Arizona: Unconstitutional Eligibility Law

(By Andrew MacKie-Mason)

It seems to be a law of politics lately that Arizona won't go long without giving us unconstitutional laws to mock. I was getting worried for a bit that the state was off it's game, but then I saw this article at "WorldNetDaily". According to the article, this unconstitutional bill is likely to pass the state legislature soon.

The proposal is an attempt to put some sort of legal and moral force behind the so-called "birther" movement (although it's fair to ask how much legal and moral force the government of Arizona has left). Specifically, the law would require candidates for the Presidency to submit (to Arizona's Secretary of State) an affidavit certifying their birth, residency, lack of dual citizenship, and age. The affidavit must be accompanied by:

1. AN ORIGINAL LONG FORM BIRTH CERTIFICATE THAT INCLUDES THE DATE AND PLACE OF BIRTH, THE NAMES OF THE HOSPITAL AND THE ATTENDING PHYSICIAN AND SIGNATURES OF THE WITNESSES IN ATTENDANCE.

2. A SWORN STATEMENT ATTESTING THAT THE CANDIDATE HAS NOT HELD DUAL OR MULTIPLE CITIZENSHIP AND THAT THE CANDIDATE'S ALLEGIANCE IS SOLELY TO THE UNITED STATES OF AMERICA.

3. A SWORN STATEMENT OR FORM THAT IDENTIFIES THE CANDIDATE'S PLACES OF RESIDENCE IN THE UNITED STATES FOR THE PRECEDING FOURTEEN YEARS.

Having proposals in all-caps apparently makes Arizona feel more important.

Requirement 1 is unconstitutional because Arizona can't tell other states how to write their birth certificates or what information is needed to prove birth. For proof, I give you Article IV, Section 1 of the US Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Congress may be able to pass such a law, but Arizona certainly can't.

Requirement 2 is unconstitutional because it imposes a restriction on federal office not found in the Constitution, something which states cannot do. The Constitution requires the President to be a natural born citizen, but there is no ban on dual citizens holding the Presidency.

The idea of affidavits to qualifications is not a bad one, although there's no good reason to limit this requirement to candidates running for President (other than the obvious political one). But Arizona, unsurprisingly, is going about this in an unconstitutional fashion.

Law of Baby Names

(By Andrew MacKie-Mason)

Professor Carlton Larson (UC Davis Law) has an article on SSRN about the legal landscape surrounding parents' legal rights when it comes to naming their children. It's a wonderful mix of interesting information, amusing stories, and legal analysis. And while I don't concur with all of the conclusions he arrives at, it's well worth a read.

A few of the more interesting and entertaining excerpts:

The headline might have come from The Onion: Local Man Fails to Buy Birthday Cake for Three-Year Old Son. But the national headlines describing Heath Campbell’s 2008 visit to a New Jersey bakery were no joke. Campbell’s cake request had one small detail rendering it instantly newsworthy. His child was named “Adolf Hitler Campbell,” and although the bakery was willing to inscribe many thoughts in frosting, wishing a happy birthday to Adolf Hitler was not one of them.

The Campbell family’s fascination with white supremacy was vividly expressed in the names of Adolf’s two siblings, “Honslynn Hinler Jeannie Campbell,” an homage to Heinrich Himmler, and “JoyceLynn Aryan Nation Campbell.”

And:

Some states ostensibly impose no restrictions at all upon parents’ choice of names...Yet one wonders if these statements are literally true. If parents sought to name their child “Shithead,” would state officials accept it? If parents offered a 700-letter word, would state officials accept it? If parents offered a name entirely in Greek characters, would state officials accept it? I suspect that many of these names in fact would be rejected, notwithstanding any general statements about parents’ unfettered ability to select a name.

And:

The limited and dated case law and academic commentary is not especially helpful on either of these questions. For example, a federal district court in Hawaii asserted that parents possess a common law right to name their children whatever they want. But surely this goes too far. No constitutional right is absolute; why should this one be any different? Would the court really recognize a parental right to name a child “Dumb Motherfucker”?

You know that any law professor who manages to work "Shithead" and "Dumb Motherfucker" into an article deserves to be read.

I'll close with this passage, while encouraging you to read the entire article. It's not too long, and it's entertaining enough to go quickly:

After all, most parents do not give their children ridiculous and hurtful names. But it does happen. When I started researching this topic several years ago, I assumed that no one would name his or her child “Adolf Hitler.” But it happened. Indeed, at least sixty Venezuelans of voting age bear the first name “Hitler.” Similarly, at least one child is alleged to be named for a venereal disease, and other American children have been named “Satan.” Parents in Japan sought to name their child, “Akuma,” which means “devil” or “demon.” Since 1984, two children in the United Kingdom have been named “Superman,” and six have been named “Gandalf.” A New Zealand judge ordered a girl named “Talula Does The Hula From Hawaii” into court guardianship so that her named could be changed. The judge stated, “It makes a fool of the child and sets her up with a social disability and handicap.” Other children in New Zealand have been named “Number 16 Bus Shelter,” and “Violence.” Similarly, Swedish officials have rejected attempts by parents to name children “Metallica” and “Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116.” Danish officials rejected the proposed names “Anus” and “Monkey.”

Closer to home, Michael Herrod and Matthew Rayback scoured American census records searching for atrocious baby names. The results are compiled in an amusing little book called Bad Baby Names: The Worst True Names Parents Saddled Their Kids With— And You Can Too!. Among the names they discovered were “Toilet Queen,” “Leper,” “Cholera,” “Typhus,” “Stud Duck,” “Loser,” “Fat Meat,” “Meat Bloodsaw,” “CashWhoredom,”... (and, trust me, it goes on.)

Rahm Emanuel Can Run For Mayor

(By Andrew MacKie-Mason)

So, the official word is that Rahm Emanuel, President Obama's former Chief of Staff, can can cannot can run for Mayor of Chicago in next month's municipal election.

The short version of the story is that an election lawyer brought a case claiming that Emanuel lost his Illinois residency when he moved to DC to work for the federal government. The Board of Elections and the Cook County Circuit Court both disagreed, and ruled that since he always intended to return to Chicago, he maintained his residence. The Court of Appeals reversed those lower opinions about a day before ballots were supposed to be printing, ruling that Emanuel couldn't run. Today, just three days later, the Supreme Court of Illinois reversed the Court of Appeals (with very strong language.) The Supreme Court's opinion can be found here.

The legal issues aren't particularly interesting. The Court of Appeals is pretty clearly wrong, while the Supreme Court is pretty clearly correct. However, some troubling editorials came out in the wake of the Court of Appeals opinion that are worthy of comment. The most representative is this one from the Huffington Post, titled "Why The Court Got It Wrong For Rahm:"

Under Illinois election law, if a person is away from a location "on business of the United States," residency is not revoked. However, if a person is a candidate, there is some debate as to whether this "business" exception applies. One could even say that, under a strict construction interpretation of the statutory language (following all the rules of interpretation laid out for courts in the U.S.), the "business" exception clearly does not apply to candidates for mayor.

Well, I don't care and the courts shouldn't either.

While we can haggle about language when interpreting laws, we can also take a big picture look at the purpose of a particular piece of legislation and the intention of its drafters...

The point is that, when an individual relocates to serve the highest ranking public official in the country, he should not be penalized afterwards. He certainly should not be penalized for refusing to waste money by keeping a house in a city in which he no longer lives. He should not be penalized for asking his wife and children to live in the same city as him. These are not reasonable requirements and they should not be practices reinforced by the courts.

We should encourage people to pursue public office. We should also encourage them to bring their experiences and understanding back to their local communities. The court might have written a clever technical decision. But they still got it all wrong.

What this editorial, and similar ones, misses is that it is not courts' job to make public policy distinctions. It is not their job to decide what restrictions on candidacy would be "reasonable" or "unreasonable." It is a court's job to interpret the language of the statute. That's the exact reason we have written laws. If the court gets the law wrong, then they're not doing their job. But if they get the law right and it's just a badly written law, then you should complain to your legislator, not the courts.

Types of Government Video

(By Andrew MacKie-Mason)

My friend "c" who writes "Stuff I Just Learned," (an awesome trivia and fun-fact blog that you should totally check out) posted a video from YouTube claiming to explain the various types of government. Here's the video, if you care to watch:

Whoever made the video had some significant misunderstandings about government and political science terminology, and some of the errors are worth mentioning here.

• The video plays fast-and-loose with the terms "right" and "left". The traditional understanding is incorrect, the speaker argues: instead, we should understand the right as anarchy and the left as totalitarianism.

This is fine, for what it's worth: the amount of government "control" is one way to organize governments along a spectrum. But using the terms "right" and "left" to describe this new spectrum is deceptive, because that's not what the terms mean in common usage. Standardly, the "left" side of the political spectrum is concerned with equality, while the "right" side is concerned with individual achievement. That's why the "left" can eventually lead to collectivist or socialist economies or dictatorships, while the "right" can eventually lead to theories backed by the idea "natural superiority".

The other issue is that the author pretends that the amount of government control is somehow the only important characteristic. He suggests, at least, that socialism, facism, etc are all just different names for totalitarianism. On the contrary, there are lots of different aspects of government that should be studied in order to properly differentiate forms from other forms.

(It's also interesting that the video places the "proper role" to the right of center, even though it claims to be putting it in the middle.)

• It's incorrect to claim that constitutional republics lie at a fixed point on the government control spectrum.

The fact that a system is a constitutional government says little about how much control the government has. There's an extremely wide range of control or lack of control that a constitutional republic can employ.

• The "Old West" distinction between Republic and Democracy (the lynch mob example) is completely wrong.

In a democracy, such a decision would have to be made either by the will of the majority, or according to laws established by the majority. A random group of people can't just hold a vote and claim its legitimacy in a democracy.

The only distinction between republics and democracies is that in republics, the laws are less responsive to the will of the people, and thus more constant.

Also, I don't know why the speaker thinks that juries necessarily have to make unanimous verdicts. That's true in the American system in criminal cases, but it's far from a necessary aspect of republican government.

• The "history" in this document is incredibly over-simplified.

There's not much more to say about this. But the Greek and Roman history, in particular, is at approximately a third-grade level. It's not detailed enough to provide any real support for an argument. (If you only know a bit of history, you can twist it to support any argument you want.)

• The whole idea of "stable" versus "unstable" forms of government is flawed.

No form of human government is permanent, but democracies, anarchies, and monarchies can be just as persistent as oligarchies and republics.

There's more wrong with the video that's not really worth mentioning. But it does get a few important things right:

• The point that less government doesn't necessarily mean more liberty is a good one. Other forces besides government can restrain our liberty, and government can restrain those forces.
• There is an important distinction between democracy and republic...to a certain extent. It's important to distinguish between rule of the majority and rule by representatives, and further to distinguish rule by representatives who are governed by a constitutional document. Speaking more precisely than the video does, the first is democracy, the second republic, and the third constitutional republic.

Videos like these are important, because they represent our attempt to understand government and the way humans associate for common action. But don't put too much stock in someone's claims, just because they know how to make a video.

And at this point, I'll say again: go check out Stuff I Just Learned! It's an awesome blog!

Thomas More Law Center Upholds Its Reputation

(By Andrew MacKie-Mason)

...as a group of crazy religious reactionaries. The Thomas More Law Center is a conservative Christian law firm that I'm unfortunate enough to share a hometown with (see here, here, and here for previous commentary on their organization). Every once in a while, when I'm in the mood to be reminded why hoping for everyone to get along and agree is hopeless optimism, I go to their website. After Obama's State of the Union I had an unhealthy dose of hope for the future, so I went on my pilgrimage to ThomasMore.org. Sure enough, I found two masterpieces of legal argument that reminded me that no matter how much you spend on law school, you're not guaranteed a good result.

The first is their senseless claim that the federal government can't invest in businesses if those businesses design products to appeal to certain religious groups. But, of course, the Thomas More folks didn't word it that way. No, for them it's only really a bad thing if the religion in question is Islam. The Thomas More Law Center somehow gets from AIG offering Sharia-compliant investment plans to the United States government instituting Sharia in America.

The highly relevant images that the Thomas More Law Center chose to go along with their press release? Mind you, as a respectable law firm, they pick their illustrations based on relevancy, of course, not any attempt to evoke emotion and fear.

There you have it, folks. If the United States government continues to invest in AIG while they dare to cater to their customers wishes, there will be flag burnings, random men holding books and guns, and very ominous buildings. Oh, and a crescent moon and star. Obviously, this is all highly relevant to the reasoned legal arguments that the Thomas More "Law" Center is putting forward.

(I wonder if the Thomas More Law Center will come sweeping in to save the day the next time the government invests in a company that sells Christmas decorations?)

The second story is about the repeal of Don't Ask, Don't Tell. The headline is, (no joke): "Obama Signs Abhorrent Law Forcing Open Homosexuality on the Military". As evidence for the importance of excluding homosexuals from the military, the Thomas More Law Center quotes an expert on modern culture and modern military forces: George Washington. Apparently, back in 1778, the great general kicked someone out of the army for "attempted sodomy." (This example doesn't even deserve refutation, but as an aside: doesn't "attempted sodomy" sound like rape, not consensual homosexual sex, to you? Traditionally, rape in a non-genital location, whether anus or mouth, as been called sodomy, not rape. And if it was consensual, why did he fail in the "attempt"? This article, while still hilariously conservative and nonsensical, has more details about the Washington incident.)

The Thomas More Law Center must be truly conservative, in that they want to live in exactly the same way that George Washington did. Because, you know, those bayonets would be really useful to a modern army.

I mean, come on. If some action George Washington took almost two and a half centuries ago is your best evidence, you must be really desperate. Unless, of course, you're one of those people who think that someone who was both a general and a Founding Father (gasp!) must be a god.

There was one other interesting part of the Thomas More Law Center story: “The Thomas More Law Center will review cases of discrimination against Christian service members as a result of this repeal, and where appropriate, defend at no charge those service members penalized for resisting this abhorrent new ‘morality’ being forced upon them.”

Count me as curious: how exactly can Christian service members be "discriminated" against as a result of other people being allowed to serve? Is it if homosexuals are promoted ahead of them? Or is it if they're punished for "resisting"? And what does "resisting" mean, exactly? Attacking homosexual soldiers? It sounds like the Thomas More Law Center is expecting Christian soldiers to damage unit cohesion in the wake of this repeal ... I guess that makes sense of this: "Allowing open homosexuals to serve in the military degrades the cohesion and effectiveness of our combat troops." Open homosexuality in the military will harm unit cohesion because all those good Christian soldiers of God will have no choice but to attack the gays.

Finally, the last line of the press release really irked me: "Most of our military are Christians. Despite this repeal, Christians still consider homosexual acts as acts of grave depravity, intrinsically disordered, and a sin." It's become a pattern in recent years for conservative Christians to lay claim to the beliefs of all Christians. They, however, do not get to decide what "Christians" believe, they only get to decide what they themselves believe. And there are many Christians who fully support homosexual individuals. We're not all hateful.

Reading through the Thomas More Law Center's website every once in a while is a good reminder that that sort of people actually exist: they're not just the "boogeymen" of the religious right. And if they exist in a college town as liberal as Ann Arbor, then they exist everywhere.

State of the Union

(By Andrew MacKie-Mason)

The State of the Union was tonight, and I'd intended to provide live coverage of the event. Unfortunately, I was otherwise engaged during the speech, but I still went ahead with the "live" commentary. It's not actually live, obviously, but it's contemporaneous with my first viewing of the speech, so it still have a live flavor. If reading through all that isn't exactly your idea of a good time, I should have consolidated summaries and commentary showing up in the next few days.

Also, if you want, you can scroll to the very end of the commentary below for a few closing remarks about the three speeches. (The State of the Union, the Republican response, and the Tea Party response.)

Grand Jury: In Re Gosnell

(By Andrew MacKie-Mason)

The grand jury investigating "Dr." Kermit Gosnell (whom I mentioned here) has filed its report. Here are my comments and thoughts as I read through it, since this case will likely be in the headlines a lot in the months to come.

First, someone seems to have put a cover on this grand jury report, the background of which is a picture of the building in which "Dr." Gosnell alleged did what the grand jury is charging him with. I don't know if this is standard practice in Pennsylvania, but ... really? Is this a grand jury report or a fourth grader's school paper?

The report opens with what I find to be a refreshingly honest appraisal of the case's likely political ramifications:

Let us say right up front that we realize this case will be used by those on both sides of the abortion debate. We ourselves cover a spectrum of personal beliefs about the morality of abortion. For us as a criminal grand jury, however, the case is not about that controversy; it is about disregard of the law and disdain for the lives and health of mothers and infants. We find common ground in exposing what happened here, and in recommending measures to prevent anything like this from ever happening again.

Though it's probably too much to ask, perhaps other commentators will have the same level of principled restraint that the grand jury did (though at least one conservative has already demonstrated that he's not willing to keep the discussion civil).

After this admirable opening, though, the grand jury report goes back to reading like an essay about the events rather than a serious component of the criminal justice system.

That was the impressive-sounding name of the clinic operated in West Philadelphia, at 38th and Lancaster, by Kermit B. Gosnell, M.D. Gosnell seemed impressive as well. A child of the neighborhood, Gosnell spent almost four decades running this clinic, giving back – so it appeared – to the community in which he continued to live and work.

But the truth was something very different, and evident to anyone who stepped inside. The clinic reeked of animal urine, courtesy of the cats that were allowed to roam (and defecate) freely. Furniture and blankets were stained with blood. Instruments were not properly sterilized. Disposable medical supplies were not disposed of; they were reused, over and over again. Medical equipment – such as the defibrillator, the EKG, the pulse oximeter, the blood pressure cuff – was generally broken; even when it worked, it wasn’t used. The emergency exit was padlocked shut. And scattered throughout, in cabinets, in the basement, in a freezer, in jars and bags and plastic jugs, were fetal remains. It was a baby charnel house.

(By the way, the reference to cats is stylistically odd, since it seems to equate urine with defecation.)

A constant stream of “patients” came through during business hours and, for the proper payment, left with scripts for Oxycontin and other controlled substances, for themselves and their friends.

Though the grand jury in the next sentence makes it clear that the prescriptions weren't valid, I thought it was interesting that here they try to make it sound like receiving prescription drugs for payment is somehow wrong. Of course (absent the "their friends" part) this sentence perfectly describes the business practices of your local Walgreens.

For your reading pleasure, this grand jury report includes such subtitles as: "Murder in plain sight", "Butcher of women", and "See no evil". And the stylistic choices I've been criticizing continue throughout. It really reads more like a news story or history report than an official judicial document.

One particularly bad point is this:

Pennsylvania is not a third-world country. There were several oversight agencies that stumbled upon and should have shut down Kermit Gosnell long ago. But none of them did, not even after Karnamaya Mongar’s death.

To nitpick, Pennsylvania is not actually a country at all. But more directly, a "third-world" country is not one where regulations are weak, it's a poor country. The way the grand-jury chose to word this is not only offensive to those third-world countries that do a better job of policing atrocities than Pennsylvania did in this case, it's diminutive of the many regulatory failures that happen in first-world countries all the time.

And, despite its professed political neutrality, the grand jury managed to slip in some anti-choice rhetoric:

Instead, the Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all. The politics in question were not anti-abortion, but pro. With the change of administration from Governor Casey to Governor Ridge, officials concluded that inspections would be “putting a barrier up to women” seeking abortions. Better to leave clinics to do as they pleased, even though, as Gosnell proved, that meant both women and babies would pay.

(By the way, I wouldn't agree that those politics were very "pro." In fact, they seem like pretty bad politics to me.)

There's a lot more to the report, if you can work your way through it. It all seems to be saying the same thing, though: if Gosnell did what's been alleged, then he was a horrible, horrible man. Beyond that, the main takeaway from the report is that the grand jury needs to take its job as a part of the criminal justice system more seriously, and include less pandering to moral outrage, tired clichés, and media attention.

By the way, I haven't seen anything yet about Gosnell having found an attorney to defend him. I'll have the utmost respect for anyone who steps up to the plate.

Abolishing the Senate

(By Andrew MacKie-Mason)

During the founding, when states actually had some legitimate claim to independency, the small states managed to get the Senate worked in to the federal government, to ensure that the large states wouldn't control the union through the House of Representatives. But in an era where the state that a legislator is from means far less than their political party, the Senate now serves to over-enfranchise those people from smaller states. Unfortunately, any attempt to reform the Senate into something at least vaguely representative will run afoul of the Article V restrictions on amending the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Is there a way around this restriction? I've suggested that we could pass an amendment eliminating the restrictions in Article V. After all, there is nothing in the constitution that prevents us from amending the amendment restrictions out of the document. However, Sandy Levinson at Balkinization has another idea: we should just abolish the Senate. After all, if all the states have no representation in the Senate, then they all have equal(ly absent) representation.

It's an interesting thought, but I'm tempted to disagree. A ban on "depriv[ing a state] of its equal Suffrage in the Senate" seems to also be a ban on "depriv[ing a state] of its [] Suffrage in the Senate". In other words, even if we take away everyone's representation, we're still depriving them in violation of the clause.

This is especially true since whatever power the Senate had would then devolve on the House of Representatives or a new body, and that devolution of power would not be equal. The clause can't reasonably be read as referring to a body with a specific name, but to a body and the power ascribed to it in the Constitution.

So, it seems to me that the correct route is still to amend the restrictions out of Article V, and then go about fixing the Senate.

REINS Act

(By Andrew MacKie-Mason)

Jonathan Adler has a post at Volokh about an interesting proposed law called the "Regulations from the Executive In Need of Scrutiny Act" (REINS Act). In short, the law would require that "major" regulations (those with a high projected cost) be approved by Congress before taking effect.

I'm not sure how I feel about the act, but that's not what I'd like to talk about. If you're interested in it, I encourage you to look into the bill and its provisions. Instead, I'd like to call attention to an interesting rhetorical move that Professor Adler uses at the end of his post:

Given that the REINS Act does not offer a mechanism to bottle up regulations with holds, filibusters or other roadblocks, supporters have adopted the implicit assumption that federal agencies are engaged in more aggressive regulation than the public supports. From what I’ve seen of the other side (and I have not seen much as of yet), some opposed to the REINS Act likewise assume that regulatory initiatives they would support could not command majorities in Congress. I don’t know whether this assumption is accurate, but it would say something if there were to be widespread agreement that federal agencies are regulating in a manner the American people do not support.

See what he did there? It's that subtle shift in language between the last two sentences. He goes from talking about regulatory initiatives that would not command majorities in Congress to talking about federal agencies regulating in a manner the American people do not support.

Not to offer a remedial lesson in United States government to a law professor, but...both the executive and legislative branches represent the American people in different ways. Neither does exactly what the American people want, and it's wrong to suggest that in a conflict between the regulatory agencies and Congress, a majority of Congress will always be on the side of the American people. (This is especially true since a majority in Congress need not actually represent a majority of the American people, but that's a different problem.)

While I'm at it, I'd like to highlight a few issues in the comment section to that post on Volokh.

PersonFromPorlock: While we’re at it, how about a bill requiring that all Supreme Court decisions be enacted — up or down — as laws? There aren’t many decisions in a given year and most of them would be approved without debate. But along with those, controversial rulings like Kelo would have to earn the approval of elected officials before becoming effective.

The most obvious reason that this is wrong (without even getting into how it would eviscerate the separation of powers on which our government is founded) is that it is, you know, unconstitutional.

GoneWithTheWind: Why not require any congressman who wishes to speak or submit anything in writing do so under oath? How could they object to be required to speak the truth under penalty of perjury?

It's unconstitutional to punish people in Congress for anything they say while Congress is in session.

As always, I recommend the Volokh Conspiracy for a mix of thoughtful libertarian thought and amusing right wing ranting.

Government And Religious Schools

(By Andrew MacKie-Mason)

According to Billy Atwell at the Manhattan Declaration, the NLRB has decided that a school is no longer "Catholic enough" to receive certain religious exemptions from employment law. Atwell takes it as an opportunity to pontificate about the dangers of government judging religious institutions, as well as to make the typical dogmatic Catholic call for unity. How dare institutions go their separate way from the one true mother church?

What this really demonstrates is the reason why we shouldn't provide special exemptions to so-called "religious schools." The line is just too hard to draw between what a religious and a non-religious school is.

Instead, the relevant laws should be shaped to provide for sufficient institutional freedom for all schools, religious or secular. And if there's a religious school that wants more freedom, they should be free to make whatever religious choices they want (independent of their association with a larger religious body), but they should no longer be accredited as a legitimate alternative to public education. In other words, children can be sent to learn there, but they must also attend an actual school.

There's no good reason to make special excuses for religious schools over secular schools. It does little, if anything, to promote religious freedom, and does a lot to compromise the integrity of our educational system.

Unconstitutional Bill To Ban Raves In California

(By Andrew MacKie-Mason)

Change.org alerted me to a rather idiotic bill introduced by California Assemblyman Fiona Ma. (On a side note, Change.org's story doesn't link to the actual text of the bill and contains some factual errors.)

The crucial part of the bill reads as follows:

Any person who conducts a public event at night that includes prerecorded music and lasts more than three and one-half hours is guilty of a misdemeanor punishable by a fine of ten thousand dollars ($10,000) or twice the actual or estimated gross receipts for the event, whichever is greater.

Honestly, though, we shouldn't criticize Assemblyman Ma too much. She accomplished the impressive feat of fitting five constitutional violations into a single sentence. It takes a skilled legislator to manage that.

Freedom of Speech

Assemblyman Ma is trying to criminalize events based on the mere presence and duration of music, a form of protected speech. Since the music itself causes no harm (the ban is supposedly aimed at drug use and public safety), the ban would not pass the strict scrutiny required to restrict protected expression.

Freedom of Assembly

Assemblyman Ma managed to violate the First Amendment twice with a single law, even more evidence of her legislative prowess. The First Amendment protects the right of citizens to peaceably assemble. The ban is rhetorically premised on the belief that these assemblies will not remain peaceful, but in order for that rationale to work, an event can only be criminal if it is actually not peaceful. Since the criminal statute requires no showing that the event is unpeaceful, it is facially invalid.

Vagueness (Due Process) - Part One

The bill violates the Fourteenth Amendment protection of Due P

rocess by being unconstitutionally vague in its use of the word "night". Elsewhere, the bill defines "night" as the "period between sunset and sunrise", but that does not make it less vague, since "sunset" and "sunrise" are not legally precise terms. There are, in fact, three different sunsets and sunrises every day: civil, nautical, and astronomical.

Citizens are entitled to know exactly when they are violating the law. In some cases it may be clear that it is night time, but in cases where it's a close call the bill unconstitutionally vague.

Vagueness (Due Process) - Part Two

The bill is also unconstitutionally vague in its definition of punishment. It provides for fines of "twice the actual or estimated gross receipts for the event", but provides no mechanism to properly "estimate" gross receipts. A law cannot provide for arbitrary punishment, which is what an amorphous "estimate" or profits would amount to. (This would effectively allow as large fines as the prosecutor and judge desire.)

Over-broad (Due Process)

The bill is premised (as clear from the title: "Anti-Raves Act of 2011") on the supposed danger that "raves" pose to public safety. However, the bill bans far more than raves, mostly due to the vagueness of the term "prerecorded music". Taken literally, as we must take any undefined terminology, this means any music that is not performed live. (Note that there is no difference between "recorded music" and "prerecorded music".)

So, some examples of events that could be criminally prosecuted under this bill, were it ever to pass:

• An evening open house put on by someone attempting to sell their home, that includes any sort of music played off of a CD or other recorded format. (Better hide that Bach and Wagner!)
• A barbecue at the local park where someone leaves the radio on (and the radio station is playing normal recorded music, not live performances).
• A homeless person playing for donations on the street or subway at night.

I'm sure you can think of more.

So, let's applaud Assemblyman Ma for her incredibly impressive feat, and then make sure she's never elected again. Her approximate district is shown at right (she also represents some islands). If you live in the San Francisco area (as I know some readers do) or know people who do and are in her district, check the other box on the ballot next time you get the chance.

The Veil of Civility

(By Andrew MacKie-Mason)

A few days ago, "Dr." Kermit Gosnell was arrested for running a house of murder: mothers who were very far along in their pregnancies but who wanted abortions would come to him, and he would induce a birth, at which point (after birth) he would snip the baby's neck with scissors. It's even reported that Gosnell kept aborted fetuses in jars in his office, and had other jars containing severed feet from babies that he killed.

Some people are jumping at the opportunity to claim some false moral equivalency between "Dr." Gosnell and doctors who perform proper abortions. Mostly, it's coming from places like RedState: in other words, conservative echo chambers that have no real impact on public discourse. However, a few supposedly legitimate names have joined the fray. Rick Garnett, for instance, made a strikingly transparent post on Mirror of Justice today. He writes:

One wonders how they [those who attempted to politicize the Tucson shooting] would respond if those they attempted to smear turned the tables on them in light of the Gosnell case, saying something along the following lines:

"I blame Barack Obama, Nancy Pelosi, Keith Olbermann, the editors of the New York Times, and others who have advanced the cause of abortion in our culture and politics. Their rhetoric ("fetus," "products of conception," etc.) callously denying the humanity of the child in the womb, and their fierce opposition to any sort of meaningful legal protection against abortion, are responsible for creating a climate of contempt for human life that made Gosnell's actions virtually inevitable. Tell me, when you heard the terrible news from Philadelphia, were you completely surprised? Or were you, at some level, expecting something like this atrocity to happen? Count me in the latter camp. And by the way, do you think we can guess whether the doctor is registered as a Democrat or Republican? I wonder how many times he has visited the website of the Daily Kos? Do you think he watches Fox News or MSNBC? Do you suppose he voted for McCain or Obama?"

Now, I don't want our political discourse to be conducted in this manner. It is not good for the health of our democracy. So I am not urging Sarah Palin or the conservative talk radio hosts who were smeared alongside her to turn the tables on their critics in this way. In fact, I urge them not to. (My advice to them is to condemn, not copy, their opponents' tactics.) My point is that those who seized on what happened in Arizona to attempt to smear their political opponents would scarcely be in a position to complain if their opponents now deployed their tactics against them. And there is a lesson for them, and for all of us, in that.

In reading this, I was reminded of a Capitol Steps routine, where the actor playing Bob Dole says (in the iconic third person):

Bob Dole would never resort to calling Bill Clinton a pot-smoking, dirty-dealing, draft-dodging, document-hiding, earing-wearing skirt-chaser. Bob Dole wants to talk about issues. Like crime. And keeping the streets free of criminals. Criminals like Bill Clinton. Bob Dole wants to talk about education. Like educating people about Bill Clinton's illegal contributions from Indonesian businessmen.

Or, if you prefer something a little more classic:

The noble Brutus
Hath told you Caesar was ambitious:
If it were so, it was a grievous fault,
And grievously hath Caesar answer'd it...

He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honourable man.
He hath brought many captives home to Rome
Whose ransoms did the general coffers fill:
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept:
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man...

I speak not to disprove what Brutus spoke,
But here I am to speak what I do know...

O masters, if I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do Brutus wrong, and Cassius wrong,
Who, you all know, are honourable men:
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honourable men.
But here's a parchment with the seal of Caesar;
I found it in his closet, 'tis his will:
Let but the commons hear this testament--
Which, pardon me, I do not mean to read--...

Have patience, gentle friends, I must not read it;
It is not meet you know how Caesar loved you.
You are not wood, you are not stones, but men;
And, being men, bearing the will of Caesar,
It will inflame you, it will make you mad:
'Tis good you know not that you are his heirs;
For, if you should, O, what would come of it!...

Will you be patient? will you stay awhile?
I have o'ershot myself to tell you of it:
I fear I wrong the honourable men
Whose daggers have stabb'd Caesar; I do fear it...

You will compel me, then, to read the will?
Then make a ring about the corpse of Caesar,
And let me show you him that made the will...

Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.

(I apologize for the length. Anthony's rhetoric is so well crafted that it's hard to cut it down. I did hesitate to use this comparison, since it elevates Garnett's writing to a level of rhetoric that it does not even approach, but I trust that we can compare the idea of the two without thinking Garnett's anywhere near as effective as Shakespeare's.)

Garnett tells us that civility in public discourse is an honorable thing, one he would rather see protected. He wouldn't do something so dishonorable as to call those who support a woman's right to choose neck-snipping, feet-saving baby killers. No, he wouldn't say anything like that. He, after all, respects the honorable goal that is public civility.

A little more substantively: there is not a mainstream abortion advocate who would ever say that Gosnell had the right to do what he did. It's a mistake to characterize the woman's right to choose as the right to choose to kill her baby. It is, instead, a right to remove something from her body. The fetus is killed because it is not capable of surviving outside of the womb. If the children that Gosnell was delivering were indeed viable, he was under every obligation, both medical and moral, to save their lives.

To put it another way: if we had the technology to remove a fetus from a womb and bring it to term without killing it, no one would have the right to perform an abortion.

So don't fall prey to this type of overblown rhetoric, even when it comes in the "I'm not going to call you a completely immoral person. That would be rude" form. "Dr." Gosnell was not an abortionist: he was a murderer. The line should be clear.

Hacking Your Own PS3

(By Andrew MacKie-Mason)

Can apparently land you in some legal trouble. Apparently, Sony sued for a restraining order against some people who hacked a PS3, under the theory that the people were criminally gaining unauthorized access to a computer, which is a federal crime.

Orin Kerr thinks that this is ridiculous. How, he asks, can you be criminally charged for doing something to a computer that you own?

I'm not so sure that this case is so clear cut. Don't we want to provide some protection to companies who want to sell complicated products without people learning how they work? In some sense, won't the ability to sell a "black box" to consumers in some ways encourage companies to produce more advanced products?

I'm not saying that Sony should win on this. But it's not entirely clear that they shouldn't.

The Activity/Inactivity Distinction

(By Andrew MacKie-Mason)

You may have heard about the so-called "activity/inactivity" debate that's started with regard to the "individual mandate" that went along with last year's health care initiative. It was the basis one federal judge used to strike down the mandate, and it's the core of the argument that the more mainstream opponents of the bill have latched onto as their only real hope of winning in the Supreme Court.

First, a little background. The distinction relates to the Commerce Clause, which gives Congress the power: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" and to the Necessary and Proper Clause, which gives Congress the power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

In the past two hundred years, modernization has made the American economy more and more interconnected, to the point that there's little commerce now that isn't either interstate or closely connected to (and thus affected by) interstate commerce. As a symptom of this natural shift in the American economy, the Commerce Clause now authorizes a lot more actions than it did when enacted.

That expanded license to Congress scares a lot of people. They've searched the Constitution for ways to limit this economic power, in full faith that such means of limiting it must be there, since we're all taught that the Constitution gives very limited powers to the federal government. But when you get right down to the text, when you RTFM, it's clear that Congress has the power to regulate things related to almost all commerce in the nation.

Of course, that doesn't mean that they will. One of the most powerful checks on the federal government, the ballot box, still exists. (In a way, the new House of Representative's recent, hasty, symbolic vote to repeal the relevant law in its entirety cuts agains this desperate search for constitutional limits on the Commerce Clause.) But, when it comes right down to it, the economy is within Congress's power to regulate.

Various conservatives and libertarians are unwilling to accept that, however. And this is how we got to the invention of the activity/inactivity distinction. Because they assume that there must be a limit on the Commerce Clause, they just...made one up. Without any foundation in the text of the clause.

The worst thing about this, at least to me, is that some academics are supporting this distinction, even though they know that it's one that has no actual grounding in the Constitution. Take what Ilya Somin wrote at the Volokh Conspiracy:

Finally, I should note that I did not say that the Constitution gives Congress the power to prohibit boycotts. I merely meant that such regulation is permissible under current precedent, which allows Congress to regulate virtually any “economic activity.” As I have argued elsewhere, I think much of that precedent is badly misguided. The activity-inactivity distinction is an interpretation of current precedent, which focuses heavily on the concept of “economic activity.” It is not an endorsement of that precedent or a theory of the correct interpretation of the constitutional limits to federal power.

In other words, he realizes that the distinction is crap, but it fits with current precedent and gets the result he wants, so what the hell. Let's run with it. That might be acceptable, or even required, behavior from advocates, who are supposed to do everything they can to ensure that their clients win. But from an academic, it's despicable.

Constitutional arguments can appeal to various, legitimate sources:

• The text of the constitution, because it's the text we all read and implicitly agree upon every day. It's also the exact text that was voted on in the past, and gives us a firm basis for written law.
• The original meaning of the text, because it gives context to those votes and helps us understand where various provisions come from, helping us know how to apply them in the present.
• Current public understanding of the text, since in a government by consent we are bound by our agreement to the document how we understand it, not how it was passed down to us.
• The meaning and effect of precedential opinions, because they're signposts on the trail of constitutional interpretation. They let us know how our understanding of the document has evolved, and what it has meant throughout time.

However, what proponents of the "activity/inactivity" distinction are doing is appealing to the specific text of past opinions as though the minute details of the writing of one justice, subject to the approval of four others, in one of many opinions written in a single year is somehow sacrosanct constitutional material. In other words, they're taking references to "economic activity" in cases that had nothing to do with this distinction, and manipulating those words to create a new distinction. Unlike the text of the Constitution itself, the text of such opinions is almost meaningless. We need the text only in order to understand what the opinion did, and why. We can't pretend that this sort of detail in an opinion actually means something of constitutional importance.

The "distinction" is the creation of people desperate for some artificial limit on Congressional power, justified by a thinly veiled opportunist appeal to small, irrelevant details in a few past opinions. In other words, the distinction is crap.

Hey Prosecutor: You're Doing It Wrong

(By Andrew MacKie-Mason)

Everyone knows about the high-profile shooting in Arizona. This is about that, except that it's not. It's about something the prospective prosecutor said regarding the case:

County lawyers were still researching whether state and federal cases could proceed concurrently or whether her office would wait until federal prosecutors had finished their case. The state has no deadline, Ms. LaWall said, to bring the matter before a grand jury because Mr. Loughner is in federal custody, not in state custody.

“This is not just a professional matter for me but a personal one since I knew many of these victims,” she said.

There are good reasons why we don't let family members of victims prosecute their assailants. Prosecution is not supposed to be personal. Prosecution is about society and doing what's right, not exorcising personal demons or hurting someone who's hurt you. It's not, in other words, about vengeance. Ms. LaWall seems to have forgotten that, which is why, should she end up prosecuting the shooter, she will be abrogating her responsibility (both professional and moral) to remain removed from the prosecution and not get personally involved. Her prosecution, in other words, will be extremely unjust and an abuse of power.

Audio Recordings of On Duty Police Officers

(By Andrew MacKie-Mason)

The two states I've lived in (Illinois and Michigan) have different approaches to covert audio recording. Michigan is a one-party consent state. That is, if you are a participant in a conversation, you may freely record that conversation. You may not, however, record a conversation that you are not a part of. Illinois, on the other hand, requires everyone who is being recorded to consent to the audio recording.

Both positions have their merits, but Illinois' is more troubling. While being unable to record most daily interactions is a small matter, there is a specific situation where the ban on recording can create a serious problem. That situation is civilian interactions with police officers.

The effect of Illinois's law (720 ILSC 5/14) is that citizens are criminally forbidden from recording police officers in the course of them executing their duties, but that police officers have basically free reign to record citizens during almost any encounter. In other words, the police and the state maintain complete control over the flow of information. If they want a conversation recorded, they can record it. If they want evidence of it to be based solely off of the officer's subjective or false recollection, they can choose not to record it. Citizens, in other words, have no way to protect the truth.

This is particularly troubling in a society that is recognizing more and more the threat of police perjury. Take, for instance, this story from the Volokh Conspiracy about an appeals court all but accusing trial courts of failing in their constitutional obligations and all but covering for police officers who commit perjury on the stand, when they make false claims about what citizens said to them. In most states, those citizens at least have the chance to record the encounter and prove that the police are lying. But in Illinois, doing so (even if, in fact, the cop committed perjury) could land someone in jail.

The ACLU of Illinois apparently tried to fight this statute on First Amendment grounds. They lost, unsurprisingly, because there's no way in which the "eavesdropping" (that's a misleading title, but it's what it's called) statute violates the First Amendment.

The ACLU would have been much wiser, I believe, to fight the statute with the Fourteenth Amendment. Preventing people from creating audio recordings of the police, while in itself not a violation of due process, becomes one when the conversations not recorded are introduced in court. Unless the state is willing to give full credit to anything the defendant claimed happens, the defendant should have had as much leeway as possible in producing evidence of what occurred. One such method, of course, is creating audio recordings of interactions that may later come up in a criminal prosecution.

Even if the eavesdropping statute stands, there's one (risky) way to still record the police: inform them, at the beginning of any encounter, that you're taping it. Arguably, at least, their choice to continue the verbal encounter is tacit consent to the audio recording.

I say it's risky because, of course, you're admitting that you are, at least under one interpretation, violating the law. And, of course, there's no guarantee that the tacit consent argument would work. But if you're in the mood to fight the eavesdropping statute (and who knows, maybe on the right day I will be), that seems like the best way to go about it.

Hobbes As A Compatibilist

(By Andrew MacKie-Mason)

There's always been tension between the ideas of free-will and determinism (the theory that the universe is fully governed by physical laws that are fully determinate in their outcomes). I've read a book by Dan Dennett on the subject, and I've got another one by Daniel Wegner that I've been meaning to read. But I found an interesting passage in Leviathan by Thomas Hobbes on the topic that I thought I'd mention:

Liberty and necessity are consistent: as in the water, that hath not only liberty, but a necessity of descending by the channel, so likewise in the actions which men voluntarily do, which, because they proceed from their will, proceed from liberty, and yet, because every act of man's will and every desire and inclination proceedeth from some cause, and that from another cause in a continual chain (whose first link is in the hand of God the first of all causes), they proceed from necessity. So that to him that could see the connection of those causes, the necessity of all men's voluntary actions would appear manifest.

I tend to agree with Hobbes here, but at the very least it's interesting to see that the debate (and the basic compatibilist position) has been around for a long time.

(The above passage is in Chapter XXI, Paragraph 4 of Leviathan by Thomas Hobbes, drawn from the 1994 edition, edited by Edwin Curley and published by Hackett Publishing Company, Inc.)

Old News Roundup

(By Andrew MacKie-Mason)

I've fallen incredibly behind in terms of all of the things I wanted to write about, so here are headlines and brief comments about some things that I hoped to turn into posts, but probably never will.

• Government and Business

A humorous reply to a sob story about government "stealing" so many taxes from businesses. The author (David Feige, author of "Indefensible," a great book) responds by pointing out all the things that businesses (and really, human beings) rely on government for day-to-day. Roads, water, sewer, police, etc... Worth a read and a chuckle.

• New York Times: "Republicans Are Given a Price Tag for Health Law Repeal, but Reject It"

The title basically says it all: we should trust the Republican's faith in the repeal rather than the independent analysis performed by the Congressional Budget Office.

• Congressman Objects To A Lack of Special Consideration by TSA
• Congressman Tom Delay, who regularly voted against criminal justice reform, complaining about how the criminal justice system is trying to ruin his family

It's always nice to see someone getting a taste for what it's like to be on the receiving end of the policies they implement. Everyone thinks criminals are evil...until the first them they get caught committing a crime.

• A letter from a Christian about the Manhattan Declaration-Apple situation

This guy attempts to make the extremely amusing "we believe in religious freedom because God says to" argument, but adds to it a new one: the claim that Christianity invented free will. Because, you know, before Jesus, no one believed in free will...that's why when you read the famous Greek philosophers you never hear about free will. And that's just the example that came to mind while I was writing this paragraph. Concepts of free will almost certainly predate writing. Maybe even language. Christians cannot lay claim to free will as their own.

• The pope, on the other hand, recognizes that religious freedom is a way to build peace between faiths, not something that's dependent on Christianity for protection.

And finally:

• The Republicans in Congress, who thought that taking a year to debate and work on health care reform was "pushing it through" and "jamming it through the legislature" want to vote to repeal the law just two weeks after taking office.

And that's our roundup. I'm sad that I didn't get to say more about these things, but this'll have to do. Thanks for reading!

Is Skin Whitening Racist?

(By Andrew MacKie-Mason)

A few days ago I got a typical email from Change.org, asking me to sign a petition about a certain injustice. Usually, these petitions are relevant and well thought out, even if they are about relatively minor issues. It's often worth the time to click through and sign. But every once in a while, one comes along that makes me question whether Change.org really knows what it's talking about. This email read:

Dear Andrew,

Indian actress Aishwarya Rai Bachchan appears on the January cover of Elle magazine, but

she's outraged by the image. Her skin appears far more pale than it is in real life. Her dark brown hair is shown to be practically red.

Elle claims to celebrate women of color by featuring them on magazine covers, but this is the second time in just six months that Elle has blatantly made women of color more white. (The last controversy surrounded Precious actress Gabourey Sidibe.)

For better or worse, publications like Elle play a huge role in determining global standards of beauty -- especially for young girls and teenagers who read it. It sends a cruel and dangerous message to women of color everywhere when Elle manipulates the skin color of one of India's most famous actresses just so she can appear on a magazine cover.

Here's our opportunity: Elle is a business that cares more about its bottom line and public image than anything else. To change their behavior -- and send a message that reverberates through the whole fashion industry -- we need a public outcry.

Join Change.org members in telling Elle Magazine to ends its practice of racist skin-whitening.

India already has a billion-dollar skin-whitening industry. Many women burn their skin through the use of unsafe whitening products. And there's a pervasive prejudice against girls who are "too dark" and therefore can't get hired or married.

A global publication like Elle has no business reinforcing that racist and damaging stereotype. Elle suffered from some bad press when the magazine cover came out, but there still needs to be a massive public campaign to force them to take real action. This is that campaign.

Tell Elle that women don't have to be white to be beautiful – and to apologize for its offensive doctoring of its cover models:

http://www.change.org/petitions/view/tell_elle_magazine_to_apologize_for_skin-bleaching_aishwarya_rai_bachchan?alert_id=SPPuQeEVud_ghpVBDNYOC&me=aa

Thanks for taking action,

- Judith and the Change.org team

It sounds plausible, at first. A fashion magazine making someone look paler skinned then they actually are...that's not right, is it? It sounds like racism. But is it really? Let's separate out a few of the issues that the Change.org email blends together.

(Image at right borrowed from Change.org site without permission under criticism and critique fair use standards.)

1. Personal Insult and Outrage

The email opens with this: "Indian actress Aishwarya Rai Bachchan appears on the January cover of Elle magazine, but she's outraged by the image." And it seems like there is at least some room for this personal outrage: the magazine is, it seems, telling her that she doesn't look good enough, and that they want to make her look better.

At the same time, though...they're telling her she's good-looking enough to put on a magazine cover. And they do a lot of other things (hair, makeup, clothing) to make her look better as well. So, all in all, this personal outrage rings a bit hollow. At the most, it seems like a poorly written contract: she apparently agreed to give them the right to put up photos of her without her approval of specific pictures. She should probably get better contracts from now on.

2. Beauty Standard Manipulation

The main truthful claim that the Change.org email lays out is that Elle is manipulating the image of beauty in favor of lighter skin. They most certainly are. But...so what? Magazines like this manipulate the cultural image of beauty all the time, whether it's skin tone (the noticeable preference for an unrealistic tan), body type, hair color...cultural perceptions are manipulated by these magazines every day. But in a way, that's what they're there for. And if you have a problem with that, your problem is not with Elle, it's with the industry and their customers.

3. Specific Skin Tone Manipulation

Is there something about manipulating skin tone that makes it somehow worse than other body image things? I don't think so, really. We have a natural, American tendency to think that there is, since skin color has played such a large part in our cultural and racial divides. But if we're still at the point where lightening someone's skin makes them more a part of the "white" culture and darkening their skin makes them more a part of the...I don't even know a good word for it, but my meaning should be clear.

I don't think you can look at the Elle cover and say: "Aha! They're promoting Caucasian supremacy over Indian culture!" I think you can look at it and say: "They're promoting a light-skinned view of beauty," just like you can look at the latest Sports Illustrated Swimsuit Edition and say: "They're promoting a dark-skinned view of beauty." The racial elements just aren't there, unless you add them in.

4. The Dangers of Skin Lightening

This part, if it's accurate, is something that I think they should have played up. The email claims "Many women burn their skin through the use of unsafe whitening products." And if these cultural norms really are causing medically unsafe practices, they're definitely something we should look at, just like we should look at the tendency of slim-beauty images to promote unsafe eating disorders. If Elle is actually contributing to a culture that is harmful, they're doing something wrong. But there just isn't enough focus on that, and thus no reason to believe that the claims made in passing aren't exaggerated.

All in all, this email is a perfect example of the tendency to see racial issues where they don't exist. Sometimes, skin tone can be just that: the color of your skin. It doesn't have to be about your race.

Same-Sex Marriage and the Equality Framework

(By Andrew MacKie-Mason)

This is the second part of my attempt to discuss marriage equality through a rigorous equality framework. I explored and defined that framework in this post, and now turn to applying it to the question of equality in marriage for same-sex couples. I'll focus on what I term the "philosophical" argument against marriage equality. This argument is based on the claim that there is an inherent, significant difference between same- and different-sex couples that makes the former non-marital. Other arguments against same-sex marriage have not had a principled or reasoned enough spokesperson to make criticism fair.

The Philosophical Argument Against Marriage Equality

The philosophical argument has been made most prominently (recently) by Sherif Girgis and others writing with him (for the sake of simplicity, I will refer only to Girgis). It focuses on the question, "what is marriage?", and tracks closely to what I characterized as a categorical argument in my previous post. That is, they claim that the differences between same-sex and different-sex couples are so categorical and linked to the nature of marriage that seeking equality between the two is irrational. My references to their argument are drawn mainly from their paper "What is Marriage?", and page numbers are from Vol. 34, No. 1 of the Harvard Journal of Law and Public Policy.

In differentiating his position from those who opposed interracial marriage, Girgis establishes that they are making a categorical argument:

But the analogy fails: antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter ques‐ tion. Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genu‐ inely relevant distinctions. (249)

Thus, we may evaluate this philosophical argument on the criteria established before for categorical anti-equality arguments.

1. Are members of the two groups categorically different when it comes to certain characteristics?
2. Is that difference essential to the way those two groups are defined?
3. Is the discrimination between the two groups limited in scope to matters dependent on characteristics in which the groups categorically differ?

1. The Categorical Difference

So what is the supposed difference between same-sex couples and opposite-sex couples that is such a problem for Girgis? Obviously, the only difference between the couples is the gender of one partner, but what, specifically, is the issue?

To find out, we look at Part I, Section B of the paper: "Real Marriage Is - And Is Only - The Union of Husband and Wife". In the first subsection, Girgis identifies what he claims is the first place that same- and different-sex couples are categorically different: their capacity for organic bodily union. Per Girgis, union requires that two bodies be "coordinated for some biological purpose of the whole" (254). Thus, our bodies are unified because different organs are coordinated for the purpose of keeping us alive, and a couple can be unified only if their bodies are coordinated for a single biological purpose.

Girgis further states that "individual adults are naturally incomplete with respect to one biological function: sexual reproduction" (254). Thus, bodily union only occurs, he claims, when two bodies are 'coordinated for the biological purpose of sexual reproduction'. What does this coordination entail, precisely?

In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. (254)

In other words, they are coordinated towards a purpose because they are performing the act that begins the process towards that end goal, "even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur" (254).

The problem with this argument, one that has been noticed and pointed out so many times (including at least once by me, here) that it hardly bears repeating, is that this definition of bodily union is under-inclusive: it excludes from marriage many people (including infertile heterosexual couples) who no one thinks should be so excluded.

Needless to say, Girgis disagrees: he doesn't think that his definition of bodily union excludes infertile couples. However, in attempting to save infertile marriages, he dooms his entire categorical argument. Girgis writes:

Any act of organic bodily union can seal a marriage, whether or not it causes conception. The nature of the spouses’ action now cannot depend on what happens hours later independ‐ ently of their control—whether a sperm cell in fact penetrates an ovum. And because the union in question is an organic bod‐ ily union, it cannot depend for its reality on psychological fac‐ tors. It does not matter, then, if spouses do not intend to have children or believe that they cannot. Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies...

Similarly, the behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non‐behavioral factors in the process—for example, low sperm count or ovarian problems—prevent conception from occurring, even if the spouses expect this beforehand.

What Girgis tries to do is draw a line between the "behavioral" parts of the reproductive acts and the "non-behavioral" factors. However, when considered in depth, it is clear that this line appeals to differences in scale, not categorical differences, and thus betrays his thesis that homosexual intercourse is so categorically different from heterosexual intercourse. What Girgis is trying to distinguish between are two levels of abstraction of the reproductive act, and any line between levels of abstraction is necessarily arbitrary rather than categorical.

Consider, by way of analogy, the act of picking up an item from the shelf at a store to buy. The following are all descriptions of that act, in increasing order of specificity.

1. Physical contact between two objects.
2. Physical contact between two objects in which the second remains still prior to the contact, and then the two objects remain in contact for a period of time.
3. Physical contact between one object consisting of an almost rectangular portion and five appendages with another object...
4. Physical contact between one object consisting of an almost rectangular portion and five appendages that is attached to a cylindrical object with another object...

This could continue on and on, until you finally get to:

• Physical contact between a hand that is a part of a living human body and an inanimate object located in a building owned and operated for the purposes of selling such objects, whereby said physical contact causes the inanimate object to be removed from its current position and instead remain in close proximity to the living human body.

Who knows, you might even be able to get more specific than that. At any rate, it's clear that there's only one categorical distinction we can draw: you have a description (the last one) of the exact act of picking an item from the shelf to buy, and you have various abstract descriptions. Any distinction between levels of abstraction is not categorical: it is simply a matter of the level of abstraction.

Now, consider this principle applied to an understanding of reproductive acts: that is, acts aimed at the purpose of reproduction. It's possible to construct definitions of what acts are aimed at reproduction that have varying levels of abstraction. These definitions ascribe more or less to Girgis' (false) "behavioral" or "non-behavioral" categories.

The only "different" definition is the one that is no longer abstract: the one that includes every aspect of the reproductive act. Those aspects are:

• Penetration
• Ejaculation
• Knowledge (or at least presumption) of fertility
• A lack of birth control

Girgis would seem to want you to ignore the last two. Those, he claims, are not "behavioral". But that's just because he's examining the sexual act from a higher level of abstraction. It is certainly a behavioral aspect of reproduction for a man to have sex with a fertile woman (or at least a woman he believes is fertile). If I try to write with a pencil that I know is out of lead, can I really be said to be fulfilling the behavioral requirements of writing? Likewise, it is a behavioral aspect of the reproductive act to not attempt to prevent conception by means of birth control. If someone tries to write with a pen that still has the cap on it, have they fulfilled the behavioral requirements of writing?

What this should make clear is that Girgis' argument fails on the first requirement: the distinction between infertile heterosexual intercourse and homosexual intercourse is not categorical, at least not on the argument that one is "oriented" to reproduction and the other is not. They are both different levels of abstraction of the behavioral act of intercourse leading to reproduction: neither is completely and fully that act.

If you are still not convinced, consider an analogy that Girgis included in his own argument:

A baseball team has its characteristic structure largely because of its orientation to winning games; it involves developing and sharing one’s athletic skills in the way best suited for honorably winning (among other things, with assiduous practice and good sportsmanship). But such development and sharing are possible and inherently valuable for teammates even when they lose their games. (256)

However, a better analogy would be between an infertile couple and a baseball team that claims "we are playing baseball" but does not send a batter to the plate. They play the field perfectly well, but never send a batter. At a certain level of abstraction, that team is playing baseball...but so is the team who has their batters attempt to swat at the pitches with their bare hands, or stand in front of every pitch. Abstracted enough, all of these people are playing baseball, just like, abstracted enough, all sexual acts are oriented towards reproduction. However, the only team that is truly playing baseball is the team that is playing and trying to win, just like the only couple that is truly oriented towards reproduction is the one where all of the conditions, including the capabilities of each body, are fully prepared for conception.

2. Tailoring to Groups

If we accept that Girgis' categorical distinction is coitus (that is, a sexual union between two bodies that is oriented to the end goal of reproduction, which, incidentally, I would agree is categorically distinct from other forms of physical contact), then the same-sex/different-sex grouping of couples is not tailored to the categorical difference, since there are many different-sex couples who do not engage in coitus: infertile couples, couples who use birth control, etc. Thus, since the same-sex/different-sex distinction is not tailored correctly to the real concern (coitus), it is not a legitimate basis for discrimination.

3. Tailoring to Different Characteristics

Assuming that Girgis' argument had passed the first two points, he would still have to show that coitus is reasonably a part of marriage. However, since non-coital couples (infertile, birth-control employing, etc) have always been allowed to marry, it seems difficult to argue, at least historically, that marriage discrimination is rationally related to the categorically difference imposed by a coitus requirement.

A Different Difference

It's tempting to answer the above critique by pointing out that there is certainly a categorical distinction between same-sex couples and different-sex couples: one is composed of two men or two women, the other is composed of one of each. I agree: that is a categorical difference. However, that's only requirement 1: in order for this difference to justify marriage discrimination, it would have to pass requirements 2 and 3. When it comes to modern roles in marriage, genders matter only in the sexual act. Thus, for the gender-only-as-categorical-difference argument to succeed, it would have to demonstrate that the categorical difference extends, in a maritally significant manner, to sexual union. Otherwise, the difference exists, but fails on requirement 3 to justify discrimination. Girgis' attempt is the best I've seen to claim that the categorical difference extends to sexual union, but as shown above, that attempt flops. Thus, though same-sex unions are certainly categorically different from different-sex unions, it doesn't seem to be in a way that's relevant to marriage.

Difference in Scale

It's clear that Girgis' paper fails to make the categorical distinction between heterosexual and homosexual marriages that it is attempting to. But can we rescue his argument as a difference-in-scale justification? That is, while the sexual union between two men or two women is not categorically distinct from the sexual union between a heterosexual couple, are there significant harms associated with what difference-in-scale does exist to justify marriage discrimination?

Girgis attempts to work this argument into his paper, in a sideways kind of fashion, in a section entitled "How Would Gay Civil Marriage Affect You or Your Marriage?" There, Girgis makes three primary arguments:

1. Emotional Rather Than Physical

Girgis first claims that marriage equality would erode social norms and make marriage seem more of an emotional than physical union. "In redefining marriage, the law would teach that marriage is fundamentally about adults’ emotional unions, not bodily union or children, with which marital norms are tightly intertwined" (260-61). To a certain extent, I don't think this would be a bad thing. But even accepting Girgis' claim that it would be, this argument rests so heavily on his previous conclusions regarding the physical differences of homosexual and heterosexual acts that, once those fall, this does too. Even if the reproduction argument still stood (which it does not), there is still physical union between homosexual couples. To say that their unions are based solely on emotion, Girgis must be covering his eyes, plugging his ears, blocking out the world, and just imagining what a homosexual relationship is like. His claims certainly bear no resemblance to reality.

2. Well-Being of Children

Girgis next argues that recognizing same-sex unions as legitimate will erase the norm of biological parents raising children. His first error consists in a misleading appeal to social science that has not answered the questions he suggests it has (263). The other can be found in criterium 4 I identified for difference-in-scale arguments in the previous post: namely that discrimination be reasonably scaled to the differences that exist. A vague, unsubstantiated fear that allowing same-sex marriage will perhaps somewhat erode a norm that provides a speculative amount of benefit to children certainly does not justify such pernicious discrimination, especially when that discrimination may also harm children by preventing them from growing up in a household with married parents.

3. Religious Freedom

Girgis' final fear is...frankly, ridiculous. He claims that state-recognition of same-sex marriages will threaten religious freedom. In a sentence dripping with hypocrisy, he writes: "The state would thus be forced to view conjugal‐marriage supporters as bigots who make groundless and invidious distinctions" (263-64). Of course, the state viewing same-sex couples who wish to get married as not capable of full bodily union is so much better. Besides, the state would in no way be "forced" to view anyone as "bigots", whatever that even means. State endorsement of one view does not make anyone who disagrees a "bigot". (The lack of a rational reason for discriminating between same- and different-sex couples might very well make people bigots, though that would be independent of state action.) Girgis concludes with unsupported tripe about how parents have some sort of religious-freedom right to impose their beliefs on their children without contradiction, a baseless view I've refuted here.

Conclusion

Girgis and his co-authors attempt to make a categorical argument against marriage equality. Same-sex relationships, they argue, are intrinsically different from marital relationships because they lack a certain, well-defined act: sexual intercourse and bodily union oriented towards a reproductive end. However, for the distinction between coitus and other intercourse to be categorical, it must be a complete distinction: that is, coitus must be understood as an act where all the requirements of reproduction are met (even if conception does not occur). In other words, coitus (as categorically distinct from non-coital intercourse) requires fertility (at least some chance, however unlikely, of conception), a lack of effective birth control, etc.

Thus, the philosophical argument against same-sex marriage fails for one of two reasons: if the justifying distinction for the discrimination is the nature of the intercourse, the distinction is not categorical (and thus fails question 1). And if the justifying distinction is a truly categorically distinct understanding of coitus, then the same-sex/different-sex differentiation is not accurately tailored to the distinction (and thus fails question 2, and probably question 3 as well).

Even the two most obvious attempts to save Girgis' argument fail: if we define the categorical difference as simply one of gender, the difference no longer provides a justification for marriage discrimination. And it's similarly impossible to save the argument on a difference-in-scale claim, since there are no social harms to recognizing same-sex marriages unless we already accept Girgis' flawed proposition that there is some natural, categorical distinction between hetero- and homosexual couples that makes marriage a solely heterosexual activity.

Girgis and his co-authors made an admirable attempt to defend their religious and social norms, but unfortunately it seems a doomed project: there is no categorical distinction they can find that truly separates the marriages they approve of from the marriages they condemn.

(This post is of draft quality and subject to revision. As a blog post response to a published journal article, it was impossible to respond to every element of Girgis et al.'s argument. I have attempted to sketch the outline of flaws in their reasoning, but a more detailed rebuttal would require, of course, more detail.)