" -- that is, became part of the insurgency against the Multinational Force (MNF) led by the United States to invade, occupy and pacify Iraq. Munaf and Omar were captured by American forces working under the aegis of the MNF, brought before military tribunals of the MNF staffed by American officers but located within Iraq, and then handed over to U.S. military forces as "enemy combatants." When their military captors decided to turn them over to the Iraqi authorities for prosecution within the Iraqi criminal justice system, they both applied for the Great Writ to prevent the military from doing that.

One could argue that when a U.S. citizen takes up arms against the U.S. military, that person forfeits their U.S. citizenship. Indeed, many of the very same people now crying in outrage against Boumediene made precisely that argument in the case of Jose Padilla, a U.S. citizen accused of trying to plant a "dirty bomb" in some sort of affiliation with al-Qaeda, who was captured in Chicago, transported to Guantanamo Bay, and held without charged for several years.

But whether or not Munaf and Omar have rendered their citizenship forfeit, the point here is that the unanimous Munaf Court had no trouble at all with the idea that habeas corpus applied in a situation where someone was detained by U.S. forces in Iraq. Iraq is, both as a de facto and a de jure matter, less under the control of the United States than is Guantanamo Bay.

The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. The Government’s argument that the federal courts lack jurisdiction over the detainees’ habeas petitions in such circumstances because the American forces holding Omar and Munaf operate as part of a multinational force is rejected. ... [¶] The Court also rejects the Government’s contention that the District Court lacks jurisdiction in these cases because the multinational character of the MNF–I ... means that the MNF-I is not a United States entity subject to habeas.

Ultimately, the Court rejected the substantive petitions of Munaf and Omar, because the relief they requested -- don't release us to the Iraqi authorities -- was not appropriate for a habeas petition in the first place. The remedy for a violation of the rights inherent in the writ of habeas corpus is release. But release is exactly what the petitioners here wanted to avoid. What they were really looking for was to evade Iraqi criminal justice. The unanimous Munaf Court held that a U.S. court has no power (at least under habeas corpus) to stop the sovereign nation of Iraq from enforcing its own criminal justice laws, even against U.S. citizens in U.S. custody overseas.

Now, I have no objection to the Court looking at the practical effects of the exercise of the habeas right in this case and saying, "Wait a minute, if we give you what you're asking for that would leave you worse off than you are now," and therefore denying the petition. I should hope the Court would do that sort of thing all the time. It's easy in this case, because the habeas petition actually asks that the U.S. retain custody of these two prisoners, which is a bizarre twist on the way this right is exercised. The denial of the petitions here makes a great deal of sense. And it is also respectful of Iraqi sovereignty, another result which meets with my thorough approval. Whether Omar and Munaf violated Iraqi laws is a matter for the Iraqi courts to handle.

To sum up -- the unanimous Munaf Court says that habeas corpus applies to U.S. military detentions in Iraq (but should not have been granted for prudential reasons), and a 5-4 majority in Boumediene says that habeas corpus applies to U.S. military detentions in Cuba. So if your objection is to the extension of habeas corpus rights to people held in U.S. military custody in areas beyond the de jure sovereignty but within the de facto control of America, then you must also object to Munaf.

The difference in the four switched votes seems to be based upon the effect of the habeas corpus right demanded in each case. For Roberts, Alito, Thomas, and Scalia, if the exercise of habeas corpus means a bad guy being held by us overseas might to free, then it shouldn't apply. But when its exercise means we get to keep a bad guy being held by us overseas, then yes, the right does apply.

I submit that this reading of the right strips it of all meaning; indeed, it perverts the right such that habeas corpus would actually favor the arbitrary detention of individuals by the executive authority. Rights do not exist only when the government finds it convenient to tolerate their exercise. Indeed, the whole point of having a right is that it may be exercised and enforced despite the government's objection.