markpkessinger
markpkessinger's JournalMy take on the oral arguments in the same-sex marriage cases before the Supreme Court
The two questions before the court were:
(a) whether same-sex couples must be permitted by the states to marry on the same terms as heterosexual couples as a matter of constitutional right; and
(b) if the Court decides against recognizing it as a Constitutional right, then are states that do not recognize same-sex marriage required, under the full faith and credit clause, to recognize those same-sex marriages performed in states that do allow them.
IT seems to me as if there are three possible configurations of rulings on the two questions. They are:
(1) On question (a) they could rule that same-sex marriage is not protected by the equal protection clause, and thus the question of whether same-sex marriages will be recognized will continue to be left up to the states; and on (b) they could rule that states are not required to recognize the same-sex marriages legally performed in other states; or
(2) On question (a) they could rule that the equal protection clause does indeed mean that same-sex couples must be permitted to marry on the same basis as heterosexual couples. In this case, question (b) becomes moot, and the Court doesn't have to address it; or
(3) On question (a) they could rule against a constitutional right to same-sex marriage, and on question (b) rule that even though the question will still be left to the states regarding whether to permit same-sex marriages within its borders, that states must still be required to recognize the marriages validly performed in other states.
Question (a) is too hard to call based solely on the oral arguments, so that could go either way (most likely depending upon where Justice Kennedy falls). But from what I heard during the argument for question (b) even the conservative justices were having a hard time finding any coherent basis for ruling that states should not have to recognize the public acts (including same-sex marriage) of another state. So, if I am right about this, scenario (1) is not really a possibility.
I think the conservatives on the court will tend to want to split the baby and go with scenario (3). But if they think about the practical ramifications of that, at least some of them (such as Kennedy and maybe even Roberts), will have to take a step back. The reason is that scenario (3) will create an absurd legal reality, whereby same-sex couples in states that do not allow them to marry will simply get married in states that do, and their home states will be required to recognize their marriages in any case. So IF even one of the conservatives actually applies a bit of rationality to the situation, the only coherent option is scenario (2). But that's a big 'IF'.
At one point, I found myself so angry I was sputtering. It was when Scalia started saying that a constitutional right to same-sex marriage could require Christian clergy to perform same-sex weddings. It's a bogus argument, and Scalia knows damned well it's bogus, the reason being that clergy are not required to perform ANY WEDDING AT ALL, gay or straight. As a matter of the establishment clause, they cannot be required to perform weddings they do not wish to perform. And nothing would change in that regard by extending the right to marry to same-sex couples. It was such an outrageously dishonest position!
An apology for (and explanation of) an earlier post
A little earlier today, I posted something that was an attempt at irony, but which unfortunately went over like a lead balloon. It started out with a question: "Why do I find it cosmically ironic that the lawyer who argued before the Supreme Court on behalf of Michigan against gay marriage was this guy?". I followed with an actual professional photo of the guy. His appearance in the photo is, shall we say, rather 'dandy-esque.' (For reference, I'll post it in a separate, follow-up comment.) Unfortunately, through no fault of anyone reading the post, my intent was not clear, and as a result, was misinterpreted. I was quite taken aback by the negative responses: things like, "Stereotype much?" and "No, why don't you enlighten us." I realized immediately that nobody reading, unless they personally knew me, could possibly have the context needed to understand where I was coming from with that post. And for that, I apologize.
But I do want to explain a bit, lest anyone think I am some bigoted, homophobic troglodyte. First, yes, it was poking some fun at the stereotype. I am acutely aware of the stereotype, and the hurtful, malicious ways it is sometimes used against gay people, because I, myself, am a gay man. And although I have made mention of that on numerous occasions here on DU, generally it isn't something I mention unless there is a particular reason to do so.
The irony I saw in the situation was the same kind of irony I see whenever a notorious, right-wing, anti-gay legislator is caught in flagrante delicto with another man, or trying to solicit favors in a men's room stall. The thing is, that lawyer's countenance <i>does</i> match an old, commonly held stereotype of gay men. Jon Stewart even made an oblique, unstated (but certainly implied) reference to it in his monologue last night, which is what prompted me to create the post. As a gay man, I was not offended in the least, because I didn't see it as being a swipe at gay people at all, but rather at the hypocrisy of so many right wingers.
And another friend of mine, also gay, posted the following about this same lawyer to Facebook after listening to the audio of the oral arguments:
Bursch could be coughing up glitter right and left every time he opens his mouth, self-loathing is real."
One person responded that the guy looked too much like a sexless dork to be considered to 'look gay.' To that, I would point out that prime time TV shows have a long history of portraying gay characters as sexless dorks: "Jack" from Will & Grace, for example, or the argyle sweater-wearing gay couple from Modern Family. Indeed, that stereotype seems to be the one TV producers think is most palatable to middle America. Salon ran a good article on this subject a few months back.
This kind of ironic humor has a long and venerable tradition in the gay community: it is referred to as "camp." And it often involves making use of the very stereotypes that have so often been hurled at the gay community in order to make its point. However, context is everything, and context is what was lacking in my post. I apologize for that, but I do not apologize in any way for seeing the irony in that situation and calling it out.
Crips, Bloods Call Truce, Not to Harm Cops But to Protect their Community from Violence & Looting Re
WOW! Just . . . wow!
Baltimore, MD — The Crips, Bloods, BGF and other major gangs reportedly called a truce during yesterday’s Freddie Gray protests in Baltimore. They did not make threats of violence, they were not indicated as participants in acts of violence or vandalism during the protests.
However, their promise to no longer be divided, was such a threat to the establishment that within 12 hours there were stories on the home page of every mainstream media publication talking about how the gangs were going to join up with the specific intention of killing cops and burning down the city.
Each of the mainstream sources had basically republished a press release that was put out by the Baltimore City Police Department, citing that there was a “credible threat” that gang members were planning to carry out attacks on police. There was no evidence to back this claim up, but the very fact that rival gangs were calling a truce in the streets was enough to drive the establishment into panic mode.
This should tell you something. The establishment wants people divided, and they fear other armed and organized groups providing their own communities with defense, effectively challenging the state’s monopoly on violence.
< . . . . >
What is NOT helpful in discussions about rioting in {name the city in question}
(Note: I posted this back in November, when the riots in Ferguson were the major topic of discussion. I have reworked it in relation to the current discussions concerning the rioting in Baltimore.)In another thread, the question was asked, how is burning of black owned businesses helpful. It probably isn't, but that isn't really the point of rioting anyway -- more on that in a moment. But if there is one thing that can definitely be said to be unhelpful with respect to
Riots of the type unfolding in
Some will argue that while the rage in Ferguson may be justified, violence and looting never are. Well, perhaps, but when it gets to the point that people feel they must riot in order to be heard, then they are already way past a point where they see any value in recognizing a society's norms for what is considered to be "justified." This is a community that feels it has been denied justice, not just in the case of
What I believe the people of
A friend of mine tonight put it like this:
Is the violence and chaos upsetting, regrettable, and unfortunate? Certainly. Is it occurring because nobody's taken the time to calmly and rationally explain to the rioters why rioting is bad? Fuck you."
Exactly.
The Shit People Say: Transgendered edition
Had this exchange with another reader in the comments to an article on Raw Story about Bruce Jenner:
Honest questions for those who support transgenderism:
1. If you are a hetero man would you have an issue with marrying and having sex with a man who tells you that he is now a transgender woman?
2. Or for the hetero woman would you have an issue with marrying and having sex with a woman who tells you that she is now a transgender man?
3. Or if you are a lesbian woman would you have an issue with marrying and having sex with a man who tells you that he is now a transgender woman?
4. Or if you are a gay man, would you have an issue with marrying and having sex with a woman who tells you that she is now a transgender man?
If you believe that a man can turn into a woman 100% or that a woman can turn into a man 100%, then why would you have an issue?
markpkessinger
Gender is a much, much more complex issue than one of mere external plumbing. I am sure that each of the example scenarios you spell out above has occurred at one point or another. And actually, one of my dearest friends fits your example number 3. She is a lesbian, and her partner of seven years is a transgendered woman (fully transitioned).
But the point here is not whether you, or I, would be comfortable in any of those scenarios you provided. Unless you or I are one of the parties involved in the relationship, it isn't up to either you or me to say what the parties involved are, or should be, comfortable with. It is for them, and them alone. Tell me, is life in your own bedroom really so uneventful that you must obsess about what is going on in other people's bedrooms?
Oh, and the friend to whom I referred (who occasionally posts here on DU) chimed in as well, as you can see if you follow the link above to the thread!
A lesson I learned a long time ago is that the people who are most to be trusted . . .
. . . are those would never dream of making demands of it. If, in fact, Warren and Brown are lying as the President suggests, then it is within the President's ability to demonstrate that bu releasing the text of the entire document. Even apart from the parts of the TPP draft that have been leaked to date, the fact that he is resisting doing so, expecting the public and most of Congress to simply take his word for it. and at the same time is so uncharacteristically energetic in his attempts to impugn the integrity of critics who are, on most other issue, staunch allies, speaks volumes.
Another thing I learned a long time ago is that when faced with a choice about whom to believe among two parties, each of whom is accusing the other of lying, one rarely goes wrong by asking oneself one simple question: which party stands to gain or lose the most both by misrepresenting an issue, and/or by falsely accusing the other party of lying? Frankly, if the deal is all it is cracked up to be by the President, then I can see nothing that Warren or Brown would have to gain by opposing it. But I can certainly see that a President, now in the home stretch of his Presidency, casting about for a new 'legacy' since the future of his single biggest achievement is in doubt, I can see where he would have plenty to lose if the deal falls apart, and thus plenty to gain by falsely characterizing the deal's opponents as lying.
For me, then, the determination whom to regard as being the most credible between the PResident and Senator Warren is not even a close call.
CRUZ FALLOUT: Broadway Cares Cancels AIDS Fundraiser At Ian Reisner's Hotel
From Joe.my.God.blogspot.com:
From the executive director of Broadway Cares:
t is with regret that we have decided to cancel this year’s edition of the Broadway Bares Solo Strips fundraiser, which was scheduled for May 10 at the NYC club 42West. We cannot in good conscience hold an event at a venue whose owners have alienated our community, as reflected in an April 23 New York Times story and an April 24 follow-up post. We do business with and accept fundraising support from a variety of people across a wide spectrum of political and religious affiliations. The rich diversity of our community makes what we do together so special. It is a rare instance where the actions of a donor negatively impacts us as an organization and potentially jeopardizes our relationship with others whose support is integral to our success. But when it does occur, in a way that’s blatantly against all we stand and work for, we can’t pretend it doesn’t come with consequences. Silence is not a neutral position. It is complicit. This is not about partisan politics or punishment. This is about doing what’s right to ultimately ensure that our commitment to the men, women and children we serve cannot be questioned.
Fallout has been equally swift across Manhattan's clubland. Links to the boycott of Reisner's properties have been posted by top New York City club promoters John Blair and Mark Nelson, both of whom have worked with Reisner's clubs in the past. Facebook pages for Reisner's various businesses have been deluged with negative comments and vows to stay away. Also interesting are boycott pledges by summer-long residents of Fire Island Pines, who would have few other options as Reisner recently paid $10M for 80% of the resort town's commercial district. At this writing the boycott's Facebook group has grown to over 4100 members in just one day.
NOTE: Broadway Bares 25 will take place as scheduled at the Hammerstein Ballroom on June 24th.
Why I Do This
(Note: This is something I posted earlier today on Facebook. I had shared a comment I had posted to a very fine New York Times editorial on capital punishment. In response, a friend responded that, while he agreed with me in substance, these exchanges were ultimately futile and pointless, because no minds would ever be changed. I certainly understand why he might feel that way -- I feel the same way at times. So I began thinking about why, exactly, I continue to engage on topics on Facebook, on DU and around the Internet. A lot of folks responded very positively to my response, so I thought I would share it here. Here is that response (it was originally three separate comments, but I've placed them all into one here):As an illustration of why I think it is so important to remain engaged, I would point to an issue in which I have a great personal stake: that of LGBT civil rights. I came out in 1980, before we were aware of AIDS. You might be surprised to hear this, but it was a time of great optimism in the gay and lesbian community. A number of major cities across the country had begun to enact anti-discrimination laws, and the wider society seemed to be inching towards greater acceptance.
Then the AIDS crisis hit. Christian conservatives wasted no time in exploiting that crisis to their fullest advantage. People like Jerry Falswell and the execrable Anita Bryant did their worst. And one by one, cities that had enacted laws barring discrimination against LGBT folks began to repeal them. And even worse, some enacted laws that specifically discriminated, barring, for example, LGBT folks from holding positions as teachers or from being adoptive parents. For the LGBT community, faced with the onslaught of death all around us, and at the same time watching helplessly as the country regressed and many of the gains we had made simply disappeared, let me tell you, it was a depressing, demoralizing period of history to live through.
Yet, here we are, 35 years later, with gay marriage now legal in many states, and likely to be made legal in many more. It was certainly tempting, back in the early '80s, to simply give up, to stop trying to engage people in dialogue. There appeared to be no hope on the horizon. But if we had done that, if we had stopped engaging friends, family members, co-workers, etc. in discussions about these issues even when they disagreed with us, none of the gains we have made since would have happened -- and that likely includes, I would add, the development of effective life-sustaining treatments for HIV/AIDS, that have benefited not only gay AIDS sufferers, but all HIV/AIDS patients, both here and around the world. Had groups like ACT-UP (AIDS Coalition to Unleash Power) not engaged in the kinds of direct, street level agitation and disruption in pursuit of speedier clinical trials, we might still be waiting for those drugs to be developed.
The lessons for me in that experience were both the need of remaining engaged in issues, as well as the importance, particularly in times of frustration and demoralization, of keeping in sight the longer view of things. Things don't always happen as quickly as we would like. But we have to continue to have hope that progress will eventually come. If we give up on that hope, and give up on pushing towards it, then we will have effectively guaranteed that it will never come. Oh, wait -- there was a third lesson in that as well: never, EVER, allow yourself to be complacent about gains you may have already made!
One final thought: if I ever allowed myself to succumb to the belief that closed minds could not be opened, that hearts could not be moved, that knowledge could not eventually overcome ignorance, that rationality could not eventually overcome irrationality, that bigotry and prejudice could not be overcome -- then this would be a world I would cease to have any interest in continuing to live in. So for me, not engaging in these issues is really not an option. Fortunately, I have seen people's views change -- sometimes relatively quickly, sometimes over many decades.
The Fiction of Deterrence and the Immorality of 'Retributive Justice'
Our criminal justice system is broken. We all (or almost all) know it, and we all say it. Prisoners, both violent and non-violent, and among whom are found those that have been rightfully as well as wrongfully convicted, are warehoused under brutal and inhumane conditions that are virtually guaranteed to make violent criminals more violent, to make non-violent criminals violent, and, in some cases, to force people who never before had been criminals to turn to crime, upon their release, merely to survive. We keep people in solitary confinement for weeks or months or even years on end, creating permanent psychological damage. A criminal justice system that is subject to the same human mistakes, failings and corruptions as all other systems devised by humans nevertheless presumes, in some cases, to impose ultimate, irrevocable punishment -- death -- that eliminates any and all possibility of redress in light of any mistakes or failings that may later come to light. Yet, when it comes to the criminal penalties imposed on specific, notorious criminals who have committed crimes we find to be particularly abhorrent or heinous, and about whose guilt we firmly believe we are certain, many of us are all too willing to set aside our commitment to moral and, in some cases, even legal, principle in order to satisfy a very human, but very base, desire for vengeance.
There are two prevailing concepts that are used to rationalize our broken criminal justice system. First is the notion of deterrence. If we impose harsh, brutal sentences upon people who commit crimes, then would-be criminals will think twice before committing such crimes -- or so goes the myth we tell ourselves, despite a dearth of evidence that such deterrent effect actually exists. I have come to believe the entire premise is a faulty one. First, it fails to consider that the majority of violent crimes occur in the heat of passion, in which the emotions overtake rational thought processes. Second, even in the cases involving violent crimes that are premeditated and carefully planned, a theory of deterrence rests, in the first place, on the idea that a would-be criminal undertakes a rational cost-benefit analysis of a crime he or she may be contemplating, much as a careful investor might weigh potential upside gain against potential downside loss. This is, I believe, very rarely what actually happens in the commission of criminal acts. I believe that in most cases, those who commit crimes do so having already convinced themselves, often quite irrationally, they won't get caught, and not because the potential consequences of getting caught are light enough to make the crime worth the risk of committing it. At the point they commit the crime, all thought of getting caught, and of potential consequences that would flow from that, have been put out of their minds entirely. So much for any deterrent effect!
The second concept, an idea very popular with some criminologists, is the idea of "retributive justice" -- i.e., the idea that punishing people for misdeeds is a morally justifiable, and even desirable, end in itself, that need not take account of any rehabilitative imperative or even any consideration for the well-being of the convicted criminal. The idea is that punishment somehow "balances" some cosmic (but never identified) scale of 'justice.' This, it seems to me, amounts to little more than a bunch of highfalutin, meaningless mumbo-jumbo aimed at rationalizing s system that is otherwise indefensible under any cogent system of ethics or morality. It is a way of justifying ourselves in our collective willingness to subordinate ethics and morality to the satisfaction of one of our most base human emotions. In short, the term "retributive justice" is but a gussied up term for plain old (but less acceptable in polite company) vengeance.
Some, of course, will protest that they reserve this kind of rationalization for the "worst of the worst," that what {insert name of notorious criminal of choice here} did was so uniquely heinous that he or she "deserves" whatever might be coming to him or her. But, as I pointed out yesterday in another thread, the problem with this rationale is that:
. . .invariably, we are talking about more than one case or one individual. And regardless of how heinous that one individual's actions may have been, invariably, some not-so-heinous criminals get caught up in it, too. The article mentions one Jack Powers, imprisoned for burglary as a kid, released in 1982. then married and started two businesses, both of which were bankrupt by the end of the decade. He began robbing banks -- BUT WAS NEVER ARMED, he merely passed notes to the teller demanding money. IN prison, a friend of his was murdered by the Aryan Brotherhood. Powers cooperated with prosecutors, believing he could cut a deal to get out of prison earlier, but then had to be placed in protective custody. When he got wind that prison officials were planning on transferring him to the general population, which would have put him at risk for being killed for his role in the convictions of four members of the Aryan Brotherhood, he escaped. So he wound up getting sent to ADX because he was deemed a flight risk, never mind that he was fleeing for his life.
When we talk about the criminal justice and penal systems, the conditions in prisons or the death penalty, it is important to remember that we are NEVER talking about just a single, individual case, and that invariably, people who do not remotely deserve to be kept under such brutal conditions inevitably will be. Any moral or ethical approach to these issues MUST factor in not only the 'easy' cases involving notorious, brutal criminals, but also the harder cases, which often involve less violent, or even non-violent such as Powers, prisoners who will inevitably get swept up into the system.
Society certainly has a right to protect itself by separating from the population those deemed to be a threat to others. But if a society is to call itself 'moral' or 'just,' or even 'civilized' for that matter, that right of protecting the wider society from harm carries no implicit right to abuse, harm or torture convicted criminals under some ethically tortured notion of 'retributive justice' or on the basis of an utterly fictitious narrative of 'deterrence.' And no system of ethics or morals can be called cogent if it provides 'carve outs' for cases that particularly enrage us, no matter how heinous the crime and no matter how understandable, and even justifiable, our collective rage.
The Fiction of Deterrence and the Immorality of 'Retributive Justice'
Our criminal justice system is broken. We all (or almost all) know it, and we all say it. Prisoners, both violent and non-violent, and among whom are found those that have been rightfully as well as wrongfully convicted, are warehoused under brutal and inhumane conditions that are virtually guaranteed to make violent criminals more violent, to make non-violent criminals violent, and, in some cases, to force people who never before had been criminals to turn to crime, upon their release, merely to survive. We keep people in solitary confinement for weeks or months or even years on end, creating permanent psychological damage. A criminal justice system that is subject to the same human mistakes, failings and corruptions as all other systems devised by humans nevertheless presumes, in some cases, to impose ultimate, irrevocable punishment -- death -- that eliminates any and all possibility of redress in light of any mistakes or failings that may later come to light. Yet, when it comes to the criminal penalties imposed on specific, notorious criminals who have committed crimes we find to be particularly abhorrent or heinous, and about whose guilt we firmly believe we are certain, many of us are all too willing to set aside our commitment to moral and, in some cases, even legal, principle in order to satisfy a very human, but very base, desire for vengeance.
There are two prevailing concepts that are used to rationalize our broken criminal justice system. First is the notion of deterrence. If we impose harsh, brutal sentences upon people who commit crimes, then would-be criminals will think twice before committing such crimes -- or so goes the myth we tell ourselves, despite a dearth of evidence that such deterrent effect actually exists. I have come to believe the entire premise is a faulty one. First, it fails to consider that the majority of violent crimes occur in the heat of passion, in which the emotions overtake rational thought processes. Second, even in the cases involving violent crimes that are premeditated and carefully planned, a theory of deterrence rests, in the first place, on the idea that a would-be criminal undertakes a rational cost-benefit analysis of a crime he or she may be contemplating, much as a careful investor might weigh potential upside gain against potential downside loss. This is, I believe, very rarely what actually happens in the commission of criminal acts. I believe that in most cases, those who commit crimes do so having already convinced themselves, often quite irrationally, they won't get caught, and not because the potential consequences of getting caught are light enough to make the crime worth the risk of committing it. At the point they commit the crime, all thought of getting caught, and of potential consequences that would flow from that, have been put out of their minds entirely. So much for any deterrent effect!
The second concept, an idea very popular with some criminologists, is the idea of "retributive justice" -- i.e., the idea that punishing people for misdeeds is a morally justifiable, and even desirable, end in itself, that need not take account of any rehabilitative imperative or even any consideration for the well-being of the convicted criminal. The idea is that punishment somehow "balances" some cosmic (but never identified) scale of 'justice.' This, it seems to me, amounts to little more than a bunch of highfalutin, meaningless mumbo-jumbo aimed at rationalizing s system that is otherwise indefensible under any cogent system of ethics or morality. It is a way of justifying ourselves in our collective willingness to subordinate ethics and morality to the satisfaction of one of our most base human emotions. In short, the term "retributive justice" is but a gussied up term for plain old (but less acceptable in polite company) vengeance.
Some, of course, will protest that they reserve this kind of rationalization for the "worst of the worst," that what {insert name of notorious criminal of choice here} did was so uniquely heinous that he or she "deserves" whatever might be coming to him or her. But, as I pointed out yesterday in another thread, the problem with this rationale is that:
. . .invariably, we are talking about more than one case or one individual. And regardless of how heinous that one individual's actions may have been, invariably, some not-so-heinous criminals get caught up in it, too. The article mentions one Jack Powers, imprisoned for burglary as a kid, released in 1982. then married and started two businesses, both of which were bankrupt by the end of the decade. He began robbing banks -- BUT WAS NEVER ARMED, he merely passed notes to the teller demanding money. IN prison, a friend of his was murdered by the Aryan Brotherhood. Powers cooperated with prosecutors, believing he could cut a deal to get out of prison earlier, but then had to be placed in protective custody. When he got wind that prison officials were planning on transferring him to the general population, which would have put him at risk for being killed for his role in the convictions of four members of the Aryan Brotherhood, he escaped. So he wound up getting sent to ADX because he was deemed a flight risk, never mind that he was fleeing for his life.
When we talk about the criminal justice and penal systems, the conditions in prisons or the death penalty, it is important to remember that we are NEVER talking about just a single, individual case, and that invariably, people who do not remotely deserve to be kept under such brutal conditions inevitably will be. Any moral or ethical approach to these issues MUST factor in not only the 'easy' cases involving notorious, brutal criminals, but also the harder cases, which often involve less violent, or even non-violent such as Powers, prisoners who will inevitably get swept up into the system.
Society certainly has a right to protect itself by separating from the population those deemed to be a threat to others. But if a society is to call itself 'moral' or 'just,' or even 'civilized' for that matter, that right of protecting the wider society from harm carries no implicit right to abuse, harm or torture convicted criminals under some ethically tortured notion of 'retributive justice' or on the basis of an utterly fictitious narrative of 'deterrence.' And no system of ethics or morals can be called cogent if it provides 'carve outs' for cases that particularly enrage us, no matter how heinous the crime and no matter how understandable, and even justifiable, our collective rage.
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