Sunday, September 28, 2014

Them durned liberals

One of the most effective public relations campaigns ever waged was to convince the American public that "liberal" is a dirty word, even though polling data indicates most Americans are liberal when polled issue by issue.

They've been convinced that Obamacare is a Marxist plot, even though they like many of its specific provisions and presuppositions:  No one should be denied medical care because they can't afford it, nobody should be denied health care because they lost a job, nobody should be denied health care because of a pre-existing condition, and students should be able to stay on their parents' health care plan if they can't afford their own.

Americans like strong public schools, federal money for medical research, solid infrastructure, and abortion rights.  They've generally come around on gay marriage.  They want social security to be there to take care of them in their old age.  They like breathing unpolluted air and drinking uncontaminated water.  They understand that people who have done well should pay it forward so other people can do well too.  And none of those are the conservative positions.

So why, then, did so many Americans become convinced that liberalism is a bad thing, even as they themselves agree with the liberal view on issue after issue after issue?

It's all in the marketing.  Or, to put it another way, in politics perception is far more important than reality.

It is in the best interests of one of our political parties -- I'm not going to say which one -- to have people believe that liberals are evil and un-American and completely out of step with American values.  Liberalism, like every other belief system, has its liberal fringe that is easy to parody, and parody they did.  And if you want to know how we arrived at a situation in which a political party so completely out of touch with the pulse of the average American voter managed to acquire and keep such a disproportionate amount of political power and influence, that's it.  Tell people over and over and over again that liberals are stupid and evil, and they'll start to believe it, even if they themselves have liberal leanings.

While appalled at the results, I have to admire the artisanship of it.  It was a brilliant strategy.  Unfortunately it worked.

Saturday, September 20, 2014

The police state is already here

In United States v. Dreyer, the US Court of Appeals reversed the conviction of a child pornographer because of the manner in which the government collected the evidence that was used to convict him.  You can read the opinion here:  Standing alone, this isn't news; convictions get reversed all the time because the government violated somebody's Fourth Amendment rights.  But this was not a Fourth Amendment case.

A detective with the Naval Criminal Investigative Service (yes, the same agency with a television program starring Mark Harmon) found a computer program that allowed him to search every computer in the State of Washington.  Yes, you are reading correctly, and no, that is not a typo.  Every computer in the State of Washington.  Let that sink in for a minute.  If you live in Washington, and have a computer, it was probably searched without your knowledge or consent by an employee of the US Department of Defense.

The agent found child pornography on a computer belonging to Michael Dreyer, who lived in suburban Seattle.  Based on that evidence he was arrested, convicted of child pornography, and sentenced to prison.

Now, I yield to no one in my contempt for people who exploit children.  I'm fine with locking child pornographers up and throwing away the key.  But that is not the point.

There are few things I find more outrageous than child pornography, but the idea that somebody who works for the Pentagon can search every computer in an entire state, without a warrant, is one of them.

Fortunately the Court of Appeals saw it that way too, and tossed Dreyer's conviction.  They did so, not on Fourth Amendment grounds, but on the basis of a statute that says the military cannot be used for normal, run of the mill law enforcement.  The government is outraged and is promising an appeal to the Supreme Court.  I don't see that that gets the government anything, because even if the Supreme Court agrees with it on the statute, I don't see how such a search clears the Fourth Amendment; since the Court of Appeals ruled on statutory grounds they did not reach the Fourth Amendment issue.  They almost certainly will reach the Fourth Amendment issue if the Supreme Court sends it back.

But the troublesome take home message is that the government not only has the technology to go snooping around in anyone's computer they take an interest in, with no warrant, they already have.  Further, the government is taking the position that they have the right to.

Fortunately, as of now, the courts have smacked them down.  This is the sort of police state tactic that needs to be smacked down, and hard.

Tuesday, September 9, 2014

"I'm Better Than You" Theology

Jesus told a parable in which he said that the kingdom of heaven was like a seed that grew into a tree, and the birds of heaven came and nested there.  And over the years, some awfully strange birds have made their home in the church.  From time to time I peruse various religious blogs just to remind myself of how many kooks there are babbling in the name of Jesus.

So today we take up the case of Tim Bayly, pastor of Clearnote Church in Indiana.  Tim writes a blog in which he says things that are so bizarre one sometimes wonders if they are actually very clever satire, because nobody could actually believe anything that crazy, right?  He has said, for example, that he feels closest to his daughter just after he's given her a spanking, apparently completely oblivious to just how creepy that sounds to everyone else.  Once, when someone told him about a 14 year old boy who had been kicked out of his house for being gay and ended up as a street hustler, he praised the parents for teaching their son that there are consequences to being a homosexual.  Sorry, Tim, but the utter moral depravity required to commend people for throwing a 14 year old kid to the wolves simply disqualifies you from being taken seriously about anything else.

And what is Tim fulminating about today?  Another evangelical leader, Michael Farris of the homeschooling movement, has gone soft on the patriarchy.  (Full disclosure:  I went to law school with Mike Farris and, while I haven't spoken to him in twenty years and doubt very much that he would remember me, I liked him and considered him a friend at the time.)

So to start, what does patriarchy mean to Tim Bayly?  From his own blog post on the subject (you can read the entire howler here: he states that "women (should) show a certain deference to men" and "that not only husbands with wives, but men with women live in an understanding way since women are weaker vessels."  Further, "every man was to be a gentleman and every woman was to be a lady. And at the center of her ladiness was a certain deference to the sex God placed His Own Father-authority in: man."

To the extent that Farris disagrees with this bilge in toto, he is to be commended.  Unfortunately, Farris only disagrees with it in part, and, having read Farris's comments in their entirety (rather than the small snippet Bayly quotes) I think their difference is more about semantics than actual practice.  In any situation actually likely to arise in the real world, I think Farris and Bayly would mostly be on the same page almost all of the time.

OK, this is all very interesting, but what is the take-home message?  The take-home message is this:  "I'm better than you because I have a penis."  Which is the same theological narcissism that in an earlier era gave us "I'm better than you because I'm white" and "I'm better than you because I'm straight."  Bow before me, o lesser ones: I am the favored of God because I pee standing up, I have light skin, and my life partner has an indentation rather than a projection.  Isn't it obvious that this is the natural order of things?

As Judge Easterbrook once put it, "some people believe with great fervor preposterous things that just happen to coincide with their self-interest."  Coleman v. CIR, 791 F.2d 68 (7th Cir. 1986).  Is Bayly's position preposterous?  Of course.  Does it happen to coincide with his self-interest?  Yup.  Ever notice how those people who believe in one or another manifestation of the doctrine of the chosen ones also just happen to believe that they, themselves, happen to be the chosen ones?  Just as it was pure self-interest for white racists to believe that whites were superior to blacks, so it is pure self-interest for men to believe that women are inferior (or, if you prefer, the weaker vessel).  Which means that their philosophy, as with any other philosophy based on self-interest, should be greeted with the greatest of skepticism.

Fortunately, most people are no longer buying what Bayly and company are selling.  The First Amendment gives him the right to speak.  It also gives the rest of us the right to point and laugh.

Saturday, September 6, 2014

Will the Supreme Court take a gay marriage case?

Within the past year, a score of federal courts, both trial courts and courts of appeal, have ruled in favor of gay marriage.  One lone federal judge, in Louisiana, has ruled against it; that decision is now on appeal.  With another Supreme Court term due to begin October 6, the question is whether the Supreme Court will step in to resolve the issue.

In order for the rest of this blog post to make any sense, one has to understand something about the structure of the federal courts.  The United States is divided into just over 100 federal judicial districts, and each of them has what are called trial courts.  That is the court where lawsuits, both civil and criminal, are initially brought.

Whoever loses at the trial court has the option of going to the United States Court of Appeals, which has 12 geographic circuits.  For example, the First Circuit, headquartered in Boston, hears appeals from trial courts in Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico.  The Second Circuit, headquartered in New York, hears appeals from Vermont, New York, Connecticut, and the U.S. Virgin Islands.  There are a couple of specialized courts of appeals that hear specific types of cases, but they do not concern us here.

The loser at the US Court of Appeals can then file a petition with the Supreme Court.  Unlike the US Court of Appeals, the Supreme Court gets to decide which cases it will hear, and it doesn't hear many.  Every year about 3000 petitions are filed with the Supreme Court, and the Supreme Court decides to hear between 100 and 150.  The rest are summarily denied.  There are a very few types of cases the Supreme Court is required to take, such as when one state files a lawsuit against another state, but not that many.

There are nine justices on the Supreme Court, and it takes four of them to decide to hear a case.  Supreme Court justices make tactical decisions about how to vote; a justice who feels strongly about a particular case, but who thinks a majority of his colleagues will disagree with him, might vote not to take it because he doesn't want to lose on the merits.

So, now that we understand all of that, back to the original question:  Will the Supreme Court agree to take a gay marriage case this term?

If the Supreme Court wants to decide the issue, it may be now or never.  Four circuit courts of appeal will never rule on gay marriage because gay marriage is already legal in every state (or, in the case of the District of Columbia Circuit, in Washington DC) within that circuit.  Three other circuits have already ruled -- all in favor of gay marriage -- and at least one and possibly three others will have done so by the time October 6 rolls around.  All circuits will likely have decided the issue in another 12 months or so.  So, after this term, there may simply not be any more gay marriage cases to decide, especially if the circuits that have not yet been heard from all rule in favor of gay marriage, which is possible.  If that's the case, the easiest thing for the Supreme Court to do would be to simply punt the issue.

If there is a circuit split -- one or more of the circuits that has not yet been heard from rules against gay marriage -- that makes Supreme Court review that much more likely, but still not a sure-shot certainty.  Resolving circuit splits is one reason the Supreme Court often takes cases, but it is not required to do so, and there have been other times when it has chosen not to involve itself in circuit splits, leaving federal law to be different in different parts of the country.  Still, I think it would be really difficult for the court to allow different law in different parts of the country on this particular issue.

But here's the reason I think the Supreme Court might decide to avoid the issue:  With nine justices, it takes five votes to decide the case on the merits, and nobody knows which side would have five votes.  I don't think the justices themselves know how that vote would turn out.  Which means that granting Supreme Court review would be a very high stakes poker game indeed.  By my count, there are four solid votes for gay marriage, three solid votes against, one very likely vote against, and one that could go either way.  Those are not the odds one wants in a high stakes poker game, regardless of which side one is on.  The anti-gay-marriage side won't want to enshrine gay marriage in constitutional law; the pro-gay-marriage side won't want to risk a decision that would likely take 20 years to undo that the Constitution doesn't protect gay couples.

Of course, should one of the conservatives on the court drop dead of a heart attack, then that would significantly change the landscape, and probably also greatly increase the probability of Supreme Court review since the pro-marriage side would then be in a much better position.

At any rate, it's going to be an interesting 12 months.  Stay tuned.