Tuesday, October 31, 2006

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.

Monday, October 30, 2006

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.

Saturday, October 28, 2006

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.

Thursday, October 26, 2006

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.

Tuesday, October 24, 2006

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.

Monday, October 23, 2006

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

Sunday, October 22, 2006

Save the ACLU?

A group of former leaders of the ACLU has started a blog to, well, save the ACLU. It seems largely concerned with internal management and a tendency on the part of ACLU management to be willing to stifle what they want to stifle. The real problem with the ACLU is that it has adopted a view of civil liberties rooted in a leftist critique of society. Advancing the interests of favored "disposessed" groups trumps concern for liberty. There's nothing wrong with that if that's how you see the world, but when most people abandon the underlying world view, they will also fail to support much of what the particular positions that view inspires. It doesn't look like this group wants to save the ACLU from that.

Is Doyle a centrist? How do you tell?

Today's Milwaukee Journal Sentinel exhibited the type of media bias that is far more prevalent than overt bias and planned agendas. The import of the headlines were that Jim Doyle is a centrist ("governs from the political middle") while Green is "in with his party" suggesting that he is somehow not in the political middle - wherever that is. Given that most people don't read news articles carefully and, even when they do, don't have much a frame of reference into which they can place what they read, this really winds up as a pro-Doyle spin. He's a moderate, it says, a reasonable man. It's not clear what Green is, but the clear implication is that it is something else.

The problem with this is not so much that it's unfair, but that it is contentless. It suggests a type of objective standards for politicians that just doesn't exist. Is Doyle a "centrist?" Left activists in the Democratic Party certainly think so. Conservatives certainly don't. As the article notes, he certainly could have governed from a more leftward position than he has, but he has also taken any number of positions that are well to the left of prevailing opinion, i.e., opposition to a property tax freeze, TABOR, voter ID, etc. Whether he is in the middle depends on who is looking and from where. In the newsroom, he may look like a centrist. From other places, he does not.

Wednesday, October 18, 2006

"We finally killed him"

The blogging pace has been glacial because I have been mad busy. I did note, however, that you may now buy a coffin or urn for your cremains with the logo of your favorite major league baseball team. The memorial plaque recognizes the reposited as a life long fan of the team.

I can think of a more appropriate memorial statement for Brewers and Cubs fans.

Saturday, October 14, 2006

It's not about the benefits

In the comments to some of my recent posts on the marriage amendment, a reader says that no one on the "yes" side ever answers the question of what rights gay couples should have. He or she throws out the following:

1. Health insurance for partner and/or children

2. Ability to take family medical leave if partner and/or child is sick or dying

3. Adoption

4. Ability to take funeral leave if partner or child dies

5. Right to receive medical records of partner (careful here, HCPOA does not allow this)

6. Right to view educational rrecords of child (assuming not the bio child)

7. Default position of medical decision-making (Rick, do you carry weith you at all times a HCPOA for your wife?)

8. Right to be considered "family" in Intensive Care Unit or other emergent health situations

Here's my answer: If it's not done by creating something like marriage, all of them. Today, two people can accomplish much of this by simple agreement. If the law were changed to allow two people to "co-adopt" a child, that wouldn't make those two people "substantially married." If an employer decides to allow you to designate a co-beneficiary for your health insurance, that doesn't marry you either.

This is not about denying people benefits. It's about creating a thing - a legal relationship or status - that is substantially like marriage. The reason I oppose that is because I think it will inevitably contribute to a changed social understanding of what marriage is about, i.e., that it is merely about facilitating a sexual relationship that is chosen and defined by the parties. Marriage is what it is in our culture because it is an accommodation of the often differing interests of men and women in heterosexual relationships. Maybe you can change the definition of marriage and retain that meaning, but I think that the odds are against it. Maybe the left is right and gender is a social construct such that most (as opposed to some) relationships between two men or two women are just like a relationship between a man and women and would therefore be served by precisely the same rules and social norms and that mothers and fathers are interchangeable as long as they are loving and responsible. But that sounds implausible to me.

Because marriage is such a vital institution, I don't want to take the risk. If there is a social need to create legal avenues for same sex couples to make certain agreements or have access to certain benefits, then we should provide the right for two people to make those agreements or share those benefits. But what we shouldn't do that by creating a status that is almost like marriage.

That's my view and I cannot say that it is the view of the big bad Alliance Defense Fund. If it's not, then we just disagree. But since Fair Wisconsin seems to think that I - and supporters of the amendment - can't possibly have a view that differs from ADF, let me at least say what I understand that organization's view to be. It is my understanding that the Alliance Defense Fund essentially agrees with me. Not only have I been told by very senior people within that organization that "we don't care about benefits," they also seem to act that way in public.

For example, as opponents of the amendment have pointed out, they did sue to prevent Salt Lake City from extending domestic partner benefits. But, I am told, also took the position that the city could simply permit employees to designate a co-beneficiary (which it ultimately did.)They have publicly supported reciprocal benefits legislation. What they oppose is extension of benefits by the creation of a status. While I think that there is more room to proceed by using the concept of a domestic partner and I may have a different legal opinion on what the second sentence prohibits (in which case, of course, I would be right), it seems that, even for ADF, it's not about benefits.

I understand that many of the people associated with the Alliance Defense Fund are conservative Christians who believe that homosexual intimacy is wrong. I am, in many respects, a conservative Christian, but I am not convicted of that belief. I do not believe that the traditional Jewish, Christian and Islamic view is "bigoted" or "hateful." I think that Roman Catholic thought on the role of complementarity in human sexuality, in particular, deserves careful attention.

But, candidly, I just do not feel called to pass judgment. While I think that the notion that same sex intimacy is "just the same" as heterosexual intimacy is far too simple, I will not call gays and lesbians sinners. That other people have a different view on this than I do may lead them to take positions on some issues that are different than the ones that I would take. Just like those on the left, we who lean to the right are not monolithic.

But believing that the law ought to permit people to enter into intimate homosexual relationships, doesn't mean that the law should treat same sex couple the same way as it treats heterosexual couples. It does not mean that the desire or need for a very small group of people for certain legal arrangements should trump the social need to define and structure marriage in a certain way. Those needs and desires can be addressed in other ways.

Wednesday, October 11, 2006

I am not now nor have I ever been a member of ....

Apparently the guys at Fair Wisconsin are all over me because I take referrals from the Alliance Defense Fund and blog at their website (although I have been so busy lately that I have only done it once). Jay Bullock, who says nice things about me (things I would also - and have - said about him), issues the following challenge:

I think it is incumbent upon Rick to explain why ADF's history of pursuing cases based on the kind of weasel language our proposed amendment contains shouldn't make us wary of a "yes" vote.

Fair Wisconsin goes further saying "If our ban passes, is Esenberg saying that ADF won't sue here? Or that he won't take part in such a suit? Somehow, I doubt it."

Let me review the bidding. First, I do not work for ADF and I will not take upon myself the burden of agreeing with every position taken by every client they represent if for no other reason that I am not aware of them. What I do with ADF is consider referrals from them of pro bono work. I was asked to blog on a law blog they have created. This does not mean that I become involved in everything they do or that they consult with me on anything they do. I think ADF is a fine organization that provides excellent legal representation to religious conservatives (on lots of issues that have nothing to do with gays and lesbians), but Rick is not ADF and ADF is not Rick.

The thing about legal organizations - whether they are private firms or public interest firms - is that what the positions they take will be driven by the needs of their clients and will never be just what the lawyers might say if they spoke only for themselves. When I blog or write or appear at forums, I'm speaking for myself. It is highly unlikely that the array of positions I take will be perfectly consistent with those taken by anyone but myself.

As to what position ADF will take on domestic partner benefits, I don't know. I think the question is too imprecise to even hazard a guess. I do know that they have taken the position that reciprocal benefit schemes are OK. What they are hinky about (and, I think, rightly so) is in creating statuses that are "marriage lite." They don't mind people sharing benefits (as long as its not part of a status like marriage) or entering into agreements under which they may assume certain obligations toward another.

My opinion, after thinking a lot since I first blogged about it in March, is that the amendment would not prohibit an employer from saying that you can designate another person to share your health insurance. I can't tell you whether people employed by ADF would agree. They are smart guys and girls and form their own opinions.

But here's a question for all those people who say that an amendment is not necessary. Are they saying that the ACLU, or any one of a number of legal organizations that amendment opponents work with, won't sue claiming that same-sex marriage is compelled by the state or federal constitution?

Monday, October 09, 2006

Thoughts on the Jacoby incident

This story by Spivak & Bice, if true, is disgraceful. Essentially, a guy named Bob Jacoby is being pursued by someone who has threatened to kill him. Jacoby has called 911, but sees a police car and flags it down. Because the officer was not the one dispatched to answer the call, he blows Jacoby off and goes on his way. It takes 17 minutes to dispatch someone. Fortunately, Jacoby isn't hurt. The thrust of the Spiceboys' column is the outrageous behavior of the cop. And it does sound awful.

But I was struck by another aspect of the story. The incident started when the Jacoby was walking his dog. Cory Flenorl, an African-American man, sitting on the porch of a house he walks by, allegedly begins to verbally harass him. When he crosses the street and some kids stop to pet his dog, Flenorl allegedly shouts "Get the (expletive) away from that cracker - he's a pervert, and I'm going to kill him," and starts to follow him.

Let's start by flipping the races (although I want to consider more than that). If Jacoby was a black man walking through a predominantly white neighborhood and a white guy had started to harass him, yelled "Get the ___ away from that n_____ - he's a pervert and I'm going to kill him" and then proceeded to stalk this innocent black man who was just walking his dog, we'd have public figures contorted into spasms of condemnation. We'd have rallies against racism. We'd have calls for "hate crime" charges. The daily would assume the editorial position and sonorously regret on how little progress we have made since the days of Jim Crow.

But as it happened, no one has even noticed the racial nature of the offense.

On one level, I can understand that. We have a long history of racism that was directed against blacks and we are sensitive about that. We should be.

On the other hand, racial harmony is not served by payback and, if targeting people for the color of their skin is a specially odious thing to do (hate crime laws assume that it is), then condemnation is just as called for in the case as it happened as it would be in the "flipped" hypothetical.

So why doesn't it happen? The trope about black racism being "impossible" because blacks lack power seems inapposite here. Flenorl certainly had the power to threaten, stalk and, although he did not, assault Jacoby

Is it because we don't think that it'll do any good? That we assume that outrage can strengthen societal norms against white racism but not black racism? That strikes me as the worst kind of condescension.

I have always wondered how much good it does to engage in extended public condemnation of criminals. Are they subject to moral suasion? The answer to that question, I think, is that society needs to periodically reaffirm its values. It needs to underscore the messages sent by the law. We don't do things like this. If that's so, then ought we not be equally concerned with black as with white racism?

Do we think that black racism is somehow "understandable" and thus less morally problematic? You could argue that, in some grand scheme of things, that there is a case to be made for this, but it too has troubling implications. If Flenorl's racist threats against Jacoby (assuming that he made them) are justified by white racism that Flenorl has experienced in the past, would Jacoby now be justified in expressing racist feelings of his own?

Maybe this angle of the story isn't as engaging because Jacoby wasn't hurt.

Saturday, October 07, 2006

The Regents and the Marriage Amendment

Did the UW Board of Regents "play politics" in passing a resolution opposing the marriage amendment? I guess it depends on what you think that the role of the Regents is supposed to be. Should they take positions on issues that are outside of their authority but which they think will have an impact on the university? Apart from whether it is politically smart to do so, that they may weigh in on things that they think will affect the system does not shock me.

Having said that, however, it strikes me as inappropriate and foolish for them to put a partisan spin on it. Board President David Walsh statement that "Mark Green and others will say we're out of step with the mainstream." I suppose that he will (actually, he has) but it's inappropriate for Walsh to involve himself in the gubernatorial race in his capacity as a Regent. It's also ill advised. Green may be (probably will be)Governor in January. We know Walsh is a Democrat, but why go out of your way to make an enemy?

As to the merits, the idea that the amendment would prohibit the university from extending benefits to an employee's designated domestic partner seems to be weak. It is inconsistent with the amendment's language (giving someone health insurance does not create or recognize a status substantially similar to marriage) and is contrary to the expressed intent of the amendment's author. I know that some people take the opposing view, but it strikes me as a stretch.

As for the supposed value of domestic partner benefits is attracting employees, strike me as skeptical. Organizations that have made these benefits available find that they are rarely used. They may be a good idea but I doubt that they have any substantial impact on recruiting. Universities offer them because the kind of people who run universities tend to favor them. There's nothing wrong with that but the absence (or presence) of such benefits is not going to make or break the UW.

Friday, October 06, 2006

If they don't do that voodoo that they do so well, I'll get you your money

I think I've got a new practice area - voodoo malpractice. It seems like a no-lose deal. So if someone has put a spell on you - or hasn't - just make the call.

Thursday, October 05, 2006

Grown-ups are still AWOL on Foley

The Foley scandal continues to illustrate the way in which overweening partisanship makes people who are otherwise capable of critical thought act like a bunch of quarrelling children. In this case, it's the Dems who, seeing a little blood in the water, just can't control themselves. We are told that the GOP leadership protected a sexual predator "for years." Campaign contributions from those leaders to other Republican candidates has suddenly become "dirty money."

The first proposition is light years beyond the evidence. Maybe we will learn that someone in the GOP leadership knew Foley was a sexual predator for years and covered it up, but we don't know that yet. What we know is that the guy had a reputation for being very outgoing and friendly with the pages but, to date, we aren't aware that anyone in authority knew there were any sexual overtones to this "for years" or even "months." We know that, last fall, they did find out that he had asked a page for a picture and he was told to knock it off. Would anyone - could anyone - have done more? We know that when sexually explicit IMs came to light, he resigned.

There may turn out to be more there, but what we see now is people who want to gain partisan advantage from this ignoring critical distinctions and overhyping the evidence. Thus, we see folks like local liberal blogger Jay Bullock (who knows better)stating that the claim of former Foley chief of staff Kirk Fordham that he complained of Foley's "inappropriate behavior" in 2003 somehow proves that the House leadership "protected a sexual predator" for "years, people." But when we read beyond the headline, we see that Fordham had no knowledge of - and did not complain of - any sexual behavior or advances. Some pages merely thought Foley was being "more friendly" than he should have been.

In hindsight, I guess he was, but how does one decide that and, more importantly, what does one do about it? Pages are already heavily chaperoned and monitored (which is why, I suspect, Foley probably never had sex with any of them.) In addition, unless 17 year old boys have changed since I was one, that perception of being "overly friendly" was undoubtedly fueled by the common knowledge that Foley was gay. What was the House leadership supposed to do with that?

Maybe the GOP leadership did protect a sexual predator for years, but the evidence for that is yet to be found.

I understand the desire to see your side win, but I'd like to think intellectual integrity counts for something.

The second proposition (the money is dirty) is just nonsense. It amounts to an argument that the money was given in exchange for silence about something that there is no evidence that either the donor or the donee knew about. Even if it turns out that John Boehner knew something more incriminating about Foley, there is no evidence that John Gard (who received a lawful campaign contribution from Foley) knew any thing to be silent about.

Nor does the receipt of that money obligate the recipients to vote for the present GOP leadership. A campaign contribution is, at most, an endorsement of the donee by the donor. People who get contributions are not obligated to stand by those who make them and, in this case, if the GOP leadership needs to go, there will be new leadership candidates whose campaign money will spend just as well.

I don't claim that lots of Republicans wouldn't do the same thing and many are getting suckered into playing the game now. We'll see your Mark Foley and raise you Gerry Studds or Mel Reynolds.

I know it can't be stopped, but it's all boring and unbecoming. It has nothing to do with who should win the elections. I'm not going to play.

Wednesday, October 04, 2006

"We're going in another direction"

So says Mike McCarthy on the release of Ahmad Carroll. I guess the team has decided on a new strategic direction. They are now going to cover guys on the other team who go out for passes. I like it.

Fred Phelps Mocks God

Fred Phelps and the rest of his inbred family members at the Westboro "Baptist" "Church" are planning to picket the funerals of the Amish girls. (I won't link to their press release; too many of you may have just had breakfast.) Phelps thinks that God had those little girls killed because Penn. Governor Ed Rendell made fun of him and his "congregation."

I don't believe that God just reaches out and smites those who displease God. If God did, then Fred Phelps and the knobs at the Westboro "Baptist" "Church" would have been vaporized a long time ago. I suspect that Fred's judgment day will be decidedly unpleasant.

I know that the Amish are nonviolent, but maybe a few longshoremen from Philly might want to picket too. In their own special way.

Seriously, I'm a first amendment absolutist but, in this case, I think a reasonable place, time and manner restriction would put them somehere in Jersey.

Tuesday, October 03, 2006

Who loves oversimplification now?

I have to say that the arguments behind the Mark Foley disclosure confound me. People who ought to know better say that Republicans who have taken contributions from Foley's funds or those of GOP leaders are somehow compromised. What's the rationale behind that? Were the checks supposed to come with a note that said "Hey, look the other way while Mark cruises hot pages?."

Folks are in high dungeon that Foley's non-sexual e-mail to a male page asking that he send a picture should have been enough to put him in irons. Personally, I think that it would have been unreasonable to think that a gay guy writing that to a male page was probably going to do more dirt, just as, if I am a teacher in Cedarburg, I probably shouldn't keep pictures of teenage girls in bikinis on my computer. But I also suspect that, had the GOP leadership attempted to do be more aggressive than they were, they'd have been accused of homophobia.

There is going to be all sorts of silliness behind this and the only way to avoid that is to insist that people make relevant distinctions and not fall into the political game of avoiding them "because no one will understand." It may well be that the GOP hierarchy has acted ignobly, but the Dems are served by ignorance and are acting accordingly.

I think he's still looking for Greg Lewis

The Packers have released Ahmad Carroll. I guess they'll tell him as soon as he finds the locker room. This leaves them with a couple of rookies at nickel back but its hard to see how they could be any worse.

Monday, October 02, 2006

Good result

Although for somewhat narrow reasons. District Judge John Shabaz ruled today in Association of Faith-Based Organizations v. Bablitch that Wisconsin can't exclude faith-based groups from a combined charity appeal to its employees merely because the groups discriminate on the basis of creed or religion in choosing their governing boards or employees. I wrote about the case in my Journal-Sentinel column.

Judge Shabaz decided the case on somewhat narrow grounds, refusing to find that exclusion from the appeal was a direct restriction on the organizations' associational rights that could be justified only by a compelling state interest. Rather, he analyzed it as a restriction on a nonpublic forum which must be both reasonable and viewpoint neutral. Excluding these faith-based groups, he concluded, was not reasonable in light of the what he found was a more general state policy permitted religious discrimination by religious groups. Although the law still requires restrictions on nonpublic forums to be viewpoint neutral (a question that Judge Shabaz did not need to reach here), this all suggests that if Wisconsin adopted a rigorous policy against aid to religious groups that engage in religious discrimination, he might have reached a different result.

Kudos to Waukesha lawyer Michael Dean who served as local counsel in the case.

Be fair on Foley

I have no idea what the GOP leadership knew about Mark Foley and when they knew it. If anyone sat on information that the guy was sexually stalking kids, they were acting like a political moron and moral cretin. If that includes Denny Haestert, so be it.

But I think a few rules should govern the feeding frenzy that we're in. First, we should be careful about ascertaining just what was supposedly known. It would be one thing to know that Foley sent and "overly friendly" e-mail (without sexual language or innuendo). That might concern someone (50-something year old guys are not usually big buddies with 16 year old kids), but not constitute anything that could be really be acted upon. I have no hope that this distinction will be respected, since we conduct our political dialogue in bad faith these days.

Second, the question of "knowledge" is not just for Republicans. If Dems knew about Foley's more troubling communications and said nothing. Or waited until the most politically propitious moment, they are just as culpable. The GOP may be running the House, but if a Democrat knew about Foley and sat on it, he or she may not the as much of a political moron, but is just as much a moral cretin.