Back to the amendment

In one of her last official acts, outgoing Attorney General Peg Lautenschlager has issued an advisory opinion on whether Art. I, sec. 13 of the Wisconsin Constitution (the newly enacted marriage amendment)prohibits the City of Madison's domestic partner registry or its extension of benefits to the domestic partners of city employees. She concludes that it does not.

I am a bit amused by the certainty of this opinion as opposed to her "who knows" description of the amendment before it was passed, but I think she is absolutely right on the issue of domestic partner benefits.

Madison's domestic partner registry is a closer question but given that the city lacks the authority to create a relationship that is substantially similar to marriage, it too may survive the amendment.

What is troubling about the opinion is her indiscriminate reference to something called "domestic partnerships" - a legal status which does not exist. She writes that "neither the Legislature or the people intended to invalidate domestic partnerships" when they passed the amendment.

Well, yes and no. The question is whether these domestic partnerships are substantially similar to marriage. While the opinion acknowledges that and the troubling passages may just be sloppy draftsmanship, the opinion can be read to imply that the legislature could create a "domestic partner" status that confers "most of the same benefits as marriage" because she has found some opinion polls that found a majority of respondents in favor of that shortly before the election. One could see her arguing that civil unions could be created as long as something that is present in marriage is held back.

In supporting the amendment, I argued that it would not invalidate domestic partner benefits. I still say that today.

But I said then - and now - that the amendment prohibits creating something that amounts to "marriage lite." A status that has some of the attributes of marriage won't be prohibited but one that has "most of them" probably will be.

This is in keeping with the purpose of the amendment, i.e., to preserve the traditional understanding of and norms surrounding marriage. If you create an alternative that is "almost" like marriage but called something else and extended in circumstances in which those traditional understandings and mores will almost certainly be absent or devalued, you threaten the institution of marriage itself, just as it been threatened - and harmed - by relaxed attitudes toward, and (most importantly) legal recognitions of, cohabitation.

Franken-furters?

I am a bit skeptical of the nascent approval of the use of cloned animals for meat and dairy products. There is an interesting article in the most recent issue of First Things by neurobiologist Maureen Condic. Dr. Condic points out that cloned animals (few of which survive to birth) are almost always genetically abnormal with "multiple genes aberrantly expressed in multiple tissues."


As Dr. Condic points out, this presents huge problems for the posited use of somatic cell nuclear transfer to create cloned human embryos that can then be used to derive stem cells, tissue and perhaps even organs to treat disease. Even if we someday figure out how to clone a human embryo and even if some will turn out normal enough for therapeutic use, how do we tell which ones? She writes "[h]ow normal is this particular cloned embryo, the one we are going to use to generate stem cells to treat this particular patient?"

Given the problems with immune rejection in stem cell based therapies, this is a tsunami of cold water for those who believe that embryonic stem cell research will end disease as we know it, but I wonder if it is not pertinent on the question of cloned meat and dairy products.

The FDA study group seems to acknowledge the high rate of abnormality, but concludes that all should be well as long as "obviously sick and deformed animals were kept out of the food supply ..." It says that clones that survive past the first few days "appear to grow and develop normally" and that healthy adult clones are "virtually indistinguishable" from non-cloned livestock.

Is this right? Are cows that "appear" normal really normal enough to eat? Given the relatively few cloned animals (maybe several hundred in the US) and the fact that they have been kept out of the food supply, how can we know?

I prefer market solutions and I am generally uncomfortable with the hysteria over genetically modified foods, but this seems to present enough of an uncertainty that a labeling requirement might be in order.

Return of the Shark

Milwaukee's Harambee Community School runs an ad on WMCS, a local station geared toward an African-American audience, which notes, among other things, that the school has been "empowering African-American children for over 40 years."

If we played the game of race-flipping, we would ask "can you imagine what would happen if a private school, say Zusammen Community School, ran an ad saying that it had been empowering white children for over 40 years? Can you imagine?

What I don't have to imagine is that the reaction to the Harambee ad - by both blacks and whites - is not the same as it would be to a school that promoted itself as a place for white kids and I don't really need to rehearse all the traditional justifications for it - racism requires power (that blacks do not have); African-American solidarity does not imply a claim of superiority; this is a reaction to years of oppression and so on.

I buy some of this. The ad for Harambee is not the same as the ad for our fictional Zusammen ("together" in German; "harambee" apparently means something like "pull together" in Swahili), but I'm still not sure that it is ok.

To some extent, your position on this (and related matters like affirmative action) may turn on what you think of the rationale for Brown v. Bd. of Education. Was segregation wrong, as Chief Justice Warren suggested, because it harmed black children (implying that segregation that did not do so was ok) or, given our sorry racial past, do we need to completely abjure race as a consideration in the making of decisions of all kinds?

And even if you accept a consequentialist view of Brown, does segregation become less harmful because it is freely chosen. Is it really a good thing for people to choose to live in a subculture?

If you think it's not, does that concern apply to subcultures that are built on things other than race such as religion (e.g., Catholic or evangelical schools) or wealth (e.g., places like University School)?

I have the questions. You get the answers.

Getting it wrong

Solving Milwaukee's nasty crime problem will not be easy. One tactic that is guaranteed not to work is to change the subject. My colleague on Eric Von's Backstory program, Robert Miranda, wants to take the heat off what he refers to as "community phenomena" and makes what may has the merit of being a clear statement of the response to crime of much of the central city's political leadership and the shame of being not only wrong but wrong in a very dangerous way.

Robert says that wrongdoing by the city's police constitutes a "criminal culture far more dangerous to the citizens of this community, and much more difficult to catch."
This tracks the path of many "community" leaders who, quite properly, organized marches in response to the beating of Frank Jude by a pack of off-duty cops and who can't manage a tenth of that energy in response to the antinomian predation on the "community" by some of its "members."

Rogue cops are a huge problem and should be dealt with severely, and I am sure that the notion that the police are the problem gives the tingles to the type of person who sees life as an exercise in Fighting the Power and privileging the Other.

But it requires taking leave of reality.

Robert points out that “since 1990, 84 Milwaukee officers have been fired, and all but two appealed ... Thirteen got their jobs back, 57 lost their appeals and 12 have pending cases.” he thinks that this means there have been "about five criminal cases per year involving Milwaukee police officers in the last 16 years."

The rather evident problem with this is that not all of these cops - or even very many of them - have been dismissed for criminal acts, much less violence against citizens. But, in acknowledgement of the fact that cops - apparently following Michael McGee, Jr.'s advice - "don't snitch", let's take that number and triple it. That would be 15 incidents per year. Too many.

But, in 2005, 6010 violent crimes were reported to the Milwaukee Police Department. It wasn't the Milwaukee Police Department that created Little Beirut and it won't be "no snitchin'" anMichaelal McGee roaming the streets in search of evildoers that will return it to a place where people can live and work. My guess is that the cops will play a rather larger role in that.

The irony of all this is that, while the perpetrators of this crimes may be disproportionately racial minorities (members of "the community" in Robert's parlance), the victims are just as black and hispanic and there are relatively few white people who live in Milwaukee's "no go" zones. It is "the community" that is held hostage to wilding in the streets and it is inexcusable not to demand that this stop.

Of course, I know that Robert and other community leaders want that to happen, but, so often, their responses seem wide of the mark. When I have more time, I'd like to consider why that is so.

Talking out of your a**

The ACLU has spoken out on behalf of a Virgina art teacher who was suspended after students found a YouTube video of him demonstrating his rather unique artistic methodology. Stephen Murmur apparently paints with his derriere. According to an ACLCU press release:

Using the pseudonym Stan Murmur, the art teacher uses parts of his body, painted and pressed on canvas, to recreate flowers, butterflies, and other objects from nature. Some of his paintings are nonrepresentational abstracts that also rely on paint transferred from body parts for their shape and texture.

The video apparently shows him in a thong doing just that. People pay $400-$900 for this ... (no, I don't even want to say it).

If dipping your butt in paint and smearing it on canvas can be considered "speech" (and it probably can), then Murmur may have a case although, under the law as generally applied, it will have to show that the speech pertains to a matter of public concern and it's not clear that pondering just what an imprint of Mr.Murmur's nether region looks like has people up at night. Even if we get past that, the district may discipline him if the expressive activity substantially interferes with his job performance, such as students suggesting that his work is a bit anally retentive or a tad cheeky.

He certainly has a right to do this. He may even have a right to do it and keep his job. What puzzles me is how completely self absorbed one must be to think this is art and how jejune your tastes must be to regard it as interesting.

Do you think he disinfects the stuff before he sells it?

More on McGee

In response to a recent post here on Michael McGee, Jr., Lew Wasserman writes that "McGee (Sr. or Jr.) gives a significant portion of his community what it wants by doing nothing more than appearing to be "sticking it to the man" and that it is naive to underestimate how pervasive this sentiment is among African-Americans."

I hope that I do not underestimate that sentiment, my point is that it is an unfortunate and largely unproductive sentiment. Lat night on Eric Von's show, we got into debate about just that. Robert Miranda, launching into one of his flights of the type of rhetoric that you used to have a find a Black Panther rally to hear, seemed to argue that McGee is the Malcolm to someone's else's Martin in a racial game of good cop/bad cop. Retired UWM professor and former radio host and columnist Dave Berkman, while critical of McGee (largely for his alleged homophobia) suggested that maybe we would someday come to see people like McGee as today's Martin. Eric, always the realist, said that no black politicians seem to be able to get what they want anyway so the efficacy of McGee's tactics are no greater or weaker than those of anyone else.

My point is that, if there are concerns that need to be pressed on behalf of Milwaukee's central city, the behavior of the McGees pretty much gives the rest of us license to ignore it - or at least to do so when he is the one leading the charge. While the McGees would be the first to say that they don't care about what the rest of us think (and would probably put it more colorfully), I'm not sure that's a luxury that an African-American political leader who wishes to accomplish something can afford, at least if he or she is committed to traditional liberal approaches (or some variant on them) to inner city distress.

Those solutions are predicated on the assumption that there needs to be a transfer of resources from those (presumably outside of "the community")who have them to those who do not. This requires engaging the community at large (even by shaming it) rather than convincing them that you are a racist thug who has nothing worthwhile to say about anything. You can celebrate this tweaking of the white establishment as "prophetic advocacy" but it gets exactly nothing done. It might make some of McGee's constituents feel better, but it leaves them as they were before.

Brother Wasserman writes that "I'm not sure, but it is entirely possible that we (all of us) are on the wrong side of the "event horizon" of race relations." I think that's a useful metaphor. I'm not sure how he means it, but I would suggest that we cannot see past the racial script that was written in the sixties. But the thing about an event horizon is that there are things that are happening beyond it and, with respect to questions of race and poverty, there are ways to think about them other than the way we used to in 1969.

Michael McGee Jr., does worse

In a saner political world, we might not react in the same way to Alderman Michael McGee, Jr.'s comment that Leon Todd should be "hung" for supporting the effort to recall McGee. We might be willing to see it as classless, but wouldn't furiously debate whether it is "hate speech." Conservative commentators, like Jessica McBride, point out that, if a conservative said this - say Rick Esenberg wrote that "McGee should be hung, straight up, for betraying the community with his 'no snitching campaign'" - he or she would be accused of racism because of the perceived connection with lynching. Understandably, she thinks McGee, Jr. should get the same heat. Given the rules of the game, I don't blame her.

My own view is that this the political game of "find the gaffe" in which elections and control of the United States Senate can turn on an off-hand comment ("Macaca" = Harry Ried as majority leader) is a dangerous distraction. It focuses debate on what doesn't matter and on what no one really cares about.

Neither McGee nor Esenberg (had he written what he just did) want anyone to be hung (as Jessica pointed out on her show with respect to McGee) and neither meant to invoke lynching. Both are (or would be) engaging in a gauche form of hyperbole.

The thing that I find more unsettling about McGee Jr.'s comments is his assertion that Todd has "betrayed the community" as if opposing the recall is an act of racial solidarity. What is unsettling about this is that it appears that many leaders in the black community believe that - or at least think that a critical mass of their constituents will see supporting the recall as an act of racial betrayal.

What this demonstrates (again) is that, in Milwaukee, racial demagoguery is a winner. The McGees have made a political career out of baiting white people (Badger Blogger has the latest) and, while they have been doing that, they have done exactly nothing for the people they represent.

Ten square miles surrounded by reality

How can you write an article on the discrepancy between median incomes in Madsion and Milwaukee and fail to ask the most obvious question? To what extent is the increasing advantage enjoyed by Madison an artifact of the subsidies it receives from the rest of the state? In other words, to what extent is the difference the result of government employment?

The Journal Sentinel's front page story exploring the huge - and growing - difference in median incomes between Milwaukee and Madison dances around that issue. It acknowledges that Madison is a govenment town, but does not suggest that - or even ask whether - taking money from the rest of the state and spending it within the confines of Dane County in and of itself makes Madison a prosperous place. It may be that the unexamined assumption made in the article, i.e., that the presence of the UW's Madison campus, has fueled all manner of high technology start-ups in Dane County, but you wouldn't know it from reading this piece nor would you have the faintest notion as to how much of Madison's advantage is traced to this private activity as proposed to the public elephant that takes up much of Dane County. We do know, from a prior piece, that the proportion of Madison's workforce drawing a public paycheck is a bit over twice as high as in Milwaukee. We also know that private companies in the Hotline 1000, Forbes 500 or IndustryWorld 500, are disproportionately likely to be located in Milwaukee as opposed to Madison. While these lists might miss bold new start-ups, it is another hint that the public trough may be the source of Madison's prosperity.

That the difference between Madison and Milwaukee has apparently increased could be a result of the "information" economy or it could have something to do with the growth of state government and its relative immunity from the competitive pressures. I don't know the answers, but, at least, I know that these are fairly obvious questions.

A bad Wisconsin Idea

Is it a good idea to offer free tuition to students who promise to stay in Wisconsin for ten years? I find the way in which the the members of a state commission studying the UW system's two year campuses have thrown in with this idea to be astonishing. It strikes me as ill-conceived. Won't it drive some of the best students out of state? Free tuition is a wonderful thing, but it pales in contrast to limiting your life options at 18. Those with larger ambitions are unlikely to bite and, given that the idea will almost certainly raise tuition for those who don't promise to stay put, may be more likely to go out of state.

The premise behind the idea that we lose business because our college graduates don't stay in the state seems flawed. I think it's far more likely that we lose our graduates because of a lack of opportunity here. Forcing those kids to stay will not create opportunitues.

I also suspect that the plan would be riven with enforcement problems. You can't forbid graduates from leaving. What you'd have to do is require them to sign an agreement to pay the state back if they leave. The state would have to chase departng grads around the country and take them to court. It could be done, but something about is just unseemly.

ISG: Bringing back the Rope-a-dope

I remember an old joke about how an economist would advise a castaway on a deserted island to open a can of peas that had washed onto the beach. "Assume," he would say, "that you have a can opener."

This seems to be the approach of the Iraq Study Group. Are Syria and Iran destabilizing Iraq (the ISG acknowledges that they are)? The solution is for them to stop. Why will they stop? The ISG's answer is, literally, because they should. Is sectarian violence preventing the unification of Iraq? The ISG thinks that those responsible should cut it out or ... we'll leave. In other words, if you don't quit trying to throw me out the door, I'm walking.

It's solution is hard to distinguish from no solution. We should embed more troops with Iraqi units but not send in any more to replace them and to protect the trainers from the sectarian violence which the report acknowledges is currently out of control. We should set deadlines, but there is really nothing in its seventy-nine recommendations that makes it any more likely that they will be met.

John McCain is, I think, right is suggesting that the ISG recommendations would ensure defeat in Iraq. It may be that the ISG has adopted them because it cannot figure out a way to win. If there truly is no path to victory, then maybe Feingold and Murtha are right. We should simply cut and run.

Of course, what Feingold and Murtha will not admit (and the ISG, to its credit, does) is that this will lead to further chaos in the Middle East, bloodshed in Iraq and strengthen the Islamofascists (or, if you prefer, the "terrorists.")But if we're going to bug out, why not minimize American casualties by quitting sooner than later?

This is why the ISG report is likely to satisfy no one. It is an incoherent mash-up. Maybe it is right to surrender. Maybe it is right to press on and win. But it is certainly not right to cover up, take a few more rounds of beating (hoping, I suppose, that our opponent will see the error of his ways) and then throw in the towel.

Eugene and Michael McGee

Sometimes an attempt at of obfuscation through euphemism can be enlightening.

In today's Milwaukee Journal Sentinel, Eugene Kane manages to kill 700 words or so in opposition to Alderman Michael McGee Jr.'s recall without acknowledging any of the reasons that someone would want to remove this guy from office. If I didn't know better, I presume that Kane does not believe that a politician who promotes a policy of "no snitching" in a community wracked by gang violence should be recalled. I'd surmise that he is not in the least bit troubled by the same alderman promoting gatherings of youth (under the misnomer of "cruising") after 2 am in the same community. I'd conclide that he doesn't care if the guy lies under oath, threatens women, uses slurs against persons he believes to be gay, fraudently obtains a second driver's license after the first is suspended, and on and on.

That would be his prerogative.

Or maybe Gene believes that McGee has extraordinary gifts and accomplishments that might warrant overlooking all of this. But it takes a little more heavy lifting than to dismiss his problems as being "nothing more" than becoming a "lightning rod." Kane doesn't quite capture the issue by describing McGee as a guy who is just "dynamic" and "bombastic" with a touch of "controversy" in his "personal" life. I would think that a defense of his record would require more than simply establishing that he is cerifiably "not convicted."

As I've said before (in opposition to many other local conservatives), I think Eugene Kane is a talented writer. He can definitely do better than this. My sense is that, if he really thought McGee "deserved" to remain in office, he would have.

I bet the problems here is not with what Mike McGee deserves, but with what, in Gene's view, ViAnna Jackson hasn't earned. His problem with the recall seem to be that it has not been blessed by the right people (black radio and newspapers) while it has been supported by the wrong ones (conservative talk radio).

I agree that the lack of the involvement of African-American leaders with efforts to rein in McGee is troubling. But the fault is not ViAnna Jackson's. Rather than worry about the interference of an "outsider," I think Kane would do better than consider why the insiders have kept quiet.

A Bleak Midwinter's Pick Me Up

Blogging has pretty much slowed to a standstill here. Maybe I am just mired in post-election lassitude. The Democrats control Congress and my Milwaukee Panthers are, to put it gently, in a (2-7) "rebuilding year." (I thought the Packers were as well, but it now seems to be more of an "imploding year.")There are, all around us, signs and warnings; trials and tribulations.

Still, I'm stirred by some potential good news. In finally rousing himself to face the crisis that isn't in Milwaukee's central city, Mayor Barrett has announced a program that at least suggests that it might avoid the same old deadends of midnight basketball and make-work jobs. That the Safe Streets Milwaukee program will focus on prosecution and faith-based organizations suggests that it may emphasize treatment of the causes (yes, that's what I said) rather than symptoms. Although the left generally talks about getting at the "root causes" of poverty, it begins with the assumption that the two things that cannot be foundational are culture and the lack of public safety. That has been a tragic mistake and maybe we are seeing the beginning of a new way.

Not-sick pay

The Journal Sentinel's report that legislators (as well as other public employees) can walk away from the job with tens of thousands in dollars in unused sick pay to be used to buy health insurance (at prices that would probably otherwise be unavailable to them) has elicited all the normal responses from those who feel honor bound to defend anything and everything that a public employee union might negotiate. This is smart, they say, because it encourages people to fight off minor ailments and come to work. It is good, they say, because health insurance is good. It is justified, they conclude, because this is something offered "in exchange" for lower wages.

If it were smart, we'd expect to see private companies do the same thing. They don't, but yet manage not to be paralyzed by employee absenteeism. In fact, the most annoying thing about the provision of this benefit to legislators and professional employees is that it probably has little impact on whether or not they take off. Professionals who must complete their work whether or not they are sick tend not to count - or worry about - sick days because no one does their job while they are gone. Thus, the legislators in question did not claim sick days while, for example, they were home recovering from bypass surgery. (Neither, by the way, did I, but I am not claiming extra pay for it.)

It is good for people to have health insurance, but it is not good for the state to overpay its employees. This is a benefit that is rarely found in the private sector.

That might not be so bad if it truly was negotiated in return for savings elsewhere, but I have heard that one too often. The "extra" thing that public employees get is always something that flies below the radar. It is something that is paid out as a fringe or that is deferred into retirement so that no one pays attention and it need not be accounted for. Other than for certain (and relatively few) highly compensated professional positions, it is not evident that cash compensation for public employees is below market. What is clear is that non-cash compensation is generally through the roof.

The Christmas silliness begins

The Mayor's office in Chicago has persuaded the organizers of Christkindlmarket, something billed as a traditional German-American "holiday" market, to drop New Line Cinemas as a sponsor and, in particular, to exclude a display that would have promoted New Line's new film, The Nativity Story. The market is held on Daley Plaza and the city said that the display (consisting of excerpts from the film) would be " insensitive to the many people of different faiths who come to enjoy the market for its food and unique gifts."

This is so stupid in so many ways that it's hard to know where to begin. First, I don't know what a traditional German-American "holiday" celebration would be because "traditionally" all those German-Americans (or at least those who were not, like my ancestors, Jewish) were celebrating Christmas. Indeed, "Christkind" means "Christ child." That promotion of this movie was apparently a new intrusion of the festival's namesake into the proceedings suggests that the whole thing was not very traditional.

Second, why would someone attending something called "Christkindlmarket" be offended - or even surprised - by reference to the "traditional" German-American belief about Christmas? If I were to attend a traditional Islamic festival, I would expect to see references to Allah. When I worked out at the Jewish Community Center, I was not surprised to see decorations celebrating the Jewish High Holy Days. There was no reason for me to be offended by the expression of a religion that I do not practice or, although this doesn't apply much to the latter example, by a set of beliefs that I do not share.

Third, if someone actually is offended, why should we cater to his or her sensitivity? Such a person is, essentially, asking that the "traditional" German-American celebration of Christmas be bowdlerized to remove whatever he or she does not like. Maybe I think that Malcolm X has had a destructive and negative impact on race relations in this country, does this mean that I get to demand that African World Festival remove any reference to him so that I can enjoy my preferred version of an African-American cultural celebration?

Fourth, this is another example of the shadow Establishment Clause. There would be no legal problem presented by references to the Nativity made by a private party at this celebration even though it is on city property. The law is quite clear on that. But often bureaucrats who undertake to "enforce" the law don't understand it - or, as I suspect has happened here, believe that it should really make public spaces religion free zones.

Saving Seinfeld

As the public reacts to the story of Michael Richard's tirade, I've read and heard more than one person say that they will no longer be able to enjoy Seinfeld reruns because everytime they see Kramer, they will think of Richard's racist rant.

That's understandable and a petty part of me wants to say to liberal friends who feel this way that now they have some idea of what conservatives have to do virtually everytime they go to a movie or concert. We need to forget all the hateful crap spewed by the idiot savants that populate Hollywood.

But racism is different and Richard's outburst is harder to ignore. There is no way to defend what he did, but I can offer this little bit in the event that it preserves Seinfeld for anyone.

It is probably wrong to expect that Richards would react to heckling in the same way that most of us would or that what comes out of his mouth can be interpreted in quite the same way that we can for the sane population. The guy is weird. He is Andy Kaufman odd.

I remember Richards from his work on the show Fridays in the early '80s. He was often hilarious but always seemed to be off in some alternate universe. His "Battle Boy" character was one of the stranger things I have seen on network television. His impersonation of Frank Zappa as a "mystery music critic" bled venom. I was surprised at how little he did until Seinfeld came around (and since Seinfeld) but my guess is that whatever drives his skewed experience of the world and makes him very funny is also very difficult to control.

So it may be that he is not racist in the sense that we generally use that word, i.e. he doesn't hate black people or believe them to be inferior. It may be that he was off in some kind of weird character or was making some point about the way in which the heckler's boorish behavior feeds racial stereotypes and prejudices.

I don't know and, on most levels, it doesn't matter. Given America's racial history, people are not going to cut you slack on that type of thing. We need to put that stuff behind us and even the ironic use of racial epithets is pretty much off limits.
I suspect that Richards will pay a heavy price for this.

But maybe we can still manage to watch Seinfeld.

The virtue of gratitude

Proving again that there is no accounting for taste, I have heard some people say that they enjoyed my Thanksgiving column last year in the Journal Sentinel and are rereading it this year. I don't need that much of a hint to reproduce it here.

Abit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn't breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.


I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, "The Big One." It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was "more stable" than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was "thank you."

This is not exactly the emotion I would have expected. I am generally not the type of guy who sees the glass as half full. Those who know me would be quick to tell you that I am decidedly not Mr. Sunshine.

So why "thank you"?

We think of gratitude as a debt we owe for favors received. It is the currency by which we compensate others - or, if we are so inclined, God - for whatever has been done for us. Giving thanks is simply honoring our end of a bargain.

We are thankful - or not - to the extent that we feel we have been - or have not been - blessed. Even those who urge us to be more thankful than we are argue that the key is to recognize that we are better off than we know.

This is, I think, incomplete. Gratitude is just as important when we are in life's troughs as when we are astride its peaks. The Roman orator Cicero thought gratitude to be not only the greatest of virtues but the parent of all the others. It is not simply what we owe but the way in which we should live.

Living in a spirit of gratitude requires an acknowledgment that we are dependent, something that certainly comes hard to me and runs counter to a culture that has turned the "me decade" of the 1970s into the "me millennium" of forever.

But we are dependent on others - those who are with us today, those we never meet and those who have lived before us. I believe we are, whether we acknowledge it or not, dependent on God.

It may have taken a heart attack to teach me that.

My wife and I attend a church in downtown Milwaukee. We joke that our pastor says "thank you" more than any person on the face of the Earth. If you can do it, Pastor Amy can thank you for it. That she also seems to be happier than just about anyone else we know is not a coincidence.

I think she knows, and I learned the hard way, that to acknowledge the ways in which we are incomplete and in which we need something and someone outside ourselves frees us from the burden of needing to be perfect. Once we acknowledge that we cannot control all that happens to us and that we cannot create a perfect life, we are freed to do what we can do.

It may have taken a heart attack for me to learn that to be grateful for whatever gifts I have is far more important than to yearn after those I do not.

So take a moment today, between football and feasting (a nice Gewürtztraminer, by the way, goes wonderfully with turkey), to cultivate a habit of gratitude. Not just today but every day. Not just when things go well but when they don't.

The Christian mystic Meister Eckhardt once said that if the only prayer that you say in your whole life is "thank you," it will be enough.

It will certainly be a good start.

Rick Esenberg of Mequon is an attorney and junior warden at St. Paul's Episcopal Church in Milwaukee. His e-mail address is resenberg@wi.rr.com

Buyer's remorse

It may have been nice to know that the state faces a $1.6 billion dollar operating deficit over the next biennium before we elected a new Governor. It is possible, I suppose, that the Department of Administration finally figured this out in the ten days following the election but I'm guessing that it took at least that long just to check the math. Although the statute requiring the DOA to release this report provides that it be done "not later than November 20" of even-numbered years, that's a deadline not the end of an embargo period. I am shocked - just shocked- that our Governor kept this under wraps until after the vote. Imagine Jim Doyle engaging in a political orchestration of the workings of government. DOA Secretary Steve Bablitch says that this "structural deficit" (a fancy term for spending more than you have) is better than it was four years ago and maybe it is. The larger point is that Doyle campaigned for reelection on the claim that he had eliminated it at the same time that his underlings were calculating its size.

I know that Jim Doyle is not the only politician who would have - or even that has - instructed his Secretary of Administration to wait until the last possible day to release this information. I understand that cynical political afficionados are supposed to understand that the game is played in this way. I am saying that it should not be. I am saying that politicians may have an obligation to disclose certain things before an election and that the only way to encourage them to do so is to give them heat when they don't.

So once again Jim Doyle has covered himself in glory. I hope he likes being Governor because he's certainly given up enough for the privilege.

Settlement funds gone astray

I wonder what will become of the story that broke over the weekend concerning the potential misappropriation of settlement funds from the American Family redlining case? As a matter of full disclosure, I was one of the attorneys for American Family (who, I suspect, has no legal stake in this controversy) and there are things about the settlement that I can't get into. But I have nothing to with this controversy and the only relationship I have with American Family today is policyholder.

What I can say is that this is potentially serious stuff. The settlement was largely what is sometimes called a "fluid recovery," i.e., a class action gets settled but the money doesn't go to compensate victims, but to support some program or initiative thought to be related to the wrong that has been alleged. In this case, some of the money was supposed to go to compensate people who had been the victims of the alleged redlining, i.e., a refusal to write insurance (or, more accurately, write it on the same terms) in the inner city.

Not surprisingly (at least to me), not enough "victims" could be found so the money that would have spent on that had to be shifted to another purpose and, in this case, the idea was to use the money to help organizations working on behalf of the African-American community. Perfectly OK.

But now the allegation is that the trustee of those funds, former circuit court judge Hal Jackson, paid the money out to certain individuals improperly. Those individuals had served as class representatives, but the settlement limited the recovery of class representatives to $10,000 each. One of the recipients was apparently former Mayor Marvin Pratt. Another was Felmers Chaney who used to head the local NAACP but who was not a class representative. The lawyers for the plaintiff class apparently advised against these distributions and alerted the federal government to the fact that they had been made.

No one has been charged with anything but in the papers seeking appointment of a receiver, the government has said that there are potential violations of federal criminal statutes.

I have always thought that fluid recoveries are susceptible to abuse because they tend to put money in the hands of people who are not clearly responsible to anyone. In this case, the plaintiff's lawyers appeared to have acted diligently to protect the integrity of the funds, but creating a bank for free lance do-gooding has temptations that are not always resisted. Marvin Pratt is quoted in the paper as saying that there was this money and they decided to give it to "the class members." Of course, his statement is wrong in that they gave it to the class representatives and some other guy. But, more fundamentally, has the inner city of Milwaukee become so prosperous that there was no good cause to which the money could have been dedicated?

Too often, fluid recoveries amount to someone with a lot of money throwing a lot of money at something to make it go away. I doubt that is generally a good way to solve real problems.

I am not saying that anyone has committed any crime. A subtext to all this seems to be that Judge Jackson is quite ill and may no longer have been up to serving as trustee.

Strange morality?

Elliott notes that WaPo columnist Eugene Robinson once praised Johnny Cochrane for being good enough to get OJ off, but now condemns Judith Regan for publishing his "hypothetical" confession and Fox TV for airing her interview of the Juice. Which is worse, Elliott asks, "a book and television program that basically prove that O.J. Simpson got away with murdering two people……or the lawyer who exploited a black jury’s reverse racism to help him get away with it?"

Given the ethics of my profession, I should have a clear answer. Regan was wrong and Cochrane was right. A defense attorney can't do "anything" to get his or her client acquitted, but nothing that Cochrane did was out of bounds. He exploited the racial atmospherics of the trial, he baited Chris Darden into one of the dumbest lawyer tricks of all time and he made Mark Fuhrmann into one of the more celebrated red herrings in the annals of legal history, but that is what our system allows.

Before you say that "legal ethics" is an oxymoron, I hasten to add that the system has its own internal ethic; it's own sense of right and wrong. As long as you don't do things like lie, suborn perjury or fabricate evidence or bribe witnesses, you can (essentially) try to persuade a jury of something that you know isn't true. The ethic of this is rooted in a sense that government is imperfect and the best way to keep the state honest in criminal matters is to require it to prove its case over an aggressive advocate working hard to take it part. It is rooted in the old notion that it is better for a guilty man to go free than for an innocent one to be convicted.

This is not a system that is amoral or unconcerned with ethics. The problem is that it's ethic is not one that we all share. The problem is that, sort of like capitalism, what is thought to be the best result is often produced by nasty means.

I think I have blogged on this before, but, when I taught at UWM, I'd show the class a scene from Al Pacino's old movie And Justice For All. Pacino is a criminal defense lawyer who spends most of the movie struggling against the seeming amorality of the system. He is blackmailed into representing a judge charged with sexual assault and learns that his client is guilty. In the middle of an opening statement in which he chronicles the absence of any evidence of his client's guilt, Pacino stops to ponder the fact that the victim has identified him. Why would she lie? In typical overwrought Pacino fashion, he says:

The one thing that bothered me, the one thing that stayed in my mind and I couldn't get rid of it, that haunted me, was why. Why would she lie? What was her motive for lying? If my client is innocent, she's lying, why? Was it blackmail? No. Was it jealousy? No. Yesterday I found out why. She doesn't have a motive, you know why? Because she's not lying... And ladies and gentlemen of the jury, the prosecution is not going to get that man today, no, because I'm gonna get him! my client,(turning and pointing) the Honorable Henry T. Fleming, should go right to f***ing jail! The son of a bitch is guilty!

Chaos ensues. This is a moment of catharsis for the audience. Pacino has finally got it right! He's finally acted like a human being! But, of course, all he has done is cause a mistrial and forfeited his license to practice law. In doing what we were all rooting for him to do, he has behaved unethically.

Fisking folkbum

For reasons known only to the cyber-God, I can't access local blogger Jay Bullock's comment sections, so I need to comment on his posts here. Jay recently posted on the case of Ali Saleh Kahlah Al-Marri. Al-Marri is a citizen of Qatar, who arrived in the US on September 10, 2001 purportedly to study computer science at Bradley University. He was arrested in December of that year as a material witnesses in the investigation of the 9-11 attacks. He was ultimately charged with credit card fraud and related charges but, while the charges were pending, he was designated as an enemy combatant. The government dismissed the charges and al-Marri has been detained in South Carolina since then.

The al-Marri case raises difficult questions - questions that are complicated by the recently passed Military Commissions Act. But one it does not raise is the propriety of the KGB-style "disappearing" that Jay thinks it does. Jay quotes blogger Glenn Greenwald who writes that al-Marri has been given "no opportunity to prove his innocence." Jay adds that "{t]here is no evidence that this man did anything other than sit around at home with his family, go to school, and follow the laws of the United States."

Neither assertion is true. al-Marri filed a habeas petition in federal court in South Carolina. The court's decision denying the petition is instructive. Simply put there, the issue in that case has been the level of proof that the government must introduce to shift to al-Marri the burden of, as Greenwald puts it, "proving his innocence" or, at least, disputing the evidence presented by the government as to his complicity in terrorist activities.

Contrary to Jay's assertion, the government has introduced evidence that he did "something other" than pursue the American dream. It has introduced a sworn declaration of a government investigator who asserts that al-Marri trained with bin Laden in Afghanistan between 1996 and 1998, volunteered to be a martyr and was directed to enter the US as a sleeper agent to explore methods of hacking into the US financial system. According to the affidavit, he has received financial support from Khalid Shaykh Muhammed and Mustafa Ahmed Al-Hawsawi, one of the financiers of the 9-11 attacks.

Although al-Marri was ostensibly in graduate school, the Declaration continues, he rarely attended classes and was failing. Analysis of his laptop revealed research regarding use of chemical weapons of mass destruction and other poisons, computer hacking, identity making and the purchase and sale of credit card numbers. The Declaration says that the laptop had stored 1000 credit card numbers, some linked to fraudulent charges in nearby Macomb, Illinois. He had other people's credit card numbers on his laptop, He had files on jihad, martyrdom, bookmarks to jihad and Taliban-related websites, etc. He had a draft e-mail messages to an account associated with Khalid Shaykh Muhammed.

Now, an obvious problem with this is that it's hearsay, i.e., it consists of things that other people told the declarant. That would normally be insufficient, but the Supreme Court plurality in Hamdi said that, if unrebutted, it might be enough to justify detention of a person designated as an enemy combatant. According to the district court reviewing al-Marri's habeas petition, the Supreme Court seems to have envisioned an iterative process. If the government introduces some evidence - even hearsay - that justifies detention, then the detainee must respond. If that response is sufficient, then the government may have to introduce more substantial evidence.

The problem in this case is that al-Marri has refused to offer anything in rebuttal of the government's case. He has generally denied that he is a bad guy but has told the court that he "respectfully declines at this time the Court's invitation to assume the burden of proving his own innocence, a burden that is unconstitutional, unlawful and un-American." While, I suppose, it could be that the conditions of his confinement make rebuttal impossible, that's not, at least according to the court, what he says.

Normally, he'd be right and that's where the difficult issues begin. To what extent do we depart from traditional standards for civilians in response to the threat of terror? That's the issue that the Democrats - when they are speaking with reason - see and its a legitimate one. We don't usually permit people to be detained on this type of evidence - whether or not they rebut it.

But there is another difficult issue. To what extent do we depart from the traditional standards for enemy combatants because, in the case of terror, those combatants may be embedded within the civilian population? We traditionally don't treat enemy soldiers as civilian criminals and there is good reason for that, too.

We can and should debate these things. My sense is that the administration, although it has been reasonably careful in its exercise of the more expansive powers that it has both claimed and that Congress has granted to it, has tended to seek rules that are weighed a bit too heavily in favor of the government.

But acting as if we've become a police state and ignoring what is really going on in cases like this doesn't advance that debate. It provides us with a sound bite, but not a conversation.

The Seinfeld Platform

We are now in the post-election battle about what the election meant. I think that's a no-brainer. The public is tired of Iraq and the GOP Congress allowed itself to acquire a public image as corrupt and bloated. Earmarks, scandals and an unwillingness to restrain spending resulting in an uncomfortable deficit. They forgot that they were not elected to be reelected and conservatism is not synonymous with whatever the people on K Street want.

What is was not is a repudiation of social conservatism. With the exception of stem cells, the Dems played down their cultural liberalism. Nor is it right for conservatives to think that we were "defeated by the media." One of the great weaknesses of the Democratic Party as a political force is that it repeatedly believes that it loses because of the way it packages its message, rather than because of the message itself.

This brings me to the last point. The Dems really have a mandate for ... nothing. That's the way they ran this campaign which was all about George Bush all the time. Indeed, the Dems were urged to run as the party of no ideas and they did. Now comes the hard part.

If I did it?

This sounds unspeakably creepy. OJ Simpson will publish a book entitled "If I Did It" describing how he would have killed Nicole Brown and Ron Goldman. My first reaction is that, while Judith Regan has a constitutional right to publish this, she ought not to have done so. My second is that the Goldman and Brown families have huge judgments against Simpson. Have they done anything to try and insulate the money that Simpson will earn on this book from attachment? Will a clever lawyer figure out a way to go after Regan's cut? My third reaction is that the OJ jury should be ashamed of itself. The lawyering by the prosecution in that case was several cuts below average, but they allowed themselves to be duped by racial solidarity into allowing Simpson to make fools of them. My fourth reaction is - if you're going to do this - why not just admit it? He can't be tried again and a federal prosecution won't work here. That'd really sell books.

Win or quit

The White House and Democrat Congressional leadership have now officially started to tangle about what to do in Iraq. I can see no good coming out of this. Unlike, say tax policy or social security reform, a war seems like a poor thing to compromise on. Either we are going to do what it takes to win or we should just quit. Continuing to fight an abandoned war, as we did in Vietnam, just wastes lives without purpose. The Dems want troop reductions to "send a message" that Iraq must soon fend for itself. But without a plan for Iraq to do that, this is a silly idea. It makes our troops vulnerable and simply delays the inevitable Iraqi bloodbath (something that happened in Vietnam but that has largely been read out of our popular understanding of that war.) The administration wants to stay the course, but that's a silly policy unless there is a plan to win and I think its fair to say that this must be a different plan that the one we've followed over the past four years. If the Dems won't let that happen, its time to go and refocus our defense against terror. Abandoning Iraq may not be ideal, but it may be the best of bad alternatives.

Shark on Dead Tree

If you live in Milwaukee, you should have seen my piece in this morning's Milwaukee Journal Sentinel. But if you don't or you didn't, it's here.

Fair Wisconsin lost more than the vote

As I have said before, many of the marriage amendment opponents with whom I have debated in the past month and a half are intelligent and bright people who it was a pleasure to get to know. I can say the same thing about many opponents that came to hear us and who I got to meet after the forum. We disagreed but respect each other's intelligence and integrity.

But Fair Wisconsin, as an organization, not only lost, but it left as a loser. There is a post by a gay man in response to the elegiac finale on the "No on the Amendment blog(go to comments and scroll down a few from the top), posting Mike Tate's concession speech. This gentlemen (who calls himself "Skippy") is quite obviously upset that the amendment passed and angry with Fair Wisconsin. Referring to its deceptive last minute automated calls, Skippy said that Fair Wisconsin flat out "lied" to the people of Wisconsin. "I would like to see Fair Wisconsin Retired... and will not rest until that happens...", he writes, "NO BODY that sticks up for me is going to go around and LIE..."

The man believes that this may have convinced supporters of gay marriage or its equivalent to vote "yes" but also believes that it severely hurt the gay community by making "us out to be phonies [and] fakes." (NB: the guy who was responsible for the calls is not gay.)There were, when I last looked, 44 comments in response to the "concession" post. They lament the results and congratulate each other on their hard work, but no one addresses Skippy's concerns.

Commenting on Fair Wisconsin's sophisticated and prodigious fundraising, Rep. Mark Pocan pronounces the group a "winner" and he's right that they did many things very well.

But how do you justify a deliberate attempt to confuse voters? How do you excuse a lie? The ad campaign was, essentially, the equivalent of leafletting black neighborhoods with fliers that say, because the polls will be busy, Democrats should vote on Wednesday. It is as if the GOP had told elderly Jewish voters in West Palm Beach to check the box for Buchanan if they wanted to vote for Kerry.

No, it didn't work, but this isn't about the amendment. Does anything go in politics? Does your end justify any means? If you are persuaded that you are on the moral high ground, does that mean that you may lie in order to hold it?

I asked Mark Pocan to respond to these questions. He has apparently not had time to respond, but I really would like to hear from anyone who thinks this was ok. Pointing to ads that may have been nasty or played fast and loose with the facts is not an answer. These calls were uniquely deceptive. They were, arguably, a crime under Wisconsin law. While I'm not suggesting we put the bracelets on someone, these calls were audaciously fraudulent.

The amendment passed and we can continue to debate whether that is a good thing and how it ought to be interpreted. This is about the rules of the game. Do we really want our campaigns to be run in this way?

Pelosi Blues

It would be wrong not to congratulate our opposition on a good evening. Local lefty blogger Jay Bullock should even take a personal day and contemplate the sublimity of life. God knows he's got them in his contract.

Here at home, I've locked away all the sharp objects so that I can go to work and not have to worry that the Reddess will do something desperate.

What will the Dems do with control of the House (and, maybe, the Senate)? My guess is mostly nothing. An increase in the minimum wage seems in the cards and I doubt that Bush vetoes that. They might roll back the upper end of the Bush tax cuts, but I don't think they have the votes to do more. Their impact on Iraq will be minimal. Its very hard to conduct foreign policy from the Capitol.

They may believe that the thing to do is to launch a bunch of investigations. That would be dangerous. Aimless investigations with little results generally come across as divisive. The impeachment of Clinton backfired on the GOP. As Omar Little once said on the best show on television, if you "come at the king, you best not miss."

More fundamentally, the Dems retook Congress without a program. That's fine but George W. Bush has officially ceased to be a campaign issue. If Pelosi is going to get her money out of redecorating the Speaker's office, she's going to have give people something to vote for rather than against.

As for Bush, he ought to take the offensive domestically by proposing a series of popular conservative initiatives. He ought to propose a big increase in stem cell funding (including funding for alternative sources of pluripotent cells) with a continued cloning restriction. He ought to propose a new initiative on immigration. He should not be afraid to return to social security and medicare reform. The Dems won't pass any of this, but their failure to do so will be destructive. "Dead on arrival" never hurt Reagan and a "do nothing" Congress reelected Harry Truman.

Shark on TMJ4 tonight

I will be on TMJ4's election coverage tonight, commenting on the returns on the marriage amendment. James Widgerson, Ingrid from Fair Wisconsin and I will be remote with John Mercure at UWM. Will I mention the fraudulent robocalls?

Exhibit D in the case for Yes

We should be clear. The robocalls from Fair Wisconsin telling people that they should vote no to protect marriage from activist judges and so that marriage in Wisconsin should not vote are a dirty trick. I understand the arguments that they offer on behalf of the proposition that these are true statements. I think those arguments are insubstantial but that's not really the point. The only way that you'd characterize a "no" vote in that way is to confuse people, Fair Wisconsin knows that the people for whom unexplained references to "activist judges" and "not changing marriage" are people who do not want those activist judges to impose same sex marriage. It's one thing to tell those people that this "won't happen" if the amendment fails. It is, for reasons that I've explained elsewhere, wrong but at least your interlocutor knows what you're talking about.

This is, plain and simple, an effort to deceive. It shows me that they think they are going to lose and that they would rather win than play fair.

The amendment opponents that I met on the speaking circuit - people like Lester Pines, Scott Moss, Lena Taylor, Michele LaVigne (along with others I don't have space to mention) - were intelligent, honest and honorable people. They were a joy to debate. I don't attribute this to them.

But it stinks.

Prepare for Armegeddon? Is Justice Stevens ill?

There is a rumor going about that a Supreme Court Justice is seriously ill. Some are saying it's Stevens. You can find some discussion of this on the internet here. This could be a rumour that is being generated as part of somebody's GOTV effort, but in a sense that is besides the point. The most important thing about tomorrow's election is the Senate. The likelihood that there will be a vacancy (hopefully by retirement)in the next two years is extremely high. Given that this vacancy is far more likely to be from the five Justices who have voted to uphold Roe v. Wade, the next confirmation battle will be only slightly less bloody than Verdun.

My guess is that the GOP loses seats in Rhode Island (who cares?), Pennsylvania, Ohio and Virginia. It picks up Maryland for a loss of three. The new Senate is 52-46-2.

And if Justice Stevens is ill, my prayers are with him.

The Milwaukee Journal-Sentinel and the New York Times

Lots of conservatives in Wisconsin like to criticize the Journal-Sentinel's editorial page as "biased." I don't. While it is true that a majority of the board are liberals (although there are at least two conservatives), editorial boards are supposed to have opinions. The key is whether they let the other side have a say. The paper makes an effort to run good conservative commentary. Patrick McIhleran is a wonderful columnist - intelligent, funny and succinct - and I think they have attempted to keep balance among their community columnists. I have written between 30 and 40 op-eds for the paper and they changed precisely one thing in all of that work. (They asked and I agreed.)

I want to constrast what the Journal-Sentinel and New York Times did yesterday. Everyone in town knew the paper was going to endorse Doyle. But they decided to give equal prominence to opposing views, running, for example, my endorsement of Mark Green at the top of the page. Moreover, (and I realize that this is immodest of me), they set out to find people who would do a good job of countering their endorsement.
I could have told you from the moment that I heard what they were doing who the other writers would be.

Let's compare what the national paper of record decided to do on the Sunday before the midterms. They said that they just set out to find four writers to comment on races in four key states and, what do you know, they all turned out to be liberal Democrats. We heard how about how mean-spirited the Republicans are in Minnesota, how the Republican incumbent in Montana just ain't a man of the people, how we should fear that the GOP is about to steal the election in Ohio (no reason offered), and how it'll probably be racist if Harold Ford loses in Tennessee (although it's apparently ok for Michael Steele to go down in Maryland.)

I have to confess that I really enjoy the Sunday Times (preferably on my deck with a glass of wine) but current management is ruining the franchise. You can accuse me of sucking up to Ricardo Pimentel but I still think the comparison is worth noting.

Exhibit C in the case for Yes

This may take a while. Bear with me.

One of the difficulties in arguing for the amendment is the need to constantly restate what you are not saying. My arguments for the amendment have nothing to do with homosexuality about which I make no moral judgment. It is not about whether gay and lesbian relationships should exist or legal. They do exist and they are legal. The question is not even whether the state should recognize or facilitate certain legal arrangements that may be useful to some (but based on the low rate of same sex marriage in Massachusetts, not most) of these relationships. The issue is - to the virtual exclusion of all else - preserving further erosion of the privileged status of marriage and the tailoring of the social norms and rules surrounding it to the nature of the relationship for which it was designed.

This does not mean that I think that individual people "who love each other" are themselves a threat to marriage or that, in a world of same-sex marriage, straight people will "turn gay" (although I do believe that it is within the prerogative of society to, while not ostracizing or mistreating homosexuals, treat heterosexuality as normative).

What I worry about is that, if marriage is seen as something that whose purpose is merely to facilitate or sanctify loving relationships or that its purposes must bend to some blunt notion of equality, two broad trends are bolstered - one that is already well underway and the other relatively new but inextricably linked to the push to redefine marriage.

First, if marriage is largely about love, i.e., love not only a necessary but sufficient condition for marriage, then we reinforce the idea that a marriage ought to exist only so long as the parties think they love one another. Note that this is not an argument that gays and lesbians are more likely to break up. It is solely based on further reinforcement of the notion that marriage is a private matter that ought to be whatever the individual parties to it want it to be. We have traveled quite a way down that road already with ugly results. I prefer to stop.

Second, the rules and social norms around marriage largely flow not just from "love" but from the nature of heterosexual relationships, i.e., from the fact that men and women experience sexuality differently and, therefore, often have competing interests in the relationship and that these relationships, if they last long enough, will probably produce children - often unintentionally. All of the "rules" of marriage, i.e., monogamy, sexual exclusivity (related to but distinct from the first), presumption of paternity, presumption of financial interdependence, etc., are, to a greater or lesser degree, rooted in these distinctives.

These ideas may work for some same-sex relationships. In debates, the no side almost always produced a lesbian in a long term relationship with a child that was adopted or the product of artificial insemination. (Although most children in such relationships are, in fact, the product of earlier heterosexual relationships, my sense is that they stayed away from couples like that because it raises a whole set of difficult questions.) For these couples, maybe something like marriage works well.

They are, however, a small minority of same sex couples. What works for the others? If it is not the same as marriage, do we run the risk of eroding the norms and rules around marriage in the interests of inclusivity and equality? Do we run the risk of creating further public confusion around what marriage entails?

The other risk of the redefinition of marriage is that we have no real basis to deny marital "benefits" and "protections" to other relationships that are loving and mutually dependent. Some may be polygamous or polyamorous (again, this is not to say that gays or lesbians are particularly drawn to that), but some may be non-conjugal.

One of the reasons that I worry about this as a possibility is that there are advocates of same sex marriage who argue that this is precisely where it will - and should - lead. Stanley Kurtz provides some examples but there are more. There is a whole legal literature about "deprivileging marriage" and "marital equality" is thought to be a step in that direction.

This does not mean that all of the advocates of same sex marriage are closet polygamists, communards or that they all want to end marriage. It does mean that some very smart (albeit very radical) people have seen the implications of the movement.

This brings us, at long last, to Exhibit C. It is Fair Wisconsin's signature ad which is, perhaps, one of the most cynically brilliant and intellectually dishonest spots I have ever seen. Karl Rove and Lee Atwater have nothing on these guys.

It is one of the most surreal things I have ever seen. People who sincerely believe that the unavailability of marriage or its equivalent to homosexuals is unjust are arguing that we should vote "no" because the injustice will continue. The not so subtle association of the word "no" with "gay marriage" is clearly designed to confuse voters as to what a "yes" and "no" vote means. It is the functional equivalent of telling voters in traditionally Democratic precincts that, due to long lines at the polls, Democrats will be voting on Wednesday.

Why can't Fair Wisconsin have the courage of its convictions? Is it really because the general public is made up of homophobes who can't be trusted to do the "right" thing? The degree to which society accepts gays and lesbians has increased exponentially. That can't be right.

I'd suggest that it is because the public intrinsically knows that changing what may be our most fundamental institution in a way that, until a few years ago, no one in any place and at any time would have dreamt of is likely to change it in ways that we can't predict.

The Supreme Court and the Gubernatorial race

I am in D.C. today, but my thoughts right now are in Wisconsin. I haven't blogged on the Wisconsin Supreme Court's decision to defer any ction on Mark Green's ability to transfer federal contributions to his state account and, to be honest, I can't really address the merits. The idea that the record needs further development because the parties can't agree on the facts or on the need to resolve the applicability of federal law does not seem overwhelmingly right, but the Court is being asked to exercise its original jurisdiction (since it turns out the order wasn't) and that is a strange and rare animal. I'd have to do what they did, i.e., read the briefs and the record to have an opinion.

But there is a real shame is in the division between the Court's liberal and conservative wings. The State Elections Board actions - adopting an emergency rule the day after the transfer and splitting along party lines after an ex parte memo from the Governor's lawyer - look bad enough. Even if they got it right, it all seems like nothing more than an exercise of raw power.

The left-right division on the court, putting aside the merits, just adds to the impression that all of this turns on whose ox is gored. While I am not saying that the majority was driven by partisan concerns (I assume they were not), might it not have been better to just dismiss the petition, i.e., refuse to hear the case? (Justice Prosser suggests so in dissent.) The way things stand now if the Court takes the case and decides that the money could have been transferred (too late for Green)then it just looks like the SEB and courts set out to screw Mark Green. While I cannot believe that any of the justices would do that, the whole thing just undermines public confidence in the judiciary.

One of the things that won't happen, although Xoff apparently fears it, is Green seeking to set aside the election if he loses. I can't imagine any argument for doing so that he or his lawyers could make with a straight face. Once again, Bill, leave the legal stuff to professionals.

Marriage Amendment On Trial

The marriage amendment trial aired on Wisconsin public TV last week and I am told that it will air in Milwaukee tomorrow night at 11 pm on Channel 10.

I have read that some anti-amendment bloggers have criticized my opponent, UW Law Professor Michele LaVigne. This is preposterous. She did an excellent job. She realized that an emotional approach is best for her side and for the format (very brief everything) we were stuck with and she delivered that.

I couldn't really do that because the arguments for the amendment that I want to make are not that simple and not rooted in emotion, although they do draw on very primal understandings of the nature of marriage. In that sense, the format worked against us. But its hard for me to be objective. Both Michele and I agreed that we would never watch it (but I did anyway). I think it is fair to say that the trial produced some thought provoking arguments and is worth seeing.

Bad News ! Green reads the amendment as it is written!

Every once in a while, I hear an argument from folks opposing the marriage amendment that is so sublimely confused that I can't decide if they are being willfully obtuse or engaging in creative obfuscation. With a cagey political consultant like Bill Christofferson, its best to bet on the latter. Here's the latest.

Mark Green told the Log Cabin Republican says that he would oppose the use of the marriage amendment's sentence to eliminate the right of gays and lesbians to "visit their partners in the hospital under the hospital visitation statute or make medical decisions about them through medical power of attorney."

One Wisconsin characterizes this as opposition to "using the second sentence of the amendment." Xoff says Green wants to "pass the amendment and then ignore it."

What is actually going on is that Green doesn't believe that the second sentence would take away these rights. No one else supporting the amendment does either. In no state that has passed an amendment has anyone, to my knowledge, ever claimed that such rights are in violation of the amendment.

And if they did, they would lose. You can identify anyone you want to visit you in the hospital and give anyone you want a medical power of attorney. This doesn't create a relationship between you and that person which is substantially similar to marriage.

So Green has simply said that, as Governor, he will not use the second sentence to prohibit things that it doesn't prohibit. Xoff and One Wisconsin are trying to turn his common sense reaffirmation of the second sentence's limited purpose into an admission of its supposed "danger."

In a way, I admire the effort but it's pretty weak beer.

Stuck in second place

I'm guessing that the local blogosphere will be debating the placement of the story about John Kerry's suggestion that the uneducated will get "stuck in Iraq." The piece is placed on page three and the headline provides no clue as to what the controversy is about.

The question is a fair one. It may be that Kerry intended to take a swipe at Bush, but political gaffes often involve statements that were intended one way but can be taken in another. If those statements can be understood to offend anyone of a number of minority groups, they become big stories, e.g., Ronald Reagan's reference to "you people" at the NAACP convention or Trent Lott's praise for Strom Thurmond at the old coot's 643rd birthday party. If this isn't a big story, doesn't it reflect a judgment that young people who serve in the military are fair game in a way that certain minority groups are not?

The answer can't be that Kerry's statement can't be understood as a shot at the education and motivation of our troops. His alternative explanation is plausible, but it is not obviously correct. In fact, when I first heard his remarks, it did not even occur to me.

This will have political legs because it is consistent with what a lot of people fear about the Democrats, i.e., that they are anti-military. Whether or not that belief is fair, voters have been reminded of it on the eve of an election. My own sense is that the Democrat's momentum is stalling. This won't help.

Some people will suggest there is an irony here in that Kerry was a Yale man who joined the Navy. But the reason that this doesn't insulate him is that people care more about what he'll do now then what he did then. Kerry threw away the political advantage of his war record when he threw away his purple hearts. There is no getting it back.

The other reason that it won't help him is that he exudes arrogance. Let's say that he did mean to take a shot at Bush. He meant to say that the war has gone poorly because Bush is stupid. This recalls his presidential campaign in which he essentially said that, had he been running the war it would have gone better, not because of any particular ideas that he had about how it might have been more effectively prosecuted, but because John Kerry is oh so smart.

That also plays into a public stereotype of liberals, i.e, that they have this smug belief that they are smarter and morally superior to other people. It's not attractive, guys. His refusal to apologize makes it a double-shot.

A week before the election, John Kerry has given the GOP a two-fer.

Oba-mania hits town

Its not that I don't understand the appeal of Barack Obama. He's a bright and good looking guy. He's articulate and he has a nice "origins" story. He's African-American and the day is coming when that will be, at least for a while, a political asset just as being female was during the "year of the woman".

Here's the most important thing, he's a blank slate. Not in the sense that he doesn't have his own ideas and aspirations, but he is so new that every one else can project their own upon him. Both Greg Borowski and Eugene Kane make much of his catch phrase and book title, the "audacity of hope" meaning, according to Obama, that "the world that is not the world that has to be."

It is a nice phrase. So nice that it has been a pretty standard concept for politicians. Bobby Kennedy, at least posthumously, "did not look at the things the way they are and ask why" but dreamt "of things that never were and ask[ed] why not." Ronald Reagan, channelling John Winthrop, said we could be as a shining city on a hill. Bob Dole was "the better man for a better America," Richard Nixon was "for the future," and Hoover promised "a chicken in every pot and a car in every garage." At least the last one eventually came true.

I know platitudes are part of the political game, but they are not profound. Obama cleans up well, but what is he about?

Today's MOS

We had an enjoyable debate on the marriage amendment at Marquette last night. You can read John McAdams' impressions here. The turnout was fantastic and the audience - largely consisting of MU undergrads - was courteous and attentive. In a world where students at an Ivy League institution behaved like a pack of brownshirts and rushed the stage to silence a speaker they did not like, it was really heartening to see an auditorium full of young people who were willing to listen to both sides.

Exhibit B in the case for Yes

Today's Milwaukee Journal Sentinel has an article addressing the "uncertain" effects of the marriage amendment and it is a case study in the "he said, she said" method of reportage. Nothing wrong with that and the reporter does a good job of reciting the opposing arguments, but isn't there an obvious point that needs to be made in response to the point, made in the article by Sen. Jon Richards, that the "second clause that goes way beyond marriage, goes beyond to civil unions, health benefits, even (the right of) a person to visit their partner in the hospital."

It does go to civil unions (a status that doesn't really exist today), but here's the biggest point on the claim that the amendment will preclude the conferral of benefits, keep people from visiting their partners in the hospital, etc.

Twenty states have marriage amendments. In all of this states there is not one instance - not one - of an amendment being interpreted to preclude these things.

Utah has a marriage amendment. Salt Lake City has a benefits plan in which employees who are unmarried may designate an adult dependent residing in his or her household to be covered by the employee's health insurance and other benefits. When Salt Lake adopted this program (expanding it from one that required the employee and co-beneficiary to be in a sexual relationship), the Alliance Defense Fund withdrew its objection. Someone else continued the case, but they lost.

As the article points out, after the amendment passed in Michigan, someone challenged a domestic partner benefits plan offered by the Ann Arbor schools. While the matter is being appealed, the plaintiffs lost. The trial judge upheld the benefits notwithstanding the amendment.

The worst case that Fair Wisconsin can trot out is the refusal of two Ohio appellate courts (out of ten that have addressed the issue) to apply that state's domestic violence law to unmarried couples. (Of course, the perp can still be charged with assault and battery.) My guess is that the Ohio Supreme Court will side with the 80% of lower courts that have held the amendment doesn't affect the domestic violence statute, but the larger point is that, in Ohio, the pertinent part of the domestic violence statute applies only to people who are or have lived together "as spouses." Wisconsin law does not require that. It applies to any adults living in the same household.

Amendment opponents argue that we should ignore actual results in other states imposing same sex marriage and yet be scared to death of possible arguments that have been rejected everywhere they have been tried.

What is this about?

Maybe I am suffering from partisan sensitivity, but I think the headline at the top of page one in today's Milwaukee Journal Sentinel about the "impending fiscal crisis" is oddly timed and presented. The "fiscal crisis" that is on the way is one that I have been hearing about for, I kid you not, at least 30 years. As the old saying goes, demographics is the future that has already happened and this crisis is solely the result of 1)the government's choice to provide universal entitlement programs for retirees unrelated to need or to past contributions of the recipient and 2) the post WWII baby boom. It has nothing to do with Bush's "tax cuts for the rich" (although it may have something to do with the Democrats repeated demagoguery around social security reform) and presenting it a week before the election as something that is new and unremarked upon is odd.

Current operating deficits may be bad policy but the real crisis starts when my big brothers and sisters turn 65 and start collecting social security and Medicare. We have known this was going to happen for years (the old hippies were born in 1946), but we've done nothing. Reagan tried but the government has been raiding the social security trust fund for twenty years under both parties.

Its an important story, but it might have been nice to hear it when the Dems were trashing Bush for his "risky" proposal to try and fix the problem.

Will Wisconsin become Jersey North?: Doyle and Falk

One of the interesting aspects of Lewis v. Harris, the New Jersey decision mandating same-sex marriage or its equivalent is the state's disavowal of any interest in acting to protect traditional marriage. The best arguments against same sex marriage are that it will undermine the social understanding of marriage as an institution to facilitate and establish rules and norms consistent with potentially procreative relationships and further erode the notion that, all things equal, children have a need and a right to live with their mother and father. It is the interest in preserving marriage as an institution whose rules and norms are defined by what will protect children and the interest in reinforcing ideal of both mother and father that justifies limiting marriage to heterosexual relationships.

But, in New Jersey, the Court did not even consider those arguments because the state refused to make them. It chose to fight with one hand tied behind its back and the other in a cast, arguing that its only interest was consistency with the laws of other states. As lawyering goes, this is pretty close to taking a dive in the third round.

So what happens if the amendment fails and the people who get to decide what arguments Wisconsin will make in defense of marriage are Jim Doyle and Kathy Falk?
In raising the question, I'm not saying that either would not act with integrity (in fact, I once litigated a case with Kathy Falk [who was then working for Doyle] in which she ably defended a position that I suspect she did not agree with), but will they vigorously advance arguments that they think are wrong?

Protecting marriage from further erosion requires a "yes" vote and, as a safeguard, votes for Green and Van Hollen.

Will Wisconsin become Jersey North ?: The Court

One of the arguments against the marriage protection amendment is that the type of judicial activism that redefined marriage in Massachusetts and, for all practical purposes, in Vermont and New Jersey "can't happen" here. At a debate in which I participated on Thursday (the Fourth Street Forum), Sen. Lena Taylor, a bright and pleasant woman, argued - incredibly in my view - that the Wisconsin Supreme Court tends to be conservative. That is flat out wrong. It may have been true before Diane Sykes left for the Seventh Circuit and was replaced by Louis Butler, but it's not true today and one of court's conservatives, Justice Wilcox, is about to retire.

In trying to assess whether gay marriage could be mandated by our Court, it is useful to consider its recent decision in Ferdon v. Patient Compensation Fund, the case in which it struck down limits on awards for pain and suffering in medical malpractice cases. Here's a short constitutional law primer: Guarantees of equal protection in the federal and state constitution cannot be read to forbid all discrimination. The law discriminates all the time, e.g., wealthy people pay higher tax rates than poor people, people under 16 can't get a driver's license, you can't practice law unless you do what is necessary to be admitted to the bar.

The federal courts - and most state courts - have dealt with this by adopting a form of multi-tiered scrutiny. Distinctions based on things that we think should never - or almost never - be the basis for treating people differently, e.g., race, will not be allowed unless they are necessary to serve a compelling interest. In practice, this means that they are almost never permitted.

Most other distinctions are subjected to a less exacting standard - often called rational basis scrutiny - which requires only that a distinction be rationally related to a legitimate interest. In practice, this means that they are almost always permitted. (There is also an intermediate form of scrutiny, but we don't need to get into that.)

Sexual orientation has never qualified for anything more than rational basis scrutiny (at least in theory, there is at least one case that may have provided more in practice). This should mean that most distinctions based on sexual orientation would stand. (On, at least, the federal level, this is complicated by potential application of the "right of privacy," but we needn't deal with that here.)

Ferdon involved the kind of distinction - i.e., that between plaintiffs who could establish damages above the threshold and those who cannot - that normally gets "rational basis" scrutiny and the Court in that case did not disagree.

But it announced that it would apply rational basis scrutiny "with teeth" and proceeded to, essentially, substitute its own judgment for that of the legislature as to whether the damages limit was rational.

If the Court continues to apply this new test, there is - in concept if not in practice - virtually nothing that can't be invalidated on equal protection grounds including a limitation of marriage to one man and one woman. The only thing that really restrains the judiciary is a judge's own reticence.

The claim that "it can't happen here" is flat out wrong and, ironically, is now being made by people who want it to happen here and, if the amendment fails, will go to court on November 8 to try and make it happen.

The Shark Does Turner's

You know that you've been busy when you haven't had time for proper self promotion.

I will be debating the marriage amendment today at noon at the Fourth Street Forum held at historic Turner's Hall, 1034 N. 4th Street, in downtown Milwaukee. The forum will be broadcast on Milwaukee public TV at 10 pm on Friday and, I think, at 3 pm on Sunday afternoon.

Exhibit A in the Case for Yes

Yesterday's decision by the New Jersey Supreme Court was wrongly decided, but is a big fat gift for the pro-marriage amendment forces in Wisconsin. The "no" campaign, aware that gay marriage itself is a loser, has thrown all in on the "second sentence"
that bans the recognition of a legal status identical to or substantially similar to marriage. There is no need to ban gay marriage, they say, because Wisconsin does not permit it. The second sentence is also unnecessary and, who knows, courts might interpret it in all sorts of undesirable ways.

This has lead to a kind of surreal campaign in which folks who believe in same sex marriage and who think that the current unavailability of marriage to same sex couples is unjust argue against the amendment by assuring us that what they see as an injustice will continue. I speak at forums and hear attorneys who I know believe that Goodridge, the Massachusetts decision mandating gay marriage in the face of its statutory prohibition, was the Brown v. Board of Education of the new millennium call it an "outlier." The "no" campaign has run a television ad of an empty field telling us, as the crickets chirp away, that if we vote "no," nothing will change. (In yet another Machiavellian twist, this ad also suggests that voting "no" means "no" gay marriage.)

All of this blew up yesterday afternoon. New jersey law expressly prohibited same-sex marriage. No matter. What could "never happen" in Wisconsin happened there.

But there's more. Amendment opponents argue that its one thing to ban gay marriage, but there is no need to ban the creation of a new status that is identical to or substantially similar to marriage. Certainly, that's not required to protect marriage.

New Jersey shows us why it is. The New Jersey legislature had created a "domestic partner" status that was an awful lot like marriage. Having done that, the Court reasoned, what possible basis could it have to decline to make all the incidents of marriage available to same sex couples?

In New Jersey, the distinctive nature of marriage as an institution that is designed to encourage the expression of heterosexual intimacy in a context that is most likely to keep children and their parents together will be lost. In New Jersey, the notion that, where possible and in the great run of cases, children need mothers and fathers can no longer inform public policy. The state has embarked on a social experiment that has been never been tried at any time or in any place and the only people who got to vote were seven judges.

The Shark Plays the Orpheum

I will be speaking on the marriage amendment this evening in Madison at the Orpheum Theatre. The event is sponsored by a young professionals group and will begin at 6:15 pm.

Maybe greed is good after all

The Motion Picture Association of American is sponsoring a Boy Scout's Badge that is won by mastering an understanding of why we respect intellectual property rights. Good on Hollywood. Maybe this is the first step to their recognition that people who earn their money in more prosaic ways, say by manufacturing widgets or developing pharmaceuticals, might also have a right to the fruits of their labor. Baby steps.

Kagen and the Injuns

I was initially uninterested in considering any potential double standard in the reaction to congressional Steve Kagen's use of the term "injun" and his suggestion that Native Americans are not too keen on European notions of punctuality. It all has a "dog bites man" quality to it and, in any event, people like Charlie Sykes and John McAdams can do it better than I can.

What interests me is this: What could he have been thinking? What sentient human being, much less one with a medical degree who thinks he has the smarts to be a congressman, would even consider saying such a thing? My initial reaction is that Steve Kagen must have the intelligence of a paving stone, but we know that's not true, so what gives?

That gets me back to the double standard. Maybe he talks like that because he can. Maybe, because he has the blessing of what he regards as anointed minority representatives, he feels that he can let his little stereotypes out to play. Seen in that way, the harm done by the double standard is not just to conservatives. My guess is that no one in this state has opened a paper and seen a reference to "Injun time" in years. I would not have even known that this was a thing that people say. Now they have and now I do.

On another level, it is becoming apparent that Steve Kagen was not ready for prime time. Move that seat off the GOP's endangered list.

Judicial Activism

Ann Althouse had an op-ed piece in the Wall Street Journal last week attempting to deconstruct the notion of "activist" judges. In a fairly standard recitation of what lawyers of Ann's vintage (and mine) were taught, she says, essentially, that an activist judge is one that you disagree with. She points out that if, to use the ur-activist case, Roe v. Wade were to be overruled, there would still be litigation over things like the territorial reach of statutes that make abortion a crime, etc.

It's an interesting piece and I agree that the term judicial activism is, in and of itself, a conclusion rather than a description. Assuming that you regard judicial activism as a pejorative term suggesting that a judge has somehow overreached, you need to explain what you think judges ought to be doing and just what they need to refrain from doing.

Where I depart from Professor Althouse is in her suggestion that this is an impossible task; that there is, as she puts it, "no exit" from judicial activism.
Judicial activism, in my view, is not synonymous with judges deciding cases. Rather, it refers to judges deciding them on the wrong basis. Judges are supposed to be - in some sense - above the political fray (federal judges are, in fact, appointed for life) and we generally believe that they ought to be ruling on the basis of some source of authority other than their own personal views of what is and is not a good idea. Generally that source of authority is a legal text upon which authority has been conferred by, for example, passage by Congress or adoption by the people as part of their Constitution.

The meaning may be indeterminate. Interpretation may require resort to the type of tools of construction that lawyers typically use and, even then, reasonable people may differ as to the proper outcome. But what counts is interpretation of the text, not the judge's individual policy preferences. Using the term in this way, the outcome of Brown v. Bd. of Education (as opposed, perhaps, to its reasoning) was not an activist decision. The constitutional text clearly mandates equal protection and does so in a context that makes it quite clear that it is concerned with racial distinctions. Roe v. Wade is an "activist" decision in that the "right of privacy" on which it is based is not fairly rooted in any constitutional text and is incapable of definition by resort to anything other than the personal preferences of whomever is defining it.

This view is not completely immune from criticism. Some people argue that texts are so malleable that they answer few interesting questions. I don't agree. To say that words can mean more than one thing is not to say that they can mean anything