A Stitch in Haste

Time to clean out the aggregator:

ITEM: The so-called “Palin Hacker,” who is alleged to have illegally accessed Sarah Palin’s private Yahoo! email accounts, has (finally) been indicted by a federal grand jury in Tennessee. David Kernell, 20, now faces trial on a single count of violating the Computer Fraud and Abuse Act. I previously asked whether supporters of jury nullification would feel entitled to acquit Kernell even if the law he is accused of breaking is generally just, if not in this particular instance.

ITEM: The Supreme Court declined to hear an appeal in which Massachusetts bigots object to their children being taught about even the existence of same-sex couples in their state. Previous post here. Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) (PDF - 44 pages)

ITEM: California has restored the terms “bride” and “groom” to marriage licenses, now as optional check-off boxes. The terms had been removed after same-sex marriage became legal in California, providing yet another excuse for bigots to complain. Previous post here.

ITEM: Also in California, an intermediate state appellate court has unanimously upheld a $300,000 award against the Poway school district for failing to protect students from anti-gay bullying. You may remember Poway as the defendant in a high-profile “anti-gay t-shirt” case, Harper v. Poway; I blogged about a similar case here.

ITEM: Arkansas is abandoning its ban on unmarried couples from serving as foster parents. This of course opens the door for gay couples to do so. Previous post on Arkansas and gay adoption bans here.

ITEM: China’s authoritarians are pressuring victims of melamine-contaminated milk not to sue the (state-controlled) producers of the tainted milk. I specifically highlighted civil liability as one reason why quality control in capitalist economies is so superior to that in centrally planned economies. Meanwhile, the latest estimate of the Communist catastrophe is 94,000 victims made sick.

ITEM: A federal panel of “policy makers and scientific experts” has called for a comprehensive review of the practice of “data mining” of information such as telephone records in an attempt to detect terrorists. I noted a previous critique of the practice here; see also here.

ITEM: House Speaker Nancy Pelosi has proposed yet another economic “stimulus” package. Price tag this time: $150 billion. President Bush has indicated that he will veto any further packages. I blasted the original stimulus package here; see also Lewis Black’s commentary here.

ITEM: The National Debt Clock, a long-standing icon in midtown Manhattan, has run out of digits. I used to try to keep up with the debt ceiling, but gave up.

ITEM: Speaking of “running out of digits,” the Zimbabwe inflation rate is now at 231 million percent. One of many previous posts here.

Matthew Wayne Shepard, December 1, 1976 – October 12, 1998

Although we acknowledge that many legislators and many of their constituents hold strong personal convictions with respect to preserving the traditional concept of marriage as a heterosexual institution, such beliefs, no matter how deeply held, do not constitute the exceedingly persuasive justification required to sustain a statute that discriminates on the basis of a quasi-suspect classification.
–Kerrigan v. Commissioner of Public Health, No. SC-17716 (Supr. Ct. Conn., October 28, 2008) (preliminary version - 85 pages)

My hasty stitches on the Connecticut same-sex marriage decision:

1. A quick clarification to my previous post: The Connecticut Supreme Court uses the term “quasi-suspect class” to refer to groups warranting intermediate-level scrutiny (e.g., gender) and reserves “suspect class” for those groups that warrant strict scrutiny (e.g., race). By that terminology, sexual orientation is a “quasi-suspect” class, on a par with gender.

2. The case is resolved exclusively on equal protection grounds and not on substantive due process or fundamental rights analyses. There are surprisingly few references to Loving v. Virginia and none to Zablocki v. Redhail. (The case is also based exclusively on the Connecticut Constitution and not the federal Constitution. Therefore, no appeal to U.S. Supreme Court is possible; the decision is final.)

3. The court goes back to first principles and performs an exhaustive review of when a discrimination against a group or characteristic is entitled to heightened scrutiny, based on Supreme Court precedent, and finds that sexual orientation qualifies:

• a history of invidious discrimination
• equal ability to contribute to society
• the characteristic is immutable
• the group is an insular minority or otherwise politically disadvantaged

The first two have never been seriously disputed by anything except the most hard-core bigots. Regarding the third, the court relies on modern scholarship insisting that sexual orientation cannot be changed — and that even if it could, the burden is too great to impose constitutionally. As for the fourth, the court emphasizes that the election of a stray gay politician here and there, or the willingness of a legislature to grant gays some rights (but not others), and even to create civil unions (but not marriage), show not that gays have significant political power, but indeed that they don’t. The court points out an historical anomaly that I had never considered: that women had far more political and economic power in 1973, when gender was elevated to quasi-suspect status, than gays have today. (See Frontiero v. Richardson, 411 U.S. 677 (1973))

4. Still on quasi-suspect class and intermediate scrutiny — and this is critically important: The court argues, extensively and (in my opinion) persuasively, that all federal precedent holding that sexual orientation is not entitled to heightened scrutiny has been overruled by Lawrence v. Texas, and that any case, in any jurisdiction, that relies on any of those federal precedents is likewise no longer binding. For more on this, see Part VI C of the decision, and particularly Footnote 65. Of course, no court outside Connecticut need respect that view, but it’s a huge positive leap in gay rights jurisprudence.

5. The court did make a reference or two to Brown v. Board of Education and the fallacy of separate but equal as it applies to civil unions. What the court did not note, however, are the tangible ways that a civil union couple are legally disadvantaged relative to married couples: the ability to export their marriage to New York and possibly other states or countries, standing to challenge federal DOMA in federal courts, etc. I noted this issue in my review of the New Jersey civil union decision.

6. The “procreation” argument for limiting marriage to heterosexual couples, which was the basis for the defeats in New York and Washington States, was not significantly discussed in the case, mainly because the state didn’t even try to raise the issue in opposing gay marriage. Now that’s progress. (The court did note, however, that allowing gays to marriage clearly benefits their kids.)

7. For what it’s worth, the court explicitly held that civil unions are not unconstitutional, so long as gays are also allowed to marry. If, for some reason, a couple wishes to enter into a civil union, they still can (assuming the legislature doesn’t abolish the status in favor of equal marriage rights for all).

—

There were three dissents:

–The main dissent insists that gays are not entitled to quasi-suspect class status because they are too politically powerful. The very fact that the legislature enacted civil unions proves, so the argument goes, that gays are not politically powerless. The majority opinion spends a great deal of time refuting this thesis, including by emphasizing that the test is not whether an insular minority is politically powerless, but politically disadvantaged — and that this metric is only an argument, and not a requirement, for conferring quasi-suspect class status.

–A second dissent invokes the now-debunked procreation canard (i.e., that fostering “traditional” reproduction by married heterosexual couples is a sufficient reason to deny marriage to gays). The fact that such a discriminatory regime is both unconstitutionally overinclusive (straights incapable of conceiving are still permitted to marry) and underinclusive (gays can and do conceive children too) is not rebutted (because, of course, it can’t be rebutted).

–The third dissent is an embarrassing, intellectually bankrupt, one-page plea for judges to always defer to legislatures. Because, apparently, that’s just what judges are supposed to do: nothing.

—

From here, the next step (apart from California and Proposition 8, of course) is I think New Jersey, which has almost the same “separate but equal — but really unequal” civil union paradigm as Connecticut implemented. That decision’s reasoning was criticized for all the same reasons that the Connecticut Supreme Court rejected it. If the New Jersey legislature does not move toward full marriage equality, it seems clear that the right test case will eventually get the issue back to the Supreme Court of New Jersey, which will now have a sister state to cite in taking the last step in recognizing its separate-but-equal error and instead demanding full marriage equality.

(I have no idea how civil unions are faring in Vermont these days. But I think the Connecticut case, especially contrasted with New Jersey, will mean the end of civil unions, except perhaps in a “this or nothing” situation — which I think is unlikely anywhere new anyway.)

Also on the horizon is New York. As I explained previously: If the Democrats take control of the State Senate this November, then expect gay marriage to be legislatively enacted very quickly. But even if the Republicans keep the state senate, the issue seems to be high enough on Governor Paterson’s agenda, and low enough on the new majority leader’s, for a deal to be made.

—

Here is GLAD’s press release; here is Lambda Legal’s.

To review: During the second presidential joint press conference debate, John McCain criticized Barack Obama for seeking a $3 million earmark for what McCain snidely dismissed as an “overhead projector.”

Science bloggers have been quick to react indignantly. One example:

McCain repeatedly called the requested equipment an “overhead projector” which brings to mind the simple light projector your junior-high geometry teacher used to display transparencies. But the Zeiss planetarium projector Adler [Planetarium] has its eye on is no simple teaching aid.
…
Once at the cutting edge of planetarium technology, Adler has fallen behind the Griffith Observatory in Los Angeles and the Hayden Planetarium in New York City, which already have the latest Zeiss projector.

The science bloggers (who, recall, often have a rather unscientific contempt for libertarianism) may well be right that the cost of the earmark is entirely commensurate with what is being funded (i.e., that $3 million is not too much to pay for a Zeiss projector). But that’s not the point at all.

The point is instead that a Zeiss projector is simply not a public good (its use is perfectly excludable) and therefore should not be in any way funded by taxpayer dollars. Moreover, if a Zeiss projector in Chicago is not a public good in Chicago, then it surely is not a federal public good worthy of federal taxpayer dollars. As bad as it is to demand that all Chicago taxpayers fund something from which not all of them will benefit, it is downright obscene to demand that all New York taxpayers fund something from which none of them will benefit.

The fact that the executives of the Adler Planetarium — or Barack Obama or some politically illiterate science bloggers — think that a new Zeiss projector would be a neat-o thing to have is not a legitimate claim on — well, on anyone. Charge an appropriate admission fee to fund the projector, or rely on private donations. There is nothing “enlightened” (no pun intended) about making people pay for something they don’t use.

Previously:
–Trick Question: Is McCain “Anti-Science”?
–From the Archives: Space — The Final Appropriation
–The “Tang-Teflon-Velcro” Fraud, 2008 Edition
–On the Absurdity of “Legislating Discovery”
–Gasbag Politician Fuels Pork-Powered “Prizes”

Today is National Coming Out Day.

For those who need an alternative, try Dogs Rule Day.

And if you’re a heterosexual cat lover — well, too bad.

…will have to wait until tomorrow.

What I can note now is that the court held that sexual orientation is a suspect classification warranting intermediate scrutiny, similar to laws discriminating based on gender. That by itself is a huge victory, independent of the marriage question specifically. (California, recall, held that sexual orientation discrimination triggers strict scrutiny, if only because California has never used intermediate scrutiny for any suspect class.)

Stay tuned…

Talk about missing the point:

It would seem that Obama has been studying the 1932 campaign of Franklin D. Roosevelt. The key to Roosevelt’s victory was not a big program but a jaunty sense of optimism in the midst of despair that led to his signature inaugural line — “the only thing we have to fear is fear itself.” Less famously, Roosevelt declared in his acceptance speech that “this is no time for fear, for reaction or for timidity.”

In recent days, Obama has painted himself as calm, pragmatic, open and hopeful. He seemed to be channeling FDR when he told a crowd in Indianapolis on Wednesday: “This isn’t a time for fear or for panic. This is a time for resolve and steady leadership.”

As for McCain, his campaign is trying to sow fear and panic about Obama. That’s exactly what Herbert Hoover tried to do with Roosevelt. Days before the 1932 election, Hoover attacked Roosevelt’s “inchoate New Deal.” He predicted it would “crack the timbers of the Constitution” and warned voters to beware of the “glitter of promise.”

Thus observes E.J. Dionne in today’s Washington Post.

Just one problem: Of course, in the end Hoover was exactly right about Roosevelt and the New Deal. By the time FDR’s disastrous socialist experiment was pre-empted by Pearl Harbor, the Constitution was reduced not to cracked timbers but to a heap of toothpicks and sawdust. Many if not most federal government intrusions upon personal liberty today can be directly traced to some Supreme Court case rationalizing some New Deal program. (And a sizable chunk of the rest can be traced to FDR’s quasi-totalitarian prosecution of World War II — was it Herbert Hoover who interned Japanese-American citizens?)

And for what? Thanks to the New Deal, the Depression (which had been primarily caused by government intervention in the economy in the first place) was extended years longer than it would have lasted had Washington not pistol-whipped businesses into an extended paralysis.

A reason to vote for McCain? Certainly not. But definitely a reason to treat the Depression, the New Deal and FDR as sobering history lessons and not as epic mythology — or as empty-yet-dangerous campaign rhetoric.

It’s a long-standing principle in the law that “predatory” crimes should not be applied to those whom the law is meant to protect. So, for example, minors usually (though not always) cannot be prosecuted for statutory rape. Due process demands (or ought demand) that someone cannot simultaneously be the perpetrator and the victim of the same crime.

So I of course welcome this development:

Ending years of debate and delay, Gov. David A. Paterson on Friday signed into law a bill shielding sexually exploited girls and boys from being charged with prostitution.

The law, known as the Safe Harbor for Exploited Youth Act, will divert children under the age of 18 who have been arrested for prostitution into counseling and treatment programs, provided they agree to aid in the prosecution of their pimps.

It has been the subject of intense debate in the State Legislature and beyond, and was opposed by some law enforcement officials and by the Bloomberg administration, which argued that the bill would make it harder to crack down on prostitution.

But the bill’s backers said it was wrong to treat under-age prostitutes — many forced into the sex trade and kept there with physical threats and abuse — as criminals rather than victims.

Makes perfect sense to me. I find it depressing (but not surprising) that the move was ever considered controversial and that it had so much trouble getting through New York’s dysfunctional state legislature.

I have three other hasty stitches:

1. Wouldn’t it be nice to see, as a stepping stone toward decriminalization, drug offenses treated the same way? Why should drug users (i.e., the victims) ever be prosecuted for buying drugs? Aren’t they “incompetent” (i.e., as addicts) much the same way that minors are deemed incompetent? Why not make the same offer: Get treatment, disclose your source, and face no criminal penalty?

2. Teens who engage in prostitution, especially those in New York City, overwhelmingly do so because they are runaways with no other means of survival. And a disproportionate fraction of those runaways are gays, either disowned by their families or fleeing hostile communities (e.g., this source claims 42% of New York’s homeless youth identify as gay or lesbian; this source says “more than 20%”). Any policy discussion regarding the plight of teen runaways should incorporate the causal impact of anti-gay bigotry on the problem. (See also my previous posts on the role of anti-gay bigotry on teen suicide and suicide-ideation rates.)

3. What does it say about contemporary criminal justice that I had to use the term “predatory” crimes in my opening sentence (i.e., as opposed to “victimless” crimes)? Should conduct that is not “predatory” ever be a crime in the first place?

(Via CrimProf Blog.)

—

This is a bit off on a tangent, but what was I just saying about “someone cannot simultaneously be the perpetrator and the victim of the same crime“?

Police in Newark, Ohio, have arrested a 15-year-old girl on juvenile child pornography charges for allegedly sending nude cell phone photos of herself to classmates. … Authorities were also considering charges for students who received the photos.

The reason we afford absolutely zero First Amendment protection to child pornography is because children cannot competently consent to the act and the harm to them is simply too great. But how does arresting children serve to protect them? How can an (innocent) victim also be a (guilty) perpetrator? It’s absurd. (UPDATE: It now appears that the girl may also have to register as a sex offender. I repeat: It’s absurd.)

The Urban Institute analyzes income inequality in post-retirement America:

Without savings, low-wage workers will have to rely on other sources of retirement income, such as Social Security and pensions. Yet these sources of retirement income are based on earnings. The Social Security benefit formula replaces a greater share of earnings for low-wage workers than for higher-wage workers, but low-wage workers will still have lower benefits than their higher-wage counterparts.

Can you identify the missing word in that text? That’s right: taxes.

The reason higher-income workers receive higher Social Security benefits is because they pay higher Social Security taxes.

As I’ve blogged repeatedly: Social Security can either be viewed as a form of compulsory retirement savings or as intergenerational welfare. It cannot simultaneously be both. (It can be presented, by the government or its apologists, as one or the other depending on the context or the audience, but it cannot be both at the same time.)

If we (i.e., the majoritarian mob) decide that no one should have a low-income retirement, then fine: Let’s scrap the current Social Security scheme altogether and replace the current “lifetime earnings” benefit formula with a single, poverty-eliminating old-age pension — paid equally to all elderly regardless of their lifetime earnings. Simultaneously, we would abolish FICA taxes (which, recall, have no exemptions or deductions) and raise federal income tax rates by an appropriate amount to make the transition revenue-neutral.

The only thing standing in the way of such a reform plan is the unwillingness to admit that this would turn Social Security into intergenerational welfare. That was unacceptable in 1935, and it’s unacceptable now. Social Security, to remain politically viable, requires the continued insistence that people “earn” benefits via dedicated taxes. With the corollary truth that some people will pay more taxes and therefore earn more benefits.

You can’t have your retirement cake and eat it too: Either Social Security is a government-imposed, government-run retirement savings plan (in which some people will put in and get out more than others) — or it’s the dole, complete with the stigma that attaches to being on the dole. It cannot be both.

And my challenge to Social Security’s apologists remains on the table: Anyone who claims to champion the plight of the working poor must also champion the reform of a system that seizes one-eighth of the working poor’s paychecks — week in, week out — over their entire careers. Anything else is simply irrational.

Go back to the quote: “Without savings, low-wage workers will have to rely on other sources of retirement income, such as Social Security and pensions.” Absolutely correct. But the first and greatest impediment to saving is taxes — 12.4% of an entire paycheck is a lot of money that could have been saved, had it not been for Social Security.

Previously:
–Has Social Security Been a “Success”?
–Questions — Special “Obama Donut Hole” Edition
–Some Thoughts on American Poverty
–“Comment Left Elsewhere” of the Day (Means-Testing Medicare)
–Socialized Medicine: More on Means Testing

At one end of the spectrum, we have the world’s leading apologist for irrational primitivism (and earthly suffering), Pope Benedict XVI —

Pope Benedict XVI says the global financial crisis show the futility of money and ambition.

Benedict says that “now with the collapse of big banks we see that money disappears, is nothing and all these things that appear real are in fact of secondary importance.” He urges those who build their lives “only on things that are visible, such as success, career, money” to keep that in mind.

At the other end of the spectrum, we have a reality-based academic capitalist, Tyler Cowen —

In matters of morality, the free market functions like an amplifier. By placing more wealth and resources at our disposal, it tends to boost and accentuate whatever character tendencies we already possess. The net result is usually favorable. Most people want a good life for themselves and for their families and friends, and such desires form a part of positive moral character.

It never ceases to amaze me how reluctant dogmatic Christian sects are to admit that capitalism (by which I mean an economic system based to the greatest extent possible on voluntary exchange) is the only economic system compatible with the Ten Commandments and with the teachings of Jesus.

Do not steal. Do not defraud. Do not coerce. Tend to your own affairs before you pass judgment on others (”cast stones”). Be charitable — but with your own wealth (”camel-eye-needle”). Treat your counterparty as though he were your partner. And never conflate politics (”render unto Caesar”) with religion (”render unto God”).

All compatible with capitalism — and only with capitalism.

If that isn’t spiritually uplifting, then what is?