A Stitch in Haste

"The best of America is reflected in the many citizens who have adopted children as their own. Mothers and fathers are the most important influences in a child's life, and children with caring, involved parents can better realize the full promise of America. Parents help their children thrive by encouraging them to aim high, work hard, and make good choices that will lead to healthy, satisfying lives. On November 18, loving families across America will celebrate National Adoption Day by finalizing their adoptions of children from foster care. This day will also raise awareness of the many children still waiting to be adopted and encourage more Americans to choose adoption."
--President George W. Bush, October 30, 2006

"I believe marriage is a union between a man and a woman. I believe it's a sacred institution that is critical to the health of our society and the well-being of families, and it must be defended."
--President George W. Bush, October 26, 2006

Only two kinds of people could make those mutually exclusive statements within a few days of each other: schizophrenics and politicians.

---

Meanwhile, Georgia Supreme Court Chief Justice Leah Ward Sears has an op-ed calling for "strengthening marriage" --

[S]tudies have consistently shown that children raised outside marriage suffer disproportionately from physical and mental illness; are more likely to drop out of school, abuse drugs or alcohol, and engage in violence or suffer it in their homes; and are less likely to attend college. Child Trends, a nonpartisan research organization summed up the evidence in 2002: "Children in single-parent families, children born to unmarried mothers, and children in step-families or cohabiting relationships face higher risks of poor outcomes."

Isn't this all the more reason to allow gay marriage — to reduce all these terrible risks to children, especially disadvantaged children, by sanctioning a whole new category of married parents?

Actually, the piece has a quite noticeable lack of discussion of same-sex marriage, one way or the other. Which, from a gay perspective, could be read either constructively (i.e., "phew, not another bigot screed") or cynically (i.e., "read between the lines").

Tony at Rolling Doughnut (who is not gay) comes down on the "cynic" side. I'm undecided.

A quick follow-up to this old post about the problems created by revised conflict-of-interest rules at the National Institutes of Health:

Nearly 40 percent of the scientists conducting hands-on research at the National Institutes of Health say they are looking for other jobs or are considering doing so to escape new ethics rules that have curtailed their opportunity to earn outside income.

Most scientists say the ethics crackdown is too severe, and nearly three-quarters of them believe it will hinder the government's ability to attract and keep medical researchers, according to a survey commissioned by the government's premier medical research agency.

Of course, we could open up a nice little libertarian debate about whether there should even be a National Institutes of Health, whether "public science" passes an objective cost-benefit analysis or is simply a manifestation of the Politics of the Warm Fuzzy Feeling, whether the government crowds out the for-profit and not-for-profit private market for scientists, and whether the arguments supporting government funding of hard science carry over to, say, the National Endowment for the Humanities, the National Endowment for the Arts or PBS. Feel free to initiate such a debate in the comments.

My point now, as was my point then, is simply that most scientists are not altruists, do not think of themselves as "public servants" and should not be expected to work for free or for less than their objective, market-based worth. The "best and the brightest" should be rewarded as such, which ought to mean something more than a pat on the back from a bureaucrat or a politician. And if that means letting them earn a little bit on the side, then so be it. If you believe in the NIH (a big "if"), then better "a little bit on the side" than "their entire livelihood in the private sector," no?

KFC has announced that it will transition to using "trans fat free" oils in most circumstances:

KFC President Gregg Dedrick said he was confident the switch, which followed two years of secret taste tests, won't prompt complaints about taste.

"There is no compromise," he said at a Manhattan news conference an hour before the hearing. "Nothing is more important to us than the quality of our food and preserving the terrific taste of our product."

The "most circumstances" disclaimer is required because the switch was indeed noticed in KFC's biscuits, which will continue to be made with trans fat.

So the question remains: Why exactly is KFC making the switch in its chicken but not its biscuits?

If the answer is "to meet evolving customer demands," then that would of course be fine if not wonderful. Contrary to capitalism's more vocal (and more stupid) critics, "greedy capitalists" simply cannot put the factory on auto-pilot and "force" its product on anyone (in the absence of a government-imposed monopoly, that is).

But is that what's really going on with KFC — a victory for the free market?

[U]nless the company finds a substitute for the shortening, the biscuits could be outlawed in New York City — just one casualty of the city's proposal to ban trans fats.

So perhaps the company is responding, not to customers, but to hack bureaucrats and the hack politicians who piggy-back off them.

The Center for Science in the Public Interest, which sued KFC last spring over the trans fat content of its food, announced Monday that it was withdrawing from the lawsuit.

Or perhaps the company is responding, not to customers, but to activist nanny-staters.

So, to review, KFC is changing for one or more of the following reasons:

1. A voluntary desire to adapt to changing customer tastes, preferences and expectations in a free-market environment.

2. Coercion by agents inside the government.

3. Coercion by agents outside the government.

It is really so difficult to see that one of these three is not like the other?

Tennessee has jumped the shark on paranoid sex offender mania:

Costume parties, jack-o-lanterns, haunted houses and handing out treats are forbidden under newly issued Halloween guidelines for Tennessee sex offenders on probation or parole.
...
The restrictions prohibit sex offenders from attending special Halloween events like corn mazes and haunted houses, handing out treats, displaying Halloween decorations, accompanying trick-or-treating children or wearing costumes.

They apply to all sex offenders on probation or parole ... and not specifically to those offenders whose crimes involved minors.
...
That means offenders with children must find someone else to accompany them trick-or-treating, he said. Offenders may not wear costumes, even at adult parties. And if other children come to knock on their doors on Halloween, the offenders must not answer.

So essentially sex offenders, including non-pedophiles, are forbidden from "doing" Halloween in any form — even supervised, even exclusively among adults. Because "it's all about the children."

Such hysteria of course has nothing whatsoever to do with "the children." It is instead a witch hunt, a blood lust — just without the blood. It is the never-ending quest to seek out the danger, the enemy, The Others Who Are Ruining America™. And when sufficiently monstrous dangers cannot be found, they must be invented.

Tennessee may be the most extreme in this "No Halloween" overreaction, but it is not the first. I blogged about a similar panic in supposedly enlightened Westchester County, New York, and elsewhere last Halloween.

---

I've blogged several times about the increasingly manic denial of basic liberties to convicted sex offenders, including the constitutionally suspect practice by some cities of banning them outright from residing there.

And while I remain a "law and order" kind of person and acknowledge the empirical evidence that recidivism rates are much higher for sex offenders and especially child molesters than they are for other categories of criminals,* I am increasingly convinced that we are approaching an unfair — and ineffective — mob mentality toward perpetrators of sex crimes.

And what better time to lose all sense of reason than Halloween?

In Westchester County, high-risk sex offenders on probation will be required to attend a four-hour educational program on Halloween night. In New Jersey, state officials are instructing paroled sex criminals not to answer their doors if trick-or-treaters come knocking. And in counties throughout Texas, parolees with child contact restrictions are being told to stay away from Halloween activities, even family gatherings.
...
In effectively detaining sex offenders on Halloween, most officials say they are not responding to any attacks known to have occurred on past holidays but are concerned that the occasion presents a tantalizing opportunity for offenders to have unsupervised contact with children.

Wouldn't a better approach simply be to have the children supervised while they trick-or-treat? Don't parents do that anyway these days?

More:

But yesterday, civil libertarians and advocates for victims criticized the new measures as incomplete solutions and, in some cases, politically timed. Carolyn Atwell-Davis, the director of legislative affairs for the National Center for Missing and Exploited Children, applauded the efforts but pointed out that most children are victimized by people they know, not by strangers. And by focusing on one night of the year, the restrictions will have limited value, she said.

Ah yes, the Politics of the Warm Fuzzy Feeling, just in time for Election Day. And what generates a warmer, fuzzier feeling than "protecting children"?

But remember: "sex offender" includes those who target adults (i.e., rapists) and not just child molesters. And while I'm no expert, might it not be therapeutic and rehabilitative to have sex offenders experience "normal" (and safe) interaction with children via an activity such as handing out Halloween candy?

And what about the kids? Is there no negative effect from teaching them that it's okay to treat some people — even very very bad people who do very very bad things — as outcasts who are beyond all redemption and must be avoided forever? Is it wise to tell children that there really are monsters, and that they live right down the street, and that they are so horrible that you can't even ring their doorbell with Dad by your side?

At what point does "protection of society" and "retributive justice" morph into blood lust?

---

Effective immediately, I will not be blogging with any frequency about new legislative developments in the sex offender mania, simply because there are far too many for me to chronicle in real time. As interesting judicial developments wind their way through the courts, I will weigh in as appropriate.

For real-time blogging about the sex offender mania, you should look to the excellent Sentencing Law and Policy blawg, or the brand-new Sex Crimes blawg.

An op-ed quoted on another blog:

Health care is a public good, not just an industry, to be governed by the same economic principles that govern pure business. Value in health care can only be assessed by weighing cost and quality together. Quality health coverage not only improves care, it saves lives.

My comment at that blog:

The definition of a public good is something that is:

(a) non-excludable, such as national defense, and

(b) non-rival, such as a large park or movie theater

"Health care" — whether a doctor, an ER, a flu shot or a tongue depressor — is, with hardly any exceptions, neither non-excludable nor non-rival and is therefore not a public good, any more than food, clothing or housing are "public goods."

People who blather that "health care is a public good" are really saying that they want other people to pay for their health care. Which might be a legitimate public policy goal (I think not), but it has no basis whatsoever in the economics of public goods.

Will chaos be declared the winner on Election Day?

In one week, more than 80 million Americans will go to the polls, and a record number of them — 90% — will either cast their vote on a computer or have it tabulated that way. When that many people collide with that many high-tech devices, there are going to be problems. Some will be machine malfunctions. Some could come from sabotage by poll workers or voters themselves. But in a venture this large, trouble is most likely to come from just plain human error, a fact often overlooked in an environment as charged and conspiratorial as America is in today.

This is not new news. We have seen it coming ever since Florida 2000 and the resulting Help America Vote Act.

[A]t least 27 states have built in a backup that requires electronic voting machines to provide an attached voter-verified paper trail — a running ticker that allows voters to see on paper that their votes are recorded as cast.

"At least" 27 states? How could that be anything less than "all electronic voting machines"? Who could possibly have sat down with the task of designing an electronic voting machine and not come up with the requirement that it produce a receipt, just like an ATM? I find this situation totally dumbfounding.

George Will has a slightly different statistic:

[M]ost touch-screen machines — including those that the New York Times reports will be used in about half of the 45 districts with the most closely contested House races — produce no paper that can be consulted for verification of the results if a recount is required.

Again, who could possibly have designed these machines in other other way than by saying, "These voting machines will be a lot like ATMs, so let's start with the basic design and functionality of an ATM and proceed from there..."?

One last hasty stitch: The Help America Vote Act, which mandated modern voting technologies, also gave $3.8 billion of taxpayer funds to states to help underwrite this mess. Why exactly should local governments, and local taxpayers, not pay for their own voting machines? This is the federal version of the Politics of the the Warm Fuzzy Feeling: Federal politicians and bureaucrats did something, just in case state and local politicians and bureaucrats didn't. Because federal politicians and bureaucrats are just so much better and wiser than state and local local politicians and bureaucrats, right?

The results speak for tabulate themselves — just without a paper trail.

More laughs thoughts from Jason Fox.

Care to guess who said the following?

Warren-style judicial supremacy did not start with Marbury v. Madison, which was a decision of relatively limited reach. The prime example of pre-Warren judicial supremacy was Dred Scott v. Sanford, which the liberals don't like to talk about because it is so embarrassing. That's why they like to cite Marbury.

Of course, an alternative reason why "liberals" (like me?) don't cite to Dred Scott v. Sanford, 60 U.S. 393 (1857) is because it's no longer good law — it was, as most people know, explicitly overturned by the Thirteenth and Fourteenth Amendments.

Or perhaps "liberals" (like me?) prefer to cite to Marbury v. Madison, 5 U.S. 137 (1803), not only because it is (hopefully) still good law, but also because despite its (nominally) "limited reach" (it was a case about the writ of mandamus), it was the first Supreme Court case to reiterate (but not "invent") the already well-understood principle of judicial review. It was the first core statement in the new Republic of that aspect of the separation of powers, in a way that Dred Scott never was.

Incidentally, what was the "judicial supremacy" supposedly at work in Dred Scott?

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution.

Those words, the call for absolute deference by the judiciary to the wisdom and benevolence of the legislature, could just as easily have been lifted from the recent gay marriage defeats in New York or Washington, or from Bowers v. Hardwick, 478 U.S. 186 (1986) (overturned by Lawrence v. Texas, 539 U.S. 558 (2003)), or from just about anything written by Antonin Scalia: If it's broken, then don't fix it — leave it to the legislature whenever even remotely conceivable. No matter how unfair, unjust or outright obscene the current state of affairs may be or how unlikely a legislative remedy might actually be.

That somehow qualifies as "judicial supremacy"? Could a more preposterous assertion be made?

Stated differently, Dred Scott is not remembered because it was so terribly wrong as a question of constitutional law or "judicial activism," but rather because it was so terribly wrong as a simple question of morality and conscience.

And which is exactly how the bigot amendments will be remembered in the future. They're not wrong because they're fundamentally improper. They're wrong because they're fundamentally immoral.

The jurisprudential bigot logic of Dred Scott is exactly the same jurisprudential bigot logic of anti-gay mania today. And the one thing that a bigot has no right whatsoever to label this logic is "judicial supremacy."

---

You want true examples of "judicial supremacy" in the Dred Scott era? You need look no further than McCulloch v. Maryland, 17 U.S. 316 (1819), which turned Article I upside down by rewriting the Necessary and Proper Clause into the "Unnecessary but Possible" Clause. Or how about the Slaughterhouse Cases, 83 U.S. 36 (1873), in which the Supreme Court simply erased an entire clause of the Fourteenth Amendment? Now that's "judicial activism" in the true (i.e., perverted) sense of the term. (More examples and discussion here.)

---

Oh, I'm sorry — I never revealed who said it. Answer here. See also here.

In this post, I shared with you one of my two favorite Irish drinking songs (yes, I have favorite Irish drinking songs, and I'm not even Irish), "Staten Island," and suggested that maybe, someday, I would post the lyrics to my other favorite, "The Streets of New York" (also called "Uncle Benji").

Well, today is not that day.

But I will share two verses with you:

I sold up for the old farmyard
For what it was worth,
And into my bag
Stuck a handful of earth.

Then I boarded a train,
And I caught me a plane,
And I found myself back
In the U.S. again.

Well, I think I have discovered a new underlying meaning to those lyrics:

Two Irishmen have set up a business selling dirt to nostalgic Irish Americans who want a handful of "the mother country" on their graves.

Pat Burke, 27, and Alan Jenkins, 65, have just shipped their first $1 million load of "official" Irish soil to New York -- at $15 per 340 gram bag -- and confidently expect it will be followed by many more.

"The demand has been absolutely phenomenal," Burke, an agricultural scientist from County Tipperary, said on Friday.

So it seems that, when our storyteller says he "stuck a handful of earth" into his bag, it was for his eventual funeral, since he knew that he would never be returning to Ireland. Suddenly that verse has a far more powerful meaning. Go figure.

(Via Market Power.)

---

One of my favorite bloggers, Larry the Love Lemming, recently sold up his old farmyard for what it was worth. Somehow I doubt he took any dirt with him. Read about his new adventures in The Big City Portland, Maine.

Sunday morning will be the last time that Daylight Savings Time ends in October, thanks to our cuckoo Congress.

Thanks to a law passed last year, daylight-saving time will start earlier and end later beginning in 2007. It will last from the second Sunday in March to the first Sunday in November.

The clock change switches an hour of daylight from evening to morning, meaning drivers will need to be extra careful on Halloween night to be sure of avoiding excited little trick-or-treaters.

I discussed this sorry situation back on April 7, 2005, in this post.

---

Congress has the solution to our energy crisis (assuming we even have a crisis) — screw up the clocks even more:

Lawmakers crafting energy legislation approved an amendment Wednesday to extend daylight-saving time by two months, having it start on the last Sunday in March and end on the last Sunday in November.
...
"The more daylight we have, the less electricity we use," said [Rep. Ed Markey, D-Mass.], who cited Transportation Department estimates that showed the two-month extension would save the equivalent of 10,000 barrels of oil a day.

The country uses about 20 million barrels of oil a day.

Do the math: that's 1/20 of one percent of our oil usage per day. But the extension is only for two months, so on an annual basis that's 1/6 of 1/20 of 1%, or 1/120 of 1% of our annual oil consumption.

And of course, not all our energy comes from oil, so why should we think that all the "daylights savings savings" should also come from oil?

And of course "savings" estimates from government proposals are always exaggerated.

So Congress wants to screw up the entire country's clocks for the smallest of potential savings?

But that's the Politics of the Warm Fuzzy Feeling: the politicians "did something," which — no matter how stupid, pointless or counterproductive — is all that matters nowadays.

For Discussion: We all know the obvious cost of Daylight Savings Time: the physical exertion of having to change all our clocks twice a year. What are some of the other costs of the program or, more importantly, of changing it? I can think of one: computer operating systems such as Microsoft Windows will have to be updated to change the scheduling of DST. Who can think of others? Might they add up to the equivalent value of 1/120 of 1% of our annual oil consumption? See also this Commons Blog post.

---

Here is another cost of the changed DST schedule:

Airlines are unhappy because the change complicates trips across the Atlantic. Currently there is one week when Europe is on daylight saving time and the United States is not; next year there will be three weeks when the two are out of sync. So there will be more weeks when planes will arrive at airports like Heathrow in London, where landing slots are carefully controlled, an hour earlier or later than usual, airlines say.

And of course the aforementioned extra risk to Halloween trick-or-treaters, who will be out after dark in many parts of the country.

To review: In Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), the Supreme Court told the Bush Administration that it could not try terrorism suspects via military tribunals without congressional authorization. The Military Commissions Act granted the president essentially what he asked for. Oh, and also suspended habeas corpus in seemingly direct violation of Article I, Section 9 of the Constitution.

Many if not most legal scholars, and I, insist that this suspension is unconstitutional.

The process of finding out whether we're right has begun:

A federal judge Friday set the stage for the next push by the Bush administration to get all the lawsuits by detainees at Guantanamo Bay thrown out of U.S. courts.

U.S. District Judge James Robertson laid out a five-week schedule for the Justice Department and lawyers for Salim Ahmed Hamdan to file written arguments in the detainee's challenge to his confinement.
...
Ten days ago, the Justice Department filed a copy of the new law with the court in Hamdan's case. Robertson said in a one-page order the Justice Department filing "is deemed to be a motion to dismiss" Hamdan's case.

One way or the other, this motion to dismiss (i.e., because habeas corpus has been questionably suspended) will end up right back at the Supreme Court. Stay tuned.

More thoughts at SCOTUSblog.

Disgraceful:
(Click to enlarge.)
And this is not the first time.

Since the Post makes no money from me, I will not remove its RSS feed from my aggregator. But my patience regarding this garbage is running out.

As I blogged previously:

Yes, fine, it's the Post. But it's also the New York Post. This kind of Red State Redneck drivel doesn't fly here. Or does it?

More thoughts from Good As You, Gawker.

More than once I've been told something like, "I'm scared to comment on your blog. I'm not smart enough."

Of course you are:


(Click to enlarge.)
If Ratbert can blog, then so can you!

UPDATE: How not to blog.

---

On a side note, have you heard about Dilbert creator Scott Adams' experience with a debilitating speech disorder and his exotic cure? Strange stuff.

A quick follow-up to this morning's post:

In Virginia, the court decision could not have come at a better time for Senator George Allen, a Republican whose campaign for re-election has been thrown off course by allegations he used racially insensitive remarks. The Virginia ballot includes a proposed constitutional amendment to ban same-sex marriage. Mr. Allen supports it; his Democratic opponent, Jim Webb, argues the ban is unnecessary.

Note that Webb does not support gay marriage; he just believes that a bigot amendment is "unnecessary." Gee, thanks. (Webb does say that he supports civil unions.)

In Tennessee, another state with a proposal to ban gay marriage, Representative Harold E. Ford Jr., a Democrat running for Senate, was sparring with Republicans over an advertisement in which the Republican National Committee asserts Mr. Ford supports gay marriage — an assertion Mr. Ford says is wrong. On Thursday, he responded with his own advertisement, calling the Republican ad "despicable, rotten lies."

Heaven forbid that people mistakenly think that a Democrat actually supports gay marriage, which would be a "despicable, rotten lie."

Feel free to add anecdotes from your local races in the comments.

---

It's obviously too early to gauge whether the New Jersey ruling will really catalyze (in ways that Iraq, North Korea, Jack Abramoff, Mark Foley or Bridges to Nowhere never could) a renewed interest among Red State Rednecks to actually, um, vote.

But in the meantime:

Focus on the Family founder James C. Dobson, for example, held "Stand for the Family" rallies in three cities in September and October, drawing considerably smaller crowds than anticipated. The first rally, in Pittsburgh on Sept. 20, attracted 3,000 people to a 17,000-seat arena that Focus on the Family had predicted would be full.

The next two rallies, in St. Paul, Minn., on Oct. 3 and Nashville on Oct. 16, were moved from stadium-size venues to smaller auditoriums, and the tickets, which had been on sale for $7, were given away.

Apparently the "will of the majority" is to stay home and watch television. Go figure.

This time it's New Jersey Governor Jon Corzine:

Gov. Jon S. Corzine told legislative leaders on Thursday that he would prefer that New Jersey enact a civil unions law for gay couples rather than allow them to marry.

That prompted attacks from the state's leading gay-rights advocate, who said Mr. Corzine expressed support for same-sex marriage to a gay audience two weeks ago and had repeatedly done so during his 2000 primary campaign for the United States Senate.

Lie today, "clarify your position" tomorrow. Remind me again how Corzine is not "just another politician"?

Corzine, who bought his way first into the Senate and then into the Governor's Mansion, is not doing well politically, and has major egg on his face over the less-than-shoo-in re-election prospects of his patronage appointment, Bob Menendez, to replace him in the Senate.

So, as is typically the case with Democrats, lying to gays to buy their votes is no big deal — just be sure to "clarify your position" when your real constituency is actually listening.

Pathetic.

As for voters, being a gay Democrat is not much better than being a gay Republican. The proper course of action for a gay is to be a registered Independent, hopefully with small-l libertarian views.

The best way to combat the two-party system — and its double-edged "vicious Republicans / hypocritical Democrats" sword is simply by not being a part of it. A pox on both their houses.

More thoughts from Outright Libertarians.

Having achieved all I'm likely to in "LEGO Star Wars II: The Original Trilogy," it is time for another Xbox 360 game.

We Xbox, you decide:

F.E.A.R.:

I tried the demo and the game reminds me an awful lot of "Condemned: Criminal Origins," which was interesting but very slow with a completely unresolved ending. Should I give this FPS sub-genre a second chance?

The Godfather:

This reminds me of "Hitman: Blood Money," which totally sucked. It also seems that "The Godfather" is mostly an "open-world" game rather than the linear progression that I prefer. Still, it is The Godfather (albeit without Al Pacino), so how can I refuse?

Cast your vote in the comments, along with any reviews of other games you'd like to share.

Ever since Sunday night, Diamond has been having some gastrointestinal problems -- or as I call them, the Loosey Poopies.

It all started when we ran out of her jerky sticks and the online order for more hadn't yet arrived, so I tried giving her some Pup-peroni instead.

Big mistake. They should rename that garbage "Diarrhea Sticks."

So besides me worrying -- probably without cause -- about her health and whether to fast her or bland-diet her or take her to the vet or all of the above or none of the above, I've also been awakened each night by, well, I'll leave it to your imagination.

Not so fun fact: The worst way to get six hours sleep is to sleep for three hours, be woken by your dog and her "creations" and the need to dispose of them, then sleep for another three hours. It's not much better than pulling an all-nighter. And it's been happening every night since Monday.

How do parents repeat this ritual every night for two years or more? How do single parents do it at all?

And for the past two evenings I've also been spending my evenings laundering linens and towels and spot treating the rugs. (Diamond is usually good and knows to go on her special towel -- but not always.) Not to mention extra "just-in-case" walks.

So, bottom line, I'm sorta kinda out of it, and not up to serious blogging. Which sucks, because I have hasty stitches about the New Jersey decision. But, alas, in my grogginess I left my markup of the decision at home.

Stay tuned...

For Discussion: What seemingly innocuous things make your pets sick?

"Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process."
--Lewis v. Harris, No. A-68-05 (S. Ct. N.J., October 25, 2006) (PDF - 90 pages)

So the next question is whether the legislature (which has six months to act) will call it "marriage," "civil union," "domestic partnership," "zoop" or something else.

The questions after that will be whether out-of-state couples can, um, "whatever" in New Jersey and whether and to what extent, New Jersey same-sex "whatevers" will be recognized in other states.

And it will of course be fascinating to see the impact on the November elections.

Bravo, yet again, to the heroes of Lambda Legal.

POST SCRIPT: The vote was not "4-3" — it was 7-0 in favor of full equality of rights and privileges — The split was over whether a "marriage in everything but name only" solution comparable to Vermont's would be acceptable. The three dissenters said no and wanted an unambiguous right to same-sex marriage.

There is an interesting voter initiative on the ballot in Florida this year:

Voters are being asked to vote for an amendment that would require future amendments to the Florida Constitution receive at least 60 percent of the vote to be enacted. Yet Amendment 3 requires only a simple majority to pass. How intellectually consistent is that?

My response is: intellectually consistent enough. There are analogies in business law and the rules for amending corporate charters and by-laws and such.

My concern with "direct democracy" -- initiatives and referenda -- is not so much with the fact that they pass by simple majorities of the votes cast, but rather that they pass with such meager percentages of the electorate at large.

In the legislative process, votes are decided based on majorities, or super-majorities, of the quorum, not the membership (a "technicality" that, incidentally, saved the Bill of Rights, which was passed by two-thirds of the House members present, but not by two-thirds of the total House membership). And that's fine, for the legislative process, since the quorum requirements are so high and since politicians are, typically, full-time legislators who (hopefully) try to take voting attendance seriously.

But these protections do not exist at the voter initiative level. There are rarely if ever meaningful quorum requirements, so even significant margins of victory in terms of actual votes cast can translate into very small percentages of registered voters.

Given the recent proliferation of bigot amendments, we have several recent examples of this phenomenon. One notorious case study that I chronicled previously was Louisiana, where the bigot amendment passed by a roughly 78% margin, but with only 28% voter turnout. Less than twenty-two percent of registered voters does not constitute "the will of the majority." The "majority" simply did not vote for the bigot amendment, and it therefore has no legitimacy as "the will of the majority" and, in a properly crafted process, would have meant failure.

Some respond that low voter turnout is irrelevant, because the actual vote "might be" a reliable proxy for the underlying opinions of those who do not vote. But since when is "might be" sufficient grounds for amending a state constitution -- over gay marriage or anything else?

Others respond that non-voters are irrelevant, since they had the option of voting -- too bad so sad if they don't. But given that the vote is for a change, shouldn't the burden be on those trying to enact the change? Should the lack of affirmative votes for their proposal be a presumption that in fact no change is needed?

Direct democracy might be a fine idea for unimportant issues such as whether we should adopt the metric system or whether the cardinal should be the state bird. But when a state constitution is at stake, something more than puny fractions-of-fractions should be required.

And, of course, even not-so-puny fractions-of-fractions should not be used to deny people their fundamental rights. Those should never be put to a vote in the first place.

The Bush Administration is preparing to relax restrictions on single-gender classes.

Under the change taking effect Nov. 24, local school leaders will have discretion to create same-sex classes for subjects such as math, a grade level or even an entire school.

"Some students may learn better in single-sex education environments," said Education Secretary Margaret Spellings. "These final regulations permit communities to establish single-sex schools and classes as another means of meeting the needs of students."

Which invites the question: why did the federal government restrict single-gender classrooms in the first place? Why is the federal government micro-managing education at all?

"To prevent gender discrimination" is not an answer. If and when there is a demonstrated gender-based inequality in a particular school, then that particular instance can be addressed — in the courts, if necessary. Anti-discrimination laws should not be imposing pre-emptive "one size fits all" policies out of a fear of potential inequities, especially in an area such as a elementary and secondary education that has historically been administered at the state and local level. "Pre-penalizing" schools for discrimination that isn't happening is akin to "pre-fining" whites for racial discrimination that they have not yet committed.

And it bears repeating: In twenty years the Republican Party has gone from calling for the abolition of the Department of Education to No Child Left Behind. Libertarians should naturally default to the GOP — why?

I have not been following the same-sex marriage litigation by seven gay couples in New Jersey known as "Lewis v. Harris." For that I apologize. In any event, the New Jersey Supreme Court has announced that it will be publishing the long-awaited opinion Wednesday afternoon.

From what I understand, the procedural posture in New Jersey was similar to that in New York: the state has no bigot amendment and no DOMA, but gender-specific terms in the relevant statutes that have been interpreted to limit marriage to opposite-sex couples, as has the enactment of a domestic partnership law that affords only some of the benefits of marriage (in essence, the plaintiffs are arguing that the domestic partnership law is inadequate and therefore unconstitutionally discriminatory). The case is being litigated exclusively on state law and the New Jersey Constitution, so no further appeals by either side will be possible.

What makes New Jersey different, and is making the plaintiffs highly optimistic, is that the court does not have to choose between strict scrutiny of the ban (which of course ought to apply anyway, given the repeated and unequivocal holdings by the United States Supreme Court that marriage is a fundamental right) or the lower "rational basis review" usually applied to unprotected classes of minorities (which should still result in sanctioning gay marriage anyway, since only objectively irrational bases have ever been put forward to justify gay marriage bans).

Instead, New Jersey uses a balancing test that weighs:

1. the nature of the affected interest -- here a constitutionally protected fundamental right

2. the extent to which the governmental restriction intrudes upon it -- here a total ban, and

3. the public need for the restriction -- again, this ought to be a slam dunk, since there is no need whatsoever for the ban -- but will that matter?

More from Lambda Legal.

Other than California, this case is the last hope for progress on gay marriage in the near term. And, of course, the timing of the decision so close to election day cannot be ignored. Talk about an October Surprise.

Stay tuned.

The professionals who tell corporate America how to keep their books have some advice for those who cook Social Security's books:

Under current rules, the Social Security program is posted on the government's books as a cash transaction. Taxes and interest income are on the revenue side of the ledger, and benefit payments are on the spending side.
...
Promises of Social Security and Medicare benefits are seen by many as a binding contract. Taxpayers receive annual reports detailing their future benefit packages every year. Those who want the change argue that the promises should be put on the books right away.

"Accounting is about recording the economic substance of a transaction or in this case the economic substance of the promise between the government and the taxpayers," [Financial Accounting Standards Advisory Board] member Thomas Allen said.

Here's a simple analogy. Suppose you purchase, for cash, a $100 gift card from Best Buy. An accountant understands that this is merely a balance sheet transaction: Best Buy now has $100 in cash but also now owes $100 worth of merchandise to the gift card holder. No goods have left the store, so no entry on the income statement. It would be inappropriate to treat the $100 as revenue until the gift card is redeemed, and it would be flat-out illegal to book the $100 as pure profit.

"Greedy" corporations and "untrustworthy" Wall Street firms understand this. Yet this kind of fraud is exactly how Social Security and the federal government present the program's finances to the American taxpayer. To the politicians and bureaucrats, all that counts is that Social Security receives cash today; why it receives that cash, and what it will mean tomorrow, are deliberately ignored and indeed concealed.

The Social Security taxes that are paid today buy future benefits tomorrow (albeit at a soak-the-rich diminishing rate). Just as the $100 in Best Buy's cash register is not "free money," so too is $100 in FICA taxes not free revenue to Social Security -- it comes tied to a future liability in the form of those monthly benefits you see on your annual propaganda statement from Social Security.

Judicially speaking, we all know that those benefits are not legally binding contracts and that Congress can say "Oops, sorry" any time it wants -- see Flemming v. Nestor, 363 U.S. 603 (1960). But as a matter of political reality, especially "Democratically controlled House of Representatives" political reality, those benefits will be paid, in full.

So, if Social Security were like Best Buy, then it would not pretend that "only today counts," or that today's FICA taxes are "free money," or that so long as today's FICA taxes exceed today's benefit obligations, then everything is perfectly hunky-dory.

No, if Social Security had honest accounting, like a business (hopefully) does, then the big picture -- today and tomorrow, current receipts and the future obligations linked to them -- would be properly accounted for and presented, honestly and forthrightly, to taxpayers.

And what of President Bush, who promised to "spend his political capital" on reforming Social Security and who, as recently as last Sunday, absurdly insisted that, yes indeed, Social Security reform was still on his agenda?

Bush administration representatives on the board are adamantly opposed to the proposal and could kill it.

Business, er, politics as usual. Go figure (pun intended).

More thoughts from LLP, Marginal Revolution, Coyote Blog.

---

And while we're on the subject of honest presentation of the Social Security crisis, it would also be nice if the government, at any level, would finally acknowledge the fraud underlying the so-called "Social Security Trust Fund." Don't hold your breath.

Damn Aussie tabloids:

Contrary to some reports in the Australian media, there is no U.S. import ban on Vegemite. The U.S. Food and Drug Administration, which regulates all food imports to the U.S., has confirmed that Vegemite is allowed to be imported to the United States.

Warm wishes,
Victoria Fakan

U.S. Information Resource Center
Office of Public Affairs
Embassy of the United States of America
Canberra, ACT

(Source.)

They misreport, you decide.

Meanwhile, the reports that Vitameatavegamin is also banned by the FDA are also unconfirmed and currently under investigation. Stay tuned.

And not in some Third World goat-herder backwater, but in England:

The leading imam in Manchester, England, confirms that he thinks the execution of sexually active gay men is justified, the rights group Outrage reported.

Arshad Misbahi of the Manchester Central Mosque confirmed his views in a conversation to John Casson, a local psychotherapist.
...
"It is part of the central tenets of Islam: that sex outside marriage is forbidden; this is stated in the Koran and the prophet ... had stated that these punishments were due to such behaviours."

Of course, evangelical Christians believe pretty much the same way, for pretty much the same reasons. Go figure.

COPA is back in court:

Salon.com, Nerve.com and other plaintiffs backed by the American Civil Liberties Union are suing over the 1998 Child Online Protection Act. They believe the law could restrict legitimate material they publish online — exposing them to fines or even jail time.
...
The law, signed by then-President Clinton, requires adults to use some sort of access code, or perhaps a credit-card number, to view material that may be considered "harmful to children." It would impose a $50,000 fine and six-month prison term on commercial Web site operators that publish such content, which is to be defined by "contemporary community standards."
...
The U.S. Supreme Court has twice granted preliminary injunctions, including one in June 2004 in which it ruled 5-4 that the plaintiffs were likely to prevail.

That June 2004 injunction was Ashcroft v. ACLU, 542 U.S. 656 (2004) (also called "Reno II"). Indeed, COPA was an unconstitutional follow-up to the first unconstitutional version of Internet censorship, the Communications Decency Act of 1996, struck down in Reno v. ACLU, 521 U.S. 844 (1997) (also called "Reno I").

So after ten years, two administrations, two censorship laws and numerous lawsuits, the government simply will not capitulate and still refuses to acknowledge several remedial First Amendment principles:

--The government may not censor speech intended for adults merely because children might be exposed to it. Only "the least restrictive means possible" might — might — withstand judicial scrutiny. Butler v. Michigan, 352 U.S. 380 (1957). Accord, Sable Communications v. FCC, 492 U.S. 115 (1989). COPA's mandatory access code regime is hardly "the least restrictive" means possible (content filters are far less restrictive to the general population — as, of course, are parents).

--The "contemporary community standards test" of Miller v. California, 413 U.S. 15 (1973), applies to obscenity, and only to obscenity (and remember that "obscenity" does not mean mere "pornography," but something closer to "the most extreme hard-core pornography"). See also the repeated (and always unsuccessful) attempts to extend Miller to the sale of "violent" video games to minors.

--A law that is so vague that a reasonable person literally has to guess what it means and what conduct it prohibits is "void" as a violation of due process. How much more vague can you get than "harmful to children"?

Politicians and bureaucrats are so intrigued, and terrified, of the Internet that they simply will not accept the notion that it might be in any way protected from regulation. We saw it with the contemptible online gambling ban. We saw it fall victim to the warrantless wiretapping program. We saw it targeted for government monopoly municipal wi-fi proposals. And now we are seeing a desperate, indeed manic, drive to censor it, "for the children."

The Child Online Protection Act, or COPA, is codified as 47 U.S.C. §231.

Freshman Senator Barack Obama to Tim Russert, January 2006:

I will serve out my full six-year term. You know, Tim, if you get asked enough, sooner or later you get weary and you start looking for new ways of saying things, but my thinking has not changed.

Freshman Senator Barrack Obama, October 2006:

MR. RUSSERT: But it's fair to say you’re thinking about running for president in 2008?

SEN. OBAMA: It's fair, yes.

MR. RUSSERT: And so when you said to me in January, "I will not," that statement is no longer operative.

SEN. OBAMA: The -- I would say that I am still at the point where I have not made a decision to, to pursue higher office, but it is true that I have thought about it over the last several months.

This is the great young hope of the Democratic Party? Another say-anything, lie-at-will hack politician?

Pathetic.

At least that other most pathetic of Democratic politicians, Hillary Clinton, has been upfront about the fact that she is a carpetbagger and totally unconcerned with New York State in any context other than as a stepping stone back to the White House.

More from Obama:

MR. RUSSERT: You've been a United States senator less than two years, you don't have any executive experience. Are you ready to be president?

SEN. OBAMA: Well, I'm not sure anybody is ready to be president before they're president.

How convenient. Of course, this gobbledygook is exactly what you'd expect to hear from a politician who is clearly not qualified, yet, to run for president. Go figure.

Being a Republican politician or a Democrat politician is never as relevant as being a politician, period. That is where the disgust, and the distrust, should always begin. The particular party of a particular officeholder or candidate is merely garnish.

Oh my goodness...


The Representative Mark Foley Action Figure, complete with bottle of liquor and Blackberry.

It's not too late to make a bid -- currently going for $255 on eBay.

Yes, the whole "closeted gay Republican politician / decrepit Republican GOP leadership / why do we even have pages" thing is a serious amalgam of issues. But, um, ha!

(Via Fark.)

Time to clean out the aggregator:

ITEM: California judge rules that women cannot be prosecuted for indecent exposure because the law reads "exposes his person." Good grief. Read that way, the law would be unconstitutional gender discrimination in violation of the Fourteenth Amendment's Equal Protection Clause. Prosecutor notes that another section of state law says that "words used in the masculine gender include the feminine and neuter." Too bad New York's highest court wouldn't invoke that basic principle when refusing to sanction gay marriage. (More coverage at How Appealing.)

---

ITEM: Federal judge upholds Colorado smoking ban in which casinos bought an exemption via the Politics of Pull — their "unique constitutional and statutory status in Colorado," he calls it. Smoking bans qua infringements of property rights are bad enough; smoking bans for only those who are not politically connected are even more obnoxious.

---

ITEM: Federal government bans Vegemite, to the horror of Australian expats. It seems that the U.S. bread industry has bought, via the Politics of Pull, the exclusive right to add folates to its products; hence folate-laden Vegemite is now contraband in the U.S. One wonders whether the Feds will censor the Men at Work song too. One also wonders whether ultra-conglomerate Kraft and its super-ultra-conglomerate parent, Altria, will buy an exemption from Congress. (Source. Related post here.)

---

ITEM: Department of Justice sues Philadelphia for violating the Voting Rights Act by not providing enough help to non-English speakers. My opinion is unchanged: The right to vote is coupled with the obligation to learn English. You want a translator? Then bring your own.

---

ITEM: Federal appellate court rules that the Fremont Experience (photos) in downtown Las Vegas is still a "street" and therefore a "traditional public forum" for First Amendment purposes, even though the City of Las Vegas had closed the area off to vehicular traffic and hired a private company to convert the area into a more inviting tourist destination. Sounds about right, but if Las Vegas had sold (i.e., privatized) the area outright, then the analysis would have been different, despite some disturbing language in the decision suggesting otherwise.

---

ITEM: Anti-gay bigot gets fired from Cargill for insubordination after repeatedly refusing to remove anti-gay-marriage message from his pickup truck parked on company property. Anti-gay bigot activists crying — get this — discrimination. Anti-gay hack politicians getting uppity. Of course, the fact that Cargill is a private company and that the parking lot is private property and that the bigot wasn't actually discriminated against for being straight all get conveniently overlooked. (Source.)

The Los Angeles chapter of the Boy Scouts is being roundly ridiculed for in essence "selling" its badge programs as advertising:

The movie industry has developed the ["Respect Copyrights" activity badge].
...
Scouts will be instructed in the basics of copyright law and learn how to identify five types of copyrighted works and three ways copyrighted materials may be stolen.

Scouts also must choose one activity from a list that includes visiting a movie studio to see how many people can be harmed by film piracy. They also can create public service announcements urging others not to steal movies or music.

"Be Prepared" or "Be Propagandized"?

Bravo, Scouts — letting an industry group brainwash the children in your charge is the only way you could sink lower than being mere religious bigots — now you're religious bigots who shill for a cartel of Fortune 100 companies.

Wired:

[T]he real point ... is that scouts are getting a badge for NOT doing something, which wasn't the way it worked when I was a Webelos.

The copyright badge would be way cooler if the scouts were required to rat out a friend and turn their name over to the MPAA to be sued for copyright infringement.

I think they're too busy trying to keep out gays and to mooch off taxpayers to worry about their fellow Scouts' iPods.

I've always thought the Boy Scouts was, quite frankly, a fundamentally silly organization that exacted too high a price — conformity, hierarchy, authority-worship — for its positive offerings, such as skill acquisition, nature appreciation and camaraderie. Groups like the Police Athletic League, Boys & Girls Clubs and the Fresh Air Fund achieve those same goals without all the trappings, baggage, politics — and hypocrisy.

In any case, if the Scouts, whether at the local or national level, are willing to sell themselves or their badges to corporate interests, then they have made an even worse mockery of their pledge to b