Politics: November 2008 Archives

One justification for disallowing bans on same-sex marriage is that it's seen as discrimination to prevent same-sex couples from marrying. [In this post I'm not considering under what circumstances discrimination is wrong and when it's perfectly ok. The moral issue isn't my interest here. I'm just looking at whether it's discrimination, leaving aside the moral issue of whether such discrimination is ok. It's ok to discriminate against black people when casting a part in a play for a character that was written as a white racist. But it's still discrimination, just a perfectly legitimate kind. I'm interested in the legal implications here, not the moral ones.]

Whether a practice or act counts as discrimination depends on some assumptions. Two key issues are (a) who is being discriminated against and (b) on what basis.

Consider Loving v. Virginia, the Supreme Court case that overturned bans on interracial marriage. The Supreme Court ruled that the Equal Protection clause of the 14th Amendment prevents states from treating individuals of different races differently when it comes to who they can marry. If a man is black, he couldn't marry a white woman in Virginia, but if he'd been white then he could have. That's discrimination against individuals along race lines.

Restricting marriage to same-sex couples isn't quite parallel. It doesn't discriminate against individuals according to sexual orientation. A gay man has the same rights as a straight man. He can marry an unmarried woman who is of age or who otherwise satisfies the requirements for marriage (parental consent or whatever). Both can marry women, and neither can marry men. Similarly, a lesbian has the same rights as a heterosexual woman. Both can marry men, and neither can marry women. That's not discrimination according to sexual orientation, since people of both sexual orientations (holding sex constant) have exactly the same restrictions. The law is equally applied to gays and straights.

But it is discrimination against couples. Same-sex couples are not allowed something that opposite-sex couples are allowed. Does a couple have the kind of legal status to serve as a party in this kind of legal question? My suspicion is that it would be a major innovation in our legal system to treat a couple as a legal entity. I'm not sure that's the best strategy for same-sex couples to try if they want to make headway on this issue, but it is the easiest way to end up with a discrimination claim on the basis of sexual orientation.

I've long thought that the most promising case that bans on same-sex marriage are discrimination is to ignore sexual orientation entirely and to focus on a different basis of discrimination. Men are being discriminated against on the basis of their sex by not being allowed to marry people women are allowed to marry, and women are being discriminated against on the basis of their sex by not being allowed to marry people men can marry. If you ignore sexual orientation, as many social conservatives want to do, then this complaint gets a footing. Of course you have to think any discrimination on the basis of sex is wrong or explain why this particular one is if others aren't, which puts you back to square one if you want to draw a negative moral conclusion, but I'm ignoring that in this post.

Sore Winners

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It's one thing to invent all manner of conspiracy theories about how you lost an election (see 2000 and 2004). Thankfully, the Republicans don't seem to be doing anything on the same order as that in 2008. Pretty much the only questions being raised by mainstream Republicans involve an organization that's actually under investigation by the FBI on the issue in question, and hardly anyone is claiming that the election was stolen or that McCain would have won easily if not for illegal vote-stealing of some sort.

I think part of that might have been that McCain was doing so well in the polls until the financial meltdown, and then Obama clearly had that crisis to thank for his win and for McCain's inability to get back in the game. If it had been closer, maybe things would be different, and there might be more charges that voter fraud actually affected the outcome. Nevertheless, I think it's noteworthy that Republicans largely aren't pushing it to that point, and I'm glad for that. I can't honestly say that I'm sure Democrats would do the same thing were the tables reversed, and we have history to support my doubts on that.

What amazes me, though, is all the sore winners in the 2008 election. It isn't enough just for a Democrat to take the popular vote for the first time since Jimmy Carter and to win the electoral college handily [clarification: I meant winning a majority, not simply a plurality; Clinton obviously won a plurality twice]. People have to complain about the states that did go for McCain, claiming that all the white Southerners who voted for McCain were doing so merely because of racism rather than because they think Obama's policies would be awful. See Sam's post on that. Today we heard some caller on NPR's Talk of the Nation talking about how she's glad she doesn't have to listen to Palin's voice anymore, and I thought it was perhaps some preference against the pitch of her voice, but it turned out she really meant her regional accent. She was talking as if someone is ignorant for dropping the 'g' in words ending in '-ing' and several other colloquialisms.

After hearing this woman's snotty bigotry against the kind of accent you can hear not just in Alaska but across the Midwest, Sam wondered out loud why people like that caller think it's a good idea to alienate such a large swathe of voters. People did it with Bush, but he'd won, and they needed some outlet to express their frustration. So they tried to feel better than him by pretending his accent was equivalent with being an ignorant dolt. I'm not sure what people think they're accomplishing by complaining about those on the losing side, though, with these exaggerations of racism in all anti-Obama voters and by making fun of a quite common accent in a large stretch of this country. It certainly does feel like sore winning. What's the motivation for that?

Update: I was originally planning to link to this in the post, but I reworked it enough times that I forgot to put it in the final version somewhere. I did want to give Senator McCain credit for what is absolutely and indisputably the best and most honorable concession speech I have ever heard from a political candidate. He knows how to lose gracefully and respectfully.

Barack Obama should not appoint Robert F. Kennedy, Jr., to head the Environmental Protection Agency, as has been reported that he might do. This is for totally non-partisan reasons. I don't expect Obama to appoint a moderate on the environment. I would hope he doesn't choose someone who regularly presents inaccurate factual information and gives credence to discredited studies that feed panic.

He makes radical statements and then stands by them while under public criticism. For example, he claimed in 2002 that factory farming is more of a threat to American democracy than Osama bin Laden and refused to moderate his comment under pressure from those who called him on it. He has published criticisms of the Bush administration riddled with lies, distortions, and ad hominem attacks. He accepts conspiracy theories about Republicans stealing the 2004 election.

But the most important reason for me is alarmism about autism and vaccines, which is downright anti-scientific. The most that's been shown about autism and vaccines is that the symptoms of autism tend to be noticeable around an age when several vaccines tend to be scheduled. Correlation isn't causation, and in this case there's an obvious explanation for the correlation. The symptoms begin appearing at an age when, for completely independent reasons, certain vaccines are given. So Kennedy does nothing more than feed anti-scientific panic. Parents of autistic kids hear this stuff, accept it without looking into it, and end up treating their kids as having been stolen from them. Instead of accepting their kids for who they are, they spend all their time pretending they don't have any anymore and trying to make other parents feel guilty for causing their children's autism by taking steps to protect them and other kids from dangerous and life-threatening microbes. They seek to divert funds into wild goose chases instead of recognizing that autism has at least a significant genetic component (which is now very well established) and that the only thing that will likely be available to help their kids is to give them intensive help, something very hard to do if you spend all your time chasing windmills in the political blame game. Never mind the fact that they're risking their kids' lives by not vaccinating them, which has already led to a resurgence in diseases that had been nearly eradicated.

Anyone who has any sympathy for the many complaints, more from the left but also from the right, about the Bush Administration's attitude toward science should oppose Kennedy as an appointment for any important government position but especially to head the EPA. [And I note that some prominent anti-ID bloggers are avoiding hypocrisy on this issue by opposing Kennedy.] If he goes forward with this appointment, it's a huge political mistake. It will mean people can call him anti-science in more ways than just on abortion (see #3). But it's even worse as a policy mistake, given how much damage someone like Kennedy could do.

So Much for Unity

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What would people have said if John McCain had won the election, given a wonderful speech about bringing the divided country back together in unity, and then as his first presidential act picked Karl Rove as his chief of staff? That's pretty much what Barack Obama's choice of Rahm Emmanuel amounts to. It isn't a good sign that he's picked one of the most divisive figures in national politics to help lead what he's saying is a new start to change the way people do politics and unify a bitterly divided country. I never saw Obama as really bi-partisan. It's not as if he has a record of getting together with Republicans and working together with them to put together moderate legislation. He just does what he's going to do anyway and convinces Republicans to vote for it. But Emmanuel isn't just "not really bi-partisan". He led the fight for the Democrats to retake Congress in 2006, and it was well-publicized at that time that he'd used some of the dirtiest tricks in the business to make that effort succeed. He's exactly the kind of figure Obama has spent lots of time saying he isn't and saying politicians need to stop being.

It's interesting to compare the early complaints about Bush in 2000 and 2001 for his choice of John Ashcroft, who almost didn't get approved by the Senate Judiciary Committee even to be voted on by the whole Senate. Ashcroft is a nice guy who happens to hold a position toward the extreme on the abortion issue, namely that pro-lifers shouldn't have an exception in rape cases, because the moral status of the fetus doesn't change if the cause of its existence is rape. It's an eminently reasonable position, actually. He holds prayer meetings that some of his co-workers would go to with him. That was pretty much the evidence against him, actually. His being a nice Christian who holds one view that's in the minority was reason enough that he couldn't possibly serve as an unbiased enforcer of the law. Ironically, Ashcroft was a check on those in the administration who really were extremist when it really came down to it with the wiretapping program. I don't remember any harsh words ever uttered by him against any person in the opposing party, even if he has strongly disagreed sometimes with their views. Still, no one has apologized for how the Senate Democrats treated him, and I'm sure no one will.

Rahm Emmanuel, by contrast, was the brains behind many partisan smear efforts during the 2006 election, misrepresenting Republicans left and right with the mere goal of getting a few more Democrats elected. Most politicians of any party will display some dishonesty in order to get elected, and they think their views are better enough that they think it's worth it. But it's usually slight exaggerations or focusing on aspects of a bill that someone pragmatically voted for based on other aspects of the bill or in Obama's case focusing on surface-level elements of your proposed policies while ignoring their more indirect impact. But Emmanuel is known for much more serious partisan politics, insisting that Democratic candidates should do everything possible to win their races (a view Obama has himself said isn't good for the Democratic party or for the country).

So Obama's first move after being elected is to break a significant campaign promise that he'd even reiterated in his acceptance speech the night of the election. He said he'd set a new tone. Selecting Rahm Emmanuel two days later is not setting a new tone. At least Nancy Pelosi waited a couple months before breaking her 2006 election-night promise to include House Republicans in planning congressional reform measures. Obama didn't even wait 48 hours. People are speculating that Obama was thinking he could make himself look like the good cop if he's got such a clear bad cop as his chief of staff, but that's not likely. Did Bush look like the good cop just because Rove, Cheney, and others in his administration were doing the bad copy duties? Complaints about Rove are very much a part of the anti-Bush vitriol from the left. This is only going to fuel partisanship, and Obama is now going to be associated with Emmanuel's style of politics, because when all things are said and done it's still Obama's chief of staff who is known for that kind of partisanship. He's shot his unity effort in the foot, and it's going to be very hard to get any momentum back in that attempt. He's basically going to have to convince some genuine conservatives (i.e. not Colin Powell) to work in his administration and to give them a significant place in setting policy for me to be reassured that he really does intend change of the sort he's said he favors.

Voting and Calvinist Prayer

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A lot of people think it's irrational to vote if your vote isn't going to have an effect on the outcome. I live in an extremely blue district of a slightly red county in a very blue state. In local and statewide elections, my vote has so little an effect that it's not worth voting if the only point of voting is for my one vote to have an effect on the outcome. New York is overwhelmingly going to continue to support Senators Schumer and Clinton, and they tend to vote Democratic in governor elections except when there's a very moderate Republican like George Pataki on the ballot. County-wide races are closer, and so is the U.S. House district, which was almost a toss-up in 2006. Things were even more one-sided when I lived in Rhode Island.

But it simply isn't true that voting is only worth doing if you're going to be the deciding vote. There are other reasons people give for voting, some better than others. One that often occurs to me when it seems hopeless for my candidate is that if everyone voting for the other side thought it wasn't worth voting because the outcome is assured then my candidate might have a chance. Other reasons include that it helps you psychologically to feel like you're contributing and that it's simply your obligation to do what you can to influence things for the better even if what you can isn't by itself going to make the difference in who wins the election.

Any of those responses would be sufficient by itself, except perhaps the psychological benefit one (at least if that involves self-deception, and if it doesn't then it's not a distinct reason but depends on one of the others). I think there's an even better reason to vote, and I think it might actually be what motivates me most, but I hadn't actually thought about it in these terms until today. It takes a page from Calvinist responses to the objection that if the future is already determined then there's no point in praying.

Calvinists come in several varieties, but the most common sort of Calvinist (which isn't the same as being the most noticed kind on the internet) is compatibilist about human freedom and divine predetermination. If God has a plan that includes everything I'm going to do, everything every other person is going to do, and an outcome for every prayer I ever pray, then is it worth praying? My prayer isn't going to change anything, after all. Of course, my prayer would also be in this plan, and if I didn't pray then a different outcome may well have been in the works. Compatibilists about divine predetermination and human action are going to insist that God works through our choices and doesn't just force things outside our control. Our prayers are part of how God's plan works itself out as history unfolds.

One thing Calvinist sometimes say is that praying is not so much for the outcome but for us. God wants us to pray because of what God will do in us because we pray. I don't want to deny that, but it's certainly not the emphasis in scripture on reasons to pray. The emphasis seems to be on two things. One is that prayer does affect things. It doesn't change them, because the future can't be changed anymore than the past or present can. If the future is a certain way then it can't be changed. Even open theists don't think the future can be changed. Why should someone who thinks there's a definite future think it can be changed? But for the reasons in the previous paragraph, the future can be influenced. It can be caused by things in the present, and I can be part of that process of bringing it about. A compatibilist should have no trouble saying that sort of thing.

But there's another reason in scripture for why we should pray, even though God has worked out the end from the beginning, and this one (unlike the previous one) does have some relevance for voting. God wants us to communicate our dependence on him and to express our desires to him. He wants us to see him as the Father who cares for us and meets our needs and our wishes, provided that our wishes are righteous and as long as there isn't some other reason beyond our ken for why God wouldn't grant a particular wish (as there may well be). As Jesus points out, what father when presented with a request from a child for bread or fish will give a snake? God wants to bestow good things on his children and delights when we come to him with requests, for the same reasons a giving parent delights in such things. Given that, it's a privilege to call him Father, which is why it's a big deal that Jesus starts out the Lord's prayer with "our Father". Those who don't avail themselves of that title in addressing him are missing out on something great. Those who don't address him at all are missing out on even more.

The same dynamic plays out in a smaller way with voting. I'm privilege to live in a country that seeks my opinion on who should occupy certain offices. Even if my vote doesn't have an effect in putting someone in office, it's a privilege to be able to contribute my thoughts in the process of the communal decision that an election involves. I don't believe voting is a moral right. But I think I'd be wasting an opportunity to express my opinion if I didn't vote, and wasting a privilege is at least unfortunate (and I would even argue that it's immoral). This seems to me to be a much better reason to vote than any of the more common ones that I hear, even if most of them are good enough reasons.

Palin Cleared

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It's a bit late to affect the election, but I note that Sarah Palin has been completely cleared of the ethics charges directed her way by an investigation led by a partisan political enemy who had stated the conclusion of the investigation in the news media before the investigation had even started. When I looked at the facts assembled by the self-fulfilling investigation, it was hard for me to see the conclusion following from those facts, so it's nice to know my suspicions were correct. It didn't. She didn't violate any ethics rules whatsoever.

Obama on Same-Sex Marriage

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Barack Obama seems to hold all of the following mutually inconsistent propositions about same-sex marriage:

1. We shouldn't deny rights to same-sex couples that opposite-sex marriages have.
2. We should not recognize same-sex relationships as marriage.
3. Attempts to prevent same-sex couples from getting married denies them rights that opposite-sex marriages have.

Unless you equivocate in the meaning of some terms in those statements (and I'm not thinking of a way that he could be), there's no way they can all be consistently held. Yet he does seem to hold all of them. He's said repeatedly that he doesn't support calling same-sex civil unions 'marriage'. Yet every time anyone tries to pass a law preventing a state from using such a term for a same-sex union, he opposes it and says it denies that couple rights that equal treatment requires. He opposes the federal legislation that protects states from having to observe other states' marriages. He opposes California voters' current attempt to overturn the judicial enforcement of same-sex marriage in that state. Is this position consistent?

It's one thing to hold Senator Robert Byrd's view, which is that the government shouldn't recognize same-sex marriage but that such a view shouldn't be encoded into the U.S. Constitution. Perhaps Obama would extend the same reasoning to state constitutions, and thus he could explain his opposition to Proposition 8 in California. But that's not what he said. He said he opposes it because it denies people a basic right, which amounts to #3 above.

Obama is even opposed to an ordinary law (as opposed to a constitutional amendment) preventing the recognition of same-sex marriage in a state that doesn't want to recognize it. Basically, the law means New York doesn't have to recognize Connecticut, California, and Massachusetts same-sex marriages, even though New York currently does. Obama's justification for opposing this law? It violates basic rights. It's #3 again.

Now there's a possible position that opposes not just constitutional amendments on this issue but even laws, while still disapproving of same-sex marriage. Someone could think it's wrong to encode same-sex marriage in the laws but that it's also wrong to encode opposition to it in the laws. That's clearly not Obama's view. His view just seems to be inherently contradictory. This also doesn't seem to be a genuine change in positions, where he's just rethought the issue and changed his mind. He's been opposing these laws and amendments for a long enough time that in the meantime he's also kept saying that he opposes legal recognition of same-sex marriage.

This isn't an issue that I care all that much about, mostly because I don't have much hope that this issue will ever be handled right. I'd prefer the government stay out of calling anything marriage, and that means I agree with very few politicians on either side on the debate. But it's an enormously significant issue of our time, and I'd expect someone running for president at least to have a view that's consistent (or to have a view and consistently follow it), even if it's not exactly the view I would advocate. Obama doesn't seem to be able to articulate a clear and consistent position on the matter and then consistently follow it, and this isn't the first issue I've noticed this about.

It makes me wonder how many other issues there are where I haven't followed the discussion as closely and don't know the wider debate as well as I do this one and abortion, where his ability or willingness to formulate a clear and consistent position is even more lacking. He certainly has similar problems with gun control. For a guy who by all accounts is very smart, it's unlikely that he's as confused as his statements make him sound, which makes me wonder if he's being honest about his views.

Legal scholar Steven Calabresi, in a generally accurate discussion of what Obama could do to change the federal courts, offers the following very strange argument:

This raises the question of whether Mr. Obama can in good faith take the presidential oath to "preserve, protect, and defend the Constitution" as he must do if he is to take office. Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare? Is his provision of a "tax cut" to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.

Aside from the issue of whether Obama meant to be saying the Constitution should be amended to change this (See this post and its comments for discussion of what Obama really meant), I find this argument extremely strange. The Constitution gives provisions for when it can be amended. If I swore an oath to uphold it, one of the things I would be upholding would be the legitimate amendment process that the Constitution specifies. A president could come along and advocate an amendment to the Constitution that changes it in extremely significant ways, but as long as due process for amending is followed it doesn't seem as if anything has been done to undermine the Constitution. What's been done is to undermine the moral principles behind why the Constitution is as if currently is, but it's not a violation of the oath to uphold the Constitution if you use the Constitution's own method of amending it to propose a change that's pretty drastic. It itself envisions that possibility.


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