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.