A balmy in Gilead

My modest proposal

When it comes to irrational right-wing extremism, Joseph Farah lives in a surreal bubble of his own special brand of derangement. He is the founder of WorldNetDaily, a Web-based journal almost impossible not to cite as WorldNutDaily. WND serves up regular heaping helpings of paranoia, propaganda, and crackpottery.

Farah has been wringing his hands over the fate of traditional biblical marriage. (Please note: “Traditional” marriage means the one-man/one-woman definition from the Bible exemplified by Adam and Eve—and not the one-man/two-women example of Jacob with Leah and Rachel nor the one-man/seven-hundred-wives/three-hundred-concubines example of good old King Solomon.) In his WND column of June 3, 2015, Farah proposes secession from the United States if the Supreme Court allows same-sex marriage throughout the nation.

Is there one state in 50 that would not only defy the coming abomination, but secede in response? The rewards could be great. I would certainly consider relocating. How about you?

The founders of this country found a place of refuge in America and shaped it into the greatest self-governing nation in the history of world. Just think what one state could do if it simply stuck to the principles that made this country great? Americans wouldn’t have to cross an ocean to rediscover what brought most of our ancestors here. We could simply drive.

Are any states so inclined?

I haven’t heard this question raised by anyone else. So I’m raising it now. We don’t have much time before the nine high priests in black robes decide to follow Baal instead of the One True God of Abraham, Isaac and Jacob.

Okay, that mention of Jacob is a trifle unfortunate, but at least his wives were of the opposite sex.

Farah calls his proposal an “Exodus strategy.” Commenters on sites like Crooks & Liars have been quick to suggest that Texas is the state that should secede (or be thrown out) to serve as a haven for Farah and his followers. I think this is much too generous. Abandon Austin? Dump Dallas? Leave Houston high and dry? (Actually, I guess they might appreciate that right about now.)

I have a counter-proposal. Let Farah and his crazies colonize the Texas panhandle. Let's carve out a nice rectangular space for an independent nation named Gilead. (There's a nice literary reference for you.) Amarillo and Lubbock would probably fit in just fine. While saner people might flee to the greater portion that remains as Texas, there should be plenty of opportunities to obtain good deals on the residences left behind by the flight of Farah's adherents (especially in Plano). A plebiscite could determine whether Oklahoma's panhandle should be included for good measure. (Those who think Panhandler would make a good name for this new nation should take into account that the imbalance between taxes paid and federal dollars received would no longer be an issue—unless the new nation demands a lot of foreign aid from the US, in which case Panhandler might be exactly right.)

There are other aspects to this win-win situation: (1) Texas goes blue more quickly. (2) Jobs are created in the border patrol and border-crossing stations will have to be constructed. (This would be true in New Mexico and Oklahoma, as well as in the new Texas. Possibly in Colorado and Kansas, too.) (3) Other parts of the United States would improve as their nutcases emigrated to Gilead. (4) Ted Cruz would lose his political base (unless he moves to the new country to become its Priest-King).

I'm not certain what would support the economy of Gilead, though it's likely that Lubbock's cotton industry and Amarillo's meat-packing would remain mainstays. However, opportunities to promote tourism might be sketchy. Would Americans be eager to visit a nation based on a Christian version of sharia law?

Future of the Supreme Court

An actuarial look

Those disappointed in recent Supreme Court decisions will, I hope, refrain from simply accepting defeat. Issues like corporate personhood and religious privileges for family businesses are not settled for all time. In the Hobby Lobby case, for example, anti-abortion and anti-contraception groups will be trying to maximize the family-owned business exception from the Affordable Healthcare Act's coverage mandate. Defining the limits of this exception will inevitably result in future court cases that will gradually percolate to the level of the High Court, giving the Supremes an opportunity to revisit the issue.

Since the justices are normally loath to overturn their previous decisions, especially recent ones, opponents of Citizens United and Hobby Lobby need to be patient, even while striving to correct the injustices. Also, we need some time to elapse so that the best of all possible reversal opportunities can arise: new justices. The following chart displays the current ages and the years of service of the nine justices. Scalia and Kennedy are the longest-service justices, while Ginsburg is the oldest.

Nothing in this chart, however, is as important as how much longer the individual justices are likely to serve. To that end, let's turn to Table 7 (Life expectancy at selected ages, by race, Hispanic origin, race for non-Hispanic population, and sex: United States, 2010) in the CDC's Volume 61, Number 4, of National Vital Statistics Reports. Looking up the life expectancy for each justice and interpolating between tabular values when necessary, I created the following chart.

As you can see, Ginsburg, Scalia, and Kennedy are estimated to have about nine years left. Of course, this is not a hard number, but it suggests that even if they decline to retire to spend more time with their families—as the traditional explanation goes—we can reasonably expect a number of vacancies in the vicinity of 2023. Thus the president elected in 2020 would have some openings to fill. It's entirely possible that the president elected in 2016 would have no opportunities to nominate a Supreme Court justice, just as Jimmy Carter did not in his single term, nor Bill Clinton in his second term and George W. Bush in his first.

Patience, right? In other words, Hillary Clinton would need a second term to make it really likely that she could select successors to Ginsburg, Scalia, Kennedy, and perhaps Breyer.

What is missing from this scenario? The obvious, of course. A Democratic president elected in 2016 would encourage Ginsburg and Breyer to step down with the assurance that their seats would not go to nominees dedicated to overturning their judicial records. Scalia, by contrast, would hunker down and strive to outlast the Democratic administration (assuming he can continue to withstand the toxic overproduction of his bile gland).

The case of Sotomayor is special, and I made no attempt to take into account her diabetes, which argues against her supposed expectation of lasting till 2040. I also have no idea whether Roberts, who came to the Chief Justice's position at an unusually young age, will strive to set a new record at the top of the court's hierarchy. That would require that he serve more than the 34 years and 5 months achieved by John Jay. Whatever occurs, it seems unlikely that the string of Republican-appointed Chief Justices will end anytime soon. Harry S. Truman was the last Democratic president who enjoyed the privilege of appointing the Chief Justice when he nominated Fred Vinson in 1946.

Patience. Probably quite a lot of it.

Love and marriage

What happens next

Today's rulings from the Supreme Court were surprisingly good, although the decision on Proposition 8 was a cowardly punt rather than a straightforward striking down. Coupled, however, with the decision invalidating the Defense of Marriage Act, the ruling against Proposition 8 means that California becomes a rich source of foot soldiers against the narrow definition of marriage. I may not be a lawyer, but I can read the writing on the wall.

DOMA is gone, so the federal government can no longer discriminate against duly married same-sex couples. The federal government can hardly attempt to deny marriage recognition to couple who marry in one state and then move to another. As long as the marriage is solemnized in a state (or D.C.) where same-sex marriage is legal, the same-sex couple's rights have to be recognized as portable. Could even an extreme ideologue like Justice Scalia argue that the couple's rights switch on and off, depending on the state in which they reside?

No one needs a crystal ball to see what happens next. Same-sex marriage will gradually permeate all fifty states. It cannot be avoided in our mobile society. Same-sex couples in states with anti-gay legislation on the books will schedule wedding vacations in California or other states that support same-sex marriages. There will be an economic boomlet in gay-friendly states as florists and wedding planners and honeymoon locations are showered with rainbow-striped dollars. Legislators who understand revenue better than human rights will be tempted to stanch the out-flow by repealing their bans on same-sex weddings.

The most pessimistic in the anti-gay ranks are correct: Same-sex marriage has the force of history behind it and their struggle to keep prejudice enshrined in law is doomed. Let all people of good will celebrate.

Anthony Kennedy and Proposition 8

Another growth opportunity

It was a coincidence. On Thursday I stumbled across a television program devoted to the life of Nathaniel S. Colley, Sr. The name was familiar to me, since I had heard it many times during my stint in state service. Colley was an attorney and civil rights leader in Sacramento, known to all of the state capital's elected officials and public servants. The biographical program on Sacramento's KVIE devoted a significant amount of time to Colley's vigorous endorsement of his McGeorge Law School colleague Anthony Kennedy for the U.S. Supreme Court.

“I am here because I know Judge Kennedy well. He is a man of great integrity who has a sincere devotion to the rule of law.” —Nathaniel Colley, December 1987

On Friday I picked up a copy of that morning's San Francisco Chronicle and a headline caught my eye:

Proposition 8 foes seek sweeping high-court ruling

The newspaper reported that attorneys for the plaintiffs would argue for a Supreme Court decision that would quash not only Proposition 8, but all similar bans against same-sex marriage. Such a ruling would have the effect of extending gay marriage throughout the United States, much as Lawrence v. Texas invalidated all of the state laws against so-called sodomy (however defined) and same-sex relations.

“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Lawrence v. Texas majority opinion
Justice Anthony Kennedy, June 2003

As a prominent black civil-rights activist, Nathaniel Colley's endorsement was a key factor in Anthony Kennedy's unanimous confirmation to the Supreme Court. Kennedy had been criticized for his membership in a whites-only country club, but Colley testified before the Senate Judiciary Committee that Kennedy had worked against the restriction on minority membership and resigned when it became clear that he would not succeed in ending it.

“Several witnesses attested to this evolution and to Judge Kennedy's open-mindedness, and to the fact that his development process is continuing. He is a grown man who will grow more, said Nathaniel Colley.”

Hearings before the Committee on the Judiciary
United State Senate

One Hundredth Congress
December 1987

Justice Kennedy is today the high court's most famous “swing vote.” With the notable exception of the Obamacare decision, where it was Chief Justice Roberts who cast the deciding vote, most observers agree that as Kennedy goes, so goes the Supreme Court. Naturally, therefore, all eyes are on the author of the Lawrence v. Texas decision. Will Justice Kennedy seize upon the Proposition 8 case as a new opportunity for growth, or will he continue his recent trend of aligning with the court's conservative bloc?

Many people are pessimistic. Kennedy has not inspired much confidence. My fingers, however, are figuratively crossed. Justice Scalia is an intemperate bully who has roundly abused his colleagues when they disagree with him. Kennedy has no reason to embrace Scalia's position to preserve a collegiality that is nonexistent. He can do as he pleases.

Will it please him to strike down Proposition 8? And, if he does, will he dispatch it with a stiletto or a saber? If Kennedy is thinking in terms of his judicial legacy, he must certainly be aware that cases decided on narrowly-construed grounds with limited impact do not make for key chapters in the history books. If he ducks the matter with a convenient technicality, he will have squandered a golden opportunity to leave his mark on the Golden State and beyond. The author of Lawrence could burnish his reputation as a milestone jurist with a simple and straightforward ruling in Hollingsworth that Proposition 8 and all measures like it are unconstitutional on equal-rights grounds.

In this context it might be appropriate to recall Anthony Kennedy's tenure at McGeorge School of Law. The longtime dean was a gay man, as was one of the dean's best friends, a closeted actor who was among the law school's most significant benefactors when he wasn't playing a lawyer on TV. Kennedy should keep these friends and colleagues in mind as he decides the Proposition 8 case. He could strike another blow for the advancement of civil rights. He could confirm Nathaniel Colley's judgment that he is a man who grows.

And he could give Scalia apoplexy.

Pyrrhus in the pulpit

Bill Donohue redefines victory

The e-mail announcements from the Catholic League always bear ALL-CAPS subject lines, presumably to conform to the histrionic style of its leader and bombastic spokesman, the cheerfully obstreperous Bill Donohue. Clearly the crew at the Catholic League was poised with press release ready the moment the jury weighed in on the fate of  Monsignor William Lynn. The priest was convicted on one count of child endangerment:

Monsignor Lynn served as secretary for clergy for the 1.5 million-member [Philadelphia] archdiocese from 1992 to 2004, recommending priest assignments and investigating abuse complaints. Prosecutors presented a flood of evidence that Monsignor Lynn had not acted strongly to keep suspected molesters away from children, let alone to report them to law enforcement.

The jury, however, declined to convict Msgr. Lynn on the charge of conspiracy or a second child-endangerment accusation. Thus Donohue hastened to declare victory, sort of, with a generous dollop of but-everybody's-doing-it:

The witch-hunt has come to an end, and those who have been clamoring for blood lost big time. What made this a witch-hunt was the decision of former Philadelphia D.A. Lynne Abraham to summarily ignore what she was empowered to do in 2001: she was given the charge “to investigate the sexual abuse of minors by individuals associated with religious organizations and denominations.” Had she done so, those cases of minors who may have been sexually molested by ministers, rabbis, and others, would have been investigated. Instead, absolutely nothing was done about these cases.

Nothing was done? Bill knows this, of course, because D.A. Abraham declines to confide in him concerning other investigations by the district attorney's office. Therefore these other investigations must not exist. Since the D.A. went after a Catholic priest, this is obviously a vendetta against Rome. Besides, Abraham failed to get a conviction against a second priest, hence her prosecutorial efforts are exposed as simple anti-Catholicism. At least, this is how the Catholic League sees it!

Donohue's crowing is not muted by the facts of the second case:

A second priest, the Rev. James J. Brennan, 49, was tried with Monsignor Lynn, charged with attempted rape and endangerment of a youth, but the defense challenged the accuser’s credibility.

To convict, the jury had to find that Father Brennan had not only abused that boy but continued to put children at risk over subsequent years of ministry. The prosecutors were unable to find later victims. The jury said it was deadlocked on the two counts against Father Brennan, and Judge Sarmina declared a mistrial on those charges.

Donohue, however, is certain that Fr. Brennan was small fry and not the real target of the investigation:

They wanted the big prize—they wanted to nail a high-ranking clergyman on conspiracy. Had they won on this count, they would have been in the driver’s seat to pursue other “conspirators” nationally. Looks like their car ran out of gas in Philadelphia.

Hurrah! Victory!

Just between you and me, however, I suspect the celebratory mood is rather more muted when Donohue and his minions are behind closed doors. Another molester-shuffling cleric has been caught playing “hide the abuser.” The champagne won't have many bubbles.

Back away from the penis!

San Francisco on the cutting edge

The voters of the City and County of San Francisco have placed a proposed circumcision ban on the November general election ballot. It would make it illegal to remove the foreskins of minors without a showing of medical necessity. It would not, however, have any impact on adult males who wish to have their penises clipped. The rationale is simple: Baby boys cannot give informed consent.

The reaction to the ballot initiative is unsurprisingly shrill. Here's the opening paragraph of an opinion piece by Rabbi Gil Leeds, which was published on May 20, 2011, in the San Francisco Chronicle:

Freedom of religion, enshrined over two centuries ago by the Constitution and the Bill of Rights, is now subject to a vote with the certification in San Francisco of the referendum on circumcision for the November ballot. The vote will empower a secular majority to impose its will, and ban one of the oldest religious traditions known to humanity. When religious belief and practice become subject to vote by the majority of a city council, government agency or referendum, it endangers all of our rights and freedoms.

The proposed legislation contains no religious exemptions, so the traditional Jewish bris ceremony could no longer be practiced in San Francisco if the circumcision ban were enacted. That is why Leeds frames it as an attack on religious freedom. This got me to thinking.

What does religious tradition protect? How far can it go? Leeds correctly points out that male circumcision is a very old religious practice, so it definitely fits under the mantle of tradition, at least for Jews. It's also long been considered normative for American males, quite apart from religious practice. As a culture, we're inured to it and most people take it in stride as expected and unexceptional. While a few circumcised men have complained about having been robbed of their foreskins, most clipped males appear to be content with their condition. It hasn't been a major controversy.

On the other hand, female circumcision is widely condemned as genital mutilation and is against the law in the United States and the target of an international campaign to suppress it. In fact, “circumcision” is rather a misnomer for the procedure(s) applied to young girls in those cultures that practice it. The term comprises a broad range of actions, from reduction or amputation of the clitoris to wholesale excision of the labia. The most extreme form involves infibulation, stitching up the vaginal passage to make it smaller and to ensure the virginity of the victim; the procedure may be reversed when she is properly married off.

Female “circumcision” is an ancient practice that is done in secret in places like the United Kingdom and the United States, nations in which it is legally banned. Members of immigrant families may go to great lengths to ensure that their daughters are genitally cut so that future suitors may be assured of their respectability. The UK and US make no allowance for the ancient tradition, deeming it a violation of basic human rights and labeling it as “female genital mutilation.”

The sponsors of the anti-circumcision measure in San Francisco took a page from the international campaign to protect girls when they titled their proposal as the “San Francisco Male Genital Mutilation” initiative. The city attorney toned that down to the “Male Circumcision” measure, but Leeds the mohel is unmollified:

The proposal's backers are trying to deceive the voters by labeling it a “ban on genital mutilation.” Honesty would have demanded they called it a ban on circumcision. By using such a toxic term as mutilation, they hope to garner support from an unsuspecting public.

My question is this: How is cutting off part of a little boy's penis not a “genital mutilation”? Because our society is inured to it? Because some people practice it as a religious rite? Because it's not as grotesque as the female version? Because there are some supposed health benefits?

What if a religious sect insisted it was their right to practice infibulation on their infant daughters? Would we be violating their freedom of religion if we refused to allow it? (We have clearly already decided that question, haven't we?)

Circumcised males can take comfort in being in the majority and having undergone a procedure that has long been considered unremarkable and of which they haven't the slightest recollection. They understandably react negatively at being told that they were “mutilated” at birth. It's a charged term. At the same time, the uncircumcised minority cringe at the thought of having their foreskins lopped off and marvel that their clipped brethren can be so complacent about having lost theirs. It's what you're used to, I suppose.

The religious aspect doesn't faze people for whom religion is just a superstitious practice that gets more respect than it deserves. Rabbi Leeds hung his argument on the right of people to clip their sons' penises in honor of a supposed covenant with Yahweh. After his article appeared in the Chronicle, San Francisco's archbishop weighed in with an angry letter in support of the rabbi:

I would like to add my “Amen” to the op-ed piece by Rabbi Gil Leeds, “Circumcision ignores our basic religious freedom” (May 20).

The proposed ban on circumcision represents an unconscionable violation of the sanctuaries of faith and family by the government of San Francisco. Although the issue does not concern Christians directly, as a religious leader I can only view with alarm the prospect that this misguided initiative would make it illegal for Jews and Muslims who practice their religion to live in San Francisco—for that is what the passage of such a law would mean.

Apart from the religious aspect, the citizens of San Francisco should be outraged at the prospect of city government dictating to parents in such a sensitive matter regarding the health and hygiene of their children.

George Niederauer, Archbishop of San Francisco

I don't know that you're helping, George. Protecting the health and hygiene of one's children these days would seem to include keeping them away from Catholic churches. May I suggest that you—ahem!—keep your hands off their penises?

Não conta

Innumeracy abroad

My faithful reader and commenter João Paulo has shared with me the results of a 2008 hearing in the 8th District of Lisbon's Civil Court. (How else would you translate 8.^o Juízo Cível da Comarca?) My ability to read Portuguese is limited and not enhanced by the legal terminology in the report on the court's proceedings, but I think I've puzzled out the key points.

Here is the summary of the court's decision:

8.^o Juízo Cível da Comarca de Lisboa

A fls. 189 vem o executado apresentar um requerimento intitulado de "oposição a penhora", em que alega ter sido ordenada à penhora de 1/6 do vencimento que aufere, sendo que atentas as despesas correntes que apresenta ter, o deixa numa situação de grave carência económica.

Conclui, pedindo a isenção de penhora.

Notificado o exequente, vem este requerer a manutenção da penhora.

For ordenado a elaboração de um relatorio sócio económico do executado, o qual se mostra junto a fls. 213.

Apreciando.

O Tribunal deve ponderar entre o interesse do exequente em ver o seu direito assegurado, e o do executado em cumprir o pagamento da quantia a que se encontra vinculado, interesse esse que tem de ser proporcional.

Pese embora os factos relatados pelo executado, e sendo certo que não competindo ao Tribunal restringi-lo de refazer a sua vida como entender, também não pode o Tribunal prejudicar os compromissos anterioremente por aquele assumidos.

Assim, determina o Tribunal proceder à redução da penhor dò vencimento do executado para 1/5 do vencimento.

You see, some hapless guy got slammed with a “penhora,” which translates into English as “distrainment”—the seizure of personal property to enforce the payment or discharge of an obligation. In this particular case, the subject of the distrainment had suffered the seizure of 1/6 of his assets (garnishment of his wages). He petitioned the court for relief, claiming that he was suffering grave economic hardship.

The court solemnly pondered the petitioner's request, noting the necessity of proportionately balancing the petitioner's well-being against his responsibility to discharge his legal obligations. Upon consideration, the court ruled that the distrainment of 1/6 of the petitioner's assets had been too severe and ordered a relaxation of the order. The new order instead stipulated a seizure of 1/5 of his assets.

And thus is justice done by those with limited skill in matemática.

Muito obrigado, João Paulo!

An abuse of abuse?

The happy ending that isn't

Do you like stories about determined individuals who struggle against long odds and unremitting opposition until they eventually win through to victory and vindication? So do I. Usually.

The Sacramento Bee carried a story on Friday, November 13, 2009, about a 29-year-old woman who finally succeeded in punishing the man who sexually abused her when she was a child. The man is her stepfather and he had refused to acknowledge any guilt. In fact, he strenuously denied that he had ever improperly touched his stepdaughter.

What else would you expect from a child molester?

The woman's mother had also denied that her husband had abused her daughter. She sided with her spouse in the court battle.

Well, what would you expect from an enabler in denial? Right?

Of course, that's also what you would expect if the stepfather were innocent and his wife was defending him against a delusional daughter. One presumes that the evidence must have been pretty strong to cause a Superior Court judge to award Jeanne Schreib a $1,345,645 judgment against her stepfather. Or maybe not.

The judge said he sided with the plaintiff based on “the uncontradicted expert testimony” from two therapists who said Schreib suffers from post-traumatic stress disorder and that “the most likely cause is the abuse reported by the plaintiff.”

Oh, oh.

I admit to being suspicious of the reliability of “expert” testimony in this context. In my mind, the real question it raises relates to the competency of the stepfather's legal counsel. Expert testimony is a commodity readily obtained for a price (although not necessarily a reasonable price). There is a counter-expert to any expert you care to name. Why didn't they have one or two?

The woman in question has a criminal record that she now blames on childhood trauma inflicted by her stepfather.

Schreib said she first sought help after her 2006 arrest in Placer County for embezzlement, for which she was later convicted, sentenced to probation and two weeks in jail, and ordered to pay $54,000 restitution.

She said her “past started to make sense to me” as a result of the therapy sessions and some additional reading.

I can't tell from this report, but was Schreib saying that she had to figure out that she was molested in the past? Did she not recall the alleged incidents that she now insists occurred? If so, we're talking about recovered memory here, and that's an exceedingly slender reed on which to accuse a man of heinous crimes, even if it gives the supposed victim an exculpatory excuse for her later behavior.

She said she then approached her family about “the elephant in the room,” but they didn't want to talk about her abuse allegations.

“From the very beginning, even before I started meeting with the therapist, I reached out to them,” Schreib said.

What did she think was going to occur when she started leveling accusations of child abuse? An apology and a big group hug?

I acknowledge the possibility that Schreib's story is true, but I also acknowledge the possibility that she is (probably inadvertently) making things up under the tutelage of therapists who want to help her find explanations for the way her life has gone off the rails.

The case is now on appeal and the end is not yet in sight. Whatever the end may be, I'm certain it won't be a happy one.