Revolutionary Characters

And Also: Coming back today, it was like some zombie movie, but with kids demanding candy. Something like bugs and such that only come out when it is dark -- it was twilight -- though sure, that sounds a bit too icky. Well, it is Halloween, so maybe it is appropriate.

I am reading historian Gordon Wood's recent book, Revolutionary Characters, a collection of essays about the usual suspects plus some bookend chapters on the era itself. Has some good stuff and is generally well written in approachable prose.

It is a bit too enamored with the era, at some times overidealizing the age of elites (the fact they thought of themselves as "disinterested" and so forth does not mean they were ... surely, e.g., Southern leaders were influenced by interests such as slavery and balance of trade issues). Repeatedly, we read about how it was an era that is never to come again, and such sentiments have a clear sadness to them. The limitations of even enlightened elitism are clear ... also obviously there were "characters" (in the sense of people of virtue) we can honor after that era. Lincoln, hello. One can go on.*

Anyway, each essay generally has a theme. For instance, Washington is a man of honor, leading by virtue, and being loved/honored by competing groups for just that reason. Adams had an old fashioned view of society, believing we need to balance "the many" (people) and "the few" (elite, natural or artificial) with "the one" (president/monarchial) serving as the check on both. Jefferson was an idealist, trusting in the people, and thus very concerned with societal niceties and character -- this appeals to me since I am always trying to formulate a theory on how liberal values are important overall, not just when we vote in elections. And, the true "treason" of Aaron Burr is his in effect modern politician motivations, refusing to follow the demands of an Enlightenment gentleman.

[An amusing tidbit, one reader might appreciate, cited a satirical comment in response to Jefferson's focus on rights. One Federalist replied that Jefferson must also think weeds have the right to flourish, for does not each have "an equal right to live.... And why should wheat and barley thrive/Despotic tyrants of the field?"]

I first looked at the book a month or two ago and checked out the Madison chapter. Madison appeals -- a sort of realist Jeffersonian with some support (Wood goes into this a bit) of "soft power" ideals -- questioning the use of military power, concerned with the fiscal-military state (contra Hamilton, the original neo-con), and favoring peaceful trade/international relations means to have a rational, more peaceful international state of affairs. We all know his general sentiments on rights, especially in respect to religion and concern that even states (sorry Jef) need to be restrained by the federal government when they threaten our liberties. All the same, he was a realist, knowing the imperfections of the system and the people at large.

The chapter also notes that Madison still honored the ideals of the era as to the idea that elites are the best people to govern. His Federalist No. 10 on factions should not, per Wood, be viewed through modern eyes too much respecting political parties and competing factions as if he thinks the hoi polloi should compete against each other or something. Fine enough -- we really cannot assume that the people of the era can be applied to our own part and parcel. This is the fallacy of strict original meaning/understanding jurisprudence. The realistic/practical approach, one I personally think they themselves intended (see Jack Rackove's Pulitzer Prize winning work), is to work with their general principles, using changing understandings of them to apply things to modern times.

I wrote something some time ago about "realistic optimism" -- idealism through a realist prism being my watchword. This seems a valuable way to look at things. Take the death penalty. Link TV yesterday had something on Gov. Ryan's efforts against the process in Illinois; I read Scott Turow's little book influenced by his role in the process. I am firmly against the death penalty. This is so even though I realize that it is not the most horrible thing in the world. Surely, executing a thousand people (surely overwhelmly guilty) in twenty or so years is not on par with many other things that result in the deaths of many more people. And, some (even I, perhaps) might think execution better than life in prison in various respects. You know in pony land.

[Overall, I think killing people shouldn't be our solution to the crime problem. But, if I was in prison for life, maybe I would want to be executed first. This is what I mean by "better." Still, why should vicious murderers "get out" of jail before any number of other people? The fact it is "harder" does not necessarily make it cruel and unusual. Anyway, applying things still would be a mess. So, as policy, no.]

But, we live in the real world. The death penalty is applied in an arbitrary way that is patently unjust, advancing a negative policy. We need not deny the problems with the alternative -- let's say the chance of a killing in prison or an escape -- to underline the point. Some fear doing this, since it helps the other side. But, the people overall are realistic sorts, they are aware of the positives and negatives in some general fashion at the very least. In effect lying to them will not help too much, and this sort of thing is not what "we" are supposed to be furthering, right? The answer is that arbitrarily executing a few people because a tiny number might escape or kill inside is not reasonable. Many more dangerous non-capital offenders might kill in prison or escape. People on death row can escape. And so on.

Thus, on balance, the death penalty is bad. We live in the real world -- people were imperfect in liberal utopia West Wing Land, they surely are here. So, we have to sometimes take the best of imperfect situations. No kidding, right? One, however, is hard-pressed at times to find people who actually understand the concept. Thus, conservatives sorts were recently on the talk show circuit asking people if they wanted America to win when some (at times hesitantly) questioned the latest conservative talking points. You might say such people are cynical idealists. They do have certain ideals, which they refuse to put to rational criticism and doubt, and believe you can promote them in crooked ways.

You know, the end justifies the means. Let it be noted that "ideals" are principles one follows, such as royal power in the executive, so it is not the same thing as something that is "ideal." So, I'm not really giving too much credit to these people, though yes, some of these people don't even have negative ideals. It's just whatever it takes to get ahead. Rove style.

Or, maybe, their ideal is simply the end justifies the means. There is an account that Hamilton feared that NY would be lost to the Democrats. So, he begged Gov. Jay (F), previously Chief Justice Jay, to reconvene the legislature to change the election rules in order that the Federalists would have a shot. Just like the Republicans threatened to do in Florida 2000. Jay refused ... that was not how things were done. Jefferson eventually tied with Burr; many Federalists (including incoming CJ Marshall, according to Wood) wanted the lame duck House to choose Burr, obviously not the public's choice. Burr was a safe choice, pliable. You know, sort of like Bush in '00 over McCain.

This time Hamilton begged off. Not exactly for democratic reasons, but because he feared the character of Aaron Burr. Or lack thereof. [Various Founders had their bad moments, but had their good ones too.] Perhaps, Hamilton was not quite a neo-con after all.

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* The book is surely useful in informing us about the ideals of the era, but this is different from suggesting they truly were put in practice, or that the era was that much different from ours in all respects. Thus, the last chapter discusses the rise of modern public opinion. The overall argument is that pre-1800 "public opinion" in effect involved a relatively small group of people, the elites, thus the likes of The Federalist was not really meant for broad perusal. This was on the downturn by the 1790s, much to the despair of the Federalist Party. I'd add that even the book hints that the "classical" view was already in decline in some respects even earlier.

It bears noting that even today we often have similar media that is really targeted to select groups. Is the New Republic really meant for everyone? The blog The Note suggests to some that even the press really consists of media sorts having a select audience, the "best men" Atrios ridicules the likes of David Broder for supporting.

Boo!

Election Update

The NY comptroller, Alan Hevesi, got into a situation when it came out that he used state funds to provide car services for his ailing (but not enough to be qualified for them) wife that did not follow regular policy. Given his job, this was rather embarrassing, but honestly, as a scandal it did not quite appall me or anything. [The whole nannygate deal respecting the federal attorney general did not quite upset me either, though I have more opposition on that end.]

The NY Daily News editorial board -- a conservative leaning bunch that thinks it is an "easy" call to endorse the de facto Republican senate candidate of Connecticut -- agrees. It noted that seriously one cannot really endorse the nonentity Republican candidate, a nice enough low key bow tie wearing sort, but clearly chosen to be a sacrificial lamb. Hevesi did actually air a rather lame attack ad that played yesterday, which seems rather pointless. Why give the guy any more exposure, after even he said that his one moment in the sun -- the debate -- was pretty lackluster

[Poor Hevesi is like a pariah these days. He is not invited to the Democrat victory party on Election Day, scheduled to have one of his own, perhaps a little affair at his home. Bring your own food.]

Anyway, this sort of thing should guide one to vote for a third party, you know the Green Party. An article in today's News notes that the woman in question assures them that "more than one" person said they would vote for her after the news came out. Meanwhile, I received an email -- in part endorsed by Cynthia Nixon, formerly of Sex in the City -- encouraging us to vote for people on the Working Families Party line. We have cross-party tickets in this state, so generally people are both on the Democrat and WFP line. Voting via that line would bring attention and support to the party, whose aims generally can be inferred from its title. And, a few candidates were elected solely on that line. Well, I'm sure at least one or two were. It is a relatively new party.

Talking about sacrificial lambs, even the NY Post endorsed Hillary Clinton because they realize her competition is not really someone to take seriously. One can say the same about the Republican candidate for governor. I received one of those annoying canned recordings today from his office talking about how his opportunity's "running mate" (Alan Hevesi) was crooked. No, sorry to interrupt your little role playing game ("when I'm your governor"), but Hevesi is running as comptroller. Someone whose name that slips my mind (of some note locally ... at least, a bit more well known than Gov. Pataki's first running mate, some loose cannon sort that eventually turned on him) is Eliot Spitzer's "running mate."

Anyway, I am ready for this whole thing to be over. I was sick of the election season in '04 long before now, and the whole thing again tires me. At least, this time around there is more assurance that the result will be a good one. [David Brooks, however, yesterday said we will probably lose a great family advocate in PA ... no mention why he thinks Sen. Casey would be any less of one, perhaps a bit more of a supporter of all families (you know, gays etc.) in the process ... while not being part of an anti-family party overall.] As to why it is so important, yet again we can do much worse than going to Glenn Greenwald, this one about the detainment of an Iraqi journalist.

I do wish we had more national leaders for whom we can have a modicum of respect. I can say this without fear, since I am not a lead singer of a country/bluegrass band with a major audience in the South. Oh, the VH1 Storytellers show was pretty good.

Basic Fairness (Updated)

The fact the Jets lost to the lowly Browns (favored by 2) was acceptable (if annoying) -- they were due for a letdown. Not reviewing the attempt for the tie with about a minute left in the game was not. I repeatedly saw little chance of succeeding booth challenges. They are in place for the sanctity of the game, to underline fairness. It was patently unfair for the Jets not to get one. Thus, a loss that was acceptable ended with this fan being pissed. The announcers giving credit to the Jets for uh almost getting the play off (?) while saying we have to accept on the field judgments (why have booth challenges at all?) didn't help.

Update: During the night game, twice -- TWICE -- two reviews were made after the game was clearly lost. Uh huh.

Update 2: The NY Daily News did a good job today covering the issue. Apparently, though the call was a split decision (one the papers' reporters appear to lean against), the ruling was that the push out of bounds that was the deciding factor was a non-reviewable call. A column argues that such end of the game sort of deals should be reviewable. True enough, when its a split decision especially, but the clarity is appreciated. And, it would have been appreciated even more if it was done during the game.

Again, the Jets played badly, but teams do that ... they don't need a push one way or the other from officials. And, "fairness" is a rallying cry when playing little boy games from when we are five. Since fans (and some players, see a certain GB QB) generally retain that mentality, well the good ones, it remains important. This includes the appearance of fairness.

Enjoy your bye. Pretty good first half.

"Water Cure" Over Time

And Also: I am sick of the House promos talking about its "new time," which is really just it's old time before it shifted an hour earlier for about an month before the baseball playoffs. On that note, sigh, but fine ... Suppan is a stud who some team very well might seize given he is a free agent. Talk is in the air that A-Rod is staying. Okay. If so, forget about 2007 in the Bronx ... same old shit for another year.

Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister.

-- Weems v. U.S. (1910)

As noted earlier, this ruling arose from punishment policies in the Philippines, the harsh Spanish style penalty at issue deemed a violation of territorial Bill of Rights, language patterning our Eighth Amendment. [Holmes joined the dissent.] It was a seminal opinion, supplying not only an interpretation that applied the latter, but doing so in a liberal open-ended fashion. This served as a basis for later applications, setting the broad themes with widespread effects. Cf. An article in today's NYT about the life of someone after serving twenty years in prison for a crime he did not commit, the fear of something similar happening leading to care in the many more cases where wrongful conviction is not likely.

About a decade earlier, after that "splendid little" Spanish American War, the U.S. had a very messy (20K local troops dead, 200K civilians, according to the World Almanac, but the right wing bloggers ridiculed the count), counterinsurgency campaign to deal with for a few years. And, there was plenty of war crimes, including water torture. To note how it was seen at the time, including by U.S. officials. See, "Drop by Drop: Forgetting The History of Water Torture In U.S. Courts" by Evan Wallach. The recent comments, and Snowjob's (given it's his job) attempt to get past them, by Cheney that "dunking" is obviously acceptable in various cases led to an extended discussion (with a cite of the article) here. Or, as it was discussed during Japanese War Crime tribunals after WWII:

Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I'd get my breath, then they'd start over again.*

Meanwhile, flipping thru the channels during the commercials, I see Prof. Yoo is out there again. Matching him as the counterpoint to middle of the road sorts like Prof. Rosen (when someone like him who is concerned about "judicial activism" [one of those liberal Roe opponents] though having some privacy bona fides, is upset, you know you are in trouble) really gives the guy's ideas too much respect. Obviously, the guy should not be taken seriously any more, but obviously he still has some cred when he keeps on popping up all over the place -- C-SPAN, editorials in major newspapers, congressional hearings, and so forth.

The fact this sort of thing still has a modicum of legitimacy suggests why the election (Election?) seems so important and clear-cut. There is a piece in the NYT today about how talking politics in some places is really in bad faith these days. Yeah, I know the drill. The thing is that these days things do seem patently black and white. We know there is an other side, getting smaller by the minute, but "our" side really cannot understand how there can be much doubt. Sure, there are levels of wrongness, but that is just detail. It started in late 2000 -- I got into shouting matches then too. But, at some point, you see there is no point. Ain't doing any good.

Not ready to make nice guys and gals. If you want to defend these people, do your best, but good f-ing luck.

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* The article (rough draft) also notes it was deemed criminal when a renegade sheriff used the technique in the 1980s. "Dunking" is really not what is at stake here, though it might enter into the mix as well as in the discussions:

See, e.g., David Johnston and James Risen, Aides Say Memo Backed Coercion Already 5 in Use, New York Times, 27 June, 2004, page 1, ("Mr. Mohammed was 'waterboarded' - strapped to a board and immersed in water - a technique used to make the subject believe that he might be drowned, officials said,"); and Douglas Jehl and David Johnston, C.I.A. Expands Its Inquiry Into Interrogation Tactics, 29 August, 2004, page 10, ("Former intelligence officials say that lawyers from the C.I.A. and the Justice Department have been involved in extensive discussions in recent months to review the legal basis for some extreme tactics used at those secret centers, including 'waterboarding,' in which a detainee is strapped down, dunked under water and made to believe that he might be drowned."

"Yoo" might be okay with this, but "we" should not.

Trader Joe's

I went to urban favorite Trader's Joes (earlier, I had checked out the separate wine store next door) after seeing the Dixie Chicks; it has some good things/deals, but the nearby Whole Foods had more options as well as their own cheap store brand. Since both don't have the exact same things, I guess the best way is to go both places, though sometimes the lines would make that a bit tedious. Oh, TJ has less space, so is more crowded. I'm not a fan of the stuff, but maybe the (cheap) wine was a major draw?

Shut Up & Sing!

And Also: An author of an upcoming book on the myth of tort suits run riot has a tasty blog (h/t Washington Monthly). See here for an "accord" to an argument in support of the Afghan War as compared to the one in Iraq. I see much merit in the points made by the original article though think more thought had to be put in the authorization. Can we please make this mandatory from now on? Remember to set back your clocks.

[H]ow in the world can the words that I said
Send somebody so over the edge
That they'd write me a letter
Sayin' that I better shut up and sing
Or my life will be over.

-- "Not Ready to Make Nice"

There is a book out there entitled Shut Up and Sing: How Elites from Hollywood, Politics, and the UN are Subverting America by Laura Ingraham, which Publishers Weekly over at Amazon notes: "To the author of this vociferous but ill-supported right wing screed, membership in the elite is not an objective position of wealth, power or influence." We are also told that it was published by Regnery Publishing (supplier of chunks of loud mouth conservative propaganda), which gives the knowledgeable fair warning of what it likely offers.

The Amazon entry also notes that it was published in September, 2003, which is notable since the title clearly references an event (that the index suggests is directly addressed by about five pages of the text) that took place only six months before. On March 10, the leader singer of the popular country music (with an independent streak) group the Dixie Chicks noted in between songs at a London concert that "Just so you know, we're ashamed the president of the United States is from Texas." This after connecting it to the upcoming war that said president was shoving down our throats.

This was reported by the British press, soon becoming a major controversy in the U.S. with the help of the usual right wing troublemakers. It had a particularly strong effect though in that country music radio stations -- as a result of listener complaints -- stopped playing their songs. We also had public demonstrations where their CDs were destroyed or tossed in the trash. Various shades of the complaint -- criticizing "our" president, doing so overseas, etc.

They did play at a scheduled Southern locale booking, so clearly it is not like all listeners were APPALLED by what Natalie Maines (who I'd think showed signs of liberal politics before then ... the group also has a song out concerning killing a wife abuser) said. But, it did have serious economic consequences. It also suggests a certain culture clash. People like myself are rather appalled that a single line of criticism, one as war many found horrendous was upon us, was deemed so horrible. Is this our America?

A group that had just played at the Super Bowl, so typically Southern country that Hank Hill of King of The Hill praised them, would become persona non grata because of one remark? Well, sure, when Toby Keith put Maines together with Saddam for her sins, some gas was tossed on the fire by the resulting feud. But, the documentary Dixie Chicks: Shut Up and Sing reaffirms the basic problem with the controversy.

A dislike of the values that many of us find basic to what we love about this country. Sure, there also is the point that the "pox on both their houses" line simply is b.s. We see this in campaign advertising. We see this when congressional scholars from the center/right speak of the "broken branch," underlining that the Republicans broke it considerably more than the obviously with sin Democrats.

But, how in the hell are people supposed to be all shocked when a singer known for being a bit outspoken basically speaks her mind? And, not exactly in extended fashion ... just a passing remark that apparently is somehow treasonous. Criticism of the President is treasonous? Talking about not ready to make nice. The documentary btw is largely a sort of behind the scenes deal that could fit well on VH1 (the documentary mentions MTV is too "young" for them, but VH1 would still find them appropriate), which has a "Storytellers" (music plus a bit of commentary) feature starring the band Saturday night at 9PM. We see their family -- cute babies -- and some behind the scenes strategy sessions.

You know, beautiful (with an interesting look, especially the eyes) smart talented babes with families of whom this country should be proud. And, again, many are. True enough they are so "controversial" that major networks do not want to air [preview link provided] ads for the documentary. But, the fact nothing much good is on network t.v. is not news, is it? Sheesh ... Lorelai is back with Christopher for crying out loud!

No shock CW doesn't want to air it. As to DC, they survived, and now apparently realize that some of their fans only wanted them to be a wee bit outspoken. And, hey, I know many musicians have a certain "brand," and country/bluegrass music fans down South don't want certain things from their "talent" any more than let's say U2 fans in different sort of way. But, NM wasn't out there on the street protesting or something. And, again, I doubt her views were not noticeably liberal in other ways too. She isn't dumb -- they didn't realize such a comment would cause so much trouble. It shouldn't have.

Anyway, I enjoyed the documentary, a well made effort by a pro at this sort of thing. It's in limited release, but worth a watch ... or there's the VH1 deal. Their official website is here. See also, this ACLU advertisement starring Natalie Maines.

And, speak up and sing!

Lewis v. Harris

I know I have written a decent amount on the topic already, but privacy rights cases have long been an interest of mine, and there is simply a lot to say about them. You can say a decent amount about the topic and still leave a lot out. This seems to be the case here. And, hey, it's my blog. Thus, I will again address the recent NJ case involving equal rights for same sex unions.

First, it was mentioned in comments that there is a chance that a case like this would be deemed to be a federal question ... the state supreme court is not necessarily the last stop. This is so if the argument/reasoning seemed to pattern a federally based one. The ruling itself noted: "Plaintiffs contend that the State's laws barring members of the same sex from marrying their chosen partners violate the New Jersey Constitution. They make no claim that those laws contravene the Federal Constitution." This might not do the trick, but it is the core of my assumption the Supremes would not be involved.

The provision at stake harkens back to the 1844 Constitution, changed in the 1940s update only to remove the sex specific language:

All men [persons] are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness

This was deemed to cover those rights "so deeply rooted in the traditions and collective conscience of our people that [they] must be deemed fundamental," basically mirroring the understanding of "due process." The ruling cited a 1892 NJ case that spoke of the "general recognition of those absolute rights of the citizen which were a part of the common law," of which, voting was not included. [A debatable statement; voting rights are currently held to be fundamental under the US Constitution.] A bit of citation following led me to STATE OF NEW JERSEY, ex rel. STATE BOARD OF MILK CONTROL (1935), which directly held "due process" was secured, even without an appeal to the 14th Amendment. This surely was the law in the late 1800s as well.

Security of common law rights was also addressed by the original 1776 NJ Constitution, which secured the "common law of England," which was generally held to include basic inalienable rights. Thus, the Revolution was justified. The presence of certain rights that even a legislature could not overrule was controversial given the idea of parliamentary supremacy (see William Blackstone, implications of some comments by Edward Coke notwithstanding). This is surely the case when the rights are to be secured by judicial review. The more open-ended language of the 1844 provision therefore is notable. It patterns similar language in our Declaration of Independence, while have a more firm basis in binding law.

The concept of equal protection antedates the Fourteenth Amendment. It is implicit in a democratic form of government. The Declaration of Independence proclaimed that "All men are created equal," which must mean equality at the hands of government

-- Robinson v. Cahill (1973)

The Article I, Paragraph 1 language at issue is now firmly held by NJ precedent to include due process and equal protection rights. The idea that "due process" was a fundamental right was not some creation of the 1970s ... it hearkened back to the Magna Charta in the 13th Century. Thus, it is far from shocking that the language has been interpreted to include such security. The right to marriage also fits snugly here, surely "deeply rooted in the traditions and collective conscience of our people." And, the term does develop. Thus, the status of women as well as things like testimonial privileges -- rather significant aspects often deemed fundamental to the union -- has undergone great changes.

[The ruling argued that "the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry." A more expansive reading "would eviscerate any logic behind the State's authority to forbid incestuous and polygamous marriages" except perhaps if childbearing was involved. This is lame and exaggerated ("eviscerate?") -- childbearing is not the only factor involved in limiting marriage in such cases, though even that would cover a lot of ground.*]

Equal protection also has long been deemed part of due process in particular and inalienable rights generally. Justice Accused, discussing slavery law, labeled the provision a "free and equal clause," though this was controversial at the time. This was partially so because some state constitutions expressly put in the word "equal" and slavery existed in the state at the time. The "all" implication and so forth however made it a reasonable argument. Time made it much more accepted. And, at any rate, the state did not challenge precedent on the point. Some seem to want each case to begin anew, "bad" law replaced even if is only an "as applied" matter.

The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage ...

There is a tendency in such cases to assume all states are basically the same, to not examine the specifics to its situation. This is foolhardy. DOMA might be blatantly unconstitutional, but it recognizes the fact that states can have their own marriage statutes. This would depend on their situation. Thus, NJ -- with a slew of securities both judicially and legislative for same sex couples -- might be different from a state where even same sex couples adopting would be deemed very touchy (or barred -- see Florida). And, when determining the "collective conscience" of the people, the court reasonably looked at the status of the law -- passed by their representatives or decided by those indirectly selected by them -- in that state.

The state here apparently relied on the argument that "a fundamental change in the meaning of marriage itself" is the job of the legislature. Clearly, since a myriad of securities are in place, supplying same sex couple with "marriage-like" rights didn't make the union "marriage." Ironically, the court noted the "evocative and important meaning to both parties" of the word "marriage." It held that "marriage" was separate from the rights and benefits thereof. Given intangibles are involved here, there is some truth to this. The state didn't say same sex couples could not raise children effectively etc. They were concerned about labels.

[It must be added that they probably also would argue that such developments should be open to change, not set in stone via constitutional rulings. All the same, if the state suddenly wishes to decrease the securities to same sex couples -- with justifications supplied -- arguably the seas can be pushed back, no? Constitutional liberties have been pushed back in various cases, including in the abortion arena, partially as a result of legislative actions. It simply is not true that there is some sort of "one way ratchet" here.]

If so there is no legitimate "governmental purpose in not affording the child of a same-sex parent, who is a volunteer firefighter or first-aid responder, tuition assistance when the children of married parents receive such assistance." The opinion therefore was eminently reasonable in noting that the state could not arbitrarily pick and choose, inequitably treat couple's children etc. just because the couple entered a same sex relationship, one deemed secured by state and federal constitutional law. States with less gay friendly laws might be different.

Sure, I again support the three justices who wished to go further. The majority went out of its way to suggest they were being careful, letting the legislature decide what to call the unions secured by the opinion. After doing something many call unwarranted judicial activism, it must have been nice to find something to point to -- hey, they are the ones who want to be activist! The partial dissent was right to say that a state authorized label is different, it can be inequitable when applied to some groups not others.

[The partial dissent cites a recent article by Ronald Dworkin that underlines the point. Such cultural "meaning" of marriage is a reality, but like cultural understanding of religious belief and various other things cannot be set in stone by the state. Though not directly saying as much, this suggests there is a clear "establishment clause" problem here. The article provides Dworkin's usual interesting view of things on two other topics as well.]

In other words, "intangibles" matter -- both sides know that, which is why the state opposed the full-fledged civil union approach as well. They know that this is deemed a step too far by some people, even if it amounts to an arbitrary matter of feeling better by giving same sex unions 3/4 of the pie. But, "marriage" always had a symbolic component, so going it slow in the way of the majority opinion here does have some merit. After all, the couples arguably can sue again if the state sets up a civil union regime, one without a rational "state interest" in supplying same sex couples this option alone.

To point to another criticism, some suggest such pragmatic concerns are arbitrary judicial lawmaking. But, it is how things are done, not just here. Law, in all its forms, is as imperfect as we are. And so it goes.

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* The dissent below amusingly noted Justice Scalia's changing "slippery slope analysis into a loop-de-loop" in Lawrence v. Texas. Binary unions were at issue here. It also noted that "the idea of marriage between persons of the same sex would have been alien both to those who drafted and those who ratified the New Jersey Constitution of 1947. But so were spaceships, computers and reproductive technology." Also, did it known in 1947 that the NJSC would in the 1970s recognize post-ops as member of a certain "sex," who can then marry the other "sex?" [case cited in opinion]. Things develop.

It also cited some law review articles that differentiate polygamy. One not cited notes "The burden that the practice of polygamy produces on polygamous wives, the children of polygamy, and the government far outweighs any claim that polygamists might have to the right outlined in Lawrence." ["Note, I Now Pronounce You Husband and Wives: Lawrence v. Texas and the Practice of Polygamy in Modern America," 11 Wm. & Mary J. Women & L. 131 (2004).]

Overall, that ruling is not quite as open-ended as some "loop-de-loop" sorts imply. This is so even if the issue can lead to interesting arguments.

Quick Bits

Feministing also is very dubious as to single sex education in public schools below the college level. After watching Democracy Now! discuss fears the U.S. government is getting too involved in the upcoming election there, I read that Nicaragua passed a complete ban on abortions. Not that the "life" exception meant much in practice. It is suggested that over 32K illegal abortions are performed there annually, often in dangerous conditions. Too many disgusting Republican campaign things to list ... the NJ ruling should provide some more fodder for their little minds.

More On The NJ Decision (and Chinese Food)

And Also: See here (10/26) for a discussion of the Green Party's role in elections. One participant would not accept Nader's (a fake Green in '00; his was an ego campaign) spoiler role -- hey, there were other third party candidates in Florida. Oh give me a break -- none had 90K votes that clearly would have been mostly given to the Democrats. In fact, PB (at first) even agreed many of his "votes" probably were wrongly counted, being more supportive of electoral fairness than Ralph (btw "ralph" is slang for vomit). Third party candidates will not get respect if they aren't honest with voters.

Writing for the 4-to-3 majority, Justice Barry Albin stated that while no "fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution."

-- "Perfect together: N.J. court OKs same-sex nups but leaves it to pols"

[The headline is a takeoff of the state's tourism motto.] As I feared, this was in the paper [NY Daily News] today without clarification ala NYT, which sounds like the Massachusetts Supreme Court ruling in which the minority was against judicially demanding marital equality for same sex couples. In other words, those darn activist judges, by one vote yet, legislating from the bench! The retrograde editors of the paper still whined about the activism, recognizing equal protection for homosexuals only by legislative sufferance, but the alleged narrowness of the ruling only worsens the possible backlash. Such lack of clarification is a fairly typical situation when news articles quickly discuss often complex legal rulings, but this one is a bit annoying given the basic simplicity of the split.

Again, the division was over the breadth of same sex equality, the three justices (as is their title) leaving it to the legislative to decide whether they would go the civil union or marriage route, the partial dissent holding true equal protection would demand the latter. The latter group also rejected the notion that one should explain the right at hand as "same sex marriage," (the main opinion refused to recognize a "fundamental right" of such a nature) noting the Lawrence v. Texas ruling that rejected the use of something akin to "same sex sodomy." The Supreme Court, which won't be involved since the court ruled on state constitutional grounds, noted that the liberty at hand was intimate association and privacy. And, the three here argued that "marriage" was at issue here.

The paper did note that NY (like California) would recognize the same sex marriages (according to the link below, a "civil union" might only be recognized in the state itself). The push for a statewide security of same sex civil unions (like the three, I see the second class citizenship flavor to such a label -- marriages currently are already "civil" unions when carried out by the state) hopefully will be aided by our neighbor having such a law in place. The ruling also was an example of a judicial "push." It was partially secured by the fact that NJ already had many securities in place for same sex couples. Thus, the apparent "state interest" in denying the remainder was particularly dubious.

Some might want the state to be allowed to take a sort of "halfway" approach, partially for political reasons (a little to each side), but given Lawrence et. al., homosexuals clearly have some protection that run of the mill economic regulations do not offer. Massachusetts took a somewhat similar approach, as could NY, though it might be shown NY does not have as many legislative and judicial securities of same sex couples as the other two states currently do. And, other constitutional securities are treated in this way as well -- leading to some dissents complaining that the government apparently has to have an "all or nothing" approach that seems a bit counterproductive.

Well, depends on the situation. At any rate, as more and more matters are covered, the "state interest" in depriving same sex couples their basic liberties clearly becomes harder to justify. Legitimately, that is.

For more discussion of the ruling see here and here, providing a summary and concern for due care when contemplating such rulings, something many (including conservative law professors) simply do not do often enough. For what it is worth, GG lives in NY, and is in a same sex relationship. This one would not know, I surely didn't, without him noting the fact in reply to some personal attacks as a result of the popularity of his hard hitting criticism of the administration and its fellow travelers.

Note: I emailed my concern to the writer of the piece, most articles having an email address. (Good touch.) I promptly received a nice reply admitting that the point should have been more clearly expressed. This underlines the value of feedback: it is pretty hard to write an article in which every fact is clearly expressed or 100% accurate. Good editing is essential, even if it is done after the fact. The latter might lead to online editing, serve as a message to readers, or be useful the next time the subject matter is discussed by the publication. It helps, by the way, to praise the piece as a whole. A bit of sugar helps the medicine go down.

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Talking about a show sorta gay friendly ...

I caught a bit of Sex in the City (basic cable version) last night. I used to watch that show a bit ... I had HBO for a short while ... but did not really care for half of the quartet -- sort of "desperate singles." Miranda and Samantha were my favorites -- Miranda is in effect the "smart one," a bit more plain and "good," a lawyer and overall the "levelheaded" sort of the bunch. I caught Cynthia Nixon in a play a couple years back -- not really good, but she did well enough. Samantha is the sexpot, but also a bit older, and wiser. Carrie is the writer/narrator, a bit too neurotic, while Charlotte is the "good girl," who overall I found rather annoying (as well as in person, or rather, on talk shows).

Anyway, one tidbit on the second episode was that Miranda felt she was in a bit of a rut, always getting the same thing at a local takeout Chinese place, so much that the woman knew what she wanted once she gave the address. I know the feeling ... one place I go for a certain item now has me down pat ... I sometimes get other things elsewhere, you know, to throw them off, but this place is really for a certain item (sesame bean curd). I went there for lunch today (note: Duane Reade's store brands are not cheap ... one more reason I hate the "Price is Right" habit of places not putting prices on items) and it is official: after three weeks, the food was cooked slightly different depending on the day I went.

Some suggest all Chinese food is alike. As a regular, I dissent strongly. This is clear by the different ways dumplings are made, another item that I often buy. Likewise, the service is clearly different depending on where you go. I ordered from a place on Sunday that we (Jews aren't the only families that favors Chinese) usually don't use. You know, give them a second chance. My bad. Took forever to come, gave us the wrong type of rice, and undercooked the bean curd.

Blah. Give me predictable. Life gives you various problems to bear; steady take out is the least one can hope for. Heck, steady food overall -- loads of options in and around NYC, quite a few not worth the price. So it goes.

Equality Update

The New Jersey Supreme Court has gone the Vermont path respecting gay marriage -- equal benefits required, up to the legislature to decide how to do it, civil unions acceptable. Nice headnotes. As a judicial policy, this sort of thing appeals to me, though legislatively it is time for true equality.

The ruling notes "Vermont, Massachusetts, and Connecticut" have laws comparable to the domestic partnership security NJ currently has. One sees a New England/Middle State trend, huh? Come on, NY! Anyway, the "majority" here suggests there is a middle path, giving the legislature a big role, and getting to say that "same sex marriage" isn't a "fundamental" right. This makes the NY opinion that much lamer.

As the NYT notes: "New Jersey’s highest court ruled on Wednesday that gay couples are entitled to the same legal rights and financial benefits as heterosexual couples, but split [4-3] over whether their unions must be called marriage or could be known by another name, handing that question to the Legislature." The three (via an opinion authored by the Chief Justice, just like the dissent in the NY case) wanted to go further and apply equal marriage rights. So, really, the case was unanimous on the basic ruling of same sex "union" equality.

[Update: I suggested at first the NYT was more misleading or open to confusion than it really was. The article early on makes clear what the division is about, though some might misunderstand/spin the result to be a one vote ruling ala Massachusetts.]

As to the more forceful opinion, I agree: "Labels set people apart as surely as physical separation on a bus or in school facilities." "Marriage" ultimately cannot be equal to "civil union," and it won't be in practice. But, at this state of development, it is a credible major step to demand at least that. Due process and equality, clearly connected as underlined by the partial concurrence, develops over time. All the same, it also helps to have a few pushing it along. Thus, both opinions are valuable.

OTOH, I'm against allowing sex separate elementary and high schools -- the new Bush policy. My overall thought is that we need to live together; segregation is not the best way to assist that. A bit of experimentalization might be a good thing, but one has serious doubts. [See my comments to linked post.]

Political Points

TMQ Watch: TMQ had some nice things to say about Tiki Barber, which I agree with -- though surely sometimes really being into the game (TMQ notes TB has useful perspective, understanding football is just a game, not the most important thing in the world) is not a bad thing. After all, one is not prepared/paid to play one game a week, but to live and practice for much of the year to play such games. This leads to a somewhat over the top mentality in some cases, but it's rather understandable. Up to a point.

Anyway, as to his usual serious/political comments, TMQ is also right on respecting the responsibility for the Iraqi deaths. OTOH, he does have to go and partially ruin it by slipshodly ridiculing the recent study that estimates a high number of deaths while apparently accepting Bush's low ball estimate without any comment. The real number surely is much closer to the former than the 30K number he cites. Well, if the guy does not say something that is aggravatingly stupid and uninformed in that department at least once in awhile, it would not seem like a TMQ column.

NY Greens Dissed: Checking out Democracy Now!, it seems that the League of Women's Voters was forced to not sponsor a couple NY debates for senate and attorney general races because the Democratic frontrunners (with token or much troubled Republican candidates -- the AG involving an actual experienced prosecutor whose husband's problems are just part of why her campaign in a mess) refused to be involved if the Green Party candidate was as well. This is not really a party deal per se -- Republicans in a similar position would not want a possibly troublesome person sympathetic to their base to you know ruin it.

Still, it is rather depressing, especially since I simply do not really care for the two Democrats involved -- they are not really horrid candidates; seriously, one can do worse than Hillary Clinton (and her Republican opponent really cannot be taken seriously), though I do wish they found someone who a bit more qualified and less a jerk than Andrew Cuomo (Jeanine Pirro is simply not someone I'd cross party lines for, even without her death penalty sympathetic). Still, Clinton's refusal to have even one debate with her primary candidate Jonathan Tasini, a protest candidate who is no Ned Lamont, underlines my annoyance. She just tries to be so "safe," making it hard to want to vote for her.*

The Green candidate sounds like a nice enough sort, well smoken, and supportive of universal health care and brining the troops home. Meanwhile, HC supports some safe sounding middle of the road health plan and one of those "reasonable" stances on the war while safely being angry (looking so cute doing it, right Hil?) at Rumsfeld. My preference, especially in a safe race (come on!), is to allow him to speak his piece. Such heavyhandness leads me to want to vote Green, since the best time to vote third party -- especially without instant runoff voting (sigh) -- is when you want to send a message that would not be counterproductive in the end. Right, Nader fans?

Fox (Not FOX): Finally, one more reason to hate the Cardinals: "The GOP has recruited "The Passion of the Christ" star Jim Caviezel and St. Louis Cardinals pitcher Jeff Suppan to counter [Michael J.] Fox in ads." Oh, and when I caught a few seconds -- about all I can take -- of the remarks, I thought the same thing. When ED said he was going to do all he could do to help, I was like, "hey, you are stepping down? thanks a lot guy."

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* As to the presidency, again, yeah, if everyone just ASSUMES she will be the one, there is a self-fulfilling prophecy. After all, she "could win," she might be the "best option" out there. Kill me now. As to someone already suggested to be her veep, and who sorta turns me off, this discussion by hilzoy perhaps supplies a bit positive balance.

But, the negative comments in reply ring true to me as well, especially (ala Atrios) his sudden "pragmatic" opposition to torture. See also, here. Sounds like someone we liked on our team when we are leading, but we haven't won yet. The "yeah but" flavor of hilzoy's partial rebuttal also is telling.

Football Update

And Also: The Class was pretty good again yesterday -- has potential to be future TBS syndication bait. Other Related cast-offs can be found here and on Lost (so it seems; don't watch the show).

The 1PM games on Sunday had some last minute finishes (and an OT) that often had a field goal playing an important role, including some long ones. [Miami tried one to have a shot at a last minute comeback, clearly possible against GB, but it failed; meanwhile, Arizona managed a few late figgies in their loss to previously winless Oakland ... they are now officially the most pathetic team in the NFL.] The longest was the 62yd figgie accomplished by Tampa Bay, who clearly let Phillie score with a long run so that they would have time left on the clock. Sure, it was under forty seconds, but plenty of time. Well, better time management than the Eagles, who threw a short pass to the 2 at the end of the First Half, allowing time to expire without scoring any points. They lost by 2.

The Giants won by two touchdowns, pushing to the front of the NFC East by a half a game. A bit of a strange game. They started with a touchdown-safety-field goal (12-0). Third and short, they tried for a TD, but it was intercepted, leading to a TD drive that appeared to end with the Dallas QB (1) not quite breaking the plane. The Giants soon after fumbled via basically fumble-free, ready to retire to go into broadcast journalism, Tiki Barber. They already lost a key defender, and it looked at first TB -- rusher extraordinaire -- was hurt too. No, but Dallas seemed about ready go up 14-12 (at best, only down 12-10) ... oh, so sorry ... interception near the goal line. The Dallas faithful only up their Tony Romo (young back-up QB) chants and the coach looked more annoyed than usual.

The fans got their wish -- Romo came out to start the Second Half ... and his first pass was tipped, leading to a Giants TD before the first minute ran off the clock. Romo was intercepted twice more, including one that was returned 96YD for a TD instead of setting up a score that would have given them a shot to tie with nearly three minutes left. Shades of last week, when the Eagles returned one 102YD instead of having Dallas coming back, though the other QB threw that pass. Dallas did score soon after, but now it was a two touchdown game, and there was only about two minutes left. They failed the onside kick (if they got it back, they would have to score a TD, and get another one, score a TD ... and win in OT), losing 36-22.

Oh, chuckle, TO missed an easy 4th-2 catch that would have set up a key score earlier. In effect, Dallas had any shot at making a game of it. TO had his moments in that First Half scoring drive, but choked in his other big moment. Well, he does sell jerseys with his antics, right? [As an aside, the Giants have a new thing where they fake jump shots to celebrate key plays. This looks a bit lame, but apparently it riles them up somehow. More proof we are paying millions to grow men to play little boy games.]

As to the Jets, they are 4-3, plenty respectable with all the low expectations. Any serious dreams of playoffs, however, really ended with that loss to the Colts. Still, my prediction of 6-8 wins seems pretty on target. And, boys, you owe me at least one upset. You have it in you.

Quickie Pol Points

It is interesting how -- when I switch to various debates that are shown on C-SPAN -- the Republicans often are talking about the economy. Isn't this avoidance of foreign policy issues a usual Democrat technique? Meanwhile, Sen. Clinton's opponent (yes, she has one) suggested she paid loads of money in plastic surgery to change her appearance. HC insists she was always cute. Come on -- clearly she is much more the hottie now ... the fair lady from Louisiana sorta has it going on, but everyone knows HC is the babe of the Senate. Anyway, this sort of thing depresses me. 300M people ... this is the best we can do?

Half of a Yellow Sun

In January 1966, a coup in the Nigerian government was attempted, which was bloody and short-lived. Since mostly Igbo officers in the Nigerian army survived, it was assumed that they had initiated the coup, and in the months of May and September of 1966, Igbo migrants living in northern Nigeria were the targets of mass killings. Most of Nigeria's Igbo people, who were then estimated at 11 million, lived in what was then the Eastern Region of Nigeria, which had as military governor the Igbo Lieutenant Colonel Chukwuemeka Odumegwu Ojukwu. He declared the region an independent state with a capital at Enugu. ... The country was named after the Bight of Biafra, the bay of the Atlantic to its south.

-- Biafra

I probably first read about this conflict via The Biafra Story, which was written before it was over, the author best known for political thrillers. This was some years ago, but I have a cloudy idea of Frederick Forsyth writing how the little nation hung on somehow as it seemed as everything was against it. This they did for less than five years, while starvation as much as anything forced them to finally give up. The conflict has shades of a low grade Rwanda terror feel to it, which occurred about twenty-five years later, also a result of colonialist assisted racial divisions that led to horrible violence.

A young Nigerian writer, Chimamanda Ngozi Adichie, has a new fictional account inspired by the conflict -- Half of a Yellow Sun (from the symbol of the Biafran flag). Her family's experiences clearly inspired some of the material found therein, including those who lived and fought in the conflict. Her parents are an educated couple that sound a bit like two of the leads. It would be interesting if the white man who falls in love with the wife's sister was based on a real person. The other core character is the lead couple's teenage servant, Ugwu.

I have generally found it hard to get into fiction, but do now and then find fictional works that are truly special. And, sure, some that are just pleasure reading. As the famous African writer Chinua Achebe notes in his blurb, Adichie has a "gift." The story is engrossing, one told through the eyes of three characters -- Ugwu, his madam the beautiful Olanna, and the lover of Olanna's sister, Richard. It starts before the war, and then alternates a couple times with the war years themselves. Thus, we hear about a major plot complication, and then are sent back "before" to learn what happened.

I really enjoyed it, even though its discussions of the horrors of war is particularly forceful. A few things stand out. One, the quick way the enemy becomes an other, "vandals," not people. Two, what can only be said rabid support of a cause, even when a reasonable sort would see it as hopeless or a bit crazy. Three, a certain point -- especially after loss -- when a change comes over one who went through war, which can be useful (a type of purification of one's being and/or realization of what is important) or not so much (basic cruelty). And, sometimes both at the same time.

The author knows her subject though might be said to also write with an American style (in real life, she divides her time between the two places). IOW, one reads the book and it does really sound "foreign." This might also be because the lead characters (other than Ugwu, who eventually "becomes" one of them, transformed from his peasant life) are all educated sorts, who spent sizable amount of times in Great Britain. We see them living among villagers and such, but the book probably would be noticeably different if it was told directly thru that point of view. This is also, again, a result of the author's own upbringing.

Much recommended. Might be possible movie material. I reserved her first novel, Purple Hibiscus. The link on her name provides a taste of her writing as well.

"Religion"

And Also: There is a continual belief that there is some sort of "reasonable" Republican that we can look toward for sound public policy, a necessary balance and/or possible partner for uh "reasonable" Democrats. As with all myths, there is some kernel of truth. Such beings sorta exist, but are like followers of bullies. They might be useful with the right leadership (so to speak), but given their leaders, they are counterproductive. This is another reason why change of political control would be useful. Meanwhile, recently the NYT had an article on Lieberman's high poll numbers. If he wins, it would really depress me. For him in a former life, see here.*

[Note: Much more can be said about these issues, so some of the statements below should be taken as somewhat roughly phrased expressions of matters that people have written books to discuss, and doing so without quite getting all of it out all the same. Take this as a general warning on blog comments, perhaps.]

a set of beliefs concerning the cause, nature, and purpose of the universe, esp. when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs.

-- "religion" as defined by dictionary.com

To continue on the Sweeney points, we are told by Richard Dawkins that religion is the most dangerous threat to the world's well being. This leads me to wonder what this "religion" thing is. I was thinking about this walking home last night and it led me to re-affirm my general sentiments on the thing. In effect, "religion" is usually seen as somehow related to God, that is, belief in a supernatural being or force and the rules and so forth that grow out of this belief. The "force" deal helps bring in various Eastern religions and so forth that might not have a clear "God" entity in their belief systems. Likewise, belief and faith generally are seen to have a lot to do with it, as compared to things like reason and science per se.

The two sets of things are not mutually exclusive, but it seems in some sense they are felt clearly to be on different planes to some degree. The split really is not totally clear. Let's take "God." I do not quite understand how we are to think that such a being is "supernatural." The whole point of the enterprise is to have God as the creator of all things, the master of our domain and so forth. The "unmoved mover" etc. IOW, God is clearly part of nature. The fact we cannot see (but can "feel" them ala the wind) electromagnetic forces or gravity in many ways does not mean they are not "natural." Basic building blocks and forces that fill the universe are natural -- they are not even limited to the earth ("terrestrial"). And, there remain many things of this sort that we do not truly understand.

Now, it is quite true that "God" has not been proven by scientific guidelines, though some have gamely tried. This is where things like "intelligent design" comes in where it helps if you actually believe in the first place and are trying to justify the belief with a reasonable sort of argument (this is a useful technique in rhetoric, but not as much in science). Philosophy also comes in here. Thus, we have something called an "ontological argument," which honestly goes over my head. It has something to do with "perfection" being the ideal, existence being perfection, and thus there has to be uh some sort of perfect existent being. Or something. Now, philosophy was never quite my subject -- philosophers tend to be tedious to read -- so maybe I'm missing something. But, that sounds stupid.

Anyway, so God in that sense is not a "scientific" concept at the current time -- God is a product of faith, though as mentioned in the quote last time, faith is in some fashion a result of reason and experience. We have "faith" as a result of various emotional experiences, for instance, not out of the blue or anything. In fact, science discovery and so forth at times comes from sudden "feelings" or "eureka" moments that have an almost "faith" like quality to them. Such experiences in various cases clearly are wrong -- they have led people down dark paths -- and suggest why some argue religion is so dangerous. But, here's the thing -- "religion" is a rather complex animal. First, quite a few religious individuals do a lot of good with their faith. This alone makes it dubious to label "religion" as a great danger as if it is some united force of darkness. A religious couple gave us Julia Sweeney.

Second, quite a lot of religious people -- one might even say a clear majority, though perhaps not in all things -- are quite reasonable. It might be, in some of our minds, that they have a sort of blind spot in some areas. Thus, maybe, the idea is that people can avoid the perils of religious belief by putting it aside, not letting it overwhelm their lives. Sort of like using a match to light a gas stove, even though too much of both might cause an explosion. But, reason is a quite important part of religion. The two fit together. Let's go back to religion. Religion has various things apart from God, which often takes a lot of our time. Thus, there are ethical rules, rituals, and so forth. Reason plays an important part in formulating these things.

These all ultimately are said to arise from and are in place to honor in some fashion a "superhuman agency." Again, push comes to shove, many think this entity/force is required for religion. But, the dictionary definition uses the word "especially." The need to avoid using "always" is best seen in more colloquial uses of the time, like when someone is said to have "found religion" in respect to let's say politics or something. But, I would go further. I think that we can have religion in the regular sense of the word without a God. We can see this in respect to "nature religions" in which people honor nature. Some have set up a whole mythology about the whole thing, but many clearly think this is largely metaphorical.

They ultimately honor nature overall, do not always believe nature in effect has consciousness that can "hear" us or something. But, they still have rituals, set forth ethical guidelines growing out of our existence in nature ("laws of nature?"), and so on. Consider as well the typical old fashioned burnt offering. Quite often this was not in place because it was felt God needed something to eat or something. It was a means to show one's respect for the gods as well as a means to commune with them in some fashion. It was a type of ritualized metaphor of sorts ... the same might be said of the much (by Israelites especially, as noted by some versions of the Second Commandment) of idols. Many did not think they were actual beings. They served as means to focus one's worship. And, if we replace "God" with "nature" or "good," such things retain value. [Crystals and the like can have similar purposes.]

Bottom line, I would argue that we can define "religion" pretty broadly, perhaps by comparing things to the more common understanding of the term. In effect, I am thinking of something akin to "conscience," which is appropriate since things are often phrase that way -- "freedom of conscience," "conscientious objector," and so forth. We can even say "person of faith" is a broad deal -- we have faith in people, institutions, and so forth. Still, when I think of freedom of religion, I ultimately think of freedom of conscience, freedom to set forth a set of beliefs that guide your life, be it resulting from a God or a framework formulated by reason and one's own emotional experiences. Such things tend to have religious-like things including "sacred" events, special rituals, and even some sort of community of faith. The word "purpose" in the opening definition is particularly useful here -- science does not really have an ultimate "purpose," does it? It just is.

[It is true that certain matters of religion make a clearer case than others. Thus, we particularly are concerned when the government favors certain sectarian beliefs and are particularly concerned about certain religious symbols and so forth. But, conscience too is particularly focused upon as well -- we see this especially in the CO status area. Likewise, if certain things like the moral status of abortion should be seen as "religious," it is equally important that government does not favor one side or the other as "good" or "bad" in the religious sense. Thus, only having "choice" license plates would be as bad as only having "choose life" ones.]

Science after all is not in some sense "right" in a moral sense that approaches what I am talking about here. And, though some like Sam Harris in End of Faith might like to compare it to nefarious "religious belief," science can lead us to do particularly horrible things, or rather, a twisted view of what it tells us. Eugenics, for instance, arises from scientific thought mixed with the usual presumed notions that it apparently reaffirmed. See also, social darwinism generally, and the idea that just because something might be "good" for us, society should in effect totally stigmatize those who do not follow that path.

The dangerous thing is not religion or faith per se, but dangerous religion and faith. Atheists have rather strong beliefs, though perhaps they do not like that word too much given its implication, but a good sort of belief in their view. Hard as it might be to understand, I would argue they too have a sort of religion. We all have some sort of "faith" as well, if one that often might be called a "reasonable faith." It is when it becomes unreasonable and destructive that things become scary. And, yes, irrational faith has no clear stopping point, but you can say that about various things as well. Our emotional experiences, for instance, is basic to our being, but we cannot just deny them. But, it can be quite destructive as well.

I think "religion," broadly defined, is natural to humans. We can define it more narrowly, like some define "marriage" or whatnot, but this would be misguided.

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* There is a promo for the morning show on the local Air America station, one co-starring Armstrong Williams, the black conservative that the Bush Administration paid to promote their educational policies. I have noted my annoyance this show is on the local affiliate, a holdover from its previous line-up.

The co-host in effect notes that power corrupts, but apparently Republicans are worse because they are in control. IOW, if Democrats were in power, they would be about as corrupt. Equalization -- why in effect should we vote Democrat, hmm? Clearly, Republicans are not particularly corrupt. Noooo. Events have proven otherwise, though divided government (cannot have that! means we have to vote for Democrats!) overall helps, but it is a crafty talking point.

Julia Sweeney's "Letting Go of God" Redux

And Also: Here is an interview with Melanie Martinez, who lost her job as a children's host because she allegedly did not disclose her role in two satirical chastity videos she did a few years before. Cf. The past antics of the likes of The Santa Clause actor Tim Allen.

Earlier this year, I discussed Julia Sweeney's one woman show, "Letting Go of God." I finally had a chance to watch the show over at the Ars Nova Manhattan. This is over near 10th Ave in the mid-50s, not too far from Columbus Circle. It also is right next where Steve Colbert does his show. Charming. There are plenty of places to eat along eighth and ninth, but we had our portobello sandwiches in the Bronx. Tasty deals ... with waffle fries. Apt meal to eat if you ever go to the Riverdale Diner. Powdered jelly cookie and coffee was fine as well.

Susan Jacoby in Freethinkers spoke about how there actually were some public speakers promoting the cause in the 19th Century, one in particular also promoting Republican candidates! But, these days such a person would be remarkable indeed. This suggests the value of Julia Sweeney's monologue and other efforts in support of the freethinker cause. The humor, charm, and grace (one person called her a nice Catholic girl*) of her God Said 'Ha!' is a perfect way to show the basic normality of all of this.

She has a line that hits things home for me. Sweeney basically says, "God, I have too much respect for you to believe in you any more." This reminds me of my annoyance at how religious freedom is so arbitrarily honored in this country -- I respect freedom of conscience too much to disrespect it in that fashion. As a friend of hers, who includes some nice pics of the daughter she adopted (Mulan made an appearance after the show) quoted:

God requires faith. Faith does not require evidence, right? But the more I thought about it, my faith was based on evidence. The evidence of how I felt when I prayed. The evidence of everyone believing in God, almost everyone I had ever met from the time I was a kid. The evidence of what I had been taught by other people I trusted, admired, and who ultimately had authority over me.

So, my faith in God was based on evidence. Well then, how could I not examine that evidence? But how did I examine anything? How did I know what I knew? I had to know! [...]

I thought of Pascal's Wager. Pascal argued that it's better to bet there is a God, because if you're wrong there's nothing to lose, but if there is, you win an eternity in heaven. But I can't force myself to believe, just in case it turns out to be true. The God I've been praying to knows what I think -- he doesn't just make sure I show up in church. How could I possibly pretend to believe? I might convince other people, but surely not God.

Sweeney tells how she had a visit of a couple Mormon missionaries, who told her the remarkable story that guides the Church of Latter Day Saints. This led her to decide to look into her own faith, including bible study, which led to a deeper awareness of what exactly is in there. She also read Karen Armstrong, whose "psychological meaning" approach to religious works was only of limited value to her. And, it led to study of other faiths, and science ... which she fell in love with. Sweeney in effect did the research. It adds to the show nicely.

Today's NYT Book Review, which I read on the way back from the show, coincidentally reviews a book disparaging belief in God. The review suggests the book is a bit snarky at times. The charm (and value) of Julia Sweeney, other than her humor and cutesy manner (with an edge that suggests her strength), is that she avoids that path. I like her style as well as finding her evocative and very funny.

[Update: Over in the comments of Julia's blog, someone familiar with the reviewed author's work supports his approach. I appreciate that there is a place for a hard-edged critical approach (as readers of my stuff know), but JS was critical too. When she says something is 'crap' at one point, it's not like she is saying "well, that's only me ... hey, maybe you think it isn't" ... how can one honor science and be that subjective?]

These are good qualities ... and since the show was only $20, I bought one of her CDs, the one for her second monologue concerning the adoption of Mulan (who she mentions a bit here, in a way that makes one want to hear more ... well, here you go!). So, more enjoyment is ahead.

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* Her family plays an important role in her comedy, which makes it appropriate that she replaced Bonnie Hunt in the Beethoven movies. Thus, we hear a funny story about how her mom backdated her birthday so she would be able to start school on time. Well, hopefully my mom didn't do this without telling me now that I have my sign permanently on my back.

Pet Peeve Alert

John J. DiIulio Jr. might be a liberal darling for his "Mayberry Machiavellis" comment, but he still is not quite our friend. See his criticism of the recent NYT piece on religious accomodations run amuck here. Some balance is useful, but his use of "antireligion state constitutional provisions" as a stand-in for barriers to state funding of religious groups annoys. Don't want your tax dollars to fund teaching Islam? Anti-religious! How dare you only go to mass ... if you don't support all religions equally, it is anti-religious! What tripe.

The Liberal Citizen

And Also: Sweet Land is a charming indie that provides two things I wish were around more often -- quality adult romances with some recognition of how much plot material is out there. This one involves a young German mail order bride (early on we see the bad side of this route) that experiences some discrimination (and support) in the post-WWI Midwest. It is even a little socialist friendly, shades of gentle John Sayles. Nice to see Alex Kingston in a supporting role as well -- charming actress. Her "I'm an American" reply is classic JP mom. A little gem with great acting and sense of place/time.

Reminding one of JFK's remarks to the NY Liberal Party, and signed by one of his crew, we have another profession of liberal faith* ... underlining the importance first principles in a time when they are deemed almost treasonous:

Reason is indispensable to democratic self-government. This self-evident truth was a fundamental commitment of our Founding Fathers, who believed it was entirely compatible with every American's First Amendment right to the free exercise of religion. When debating policy in the public square, our government should base its laws on grounds that can be accepted by people regardless of their religious beliefs...

This leads to one thought that many share, which wonders what the average person can do to affect public policy, since they are just one ordinary voice with a vote that is deemed ultimately trivial at best. I am sympathetic to this concern and know people who share its theme. Many activists reply that there are important things each one of us can do, including protest, writing/contacting members of Congress, voting, spreading the message, and so forth. The response to the cynic (realist?) is to point out what has happened all the same in the last few years. And, small victories (and some seen rather paltry) do not convince them otherwise.

I guess the best path here is to take the long view ... I'm old enough for this to merit some optimism though surely it works both ways. Thus, in the early 1990s, I noted that equality for homosexuals -- including marriage -- was a pretty common sense view to take. We now have a few states (toss in Connecticut here with their civil union law) in which some form of true marriage equality is a reality, many more localities (including my own city) having limited equality via domestic partnerships. OTOH, I also wrote about (in an early bulletin board) the discrimination of gays in the military. We still have this regime. Likewise, I thought the Electoral College and presidential impeachments were sort of obsolete. But, the wave might just be going the other direction now.

As to the value of the ordinary voter, on a personal level -- not being much of an activist sort myself -- we can look at things in various ways. One thought is inspired by the book Tipping Point, which in part notes that there are various people who are particularly important in bringing about change. Such people obviously have a significant role in public policy and special influence to many politicians. Such people themselves are influenced by many other period -- think of a chain all the way down to each one of us. The value of various online means to reach these people is promising. Thus, we have key people -- let's say attorneys in major lawsuits -- that have blogs or contribute to things like the Huffington Post etc. where there are opportunities for comments.

But, that is only one means of influence. We are a constitutional republic in which the people ["the people" repeatedly mentioned in the Constitution] vote for their representatives but have other ways to influence them. And, not only them directly. The First Amendment secures freedoms not limited to discussion of political campaigns, but matters that address each one of us. This includes matters of personal religious faith, highlighting that "the public" by definition implies that there is a "private" as well. And, as we privately and publicly act, it has real effects. Like ripples when one tosses a stone in a pond. Our acts matter in any number of ways, even if the ultimate effect in some respects might not seem to be enough.

This I believe.

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* Various points are raised by the essay ... one issue that was highlighted given the excesses was the use of recess appointments. Thus, we have this piece: "Ignoring Senate, Bush Taps Mine Exec to be Safety Chief." Vote the executive, vote the appointer ... but the idea is that we have a Senate to confirm the top tier of officials. Not to wait until a handy "recess" (of a few weeks or whatever) long after the nomination to dispose of troubling sorts.

The fact this guy actually worked as a miner before being an executive suggests he might be somewhat less troubling (read the piece to get some background), but the practice also gave us the likes of Bolton and two controversial conservative appellate judges.

Contraceptives [Free Exercise] Rights Case

Legislation requiring health insurance policies that provide coverage for prescription drugs to include coverage for contraception is valid, as applied, over claims by plaintiffs, faith-based organizations, that the legislation violates the Free Exercise Clauses of the New York and U.S. Constitutions, and the Establishment Clause.

-- Catholic Charities of the Diocese of Albany v. Serio

This blog is often concerned with federal constitutional law, but as is often the case, this ruling suggests the importance of state law. This was shown in the gay marriage cases in the two states they had some success. It is shown in loads of civil and criminal cases where state law ultimately decides, often in different ways than federal law would. This too is the case in New York -- see, e.g., the death penalty (our law declared unconstitutional on state grounds), school funding pursuant to our state constitution, and now this ruling.

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

-- Article I, § 3 of the New York Constitution

The ruling was well timed given the series in the NYT on the arguable excesses of religious exemptions. The Court of Appeals (the highest court in NY) used this case to clarify state constitutional rules pursuant to its freedom of religion provision. The Court would not follow "the inflexible rule" of the Smith case, which upheld all rules of general applicability, even if they seriously burdened religious exercise. But, it held "substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation."

As noted by the ruling: "Plaintiffs challenge the validity of legislation requiring health insurance policies that provide coverage for prescription drugs to include coverage for contraception." They are basically charities employing many people not of their faith (one that finds contraceptives sinful), "churches ministering to the faithful, but [who] are providers of social and educational services." They are not forced to supply health benefits. And, the neutral law at stake (not targeted toward any religion) is very important to women's health.

The security of religious freedom at stake is not absolute. It is not to be "inconsistent with the peace or safety" of the state. This includes securing health care to lay employees of religious institutions. Also, religious freedom works both ways -- employees of this nature have their own faiths to secure, faiths that often have as strong takes on contraceptives -- the other way.

[Update: See here for more. I orginally noted that a teacher at a religious school would be a harder case, but the law's exemptions (argued to be too narrow but so limited to address the situation of faith based charities like these, also an issue in federally funded charities) come into play here: inculcation of religious values is the purpose of the entity, one that primarily employs persons who shares its religious tenets, primarily serves persons who share its religious tenets and is a nonprofit. So, it would be an "easier" case -- likely to fail.]

The final point suggests this is not the best case to clarify the outer limits of New York free exercise law, even if the ruling notes that it is stating the basic rule for lower courts to follow for the first time. The law's importance and neutrality probably would pass medium level scrutiny, while the ruling suggests rational basis with teeth: "plaintiffs' religious practices is a serious one, but the [law] does not literally compel them to purchase contraceptive coverage for their employees, in violation of their religious beliefs; it only requires that policies that provide prescription drug coverage include coverage for contraceptives." Compulsion is an important factor in religious cases.

Though the ruling did not rely on it too much, clearly the effects on "lay" employees should be seen as key. As it notes, "when a religious organization chooses to hire non-believers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs." Things might very well be different if "ministerial" matters were directly at stake, if "the right of a church to determine who it will employ to carry out its religious mission" was clearly involved.

Thus, it noted that even though they might be neutral, laws against kosher food, male priests, or ceremonial wine [peyote?] would abuse the "discretion" noted above. Clearly, the second matter is a controversial one raising "substantial interest in fostering equality between the sexes," suggesting the importance of some special discretion for religious believers. Justice Souter noted in the Santeria case that "neutrality" is an iffy proposition when it burdens religious believers more than others. In other words, de facto favoritism should be considered.

New York decided that such a rule should only be followed up to a point. Fair enough. Justice Scalia's concerns in the Smith case have merit -- making exceptions for religious faiths from general laws can have quite troublesome results, especially when non-believers of the faith in question are directly involved. Such is the case here, making it a somewhat easy case. Any number of employee rules might raise religious flags. Surely, as here, the rule supplies an out (no health care or use of religious personnel) that leaves something to be desired, but provide some balance even when non-believers are involved.

This "substantial deference" test might be too strict in practice, time will tell, but implications that matters of direct religious import (especially as to religious exercise itself) would be secured suggests the balance made is sound. I'd add that this case necessarily reminds one of federal policies, including funding of international aid agencies, that burden contraceptive use in favor of selective moral/religious ideals. This is clearly unsound.

[expletive deleted]

No. Sorry. No moral victories. That's for losers. No "good year" for this fan. A guy that went 3-13 this season went on three days rest and showed up. Again. Damn he did. An outfielder who suddenly decided not to hit made a wonderful catch to save two runs that is now -- sorry -- meaningless. Why? Because the team couldn't get one f-ing clutch hit, even a sacrifice fly [shut the game off then -- with reason] when momentum was there and an error handed them a f-ing run. If they took it. Failed in game 172. Fans deserve better than that. Football ...

Sorry, Not Yet Barack

And Also: Glenn Greenwald expands on my "terrorism isn't our biggest concern" thought by noting that just because something is threatening doesn't mean we can do anything to stop it. Billmon discusses Riverbend's remarks on the Lancet study. As to Thoreau, ultimately what did he do to stop the Mexican War? Spend a night in jail? Yippee. So, no need to fear meeting him in the great beyond, I say.

Update: I'm miffed that the author of the piece that led to this entry did not mention my post, while citing that near non-entity Digby take a critical view ... though "a bucket of vapid lukewarm spit" is a nice turn of phrase. A tad bit harsh, maybe? Lol.

In 2000, Bush offered a political reconciliation: Elect me and the bitter partisanship will come to an end. "I don’t have enemies to fight," he said at his 2000 convention, "and I have no stake in the bitter arguments of the last few years. I want to change the tone of Washington to one of civility and respect." That was a promise that today no one could plausibly claim Bush meant in the first place, but it was just what many Americans wanted to hear.

-- Paul Waldman, "The Obama Zeitgeist"

This is the basic reason why I strongly dislike President Bush -- simply put, he promotes an asshole policy. I don't like assholes. And, this full of shit deal (the fact people bought into it is even worse) that he was somehow different from Clinton (or the stereotype of him), someone to be a "uniter" underlines the point. Now, his father followed a comparable policy in a fashion -- in politics, best left to the help, you will do some distasteful things. OTOH, in public policy, Bush Senor actually has some respect for the rules. Not quite so as to some of his people, who are around now as well, but there was a clear difference.

And, the difference was clear at the time as well -- Junior was in effect his bagman. The one to do some of the dirty work. We might need such people, up to a point, but having them in charge -- even in a place like Israel -- it generally speaking a bad idea. Now, we can contrast this with Sen. Barack Obama. Waldman argues, continuing the opening quote, that in "a similar way—and sincerely, it appears—Obama is offering a national reconciliation."

Seems like a nice enough guy who can actually be a uniter. And, his aspirations of hope and progress match my ideals. Finally, Waldman notes that his rhetoric could still allow him to support progressive policies. They could be sold as centrist ... a shifting of the median line that many of us would support.

OTOH, I don't really like the guy. He's promoting his book, so every time I went to the AOL welcome screen last night, I saw his face. Annoying. Why? Well, I just don't see any of that risk taking hard edged fight that I want in my leaders. Before one says anything, Bush really doesn't do this -- thus his promotion of secrecy, b.s., and continual surrendering (at least publicly) at the end of the day when forced to do so. I want to see Sen. Obama to actually put his beliefs into practice, to show that -- push comes to shove -- he would not weasel out.

Indeed, Obama is that oddest of all creatures: a leader who's never led. There are no courageous, lonely crusades to his name, or supremely unlikely electoral battles beneath his belt. He won election running basically unopposed, and then refused to open himself to attack by making a controversial but correct issue his own.

-- Ezra Klein, "Waiting for Barack"

I simply don't see this so far. He supported Lieberman's primary race. Delayed opposing the Get Away With Torture Act of 2006 (why not just stand side by side with his fellow senator's early opposition?), eventually co-sponsoring a doomed nice sounding amendment. Voiced opposition to the filibuster of Alito ... while it was being attempted! Made a show of supporting reform of campaign finance, showing some independence by openly opposing McCain's efforts to make it bipartisan, but in the end did nothing. I did not really quite care for his "let's all be friends" speech in support of religion in public life that adopted the meme of the religious right. And, he did not follow up his laughably easy win (against ahem Alan Keyes) and broad support with anything that actually used some of that clear capital.

As the subtitle of the Klein piece notes, "A leader leads. Before Democrats move to draft Barack Obama as their '08 candidate, they might wait to see if he can." He might give many in the base the warm fuzzies, but I'm not ready to trust him as a national leader.

[I also am with Molly Ivins on the "inoffensive feminism" approach of Hillary Clinton; h/t Feministing. The Senate might be the best place for the both of them. The path past this horror show is not "back to the future" moves like voting for another Clinton. That goes for you too, Mr. Maverick (non-James Garner version). What next? Jeb in 2016?]