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Monday, May 18, 2015

The Joy of Writing This Blog





I had a heart transplant right before Thanksgiving in 2009 [see http://douglaswhaley.blogspot.com/2010/01/about-that-heart-transplant.html], and, as required by law whenever anyone has had such a life-altering experience, I promptly started a blog.  In the beginning I published two or more posts a week, but that was easy to do then because I had lots of topics at my disposal.  I’ve been given an interesting life (law professor, gay rights activist, former Catholic but now atheist, four long term relationships with both men and a woman (two of them marriages), father, owner of pets, novelist, tournament bridge player, and much more, and these things were the fodder for those posts.  But as the years went on I’ve mostly exhausted the stories from my earlier life and discussions of the philosophy by which I live, and the postings have trailed off in number quite a bit.  In recent years I’ve averaged two posts a month, the decline being not one of interest but of wanting to make sure that the posts weren’t fluff, or forced, or things not worth reading lest I lose my readers.  Fortunately life keeps feeding me topics (or my readers suggest them—after I posted a popular one about “How To Write an Effective Legal Threat Letter,” http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html, a reader in a Comment begged for “How To Respond to a Legal Threat Letter,” so I complied, http://douglaswhaley.blogspot.com/2014/03/how-to-respond-to-legal-threat.html).  The nightly news can send me to the computer with some new message buzzing around in my head: elections [http://douglaswhaley.blogspot.com/2012/10/mitt-romney-mormon-presdient.html], new acts of discrimination against gays [http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html], etc.  But posts can also come from many sources such as getting married late in life [http://douglaswhaley.blogspot.com/2013/10/falling-in-love-turning-70-and-getting.html], publishing a new novel [http://douglaswhaley.blogspot.com/2014/04/just-published-my-novel-corbin-milk.html] , sports [http://douglaswhaley.blogspot.com/2011/03/basketball-and-its-announcers.html], and funny events in my life [http://douglaswhaley.blogspot.com/2014/04/some-lottery-winners-score-400.html].

The joy of writing this blog arises from a combination of things.  One of them is having a platform to vent about something that makes me furious—such as our politicians selling their souls for big money [http://douglaswhaley.blogspot.com/2015/03/the-shame-of-republicans-in-congress.html], but there’s also a pleasure in explaining complicated things that I happen to understand: gay history, legal issues, or specials interests that I’ve had for years such as how the brain works [http://douglaswhaley.blogspot.com/2011/01/left-brainright-brain-life.html]. There is also a satisfaction in recording stories about others that would fade away if not chronicled.  We all die and take with us (unless we’re famous and have biographers) not only our own stories but those of people we love.  I had two terrific parents, both fantastic: a father who could start life in a small Indiana town dreaming of being a lawyer, become a pilot in World War II, drop an atomic bomb in a test, go to law school late in life, become a prosecutor of the mafia in Dallas, and a mother who would leave southern Indiana to marry the man of her dreams and live all over the world, bowl the highest score (270, rolling seven strikes in a row) that a woman ever bowled in Japan to that date, and have one of the most evil senses of humor on the planet [http://douglaswhaley.blogspot.com/2010/04/my-mothers-sense-of-humor.html]. Many stories about them, other members of my family, and friends are preserved here forever.  As long as Google lasts this blog will go on, sort of an unofficial autobiography.
My Parents' Wedding Picture (1941)
One regret is that I cannot tell some of the best stories I know on this blog because they’d embarrass others or reveal things that are too personal to tell.  Damn.  There are some great stories—really fascinating ones—that will, alas, die with me.  But those of you who know me and understand all too well what stories I’m referring to, and who are now recoiling horror as you read this, relax. Tempting though it is to tell all, I’ll keep those stories locked away.

My greatest joy comes from my readers.  Every night I look through “Recent Visitor Activity” and am amazed that my blog has been visited by a hundred or more people in countries all over the world.  To see what I mean click on the “View My Stats” under the “STAT COUNTER” in the upper left, and when that next screen appears, click on “Recent Visitor Activity.”  It will reveal all of my visitors.  The stats only go back for the last 50,000 visitors of the 350,000 visitors I’ve had since the blog began in December of 2009, but they reflect the diversity of those who read my posts—(mostly from the United States, of course, but over 25% from other countries, for a total of 201 countries so far).
[Click To Enlarge]
I can’t tell who is reading my blog, but I can tell from what city, state, and country they visited, and what blog pages (though not specific posts) they’ve read.  The most popular posts concern legal issues: the need for someone foreclosing on a home to produce the original promissory note [ http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html ], what happens if someone cashes a check tendered as “payment in full” [http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html], and the above-mentioned legal threat letter posts.  I’m pleased to think I might have had some helpful advice for those facing foreclosures, or disputes with a creditor, and I have some future posts planned to help consumers understand their legal rights.  Embarrassingly, some of my most popular posts have to do with sexual topics, but I decline here to give you those links.

Let me confess that the visitors who most make me feel good about the blog are men and women struggling with the issue of being gay in a straight world and facing, some for the first time, the big issues such as: how do I know if I’m gay [http://douglaswhaley.blogspot.com/2010/08/how-to-tell-if-youre-gay.html], can I change  [http://douglaswhaley.blogspot.com/2010/09/how-to-change-gay-people-into-straight.html], will my parents disown me [http://douglaswhaley.blogspot.com/2013/10/disowning-your-gay-children.html], what does the bible say [http://douglaswhaley.blogspot.com/2014/06/does-bible-condemn-homosexuality-and.html], where does homosexuality come from [http://douglaswhaley.blogspot.com/2010/04/homosexuality-iceberg-theory.html], how many homosexuals are there [http://douglaswhaley.blogspot.com/2010/11/how-many-homosexuals-are-there-in-world.html], etc.  Because often readers visit some of these same posts over and over, I flatter myself in hoping that these posts might bring some needed light into a room filled with dark and scary questions.

And, best for my ego, are visitors who come back time and again.  Since the beginning of my blog certain readers have apparently read everything, and I’m amazed by that.  Some readers stumble across my blog and then proceed, over a period of time, to read all the posts.  In the first year there was someone in (I’m not making this up) Borneo(!) who did this, then someone in England, and, following that, a number of others.  Most recently someone in Mountain View, California, has not only read all the posts, but keeps revisiting favorite ones over and over.  Whoever you are, I love you.

To all my readers, many thanks for taking time out of your busy lives to visit mine.  I’ve written many law books (seven are used to teach commercial law and related subjects to law students throughout the country), law review articles, two novels, and much else.  But nothing I’ve written (and perhaps nothing I’ve done) is as important as the posts I’ve put on this blog.  They are the summation of my life and, as I said above, will outlive me.  That’s a thrill.
A Guide to the Best of My Blog, April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html


Tuesday, April 28, 2015

Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said



 

Today the United States Supreme Court heard 150 minutes (60 minutes is the usual amount) of oral arguments in Obergefell v. Hodges, the appeal from the Sixth Circuit’s decision that upheld the right of the States of Ohio, Michigan, Tennessee, and Kentucky to ban gay marriages.  For my discussion of that decision see http://douglaswhaley.blogspot.com/2014/11/gay-marriage-6th-circuit-jeffrey-sutton.html.  The Court divided the oral arguments into two parts: 90 minutes on the question of whether the 14th Amendment of the Constitution (equal protection, due process of the laws) requires the states to recognize gay marriages, and 60 minutes on whether gay marriages validly entered into in states recognizing such marriages (like my husband and my marriage in New York two years ago) must be honored in states that do not (like Ohio, where we live).  A bit of terminology: since those in favor of gay marriage lost in the court below they are “petitioners” in the Supreme Court, while the States that won below are the “respondents.”  I listened to the arguments on the internet (audio only—they are not, so far, being televised or even videotaped for posterity).


Justice Kennedy
As I’ve explained before—see http://douglaswhaley.blogspot.com/2013/01/gay-marriage-doma-proposition-8-and.html—the most powerful judge in the world is Supreme Court’s Justice Anthony Kennedy.  There are four liberal Justices and four conservatives, and that places Justice Kennedy in the middle as the swing vote.  He has been very, very good in gay rights cases, authoring the three famous opinions protecting gays: Lawrence v. Texas (striking down all sodomy laws as unconstitutional), Romer v. Evans (striking down a Colorado constitutional amendment that took away gay rights), and, in 2013, Windsor v. United States (making the federal government recognize gay marriages).  So today all of the lawyers who stepped up to the lectern to make their arguments, while of course deferential to the other members of the Court, were really only talking to Anthony Kennedy (and paying attention to not only what he said but also every twitch in his face).


Chief Justice Roberts called for Obergefell v. Hodges to begin, but not far into petitioner’s opening argument a protestor stood up in the courtroom and loudly began yelling that those who engage in homosexuality will “burn in hell for all eternity.”  As he was led screaming from the room, Justice Scalia impishly remarked that the protest “was rather refreshing actually.”
 
 

When the petitioner’s attorney began she was almost immediately brought up against a statement from Justice Kennedy that what bothered him most was that the definition of “marriage” had been the same—one man, one woman—for millennia, and then he paused to emphasize “millennia!” and that changing it so quickly was perhaps hasty, and maybe “too little time” had passed before this gay marriage experiment was made a constitutional requirement.  Yikes!  Then Justice Steven Breyer, one of the liberals, chimed in with "[S]uddenly, you want nine people outside the ballot box to require states, that don't want to do it, to change . . . what marriage is to include gay people. Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?Double Yikes!  I listened, stunned but hoping that they were just putting this on the table so it could be discredited early and the harms the gay marriage ban was doing to real people now would carry the day. 

 The respondent’s attorney argued that marriage was meant to protect “procreation” and since gays can’t procreate it was “rational” for states to exclude them from being granted a state-sanctioned marriage.  This was a muddled justification that was hard to say with a solemn expression, and the attorney predictably had a rough time of it.
 


The second part of the session focused on whether the Constitution requires states to recognize gay marriages validly entered into in other states, an issue the Court would get to only if it first upheld gay marriage bans as argued in the earlier part of the session.  This new issue was harder for the respondents to win since states almost always recognize marriages in other states, but here they argued that a strong public policy in favor of procreation protection (the same argument from the first part) not only justified banning gay marriages but keeping out foreign ones.  There was a confusing discussion of Article 4 of the U.S. Constitution (which requires the states to give “full faith and credit . . . to the acts, records, and judicial proceedings of every other state”), but no one, neither the attorneys nor the members of the Court seemed to have much grasp of the history of the Article nor its judicial treatment in the courts (which amazed me, because I’ve explored the issue and was embarrassed that obvious arguments on both sides were missed).  The petitioners made points by detailing the plight of some of the actual plaintiffs in this appeal.  For example, a gay couple was married in California, one husband gave up his job to be the primary caregiver for their adopted children, and when the couple and their children had to move to Tennessee because the working spouse was transferred there, suddenly they were no longer married in the new state, and had major problems with who could make medical decisions for the children in emergency situations.  To this the respondent’s attorney pointed out that if the Court decided states could constitutionally ban gay marriages, then making them recognize those from other states would, effectively, fill their state with gays married in those states, and the ban would be useless.  He concluded by pointing out that states that have stuck with traditional marriage have not changed, have not done anything except keep the status quo, and are then being punished by being forced to agree with experiments in other states with which they do not approve.  


 

With that the Chief Justice announced the case was “submitted,” and the argument ended.  Now what?

Well, the Court will now meet and talk about the case and vote.  The senior justice on each side will assign the writing of the opinions (the majority and the dissent), and the writers will get to work producing drafts that the others will sign off on.  The Court must hand down its decision by the end of June when the Court’s 2014 session is over.  My guess is that they will delay until the last day and then throw the opinion from the door of the airplane that they all board as they head off on vacation.
 



What bothered me most about the arguments were the things that were not discussed but which were on everyone’s minds. 

The first of these is the messes that will erupt no matter what the Court does.  If the Court decides, as many people including me have predicted, that it is unconstitutional to ban gay marriages, there will be a mini-version of the chaos that swept the country when the Court in 1954 handed down Brown v. Board of Education, requiring that blacks be given the same rights as whites.  There were riots and refusals to obey and troops had to be sent into schools to enforce the Court’s decision.  This won’t be that bad, but it also won’t be just a one-off event.

If the Court decides that the states win and gay marriage bans are constitutional there are major problems with that too.  First of all the Court knows—we all know—that the day will come in the future when the Court will have to change its mind, just as Brown overruled Plessy v. Ferguson (1896) (racial segregation allowed, and blacks to be “separate but equal”), or, more recently, Lawrence v. Texas (2003) (sodomy statutes unconstitutional) overruled Bowers v. Hardwick (1986) (constitutional for Georgia to have a criminal statute making private gay sex a felony).  So deciding in 2015 not to declare these anti-gay statutes unconstitutional just kicks the can down the road, leaving thousands (millions?) of gays and their families to suffer on the journey down that road.

Even more immediately troubling is the effect on the many lower court federal decisions in the past two years that state gay marriage bans were unconstitutional, allowing thousands of gays to get married in those states.  Are those marriages now invalid?  Are the statutes that were declared unconstitutional now permissible?  Must they be reenacted?   Must there be new lawsuits to determine this issue in each of those jurisdictions?  In the meantime can gays still get married there?  Who the hell knows?  To use clich├ęs: you can’t unring that bell, you can’t unscramble those eggs.



But the chief thing is that not a single person—lawyers, judges, those who wrote the briefs, the journalists—has pointed out the real issue in this case.  It’s a simple fact, demonstrated by the protester in the Court, that many people in this country hate gays.  Their bible tells them that gays are an abomination and their guts tell them that what gays do in bed is repellant and should certainly not be enshrined in the United States Constitution as a right to be forced down the throats of God’s clean people.  That issue needs to be front and center and addressed.

I have gay friends who find the idea of heterosexual sex to be repellant.  One gay man, a law professor, gets ill at the thought of having to touch a naked woman.  A lesbian friend has a similar reaction to the idea of a male penis being thrust into a woman’s body.  If these gay people were in the majority would their revulsion be a sufficient justification for banning straight sex?  Perhaps the best solution is that we should all studiously avoid thinking about what other people do in bed—that way, as King Lear observed, lies madness.

It might be tempting for the Court to just affirm the status quo and let gay marriage bans stand.  But it was pointed out to the Court, and rightly so, that being “neutral” has major real life consequences for innocent people who only want to marry and have their families protected.  When I took a course in Jurisprudence (legal philosophy) in law school one of the things that was emphasized was that a decision not to act is in fact a decision to act.  It rules in favor of one side and the other side is out in the cold with no legal protection at all. 
 
  
So, as my mother used to say, just "hold your thumbs and hope for the best" between now and the first of July.
 

“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html

 

Monday, April 20, 2015

We All Are Brian Williams: Confabulation Muddles Our Stories





NBC News anchor Brian Williams has likely lost his job forever because when reporting a story on January 30, 2015, he referred to “a terrible moment a dozen years back during the invasion of Iraq when the helicopter we were traveling in was forced down after being hit by an RPG.”  This was demonstrated to be false, and the next night Brian Williams himself apologized on the air, saying with amazement that his “own notes” showed he was in the chopper behind the one that was struck.  This incident caused commentators to report similar misstatements Williams had made about his coverage of the Katrina hurricane and the fall of the Berlin Wall.  Since a news anchor’s veracity is at the heart of the faith viewers place in choosing which newscast to watch, Brian Williams was suspended from reporting at all for NBC, and, far from being one of the most trusted persons in the country, he is now suspected of being at the best incompetent and at worst a compulsive liar.


Poor Brian.  Sure, he was wrong about what he did in the past, but why is it that many journalists will tell you that his fall from grace terrifies them because they know they could be in his place in a flash?  The answer is that everybody has many false memories of what he/she has done, and when we relate our stories of past triumphs or disasters we get many of the facts demonstrably wrong, though we’d pass lie detector tests showing we believe every single word we say.


How does this happen?  The answer lies in understand the phenomenon called “confabulation.” 


Here’s Wikipedia’s description of the term:
In psychology, confabulation (verb: confabulate) is a memory disturbance, defined as the production of fabricated, distorted or misinterpreted memories about oneself or the world, without the conscious intention to deceive.  Confabulation is distinguished from lying as there is no intent to deceive and the person is unaware the information is false. Although individuals can present blatantly false information, confabulation can also seem to be coherent, internally consistent, and relatively normal.  Individuals who confabulate present incorrect memories ranging from "subtle alterations to bizarre fabrications", and are generally very confident about their recollections, despite contradictory evidence.
 

Carried too far confabulation is a mental illness, sometimes caused by brain damage.  But we all confabulate and we do it constantly.  The reason is that even by the first time we tell a story about something that’s happened to us, we are fuzzy about many of the facts, but we rarely say that even if we are aware of it.  Instead we fill in the blanks with what probably happened.  As this story is repeated the false details are finalized in our mind, and with each repetition new mis-remembrances occur, so that the story wanders even more greatly from the truth.  Someone once said that “the first time you tell a story it’s fact, and the second time you tell it it’s fiction.”  That’s all too often exactly right.



I’ve written in this blog about confabulation before as a difficulty in rape investigations, since both the victim and the perpetrator will remember what happened in ways that support their own versions of the incident.  [See http://douglaswhaley.blogspot.com/2015/01/rape-biology-and-tricks-of-mind.html]   We tend to be the heroes of our own stories even when videos of the event might cast us in less attractive roles.  As I write the stories of my life for this blog I’ve often worried about their truth.  What’s even scarier is that time and again I’m not sure of the answer.

Let me give one example.  The following is from a blog post I wrote about me, my then wife, Charleyne, and the birth of our son Clayton [see http://douglaswhaley.blogspot.com/2010/09/charleyne-and-giant-cookie.html]:

The baby’s due date was two weeks before Christmas of 1972, but that holiday came and went, with both of us getting grumpier about this pregnancy which seemed to have gone on for most of our lives. On Wednesday, December 27, we went to the movies to see the “The Poseidon Adventure,” and toward the end of the picture Charleyne’s water broke (and, given that movie is about disaster on the high seas, that couldn’t have been more appropriate). She didn’t mention her new condition until the movie ended (okay, in 2010 she says she did, but, trust me, if I’d have known her water broke, I’d have destroyed whole rows of seats getting us out of there). We rushed home and called her doctor. Contractions promptly started, so we raced to the hospital, but then they mysteriously stopped, and she was sent home. Our nerves were shot. By Thursday night nothing more had occurred, but the doctor said Charleyne should come early Friday morning and he would artificially induce labor. It was time for our baby to be born.

But when I told this story at Clayton’s 20th birthday party, Charleyne said it wasn’t true.  In her telling when her water broke she promptly reported this to me and I poo-poo’d the information and insisted we continue watching the movie.  I was astounded when I heard her say this.  We’d both become so focused at that moment in 1972 on making sure nothing went wrong with the baby that I’d have taken her announcement as major important news.  Indeed, in my version of the story, I clearly remember asking her in an exasperated voice why she hadn’t told me during the movie, and she was the one who’d said it wasn’t a big deal (or something like that).

Now  this is an instance where our versions of an important incident—her water breaking during a movie and what we did about it—are completely at variance.  One of us has to be wrong.  Hmm.  Is that true?  Perhaps there’s a middle ground: she told me that her water broke but I didn’t hear or perhaps didn’t understand what she meant.  But if that’s the explanation why would she sit there and wait out the end of the movie before we dealt with this issue?  Indeed, even if her version of the story is right that’s the same question.  She knew then and knows now (we are still great friends) that I would have done anything she wanted when it came to making her pregnancy as easy as possible.  



In the end all that can be said is that the truth will never be known about what we said to each other at the end of that movie.  And it doesn’t really matter in the long run of things.


But for poor Brian Williams confabulation has ruined a brilliant career, and, at age 55, his professional reputation as a journalist is fodder for comedy routines [to see what I mean Google “Brian Williams Jokes”].  If all journalists were on the air night after night and making comments about stories they were covering, which was part of Mr. Williams’s job, similar confabulation problems would likely arise, just as they would if any of us had all our stories fact checked nightly by millions of viewers.  He never meant to lie on the air—that would lead to the penalty he’s paying as I type this.  But confabulation has honest people telling unintentional lies, and the penalties for that are severe, often far beyond what this predictable human misstep calls for. Think of what happened to Brian Williams like this: he was a victim of confabulation, as are we all.  What he said on the air about his helicopter experience was a mistake, but it was not a conscious fabrication.  Now decide how much he should be punished for this mistake, but at least ask the right question.




Famous author, scientist Arthur C. Clarke had this to say about the subject in one of his books:

“What is human memory?" Manning asked. He gazed at the air as he spoke, as if lecturing an invisible audience—as perhaps he was. “It certainly is not a passive recording mechanism, like a digital disc or a tape. It is more like a story-telling machine. Sensory information is broken down into shards of perception, which are broken down again to be stored as memory fragments. And at night, as the body rests, these fragments are brought out from storage, reassembled and replayed. Each run-through etches them deeper into the brain's neural structure. And each time a memory is rehearsed or recalled it is elaborated. We may add a little, lose a little, tinker with the logic, fill in sections that have faded, perhaps even conflate disparate events.

“In extreme cases, we refer to this as confabulation. The brain creates and recreates the past, producing, in the end, a version of events that may bear little resemblance to what actually occurred. To first order, I believe it's true to say that everything I remember is false.”
 

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A Guide to the Best of My Blog, April 29, 2013: http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html

Monday, March 30, 2015

A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act





I’m a fifth generation native Hoosier (dating back to my great-great grandfather Noah Whaley, who was born in Indiana in 1820 and fought in the Civil War), a lawyer, and a gay activist.  I’m astounded at the stupidity of my home state’s action in passing what it calls “The Religious Freedom Restoration Act,” just signed into law by Governor Mike Pence.  While disguised as having something to do with the free exercise of religion, it has only one true purpose: to legitimize discrimination against gay folks.
 

What does the statute say?  I’ve read the statutory language, and here’s my report.  First of all, the statute never mentions homosexuality.  It simply allows a “person” (defined broadly to include individuals, organizations, corporations, and businesses of all kinds) to refuse to comply with an Indiana statute, regulation, administrative order, or municipal ordinance that mandates conduct that would substantially burden that “person’s” exercise of religion.  That’s it.  What sort of existing governmental law would cause this problem?  An obvious example is an ordinance, such as one passed by the City of Indianapolis (2005), that protects LGBT citizens from discrimination in employment, housing, or public accommodations.  Hence, under the new statute, religious Hoosiers in Indy could fire or refuse to hire gays, or to rent to them, or to snap professional wedding photos for them or take them on as patients in a doctor’s practice [see http://www.washingtonpost.com/news/morning-mix/wp/2015/02/19/pediatrician-refuses-to-treat-baby-with-lesbian-parents-and-theres-nothing-illegal-about-it/].  Non-religious Hoosiers, however, would continue to be prohibited from doing these things in Indianapolis (“I won’t deal with you because fags disgust me even though I’m not religious” would still violate the city ordinance).  How do we tell if a person is religious or not?  We ask them.  The statute specifically states that there is no requirement of belief in a specific religion or participation therein.  Thus someone who’d never before expressed any belief in God could find Jesus seconds before refusing to rent a hotel room to a gay couple and thus escape from liability for violating Indianapolis’s ordinance.

The Indiana statute is similar to both a federal statute and state statutes in 19 other states.  What makes it different is that these other statutes were written to make sure that religious sensitivities were to be considered when applying any legislation, a benign enough reason for their passage years ago without much controversy.  Indiana’s law expands the earlier versions so that it applies to private disputes and not just to ones in which the government is a party.  None of the other versions have been interpreted (nor intended) as allowing private discrimination against LGBT people, but that was the announced reason behind the Indiana Legislature’s version of the statute, meaning it will be almost exclusively used to allow anti-gay discrimination in the Hoosier state.  Homophobia was pushed hard as a justification for similar legislation only once before, when Arizona passed such an Act in 2014, overridden by a governor’s veto when national economic pressure and public condemnation was brought to bear; see http://www.cnn.com/2014/02/26/politics/arizona-brewer-bill/.  As I write this, however, both Arkansas and North Carolina are on the verge of passing private anti-gay “religious freedom restoration” statutes, with homophobia proudly trumpeted as their central legislative motive.


Is discrimination allowed against other minorities?  Probably not.  The statute only voids state laws and cannot void federal laws giving civil rights to minorities, and these statutes will continue to protect people from discrimination based on sex, race, religious, nationality, etc.  Interestingly atheists are entitled to such protection based on their “religion” (though, as one wag said, calling atheism a religion is akin to calling bald a hair color).  Having concluded that other minorities remain protected I should mention that in the infamous Hobby Lobby decision of last year, the Supreme Court on a 5-4 vote allowed that religiously-oriented corporation to discriminate against women in refusing to fund their birth control insurance.  Would the Court now say that religious bias permit all sorts of discrimination [“I won’t serve you because you’re a Jew and your people were Christ-killers!”]?  Surely not, but then I wouldn’t have thought that Hobby Lobby would have prevailed in the Court either. The five Justices in the majority were all Catholics, something that should give us pause.


Federal Law and Gays.  There is no federal statute protecting gays from discrimination in employment, housing, or public accommodations, and for reasons I’ve explained elsewhere there never will be; see http://douglaswhaley.blogspot.com/2014/08/five-judges-have-stopped-all-further.html.  Thus Indiana’s new statute is not likely to allow discrimination against most minorities, and will apply solely to discrimination against gays, which the legislative history of the statute shows was just what was intended.  The Indiana legislature was upset by cases from other states like one where a business’s refusal to make a wedding cake for a lesbian couple violated Oregon law and resulted in the women recovering $150,000 in emotional distress damages [see http://www.katu.com/news/local/Lesbian-Couple-seeks-damages-in-discrimination-case-against-bakery--295812331.html].  Indiana is having none of that.
 
 


Is the Indiana statute unconstitutional?  Maybe, maybe not, which is almost always the answer in civil rights cases where the law is murky and seems to depend not on established principles but more on who’s currently on the Court—I once got myself in trouble with my colleagues at The Ohio State Law School by casually remarking in my Commercial Law class that I couldn’t believe anyone could teach Constitutional Law with a straight face.  The main constitutional argument has to do with the 1996 case of Romers v. Evans in which the Court struck down an amendment to the Colorado Constitution that would have invalidated existing Colorado municipal ordinances protecting gays from discrimination.  The Court in Romer stated that if a state was going to take away existing civil rights it had to have a “rational basis” for doing so, and, again, mere homophobia is not a rational basis.  Using that logic it can be argued that the Indiana Legislature is taking away civil rights protections from LGBT citizens in Indianapolis without a “rational basis.”  But surely the Hobby Lobby decision is a powerful argument that religious beliefs are rational (for those who believe in God), so who knows what the Court will say?  Justice Anthony Kennedy was in the majority in both the Hobby Lobby decision and Romers, and, as in those cases, he’s likely to be the swing vote should the Indiana statute or similar ones reach the Court in a year or so.

How Can the Indiana Statute Be Overcome?  This vile statute is given the innocent name “The Religious Freedom Restoration Act” precisely because that sounds so uncontroversial.  Who isn’t in favor of religious freedom?  I am, and I assume you are too.  Certainly I wouldn’t argue that a religious organization, say the Catholic Church, can’t decide who gets to be employed as priests or nuns even if I disapprove of its selections (as I sometimes did when I was a young Catholic trapped in their schools).  But if someone goes into a business that deals with the public, such as making wedding cakes or treating patients in a doctor’s office, he/she is no longer allowed to discriminate based on personal revulsion against protected groups.  No baker may legally say “I won’t make cakes for your wedding because I hate black people.”

Audra McDonald
There has been much outrage at what Indiana has done, and already some effective protests may be causing the state legislature and the governor second thoughts.  Indianapolis is to be the site of the March Madness Final Four games this year, but the NCAA, which is headquartered in Indianapolis, have indicated this may be the last year for that.  Some national sports commentators and staff are gay or very gay-supportive and are already protesting having anything to do with a state that enacts discriminatory legislation that might cause them problems renting a room or getting a meal or taxi, etc.  [If that sounds farfetched I saw in last Saturday’s newspaper an interview with an Indianapolis restaurant owner who proudly announced he will no longer serve gays.]  A couple of conventions that usually bring their business Indiana have indicated they will now back off, and national personalities such as entertainer Audra McDonald have taken firm stands.  Here’s hers:





As others, both gay and straight, stand up for what’s right, and particularly as they threaten the state with economic sanctions, things might cause this statute to be repealed (though any legislator voting to repeal a statute in favor of religious freedom had better be ready to retire).  At the very least a strong public negative reaction might keep other states from doing similarly evil things.  The gay community has long benefited from terrific support from the straight community, and for that we are very, very grateful; see http://douglaswhaley.blogspot.com/2012/11/straight-people-thanks-from-lgbt.html.  This past Saturday Indiana Governor Mike Pence announced that he was surprised by the outrage expressed about the new statute by everyone from local gay organizations to the President of the United States, and he’s asked the legislature to pass a “clarifying” amendment, though what it might say that would lessen its original intent is a mystery.  Pence explained that the Indiana statute was never meant to discriminate against anyone (!), a remark that shows he’s either brain dead or so bad a politician that he can’t even concoct a credible lie.

 
Governor Pence Pontificating

When I began my career as a gay activist in the early 1980s hatred of homosexuals was everywhere and supporters of LGBT rights were few and far between.  The battles were ugly and dangerous; see http://douglaswhaley.blogspot.com/2010/03/aging-gay-rights-activist.html. One thing I learned early on was to shift the debate from whether gays were perverts to whether those who opposed our rights were bigots.  I was on many TV and radio call-in shows where the caller would start out saying things like “Homosexuals are sick!” and I’d respond by asking the caller how he/she justified being a bigot.  Of course, no one wants to be called a “bigot,” so there would be sputtering and protestations and the caller and I would get into a Socratic dialogue (the preferred way of teaching in legal classrooms) about the meaning of the word “bigot” and whether the caller was really one or not.  That was a much more satisfying discussion.  Immediately other callers would light up the phones with outraged protests of “I’m no bigot!” and we’d then explore that contention.  After one such long discussion with a caller she became quite confused and told me “I don’t believe God would create people as homosexuals and then make homosexuality a sin!”  I replied that I didn’t believe that either, and thanked her for calling as we switched to someone else.  For the first five or so years of the gay pride march in Columbus I was the final speaker of the day at the after-march rally, and at the end of my remarks I would point to the group of protesters across the way with their anti-gay signs, and tell my audience, “Pretend I’m one of those haters.  I’m going to yell ugly words at you and you’re going to yell back, ‘Bigot!’ Are you ready?”  They’d happily agree.  Then I’d sling at them words like “Faggot!” “Dyke!” “Pervert!” and “Lesbo!”, each time hearing a resounding “Bigot!” coming back, the sound bouncing off the buildings around the Statehouse.  After the last echo died I’d point at the crowd and say, “Good for you! [For videos of this see http://douglaswhaley.blogspot.com/2012/06/history-of-gay-rights-in-columbus.html].  I’m proud that in Ohio the response to homophobia was frequently the word “bigot,” a word that stings and makes people pause to reflect on their true motivation.


Let’s stop using the pretentious title that this Indiana statute gives itself.  “The Religious Freedom Restoration Act”—really?  Let’s ask what “religious freedom” does it pretend to be restoring?  By 2015 growing acceptance of homosexuality has led to statutes and ordinances protecting gays that have real teeth in them, and this does trample on the Bible-given right to treat homosexuality as an abomination.  That millennia-old hatred is the supposed “religious freedom” being “restored.”  But, as a lawyer and a consumer, I believe in truth in labeling.  From now on let’s refer to it as what it really is: the “Religious Bigot Protection Act.”  That puts the focus exactly where it belongs.




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Related Posts:
“Catholicism and Me (Part One),” March 13, 2010: http://douglaswhaley.blogspot.com/2010/03/catholicism-and-me-part-one.html;
“Catholicism and Me (Part Two),” April 18, 2010: http://douglaswhaley.blogspot.com/2010/04/catholicism-and-me-part-two.html;
“Gay Marriage, the Sixth Circuit, Jeffrey Sutton, and the Supreme Court,” November 13, 2014: http://douglaswhaley.blogspot.com/2014/11/gay-marriage-6th-circuit-jeffrey-sutton.html;
"A Guide to the Best of My Blog," April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.


Monday, March 23, 2015

The Shame of the Republicans in Congress





It’s no fun to think about budgets, but because it’s important let’s do so for a moment.  The new budgets proposed by the Republicans in both the House and Senate would be a disaster for the United States if enacted (which won’t happen), because those budgets, while pretending to be about paying down the deficit would actually add to it immensely while cutting both taxes and all federal programs that much of the country depends on, such as Medicare, Social Security, while completely eliminating Obamacare and the taxes that fund it.  The tax cuts would—surprise!—make the obscenely wealthy one percent of Americans even more obscenely wealthy, while making the rest of us poorer and bereft of governmental protection.  This is irresponsibility at its highest, and, interestingly, it’s fairly new to American politics to be this blatant about the goal.  For a terrifying New York Times article on point, see Paul Krugman’s “Trillion Dollar Fraudsters” (published last Friday) [http://www.nytimes.com/2015/03/20/opinion/paul-krugman-trillion-dollar-fraudsters.html?_r=0].

The proposed budgets do increase spending in one category: the military.  All the studies show that our defense spending is hugely wasteful, much padded by projects even the Pentagon does not want but dear to the hearts of politicians whose constituents live off of them.  Do we really need more?


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When the United States Supreme Court handed down its decision in the Citizens United case (2010) ruling unconstitutional federal laws that limited how much corporations could contribute to political campaigns (one of the most shameful decisions the Court has produced in decades), the floodgates opened and Big Money took over our elections, and by extension, our lawmakers.  The superrich Koch brothers will spend more on the 2016 election than the Republican and Democratic parties combined!  Yikes!  And they’re just two of the richest men in the country.  As to how obscenely rich the rich are watch this YouTube video explanation, which is startling: https://www.youtube.com/watch?v=cIAm0OrRKCI.

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When the wealthy are as wealthy as the wealthy are today they now can actually buy a majority in Congress.  Democrats are not immune to the sway of the fumes coming off the money waived under their noses, but the Republicans have been shameless in selling out for the moola.   Most Democrats are beholden to ideals that include making sure the government protects the people, but the Republicans now in office mostly stand for whatever will make the rich richer—the rest of the people be damned.  This means cutting taxes on the rich while eviscerating federal spending on everything else: social programs, infrastructure, the environment, education, regulating banking practices, you name it. 

The Republicans oppose big government.  That’s fine, and there’s a respectable argument for that philosophy.  But when that opposition grows to mean no federal regulations on what businesses can do, well, there goes the quality of our air and water, the health of our people, the influence of science on decision-making, and the safety net that keeps much of the population from starving on the streets.  Policy protecting the interest of the people is deemed irrelevant; policy protecting the interests of the rich is not.

The comic strip xkcd.com:

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Another justification for giving it all to the wealthy is that the rich will invest in America and that investment will “trickle down” to the rest of us.  If that ever worked—and most economists agree it never did—in recent decades the wealthy have shut off the spigot and kept all the goodies for themselves.


It wasn’t always thus.  The Republican Party is the party of Abraham Lincoln, formed to combat slavery.  When I grew up there were (gasp!) liberal Republicans, and many moderate ones.  But no more.  Moderate Republicans, like the wonderful Indiana Senator Richard Lugar, have been taken down by the Tea Party; see http://douglaswhaley.blogspot.com/2013/11/republican-politicians-reluectant.html.  It’s very sad to watch this decline, and it gets harder and harder for me to find a Republican politician I can admire.  At this second none come to mind.  I suspect that if truth were told most Republican politicians really do believe in evolution, think gay people should be treated like everyone else, accept that scientific facts are indisputable as to most things, but finding a Republican politician who will say these things aloud is rare.

The far right has captured a good sized chunk of the Republican Party, and in that ugly portion the social gains of the past decades are untouched: women are inferior to men, blacks to whites, gays to straights, nonbelievers to the religious, and the list goes on and on.  The Tea Party has so much influence that Republican leaders can’t get their own party to do anything, even though Republicans control both houses of Congress, unless Democrats jump in and help cancel the Tea Party naysayers. 

In this post I’m very hard on Republican politicians, but I’m not saying that Republican voters agree with what those politicians are doing once they get into office.  I certainly hope not.  But what voters want and what the politicians do once elected are often far apart.  This is true of both political parties, but the messiness of the Democratic Party consists largely of inefficient confusion over protecting the people and how to do it.  
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In his article I mentioned at the start about the proposed Republican budgets, Paul Krugman laments that the Republicans haven’t offered up a budget in a long time that does anything other than reward the wealthy and screw the rest of us.  Here’s his closing paragraph:

"Look, I know that it’s hard to keep up the outrage after so many years of fiscal fraudulence. But please try. We’re looking at an enormous, destructive con job, and you should be very, very angry."

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Related Posts:
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html
“Ohio To Put Guns in Baby Strollers,” June 17, 2012; http://douglaswhaley.blogspot.com/2012/06/ohio-to-put-guns-in-baby-strollers.html