Musing's musings

I won't be going to California any time soon

Yes, the outcome was what I anticipated it would be: upholding Proposition H8, but also upholding the 18,000 marriages that took place before it was approved. That still doesn't mean I'm inclined to do anything that supports the ignorant people who voted (albeit narrowly) in favor of that bigoted piece of misguided legislation.

I haven't had a chance to read all of the 186-page opinion (I managed to download a copy before the servers crashed), but I have to say I'm not thrilled by the Court's reasoning thus far. And I'd love to see how they managed to twist themselves into pretzels to come up with a ruling that (a) upholds the validity of the 18,000 existing same-gender marriages and (b) at the same time upholds the constitutional amendment that says, quite plainly, that only opposite-gender marriages will be considered valid in California.

The silver lining in this particular dark cloud is that the decision is likely to trigger an appeal to the federal courts, which could poke our allegedly "fierce advocate" of a president into taking some real action on getting rid of DOMA at the federal level so those 18,000 California marriages might mean something in the other 49 states even if they don't mean anything where they were performed. And I do think California voters will be voting on this question again in 2010, though hopefully this time those of us who recognize that separate most definitely is not equal will do a better job of presenting our case and pointing out just how many lies and half-truths the other side is putting out there.

But until this odious claptrap is removed from the California lawbooks, I won't voluntarily be setting foot in that state.

Is that so, Senator?

The presumptive Republican nominee for president, Senator John McCain, speaking to around 1,500 people in New Jersey today, opined that yesterday's Supreme Court decision (PDF link) affirming the right of detainees in Guantanamo Bay to habeas corpus relief in the U.S. courts was one of the worst ever handed down:

The United States Supreme Court rendered a decision yesterday that I think is one of the worst decisions in history.

O rly? Worse even than, say, any of these greatest hits?

• Dred Scott v. Sandford (1857), in which the Chief Justice of the United States, Roger B. Taney, wrote that black people were "...beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."
• Plessy v. Ferguson (1896), in which the Court, virtually unanimously (save for the brave dissent of Justice Harlan) upheld the constitutionality of segregation, giving us the infamous "separate but equal" doctrine that prevailed until the civil rights era of the 1960s.
• Buck v. Bell (1927), in which Oliver Wendell Holmes (of all people!) wrote for a virtually unanimous Court that compulsory sterilization of the mentally handicapped was constitutional, closing his argument with the infamous and iniquitous phrase, "Three generations of imbeciles are enough."
• Korematsu v. United States (1944), which upheld the internment of American citizens and lawful permanent residents of Japanese descent without ever proving they had committed any crime.
• Bowers v. Hardwick (1986), in which an (arguably senile) Justice Byron White and a 5-4 majority upheld the right of the government to criminalize consenting sexual behavior in private between persons of the same gender.
• Bush v. Gore (2000), the infamous 7-2 per curiam decision that handed the presidential election to the Boy Who Won't Be King Much Longer, and began the eight-year nightmare which has been the Hedgemony. The justices were so embarrassed by their decision in that case that they refused to sign their names to it.

"Don't ask, don't tell": Don't keep it

According to Agence-France Presse, a federal appeals court in Boston has thrown out Major Margaret Witt's lawsuit challenging the Pentagon's (in)famous "don't ask, don't tell, don't pursue" policy. The court, striking down a previous ruling by a San Francisco appeals court (and I'm dying to know how an appellate court in Boston has jurisdiction over an appellate court in San Francisco--but this one is headed to the U.S. Supreme Court as sure as the sun rises in the east, unless there's some awfully quick fixin' done on Capitol Hill, about which I am, shall we say, less than entirely sanguine), argued that the courts owe "special deference" to Congress on matters regarding military policy.

That deference is quite traditional. It is, I would argue, equally wrong-headed, at least in some circumstances. I would not expect a court to get involved in a dispute, say, between a battalion commander and his or her superior officer about which was the correct strategy to employ to achieve a given tactical objective. But when it comes to something as fundamental as the right of any citizen to serve in this nation's armed forces without being discriminated against on the basis of any invidious characterization, that's another kettle of fish entirely. And that, ultimately, is exactly what Major Witt's lawsuit is about.

The Pentagon itself admitted, not long after the policy was implemented in the early 1990s, that it was fundamentally wrong-headed. That fact has been amply and repeatedly reiterated in the nearly two decades since then, each and every time we hear about another qualified officer or linguist or servicemember being kicked out--in what the Hedgemony is forever proclaiming to be a time of war--for the simple and irrelevant fact that s/he is sexually attracted to members of the same gender.

Big fat hairy fuckin' deal. Most of our major defense partners allow openly gay or lesbian individuals who are otherwise qualified to serve in their armed forces. They don't report discovering mass orgies in the gang showers, or massive desertions (or even requests for transfer) when "the unit" discovers "one of them" in its ranks. The world has not, to the best of my knowledge and belief, come to an end--and I think we are on safe ground in concluding that it will not do so should the United States decide to stop wasting valuable personnel whom it desperately needs in uniform, just because those individuals happen to be gay or lesbian or bisexual.

California Supreme Court overturns ban on gay marriage

In a 4-3 ruling this morning, the California Supreme Court overturned the state's ban on gay marriage on the grounds that domestic partnerships constitute a separate and unequal second-class status with regard to the option to marry that is afforded to opposite-gender partners. (The full opinion is available as a PDF file on the court's site.)

I'm still reading the opinion. I may have more to say later.

And the Lord did grin...

A federal jury in Maryland has handed down an $11 million judgement against Fred Phelps and his rabid band of haters, after the father of one of the soldiers at whose funeral the Phelpsoi protested filed suit against them. The jury awarded $2.9 million in compensatory damages, $6 million in punitive damages, and an additional $2 million for emotional distress. The haters, of course, are planning to appeal--and they do have some grounds, it grieves me to have to say.

Before I go any further, let me be 100% crystal clear about a couple of things. First, I'm not a lawyer and I don't even play one on TV. I'm just an educated layman who's spent some time reading up on First Amendment issues and caselaw, who also happens to have a library degree and know a little something about research and the interpretation of texts.

Second, I am of the firm conviction that, in the unlikely event that God actually hates anything or anyone, it is far more likely to be Fred Phelps and his sick, twisted notions about God than it is anything else. Chances are pretty good, from where I sit, that if Fred Phelps is sure God's agin' it, God is probably for it. And while I'm doing my level best to be a man of peace, for Fred Phelps and his band of boobs it wouldn't take much to have me singing an Amen to the prayer famously expressed by Capt. Edmund Blackadder at the end of Episode 2 of Blackadder Goes Forth:

Henceforth, I shall nightly pray to the God who killed Cain and squashed Samson that He comes out of retirement and gets back into practice on the [lot of them].

I do not think that word means what you think it means, Mr. Chief Justice

So the Supreme Court ruled yesterday in two First Amendment cases. The first upheld the right of corporations and unions to subvert the political process through misleading so-called "issue ads" inside the windows set by the McCain-Feingold campaign finance law. The second dealt with the case of a student who was disciplined for holding up a banner reading Bong Hits 4 Jesus.

Both decisions were disappointments, and both were 5-4 split decisions, with the two new conservative nominees, Chief Justice Roberts and Justice Alito, tipping the scales in favor of a radical departure from the court's previous decisions in both lines. I would further argue, however, that the two decisions offer a perfect illustration of the intellectual bankruptcy of the neo-conservative movement.

The money quote from the McCain-Feingold case was cited by the New York Times and NPR that I know of. I'm sure others carried it as well. In his opinion, the chief justice wrote that "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

That's actually not a bad rule of law. When a fundamental civil right is in question, the courts in any just society ought to come down on the side of the right whenever possible.

The problem I have with those words in the mouth of the chief justice is that if he truly believed them, he would have to have voted the other way on Morse v. Frederick. There, too, the First Amendment was implicated. But in that case, the chief justice decided to award the decision to the censor, not to the speaker.

True, the cases are not exactly parallel. The appellee, Joseph Frederick, was still in high school when he unfurled his banner at a school-sponsored rally for the passage of the Olympic torch through his hometown in Alaska. He was, however, 18 years of age or nearly so at the time, and he was standing on a public sidewalk where a reasonable bystander would have been hard-pressed indeed to connect either the young man or his sign with his school. And, as even the chief justice admitted, the message on his sign was "cryptic."

All of those considerations lead me to believe that the Court should have followed its brand-new precedent in the McCain-Feingold case and awarded the former student the damages he sought following his suspension from school and the consequent loss of his father's job. The chief justice, however, demurred on the grounds that the school principal's construction of "Bong Hits 4 Jesus" as somehow being a pro-drug message was not per se unreasonable.

I suppose one might be able to reach such a conclusion. If one were a typically drug- and vice-obsessed conservative. Perhaps. Mr. Frederick's banner did not advocate for the legalization or the use of any drug. Indeed, one has to read into the phrase "bong hits" to arrive at any kind of a drug message at all. To go from there to advocacy, one would have to imply a verb that is not even present in the sign's message.

A far more plausible construction, it seems to me, is the one the author thereof himself wanted to put on it--a catchy, funny phrase that he thought would guarantee at least a brief appearance on the television coverage of the torch relay. The fact that he was for all intents and purposes a legal adult at the time, and that he made his banner and displayed it off of school grounds, should, by my lights, have excused him from the school's tutelage on the occasion. It would have been different had he tried to hang that banner above his locker on school grounds, but he did not do so. Given that there was virtually no way to associate the young man standing on a street corner holding a quirky banner with that particular school, I think it stretches credibility (to say nothing of the law) to suggest that the school should still have been able to exercise quasi-parental authority over him: especially since he broke no laws by doing what he did.

Yes, he was technically attending a school-sponsored function. But attendance at that function was not required, and no attempt was made either to take attendance or to regulate the students who chose to attend in any way. The courts have held that schools have some enhanced rights to restrict the free expression of their students when that expression poses a problem or creates a diversion from the educational mission of the school. But I have a hard time seeing how anyone could reasonably argue that the events of the instant case posed anything like such a disruption.

And so I am disappointed. It would appear, at least based on the jurisprudence handed down by the highest court in the land yesterday, that corporate persons who do not technically enjoy civil rights are now freer than actual persons who do enjoy such rights. And that's just plain wrong.

Let's stretch this metaphor a little

As you may or may not be aware, today was the 2007 Day of Silence, "...an annual event held to bring attention to anti-LGBT bullying, harassment and discrimination in schools. Students and teachers nationwide will observe the day in silence to echo the silence that LGBT and ally students face everyday" (from the linked web site). I only knew that because as I was on the way to the first of my three back-to-back-to-back meetings today, a student handed me a flyer as I walked across the commons.

I couldn't participate because (a) I've been so bloomin' busy I didn't have time to notice the event was scheduled for today, and (b) I had three back-to-back-to-back meetings today, plus a whole lot of other conversations relevant to my job. However, I think stretching the "day of silence" metaphor might just be the best possible course of action for this country and its citizens to take in the wake of a great many highly stressful and emotionally charged events in the recent past.

I am by turns appalled and amazed at the number of lame, half-arsed, half-baked, hurtful, and just plain stupid things that have been said in the wake of the Virginia Tech shootings--and not just by the conservatives--such that I would welcome a moratorium on any further discussion of the issue, in any forum, by anyone not directly involved in investigating it or directly impacted by it. As my fellow liberal blogger Bryan has noted on several occasions, we're not going to know the full details about the wherefores and the whys behind the Virginia Tech shootings for quite a long time--if ever. Why, in the name of Holy Wisdom, would we want to start leaping to conclusions on the basis of very little evidence, and that of highly questionable provenance and credibility?

And while I didn't hear the remarks to which Virginia Governor Tim Kaine alluded when he said that he'd let his Irish temper get the best of him, I echo his disgust with groups attempting to use the shootings to advance their own political agendas. And, like Gov. Kaine, that goes for me whether the agenda is one I oppose (relaxing gun laws to allow more concealed carry permits, for example) or one which I generally favor (making gun laws tougher, or getting out of Iraq).

Well isn't that special?

So I was driving home from work last night, listening to the news on the local NPR station, when they turned to the latest developments in the Duke lacrosse case. North Carolina officials dropped all charges against the three lacrosse players, citing a district attorney who rushed blindly to judgement and overlooked or ignored exculpatory evidence.

I don't have a problem with that. If the facts don't support the filing of charges, then charges should not be filed. And if they've already been filed, then they should be dropped. That's how our justice system is supposed to work, after all.

The thing that put a burr under my saddle, though, were some of the comments made by one of the three exonerated players (possibly David Evans, though I can't find a clip on the NPR site that matches what I remember hearing on the radio yesterday to verify that). The young man in question thanked his lawyers for their efforts on his behalf--and then went on to say that he'd been lucky that his family was sufficiently wealthy that they could afford to hire some good lawyers.

Nothing wrong with that, either, at least on its face. He should thank the people who worked their butts off to get the charges dropped, and he is lucky that he comes from money--because otherwise, he'd probably still be sitting in jail, looking at the very real probability that he'd be looking at the world from behind bars until he was nearly of an age to retire.

"Bong hits 4 Jesus"

Unfurling a 14-foot banner with those words on it five years ago in Juneau, Alaska, got Joseph Frederick suspended from school for 10 days, and lands him and his former high school principal in front of the Supreme Court today.

The court's ruling should be a no-brainer, and Ken Starr, who is appearing on behalf of the school district and the Shrubbery, should have advised his clients they were wasting their time and money filing the appeal. The principal's actions in tearing down Frederick's banner and suspending him for exercising his First Amendment right to free speech on a public sidewalk are clearly inconsistent with the Court's holding in Tinker v. Des Moines Independent Community School District (393 U.S. 503 [1969]). As the Court ruled in that case:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved (at 511).

But that actually isn't the issue I want to talk about. In her report on the background of the case on NPR this morning, Nina Totenberg mentioned (beginning at 00:34 in the linked audio file) that Frederick had tangled with school authorities before the Olympic torch parade at which he unfurled his controversial banner. School officials, Totenberg said, had earlier threatened to suspend him for refusing to stand for the Pledge of Allegiance.

Does no one bother to teach prospective principals and school administrators at least the basics of constitutional law as it applies to public education anymore? If not, why not?

Threatening to suspend a student who refuses to stand for the Pledge is also an impermissible exercise of government authority inconsistent with constitutional law. Just over 60 years ago in 1943, the Supreme Court ruled, in West Virginia v. Barnette (319 U.S. 624), that schools could not compel students to salute the flag and recite the Pledge of Allegiance as a condition of enrollment, or discipline them for refusing to do so. As Justice Robert H. Jackson observed in that case (at 637):

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

Justice Jackson absolutely nailed the issue in his final sentence. Anyone who thinks that we can instill patriotism or respect for government by compelling students to recite words by rote, or by carefully limiting their exposure to ideas or opinions deemed controversial (and limiting their rights to have or to express such ideas) is arguably deluded. But before the wingnuts start quoting me on that, let me make it perfectly clear that I do believe schools can--as the courts have ruled time and time again--place time and manner restrictions on students' right to express their beliefs, particularly when those beliefs have as their sole or primary objective to dismiss, belittle, or injure other students and/or their beliefs, or to disrupt the educational mission of the school.

Our Constitution guarantees us the right--and, I would argue, imposes upon us the duty, when we believe our government is acting wrongly--to speak up and criticize. No public official is immune from that criticism, and no public policy has an automatic right to be respected. Surely that is something just as important for our students to learn as the basics of reading, writing, and arithmetic. Anyone who believes otherwise really ought not to be in public education.

If there were any justice in the world

I'd be confidently asserting it was time to stick a fork in Karl Rove's bloated carcass. Given the story set to appear in tomorrow's New York Times (and other papers as well, I'm sure) that gives the lie to his claims to have been only peripherally involved in the decisions to fire U.S. attorneys the Republican leadership considered to be underperforming when it came to pursuing politically motivated indictments/investigations, I'd say Karl's ass is well and truly spit-roasted, and it should be all over except for the firing and, eventually, the tell-all book deal.

Unfortunately, this isn't that world. The revelations in the Times piece confirm what most of us in Left Blogistan (and, at least off the record and not for attribution, probably most Republicans as well) have known for years: to wit, that Karl Rove is a lying, cheating, pimping, no-good, two-timing sonofabitch who should never have been allowed to hold an office of public trust or honor in the United States or anywhere outside of a tinpot dictatorship or a banana republic--and even they'd have to think twice before taking him on, he's that radioactive. There is literally no level so low that Rove will not stoop to it if he thinks it will keep him in power a femtosecond longer.

The president should fire, first Rove, and then Abu Gonzalez. But we all know that isn't happening anytime soon. Failing that, I think Senator Leahy should call a special meeting tomorrow of the Judiciary Committee and revisit the question of issuing subpoenas to Rove and former White House Counsel Harriet Miers. The committee was thinking about issuing them subpoenas anyway, but according to the Times, Republicans on the committee quashed that idea at least temporarily. If they know what's good for them, their president, their party, and their chance of winning anything in the 2008 elections, they will not only not block those subpoenas, they'll be knocking on Senator Leahy's door first thing tomorrow morning begging him to issue them.