Thursday, August 09, 2007

LOGO Debate

The LOGO Network tonight hosted a debate with all the Democratic candidates. (They had invited all the Republican candidates for a second debate but all declined.) As I tuned in too late to catch Obama or Edwards, my commentary will be brief, but I have two points:

1.) The format of the debate was very well done. In turns, each candidate came out and sat down - just the one candidate, panelists, and a moderator. The panel asked questions of the candidates, but because of the more intimate setting, any attempt to dodge was utterly transparent (I'm looking at you, Bill Richardson). The questions focused on issues important to the LGBT community (marriage equality, disease prevention, civil rights, etc.) that are often unexplored in the more "mainstream" debates. I would love to see more debates like this.

2.) As for the candidates, Mike Gravel is a little blurry-eyed (in 5 years marriage equality won't be an issue? Wishful thinking, methinks, though I would love nothing more than to be wrong), Bill Richardson looks like he's running for high school ASB President (the man has tremendous qualifications but lousy, lousy, lousy public speaking skills - he couldn't even answer a direct yes or no question), and much as I despise Hillary's triangulation, I will be 100% behind her should she get the nomination (she is articulate and, contrary to the Limbaugh-created image, rather affable). Dennis Kucinich is, well, he's Dennis Kucinich - he didn't say a single thing I disagreed with, but he's not a persuasive speaker; his rationales and justifications (which I agreed with, generally) were not stated in such a way that anyone who had previously disagreed with him would change their mind.

Thursday, July 26, 2007

Referendum 67

What is a Referendum?

In the State of Washington, the citizens may put on the ballot measures passed by the Legislature provided they collect 112,440 registered voters. In this way, it is a direct check by the citizens on their elected officials.


At the outset, I wish to provide you with three links:

  • The text of Referendum 67 (.pdf file)
  • Approve Referendum 67 website
  • Reject Referendum 67 website

    My analysis draws primarily from the first link, but I have consulted both of the others as well.

    This will shortly become a bruising fight as millions of dollars have been already poured in. You will undoubtedly hear commercials on the radio, see commercials on tv, and hear countless individuals opine on the subject. And so I thought it would be productive to look into what the law would accomplish, if passed. I should make clear, I am not yet an official law-talking guy, but I am certainly a "law-reading guy" and have a sense of what the words mean and what to expect.

    Referendum 67 would, at the end of the day, do one thing: it would prohibit insurers from "unreasonably" denying claims. The devil, as they say, is in the details.1 The first detail, and this is a very large one, is that the law does NOT apply to health insurance. That particular disaster is left for another day. Instead, think insurance for automobiles, homeowners, and so on. The next detail, and the true source of disagreement between the "Approve" and "Reject" camps,2 is the method for prohibiting unreasonable denials.

    Referendum 67 would allow, but not require, an award of triple the amount of actual damages where the court determines that the insurer acted unreasonably. Worth noting is that for even the possibility of triple damages to apply, the denial must not only be wrongful, but also unreasonable. Thus, even where a denial was wrongful and in violation of the policy, the insurance company would face the prospect of triple damages. Prior to filing the lawsuit, the insured must provide the insurer with 20 days written notice of the basis for the lawsuit, thereby providing the insured with an opportunity to correct an unreasonable denial. If the denial was merely wrongful, but not unreasonable, the insured would still be entitled to sue for actual damages, attorneys' fees, and litigation costs.

    The astute reader may be wondering how this relates to punitive damages. In the State of Washington, punitive damages are prohibited unless specifically allowed by statute. In a very real sense, then, Referendum 67 allows for a limited amount of punitive damages in limited situations.

    And so, at last, we reach the least important part of this post - my thoughts on the advisability of Referendum 67. First, having reviewed the websites, I assure you that the dire warnings from those opposed are overstated. IF insurance rates go up, it will be because insurers are unreasonably denying claims. And if that is the case, insurance rates SHOULD go up. Imagine - would you like to save $10 on your monthly auto insurance, but increase the likelihood they would unreasonably deny your legitimate $15,000 claim? The concern about increased litigiousness is also overstated. Going to court is an expensive business. These cases will often be on a contingency basis and no lawyer is going to take the expenses of frivolous cases. Indeed, even if a lawyer did so, where the case is truly frivolous, the court can impose sanctions and order the lawyer to pay the insurance company's legal fees.

    No, the major impact, I suspect, will be that the same people will take their insurance companies to court over wrongful denials, but instead of asking to merely be made whole, they will ask for an additional amount. The courts will be reticent to award that additional amount (frustratingly so, I suspect), but in certain cases the denial will be so egregiously unreasonable that the court will award additional damages. Insurances companies, presuming they are rational actors, will seek to avoid that expense by altering their claims process to ensure that it is reasonable. Again, I emphasize that Referendum 67 requires not that the systems are perfect, merely that they are reasonable. For those who are concerned about individuals getting excessive amounts of money to which they are not entitled, there are other solutions available (e.g. substantial taxes levied against the amount awarded in excess of actual damages), but that is a post for another day.

    In sum, I offer Referendum 67 my qualified approval - it is no panacea, but it creates an incentive for insurers to act reasonably.

    1 Or, if the Internet is to be believed, the smoke on 9/11.
    2 Reject camp, as it happens, does not sound like a particularly appealing summer activity.
  • Saturday, June 30, 2007

    PICS v. SSD - Outlines

    [NOTE: I have decided to post this piecemeal. The Roberts, Thomas, Kennedy, and Stevens outlines are posted. I'm starting to read the Breyer novel opinion.]

    Below are outlines (literal, not law school) of the arguments made by the various opinions. I have endeavored to be as neutral and fair as possible in my presentation of the arguments, as that is the only way to later have a meaningful discussion. These outlines are, admittedly, quite lengthy, but so were the opinions - hence the necessity.

    Schools' Plans


    Incoming 9th graders rank preferences of high schools. Students are assigned based on first preference. If (and only if) a school is oversubscribed, the school uses the following assignment method (in this order):
    1. Assign to the school attended by an older sibling
    2. If, and only if, the school is not within 15% of the district's demographics, look to student's race (white or nonwhite) to ensure school is within 15% of district demographics. (There is a discrepancy between opinions as to 10% or 15% - it began as 10% and was changed to 15% prior to this challenge)
    3. Assign based on geographic proximity
    4. After the freshman year, students were free to transfer schools.
    Jefferson County

    All non-magnet schools must be 15-50% African-American. Incoming kindergarteners assigned a school based on address. Students may request a 1st and 2nd choice. Decision based on space and whether is would violate the racial percentages above. Students may later request a transfer, subject to the same restrictions.

    Roberts Opinion
    (Majority opinion for I, II, IIIA, and IIIC; plurality opinion for IIIB and IV)


    Plaintiffs have standing. The injury is "being forced to compete in a race-based system that may prejudice the plaintiff." The parents have younger children that may be forced to do so because there is nothing stopping the districts from re-instituting the plans.

    III A

    When the government burdens or benefits individuals on the basis of racial characteristics, the court uses strict scrutiny. To satisfy that, the government must show (1) the plan is narrowly tailored (2) to meet a compelling government interest.

    There are two possible compelling government interests in situations like this: (1) "remedying the effects of past intentional discrimination" and (2) interest in diversity in higher education. Neither is applicable.
    • In Seattle, no past intentional discrimination
    • In Jefferson County, the district court declared it remedied in 2000
    • Diversity is more than just race; here where race enters it is decisive
    • Grutter focused on conditions unique to higher education, namely the expansive freedom of speech and thought
    III B

    The additional asserted interest are the educational and broader socialization benefits from a racially diverse learning environment. These benefits are irrelevant, however, because the plans are not narrowly tailored to them.

    The plans are directed to racial balance, which is impermissible. The plans are tied to demographics, not the level of diversity necessary to achieve the benefits, as required to be narrowly tailored. No argument that the level necessary coincides with demographics.
    • Example: In Seattle, 50% white and 50% Asian would meet diversity requirement while 30% Asian, 25% African American, 25% Latino, and 20% white would not.
    Unlike Grutter, this is limited to a defined range.

    Racial balancing cannot be a compelling government interest. Government must treat citizens as individuals. Otherwise, race would always be relevant.

    Remedying past societal discrimination doesn't justify race-conscious government action.

    Proportionality is not required for integration.

    The goal of diversity to see students as individuals is at cross purposes with with people solely as members of a racial group.

    III C

    The chosen means are unnecessary. Their minimal effect shows other means would be more effective. In Seattle, only 52 students were assigned to non-preferred schools due to race that would not have otherwise been assigned there. Thus, benefit doesn't outweigh harm of disparate treatment.

    Districts failed to consider other race-neutral methods.


    Dissent relies on compelling interest of remedying past intentional discrimination, but ignores the legal difference between de jure and de facto segregation crucial to law. Thus, its citation to various cases is inappropriate.

    Dissent also relies on cases decided before strict scrutiny was applied to all racial classifications. Other cases relied upon by dissent reserved question of non-de jure segregation.

    Dissent's reliance on Grutter is misplaced because there the determination was individualized.

    Previous cases reject that strict scrutiny depends on motive. The contrary view was expressed and rejected. The dissent puts too much faith in the court.

    The Equal Protection Clause protects individuals, not groups.

    Dissent argues that ends justify the means.

    The costs are clear: (1) distinctions based on race are odious and (2) government division by race promotes notions of inferiority and leads to hostility.

    Brown was about government classification and separation, not inequality of facilities. Brown II required system of admission on a non-racial basis.

    Kennedy Concurrence

    [Supports the Roberts opinion except for III B and IV.]


    These plans allocate benefits and burdens based on race and are therefore subject to strict scrutiny.

    Diversity, depending on its meaning and definition, is a compelling governmental interest.

    The government bears the burden of justifying a racial classification and each of the districts fail.
    • Jefferson County fails to establish how decisions are made. There is a conflict within its materials as to whether or not it applies to kindergarteners. It also fails to state who makes the decision and whether there is any oversight. Because of this ambiguity, the plan fails strict scrutiny.
    • Seattle fails because it does not make clear how its distinction between white and nonwhite furthers its goal of diversity. Thus it is not narrowly tailored and fails strict scrutiny.

    The hope is that race does not matter; the reality is that it too often does.

    The Constitution does not require that districts ignore racial isolation in schools and districts may take race into account. Several possible ways to do so while avoiding strict scrutiny are:
    1. Strategic site selection for new schools
    2. drawing attendance zone with general recognition of demographics
    3. Allocating resources for special programs
    4. Targeted recruiting of students and faculty
    5. Tracking enrollment, performance, and other statistics by race
    Districts fail to support claim that there is no other way to avoid racial isolation.

    The small number of students affected suggests districts could have accomplished same ends through different means.

    III A

    Contrary to plurality, compelling interests in remedying past intentional discrimination (Freeman) and in diversity in higher education (Grutter) do inform the analysis here.

    The dissent's view has no principled limit and would allow many government classifications based on race. It would conceivably allow Congress to make these changes nationwide and it could not be limited to schools.

    Two particular cases relied upon by the dissent don't fit:
    1. Gratz held that the race factor was invalid, which is contrary to the dissent's point.
    2. Grutter took into account multiple elements of diversity
    III B

    The court has required government discrimination in order to allow for the government to use racial classifications. The effect of de facto segregation may be the same as de jure segregation, but the state must use remedies other than racial classifications for the former, absent an extraordinary showing not present here.

    III C

    Government classification of individuals by race is dangerous. It commands people "to march in different directions based on racial typologies" and causes new divisiveness.

    Thus, just because race may be the problem doesn't mean race may be the solution.

    Thomas Concurrence

    [Supports the Roberts opinion in its entirety.]

    I A

    Segregation is not same as racial imbalance
    • Segregation: deliberate operation of public schools to carry out government policy to separate pupils solely on the basis of race. Brown says this is unconstitutional.
    • Racial imbalance: failure of schools to match demographics of student in the district. This can result from de jure segregation or private decisions. Because it is not linked to unconstitutional segregation, racial imbalance is not unconstitutional in itself.

    There is no danger of re-segregation in these districts, only additional racial imbalance.

    I B 1

    Race-based decision-making is fatal unless narrowly tailored to a compelling governmental interest.

    I B 2

    Neither case fits narrow exception to above rule for remedial measures. Seattle schools were never segregated by law and, while the Jefferson County schools were once so segregated, in 2000 the district court declared them no longer segregated.

    I B 3

    Even where a district seeks to remedy discrimination for which it was responsible, it must demonstrate a strong basis for the necessity of the remedy. Assertions of general societal discrimination are insufficient. Allegations in complaints against the Seattle School District are also insufficient.

    I C

    Racial imbalance differs from segregation for two reasons: (1) they are distinct concepts (see I A); (2) they require different remedies because racial balancing has no "ultimate remedy" nor a culpable party.


    Neither plan survives strict scrutiny because there is no compelling state interest

    II A

    Strict scrutiny applies to every racial classification.
    • Constitutional problems are not diminished by lack of intent to oppress
    • Additionally, these programs are not benign. "Racial paternalism" is "poisonous and pernicious." "Bringing the races together" results in someone being excluded, which exacerbates tensions and promotes resentment.
    • Nothing less than strict scrutiny is appropriate

    II B

    The dissent's claimed compelling interest is based on three non-compelling interests and they are no more compelling as a whole than individually.

    II B 1

    Dissent: interest in setting right the consequences of prior conditions of segregation.

    But, as discussed above, there was no segregation in Seattle and it has been remedied in Jefferson County.

    Districts have no interest in remedying consequences unrelated to schooling. It is merely speculative that school segregation affected those other conditions. Additionally, there would be no stopping point to the use of race under such a standard.

    II B 2

    Dissent: racially balanced schools improve educational outcomes for black students.

    But social science literature debates, and is therefore inconclusive about, the benefit relied upon by the dissent.

    Additionally, black student have been successful in non-racially balanced environments. Even Seattle operates a K-8 African American Academy. Thus racial balance is not necessary for positive educational outcomes.

    II B 3

    Dissent: democratic interest in reflecting a pluralistic society.

    But if government could use this goal in schools, it could use it anywhere. It has no stopping point.

    Additionally, there is no guarantee of the racial mixing necessary for asserted benefits because (1) separating students by abilities in classrooms often leads to classes of different races and (2) students may select social separation. Further, it is unclear that there is a benefit to racial mixing.

    II B 4

    Grutter is inapplicable because K-12 is unlike primary education in that (1) schools don't select their own students and (2) it doesn't involve the free interchange of ideas.

    II C

    There are only two compelling governmental interests: (1) preventing anarchy or violence and (2) remedying past intentional discrimination for which the government is responsible.


    The Constitution is color blind.

    The dissent pins its interpretation of the Equal Protection Clause on current societal practice and expectations, which is what the Court did in Plessy v. Ferguson

    The dissent is very similar to the arguments of the segregationists in Brown
    • Would rely on local experience
    • Claims result will threaten calm with race-related litigation
    • Relies heavily on judicial precedent
    • Argument that need for use of race will lessen over time is similar to argument that segregation was lessening

    Breyer Dissent

    Stevens Dissent

    [Supports the Breyer Dissent in its entirety.]

    The Chief Justice is wrong in concluding that racial classifications that don't exclude or stigmatize shouldn't be treated differently. That proposition rests on recent, non-unanimous decisions.

    In School Comm. of Boston the Supreme Court affirmed a ruling upholding a state law mandating integration which used racial classifications. That decision was more faithful to Brown than this one.

    No member in the court in 1975 (when Stevens joined it), which was faithful to Brown, would have agreed with this decision.

    Thursday, June 28, 2007

    PICS v. SSD

    As most of you are undoubtedly aware, the Supreme Court today handed down an opinion of great importance; indeed, it was the opinion I had been most eagerly anticipating the entire term. The case dealt public schools and the use of race in school assignment. The result was worse than anticipated, though not as bad as feared.

    Here at A CiviL Union, we promise that every time the Supreme Court reverses course on over half a century of solid jurisprudence on race, we'll mention it.

    It occurs to me that I intend to do far more mentioning than is reasonable for a single post, so I've decided to divide my commentary into several post. For those who want to follow along at home, I recommend reading the opinions here (as I am about to do).

    Tomorrow night, look for an outline of the arguments of each of the opinions. This weekend, look for an analysis of what this all means.

    [Edit: The "tomorrow night" estimate may have been a touch unrealistic. At 10:20pm (2.5 hours later) I've only read and outlined the majority/plurality opinion. The outlines - which will be as objective and fair as possible - will be posted just as soon as I have them all prepared]

    Sunday, June 24, 2007


    The Washington Post has done a marvelous piece on Vice President Cheney's role in the White House. It's long and it's the first of two articles, but it is an absolute must-read for anyone wishing to gain an insight into the Bush White House. In some ways, it confirms what we have known all along: that Cheney wields inordinate power in the Bush Administration. Indeed, it reveals this in rather terrifying form. In other ways, though, it presents a picture we haven't seen: a White House divided, pitting Cheney against the likes of Ashcroft, Powell, and even Rice.

    At the end of the day, the article seems to depict a Vice President who has no concern for accountability or the opinions of others. Not an "evil" man, but one thoroughly consumed and corrupted by power and given the degree of power he wields within the Administration he poses a grave danger to our constitutional structure.

    Thursday, June 21, 2007

    Speaking of racism...

    Just heard of this story from The Stranger's blog - apparently, the Bush appointee in charge of the civil rights division of the Justice Department has been found to have fired a handful of successful civil rights attorneys in the department in order to "make room for some good Americans."

    Which, as we know, means Americans who did not vote for John McCain in the Republican primary:
    "[Bradley] Schlozman raised the question of partisan politics bluntly in the fall of 2004, they said, when asking appellate supervisors about the 'loyalty' of division lawyer Angela Miller, who had once clerked for David. B. Sentelle, a conservative federal appeals judge. He told Miller's bosses that he learned that she voted for McCain in the 2004 Republican primary and asked, 'Can we still trust her?'"
    And that's how they treat Republicans! The Washington Post makes clear that the entire Civil Rights division of the Justice Dept. has languished under Schlozman's "leadership."
    "The Bush administration, largely under Schlozman, hired seven members as replacements or additions to the 14-lawyer appellate section where Stevens, Calderon and Kwong worked (former civil rights attorneys who say they were dismissed for political reasons). They included six whites, one Asian and no African Americans." (keep in mind this is the civil rights division)

    "Appellate lawyers said that before Schlozman arrived, the small staff enjoyed a collegial work environment generally free of partisanship. Its lawyers concentrated on framing constitutional arguments for pending judicial decisions on hot-button issues such as voting rights, racial discrimination and religious freedom."

    "Schlozman and several deputies also took an unusual interest in the assignment of office responsibility for appellate cases and, according to the lawyers and one of the supervisors, repeatedly [taking] cases away from career lawyers with expertise and [handing] them to recent hires whose résumés listed membership in conservative groups, including the Federalist Society."
    Fortunately, Schlozman is no longer at the post where he did this terrible puppetry for the Bush Administration, and two of the four attorneys profiled in the Post story are back at their old jobs.

    Unfortunately, Schlozman left his civil rights job because he was appointed the interim U.S. attorney in Missouri. His tenure there reflected his job performance with the Civil Rights division:
    "...[Schlozman] was hired without any prosecution experience, and [he] brought voter-fraud charges against a liberal voting organization five days before the election in a heated congressional race."
    Today, the man works with the Executive Office for U.S. Attorneys. Splendid.

    Perhaps one of many reasons racism persists in our society is that our leaders continue to feed it through incompetent, unethical governance.

    Overt Racism - Alive and Well

    Today's New York Times contains an absolutely shocking piece detailing racial incidents at a rural high school in Colorado. In essence, several students and parents were upset with the local coach, who is African-American. What ensued was just terrible:

    • A parent at a game said he was going to paint his son black and used what the Times refers to as "an obscene racial epithet to describe the type of person who could play on the team."
    • Students harassed another white student, using a racial epithet, who was friends with an African-American student.
    • A group of students loudly discussed forming a club called the "Lynch Mob" or the Klan."
    • Several of the players formed a breakaway basketball team they called the "Running Rebels" and showed up to a basketball camp wearing shirts with the Confederate flag.
    • Later, someone raised a Confederate flag over the school and students began painting it on their cars.
    • Four seniors posed for a picture, holding guns and giving a Nazi salute, which was posted on the Internet.

    Of course, the individuals responsible insist that it was not racism, it was just a misunderstanding. Evidently the Confederate flag was merely a symbol of rebellion with no racial overtones. Apparently the Nazi photo was merely a "big mistake" that was not racially motivated. I hope my profound skepticism may be forgiven.

    I have no deep analysis of this to offer; I merely put this forward as yet another example that, contrary to popular belief, racism is NOT dead. Of course, racism will not always be as obvious as this; oftentimes it is far more subtle but no less poignant. In every case, it is an evil we must continue to vigilantly watch for and confront at its every instance.

    Wednesday, May 09, 2007

    A Smoldering Republic (or "The Case against Secularism")

    Karl started it!

    We've been having an interesting back-and-forth since Pope Benedict remarked that he approved of local bishops denying communion to public officials and lawmakers around the world who supported legalized abortion.

    Don't worry - we both definitely agree that this is just the latest awful thing that the Sith Pope has done. Karl thinks this is an irresponsible interference in state affairs by the church (since the Church is attempting to wield its religious influence on legislators in order to change laws), which from his constitutional perspective is a violation of the maxim of Separation of Church and State.

    The idea of excommunication is also theologically suspect - ideally, Christians should like to think that the Instituted Sacraments (communion and baptism) belong not to the Church (the human institution), but instead to God. Otherwise why are we coming to church to receive them? [These are called the Instituted Sacraments because they are the only ones performed by Jesus himself, and so they're considered the only ones necessary "for salvation" - whatever that means.] If this is true, certainly it falls outside of human authority to denying any other human that which is God's to begin with. And even more so, it's probably downright sinful to use possessions of God as political leverage!

    But Karl goes a bit further:
    There is also a difference between actions of a church affecting the entirety of a nation and those actions affecting isolated individuals. If there is a problem with a church harboring undocumented persons, it is substantially different problem than if the church were demanding its standards be imposed on the lives of all persons in the nation (e.g. excluding immigrants).

    Might a religion express a view on the rightness or wrongness of an activity? Of course it may, and should, do so. And based on that, might an individual person of faith advocate such a position? Absolutely. But the religion should not compel its members to compel others to act in accord with the religion's teachings, particularly where that violates the member's duties to the state. (I'm vaguely reminded of rendering things to Caesar and to God here...)
    I find it a confusing work of legalistic parsing to say that an individual should advocate their religion-based political views without "[compelling] others to act in accord with the religion's teachings]". That's not very good advocacy, now is it? If we're going to allow self-avowed religious people into government, then we're also allowing the judgments and opinions they carry, many of which may be based on their religious beliefs alone, to inform the ways they make and interpret our law and policy.

    Karl's problem seems to be with religious leaders who essentially command that adherents behave a certain way, especially when those "adherents" are public officials and that "certain way" contradicts Constitutional principles and duties. But from there he says that the Church should "withdraw from the secular affairs of the state."

    I think Karl is giving far too much credit to the Pope and people like him by saying
    his remarks (and that's all they were) would "force Catholic legislators to choose between a duty to uphold the Constitution and their very faith." I find that most religious people I talk to understand, amongst themselves, something that many secularists refuse to understand in their propensity for overgeneralization of the religious: faith is so important to individuals precisely because it is so individual. The Bible, the Pope, the bishop, the pastor, the imam, the rabbi, the monk, the nun - sure, these are authorities in religious life, but an individual's faith is a lot more than just what a pastor tells him. A great deal of internal confirmation and struggle and questioning goes into everyone's faith formation - it is important to remember this when we feel to urge to blame "sheep-like Christians" for all the nation's problems.

    Catholic legislators have been, are, and will be doing something that religious people through millennia have done: figure out how to live in between what they feel to be right and what they are being told is right. For some, this isn't a conflict at all, and I think it's safe to assume that those people, if they're legislators, were elected to represent exactly those views. For others, they'll be doing the most human part of religion, the part that makes it worth it, the part that brings change and renewal. In fact, it is this process of challenging religious authority that has brought about much of the social change that secular liberals claim as their own morals today.

    When Karl supports the Church's complete retreat from public life over what the Pope says, he's giving credence to a frightfully small view of what it's actually like to allow religious values to play out in one's life. It's as if he's validating the idea that Catholics will basically do whatever the Pope says. Or that Evangelicals do whatever the Bible "says". That view, of course, makes for a much bigger target for enlightened academics like ourselves, but it's complete fiction.

    Social progress begins with agonized individuals. Always. This is the reality of what it means to be human. Christianity is successful because it gives a way to understand this reality and then continue living and working for justice anyway. Because after torture and death, there is resurrection and life.

    Religious leaders have done great harm and great help - but both have only been enabled by the extent to which religious people have reflected upon whether what their authorities say agree with what they themselves feel is right, and good, and a joyful thing.

    We should invite this smoldering soul-searching among our religious and our civic leaders, rather than demanding a sterile system where input equals output and nothing ever surprises us. When an individual, upon further meditation, finds that her idea of justice is not what the existing religious and civic authorities are thinking of, that person can be called a citizen and a Christian.

    A Cause for Alarm (or "The Case for Secularism")

    The Pope made explicit today that Catholic politicians who vote in support of abortion rights, even while personally believing abortion to be immoral, are subject to excommunication and should be denied communion. This presents concerns for Catholic politicians, constitutional order, constituents, secularism, and, most startlingly, the Courts.

    In the United States, legislators take an oath take uphold the Constitution of the United States. The Supreme Court, in carrying out its duty to "say what the law is," (Marbury v. Madison) has found that the Constitution protects a woman's right to an abortion. Might a legislator, then, while believing that abortion is immoral, still vote for a bill defining abortion rights as part of a duty to uphold the Constitution? The effect of the Pope's pronouncement, then, is to force Catholic legislators to choose between a duty to uphold the Constitution and their very faith. The "ideal" outcome for the Church, it would seem, is that Catholic legislators vote consistently with the precepts of the Catholic faith, at least with respect to abortion. But the era when the church could mandate to sovereigns how a country is to be run has come and gone; I, for one, have no desire to return to the Dark Ages.

    Setting the constitutional issue aside for a moment, is it not the purpose of representatives in our republic to represent the views of their constituents? If Catholic politicians are to heed the demands of the Church, then three results are possible:

    (1) In predominantly anti-abortion districts, there is no conflict;
    (2) In pro-choice districts, Catholic representatives fail to represent the interests of their constituents; or
    (3) In pro-choice districts, voters will choose to avoid election Catholic representatives.

    The final two outcomes, which would be assured to occur in at least some instances, I hope we can all agree are intolerable. The only way to avoid this would be for Catholic politicians to disobey the law of the Church and risk excommunication. I find that to be equally unacceptable. Thus, in the political realm, the Pope's pronouncement creates an impasse with no entirely acceptable result possible. Thus, this makes for an excellent case study in the desirability of the separation of church and state.

    But, as a more immediate concern, what of the courts? If a legislator voting in support of abortion rights on constitutional grounds may be excommunicated, then so, it seems, may a jurist doing precisely the same thing, including a Supreme Court justice. And what effect might this have on a justice's ruling? If presented with a case in which a particular ruling could result excommunication from the justice's church, it seems sheer fantasy that the justice's decision-making will be unaffected. This appears to be a classic conflict of interest. And this situation is far from unlikely - indeed, such a case has already occurred. It is interesting, though not necessarily telling, that the five justices voting to uphold the Partial Birth Abortion Ban Act were the five Roman Catholic justices. So what is the solution? Certainly, it is not to inquire into a potential justice's religion - that is unconstitutional and for good reason. Is it for justices to recuse themselves on cases involving abortion or other teachings? That would result in FIVE justices recusing themselves, justices whom, while I often disagree with them, play an important role on the court and can bring a legitimate judicial philosophy to the table. No, the solution is for justices to remain consistent with oaths to uphold the Constitution, but the only way for the public to be confident they are doing so is to remove significant barriers; that is, for the Church to withdraw from the secular affairs of the state.

    [Edit: A bit of elaboration on the final sentence appears prudent. When I state the Church should withdraw from the secular affairs of the state, I mean that a religious institution should not attempt to control the making or interpreting of secular laws. This is not to say that a religious institution should refrain from engaging in discourse of the issues underlying the laws, nor am I saying lawmakers should not be informed, at least to some extent, by their moral and/or religious convictions in the process of lawmaking. Put simply, a religious institution should not endeavor to control the lawmaking process, though it is certainly welcome to contribute to discourse of the issues before the lawmaking process.]

    Thursday, April 26, 2007

    Congress and the PBAA

    Before going any further, it's important to understand what this act does and does not do. This act does not prohibit abortions based on the term or stage of the pregnancy during which they are performed (the Supreme Court decision seems to allow for that to happen, but we'll get there). What it does is to forbid a particular method of performing an abortion, known as an "intact dilation and evacuation" (intact D&E) procedure.

    Congress elected to ban this particular procedure because it declared it "gruesome" and inhumane" and declared that it is "never medically necessary." But let us pause. Are we okay with Congress regulating the medical field based upon such circumstances? As a preliminary matter, let us dispense with the "inhumane" argument. If the abortion of a fetus is inhumane in one instance, it is inhumane in all instances. That is a larger question about abortion, not one specific to this procedure. Next, it is important to note that other D&E methods, not banned by the act, are no less gruesome. But is gruesomeness a sufficient ground for banning a medical procedure? Indeed, I think most of us would find any surgery quite "gruesome" - the slicing open of human skin, etc. The point is, in medicine there is a balancing test. Yes, the actions are gruesome, but we undertake them anyway because there are more compelling interests at stake.

    And this brings us to the question of whether this procedure is ever "medically necessary." Note that Congress did not declare that the procedure was "never medically beneficial" or even that it was "never the best medical option." No, instead Congress declared that it was never medically necessary, which renders meaningless its exemption for the life of a woman. (Surely "necessary," if it is to have any meaning at all, must mean "necessary" to the life of the mother.) If a declaration of no medical necessity is all that is required, Congress would thus be empowered to regulate nearly anything in the medical field which it disfavors - end-of-life decisions, sex reassignment, and almost all types of abortion come readily to mind. This should give us all pause.

    As a final point, Congress's greatest failure in passing this bill was to omit an exemption for the health of a woman. Other methods of abortion can pose risks of serious complications in some women. This may not be frequent; indeed there appear to be less than 5,000 of the banned procedures per year. If continued pregnancy poses a serious threat to the mother's health, should she not be able to have an abortion? Should the specific procedure used not be the safest possible one as determined by a certified physician?

    Without going into it in great depth here, there is also a fascinating question, already widely debated in conservative circles, as to whether Congress, as opposed to state legislatures, may pass this type of legislation. Our federal government is one of enumerated powers (if broadly construed enumerated powers). But to construe its Commerce Clause powers this broadly may be to abandon any notion of "enumerated powers."

    I will address the Supreme Court decision in a later post.

    Saturday, April 21, 2007


    There has been so much ugliness this week. It's been almost unbearable. From Virginia Tech, to the Supreme Court ruling, to me deeply wounding the feelings of a friend, and now this:

    Youtube: 'Christian' audience walkout at Mike Daisey

    I found it in the Stranger blog. Basically, this solo performer was giving his monologue and used the word "fuck" a few times - and then his performance was interrupted with a throng of people in the audience getting up and walking out. And then some guy came up to the performer and poured water on the handwritten manuscript he was reading from. I felt sick.

    But the guy was really full of class - he really wanted to have a conversation with the angry folks. And later he posted this all to his blog - and what he wrote about it gave me shivers. It was graceful, principled, outraged, compassionate, and insightful all at once. Please read it.

    Wednesday, April 18, 2007

    It Begins

    I had held out hope, but I suppose we all knew this day would come. The Supreme Court, today, upheld a federal law banning a type of abortion. Yes, the Supreme Court upholds federal laws all the time. But this one was widely expected to be struck down because similar bills passed at the state level had previously been held to be unconstitutional. In general, if an act is unconstitutional as impinging upon the rights of the people, it doesn't much matter WHO passes the unconstitutional law, it remains unconstitutional. That is why commentators anticipated this federal law, which was a response to the court's ruling, to similarly be struck down. That was before, of course, the composition of the court changed; more specifically, that was before Justice O'Connor was replaced by Justice Alito. Both Alito and Roberts voted to sustain this law.

    Today's decision raises two separate issues: (1) the political wisdom of the Act itself and (2) the wisdom of today's decision by the Supreme Court. These will be the subjects of a future post, once I have had time to parse the opinion itself.

    Thursday, April 12, 2007

    Pharmacists and Contraceptives

    Over the past few years, the issue of whether pharmacists should be required to dispense so-called "morning after" birth control pills has been debated widely in Washington State. Today, the Pharmacy Board, after a substantial amount of discussion, consideration, and re-consideration of proposed rules, unanimously voted to require drug stores to dispense lawful prescriptions while allowing individual pharmacists only the discretion to have another pharmacist on-site fill the prescription instead. I find this to be an eminently sensible decision. Without rehashing the entire debate, here is why.

    This issue presents a conflict of interests: (1) that of the patient, who has an interest in having a prescription filled and (2) that of the pharmacist, who may harbor moral objections to the particular prescription.

    The interests of the patient have been through at least one level of review with a doctor, who wrote the given prescription. This, to me, serves to enhance the validity of the patient's interests. Given that refusals to fill prescriptions have often centered upon prescriptions preventing conception, the interest in avoiding an unwanted pregnancy is generally a very serious one. We must, of course, balance this against the interests of the pharmacist who objects.

    The pharmacist's interest, on first blush, is also a fairly strong one - the right to behave in accordance with one's moral, religious, and ethical beliefs. This interest is, however, undermined in that being a pharmacist is a profession licensed by the state. Such licensing creates responsibilities. One such responsibility is to fulfill lawful prescriptions, regardless of personal convictions. The pharmacist is, of course free to seek other lines of work involving no such professional responsibility to the public (working in the pharmaceutical industry, for instance).

    Weighing the competing interests, then, the balance seems to fall decidedly in favor of the patient's interest. Were doctors able to both create and fill prescriptions this would be a closer call, but currently, the only way to meet the patient's needs in every case is to require pharmacists to dispense all lawful prescriptions. As such, I applaud the Pharmacy Board's decision.

    Tuesday, April 03, 2007

    Easter for Diplomacy

    This is a beautiful photograph.

    Speaker of the House Nancy Pelosi is in Syria. Earlier this week she's been in Israel and Lebanon. There's lovely footage of her touring a bazaar in Damascus, enjoying free samples from various vendors, and then visiting a mosque in her beautiful headscarf and making the sign of the cross at the reported depository of the head of John the Baptist. She's due to meet with Syrian President Bashar al-Assad to discuss Syria's role in stabilizing Iraq, it's peace process with Israel, and in general to begin the process cleaning up after the Bush administration's drunken bar-fight diplomacy.

    The White House thinks this is bad.

    Two remarks: first, as much as I have been critical of Congressional Democrats, this is really, really cool. The next time a conservative war-apologist says that liberals aren't doing anything to help the situation in Iraq, I might point this out. Diplomacy is the most effective tool our leaders can be employing right now to HELP the Iraqi people, and incidentally, "the troops" as well. It's sad that the Speaker of the House needs to be the one attending our foreign brothers and sisters - in theory, the President and the Vice-President get replaced by the Speaker only if they're dead. In our case, they're just incompetent.

    My second remark is a quote:
    "Blessed are the peacemakers, for they will be called children of God." - Matthew 5:9

    What a sad day when the ostensibly "Christian" president denounces a person for peacemaking. It is now Holy Week in Western Christianity - this weekend, Christians remember how God turns domination and death into liberation and life.

    Out of the darkness of Bush's "doctrine" and betrayal of the global community, let there be a resurrection of respect, dialogue, and hope.

    Good work, Speaker Pelosi.

    Sunday, April 01, 2007

    Happy April Fools Karl

    A gift for Karl from a blog I ran into today:

    Comments, Karl? I can't say I agree, but I'm trying to have a sense of humor. Being that it's "Fools Day" and all, I figure the heathens can have a break for once.

    Saturday, March 17, 2007

    Anti-War Protests (Or Events I am Not Attending)

    Throughout the nation (indeed, the world) this weekend, people are taking to the streets to protest the "Iraq War." And already, we have identified the problem. I am sorry to announce that there is no war in Iraq. There is an occupation, but not a war. This is not a new development. The anti-war ship has sailed. We cannot "end the war" - we can, and must, end the occupation, but there are right ways to end the occupation and wrong ways to end the occupation. (Indeed, there are many more WRONG ways to end it.)

    One of the worst ways to end the occupation of Iraq? To borrow a phrase from today's protests, "U.S. Out of Iraq Now!"

    One result of our invasion was to set the stage for a civil war and factional violence (and the factions are substantially more complicated than 'Sunni' and 'Shiite'); as such, we have a responsibility to provide for a stable Iraq as and after we leave. I think it is fair to say that an immediate withdrawal, without more, would lead to a less stable Iraq and result in more deaths than we're currently seeing. (You will note, I hope, that many of the attacks are not directed at U.S. troops.) I find this a morally unconscionable approach. Equally abysmal is an extended occupation - the goal of every occupation must be to end. But how? An easy starting point is rebuilding the infrastructure of the country - power, water, schools, etc. Peace is substantially less likely where people are deprived of life's necessities (desperate people will engage in desperate acts).

    But how do we ensure, or at least make more likely, peace after the occupation? Training of the Iraqi military is necessary but not sufficient - a sustainable peace does not come at gunpoint. I see two potential models: a political model, as employed in North Ireland, and/or a truth and reconciliation model, as employed in South Africa. The political situation in Iraq appears to be failing abysmally at facilitating reconciliation. This is not to say a political solution is impossible, but to be effective, all parties must have a seat at the table and that can be a bitter pill to swallow. Even more bitter a pill is the truth a reconciliation approach and its success in South Africa has not been realized everywhere it has been implied (see, e.g., much of Latin America). The U.S. cannot impose such a solution; it must be a led by Iraqi leaders and adapted to the particular needs of the country. However, we can encourage such a solution, or, at the very least not stand in the way. Might that require that we forgo prosecution of or retaliation against individuals who have engaged is horrible practices? Who have taken the lives of U.S. troops? It is entirely possible.

    At the end of the day, am I optimistic at the prospects of the U.S. leaving behind a sustainable Iraq at the end of the occupation? Sadly, no. Republicans insist on some undefined "victory" (which is clearly not attainable) while Democrats call for a withdrawal but without any apparent thought about ensuring we leave Iraq better than we found it. The overall message from this weekend's protest seem to favor the latter approach, and for that reason I cannot join them.

    "An honest person, not a lawyer"

    I'm at my parents' house cleaning out some old stuff. I came across a journal notebook from 8th grade Humanities and Social Studies. It was an assignment that we had to write a short essay in our journal every week on a topic of Mrs. Hainer's choosing. So what this means is that there's a literal treasure trove of material to share with whoever reads this thing.

    So here we go.
    Sept 14 1998

    I think that President Clinton should be impeached if he doesn't resign first. As the leader of the free world, he should have the integrity and the moral values not to lie about sex and not to abuse his power. Even though he says that he really didn't have sex according to the definition of sex set by Paula Jones' lawyers, he needs to be an honest person, not a lawyer, as the leader of our country. He broke the law, and it's worse when a president breaks the law because the president is representing the United States by his actions. We need a leader who will have good moral judgement (sic) and the forethought to not do something that may damage the entire country. The president has demonstrated that he does not posess (sic) these qualities and that makes him unfit to continue to be the leader of this country. Although I'm sure that he learned from his mistakes and that this will not happen again if Clinton stays in office, a position as powerful as that of the President's has NO room for mistakes of this kind.

    Well, there you have it.

    Saturday, March 10, 2007

    An alert and knowledgeable citizenry

    I wasn't quite sure what it would take for me to post again here.

    Turns out it was a movie.

    Why We Fight is an indictment of American citizens for their (our) failure to arrest the militarization of our country. It's something that both my friend Karl and I have written about in the past here at A Civil Union.

    It left me feeling bitter - not at George W. Bush or Dick Cheney or Paul Wolfowitz or Bill Kristol or Donald Rumsfeld or any of the other (puppet)eers - but at my own resignation. I suppose writing when it's raw is a first step for me in processing the message of this film.

    The backbone of the movie was President Eisenhower's Farewell Address. Throughout the film, clips of the president's speech are played in juxtaposition to recent news footage that throws Eisenhower's warning back in his sad face.

    I've excerpted here the parts of his address that spoke to me most profoundly. I encourage whoever still visits this remnant of a blog to click the link above and find the parts that speak most to you.


    "In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted only an alert and knowledgeable citizenry can compel the proper meshing of huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together."

    "As we peer into society's future, we-you and I, and our government-must avoid the impulse to live only for today, plundering, for our own ease and convenience, the precious resources of tomorrow. We cannot mortgage the material assets of our grandchildren without risking the loss also of their political and spiritual heritage."

    "Down the long lane of the history yet to be written America knows that this world of ours, ever growing smaller, must avoid becoming a community of dreadful fear and hate, and be, instead, a proud confederation of mutual trust and respect."

    "Disarmament, with mutual honor and confidence, is a continuing imperative. Together we must learn how to compose difference, not with arms, but with intellect and decent purpose."

    "We pray that peoples of all faiths, all races, all nations, may have their great human needs satisfied; that those now denied opportunity shall come to enjoy it to the full; that all who yearn for freedom may experience its spiritual blessings; that those who have freedom will understand, also, its heavy responsibilities; that all who are insensitive to the needs of others will learn charity; that the scourges of poverty, disease and ignorance will be made to disappear from the earth, and that, in the goodness of time, all peoples will come to live together in a peace guaranteed by the binding force of mutual respect and love."

    Tuesday, January 30, 2007

    The 'Surge'

    So I have a question. At the moment, questions are out of vogue and opinions are in (in that respect, all the elections changed were that there is suddenly more than one opinion). My question concerns Iraq. It concerns the 'Surge.' It also concerns criticism of the 'Surge.' My question is, what about the Iraqi people?

    Let's start at the very beginning (a very good place to start): this war should never have happened. Intelligence was deliberately distorted; informed criticisms were ignored; the American people were lied to. Fine. I get that. Most of us get that.

    The invasion plans were flawed - troop levels were nowhere near where they should have been. The scenario we expected (something about being greeted as liberators, no Mr. Cheney?) was completely wrong. We foolishly ignored the advice of our allies and pushed them aside. Fine. I get that too.

    Bush's plan for a 'Surge' appears to offer little potential for 'success.' The increase is far from substantial. Okay. I'm still getting this. But why do we instead simply call to 'bring the troops home'? Because we don't want more American servicemen and women to be killed? I get that, but what of the far greater number of innocent Iraqis that will continue to be killed if we withdraw without creating some sort of stability? We cannot simply say, as Chuck Schumer suggested the other night, that we didn't bargain for a civil war. The current violence, the tens of thousands (possibly hundreds of thousands) or Iraqi deaths, these are the results of our invasion. As a nation, we have a responsibility to do everything we can to prevent future death and destruction resulting for our blunders. (I note, however, that more American troops on the ground is not the only solution)

    How do we do that? I admit, I don't know (though I do have some opinions). But we start by talking about it, by asking questions. By admitting that we have a responsibility. And right now, no one seems to be doing that.

    Thursday, January 11, 2007


    The Seattle Post-Intelligencer today reported that the Federal Way School District has restricted the showing of "An Inconvenient Truth," Al Gore's documentary on global warming, requiring that if it is shown it must be accompanied by an opposing viewpoint. They have invoked a district policy which requires teaching of 'controversial' materials to present both sides on an argument. Ironically, the movie's point is to demonstrate that there is no debate within the scientific community about the validity of global warming and human contributions; that is well-accepted. Indeed, the Union of Concerned Scientists recently issued a report on how Exxon has spent $16 million to mislead the public into believing the existence of a controversy over global warming despite the lack of such a controversy in the scientific community.

    The school's policy is also clearly in bad faith. Almost every school has some form of anti-drug education, whether that be the DARE program or something similar, but presents no counterpoint. Decriminalization of drugs is certainly a much debated issue; one leading proponent is former Seattle Chief of Police Norm Stamper. The point is that the district's policy of teaching both sides of a controversy is utterly flawed. As with creationism, we needn't teach a non-scientific view in a science class; this is entirely a ploy by someone who is entirely out-of-touch with reality (to see just HOW out-of-touch, refer to the Seattle P-I article).

    Want to do something? Here is the contact information for the relevant parties in the Federal Way School District. Write to them and share your thoughts on the current policy. When it's one teacher versus one parent, that is a controversy. When it's one parent versus the entire Seattle-Tacoma region, well, that adds a little perspective. Remember to be polite, articulate, and to the point!

  • Tom Murphy -

    School Board Members:
  • Ed Barney - (President)
  • David Larson - (Vice-President)
  • Charles Hoff -
  • Evelyn Castellar -
  • Thomas Madden -