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Restore Habeas 19 June 2007

Posted by Todd in Commentary, Democratic Theory, Law/Courts, War & Terrorism.
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People for the American Way is conducting a petition campaign for Congress to enact legislation to restore “the Great Writ” to American jurisprudence. The right to confront your accusers and to know the evidence against you (a process most states call “indictment”) and for a judge to decide if there is sufficient evidence to hold you over for trial have been eliminated by the Bush administration. These are basic rights for which the Revolutionary War was fought. George W. Bush (et al.) has asserted the right of “unitary executive privilege”: the adminstration argues that the president can basically ignore acts of Congress through “signing statements”, which boils down to a refusal to enforce the law, the fundamental purpose of the executive in the first place. More importantly, however, using a sweeping reading of the constitution’s war powers clauses, the Bush administration argues that it is above constitutional constraint in waging war.

Whether you love or hate PFAW, please, if you believe in Civil Liberties and the very foundational rights upon which democracies were founded (these go back to the Magna Carta), then sign the petition here.

Freedom to Marry in 1967 15 June 2007

Posted by Todd in Democratic Theory, Gay Rights, Law/Courts, Race & Ethnicity.
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This past week was the 40th anniversary of the Loving v. Virginia Supreme Court decision that overturned antimiscegentation laws once and for all, the despicable institutionalization of blood-racism that prevented inter-marriage among the “races”. Although in early colonial America, the first 50 years or so, intermarriage was common, the rise of the plantation system and its concomitant need for cheap (read: slave) labor produced a more vile kind or racism and by 1700 complete dehumanization of people of African descent. By the 1860s, anti-race-mixing laws had spread to people of Asian descent in California. I won’t belabor the obvious parallels between people of different skin colors who wanted to marry in 1965 and people of the same sex who want to marry today, but clearly, the right to form relationships and have those relationships treated equally under the law should be clear.

Mildred Loving, one of the plaintiff’s in the 1967 case, prepared the following speech for the 40th Anniversary celebrations. It speaks to the stark simplicity of the issue, at both the humane and civil rights levels.

Loving for All

By Mildred Loving*

Prepared for Delivery on June 12, 2007, the 40th Anniversary of the Loving vs. Virginia Announcement

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married. We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “”Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over
others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

* Together with her husband, Richard Loving, Mildred Loving was a plaintiff in the historic Supreme Court Loving v. Virginia, decided 40 years ago June 12, striking down race restrictions on the freedom to marry and advancing racial justice and marriage equality in America.

Big Oil Price Gouging 22 May 2007

Posted by Todd in Commentary, Environment, Law/Courts, Politics.
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Moveon.org is reporting on a bill up for voting in the Congress to make petroleum price gouging a federal offense. I don’t mind having higher gas prices (we have incredibly cheap fuel in the U.S.), but I’d rather have the prices be because of taxes that go for maintaining roads and for research into alternative energies, etc., like other more civilized democracies. However, in the U.S., oil companies continue to increase prices for no good market reason other than that they can. Price gouging has been a common practice, and for an industry that has been making record profits for two years running, a bit of a mystery. This is why I can never be an economic libertarian: Some markets simply dont’ function on idealized supply-demand models, because the supply is controled by monopolies or because there is a captive demand. The oligopoly that controls petrol in the U.S. needs outside restriction to ensure fair market prices.

My preference would be for alternative, cleaner energy sources; but in the meantime, we need a regulation to prevent consumer gouging, which is already against the law in other areas, so why not oil too?

Here’s the text from the Moveon.org campaign letter, with references at the end:

As of yesterday, gas prices are the highest in U.S. history—we just passed the 1981 record, even adjusted for inflation.1 Prices could reach $4.00 per gallon in parts of the country, just in time to crimp summer vacation plans. As consumers suffer, the oil industry continues to reap the windfall—breaking profit records on an almost quarterly basis. It’s outrageous!

Enough is enough. Hearings start today on H.R. 1252, a House bill that would make gas price gouging a federal crime, punishable by 10 years in prison. Speaker Pelosi has said she’ll move the bill to a vote this week—if there’s the two-thirds majority required to fast track the bill through the process.2

Oil company lobbyists are frantically trying to stop the bill. Your representative needs to hear from you today. Will you sign our petition asking Congress to pass the price-gouging bill—and then send it to your friends?

“Gasoline price gouging should be made a federal crime before the summer price increases hurt more American families.”

Sign the petition:
http://pol.moveon.org/stoppricegouging/?rc=oil_petition&id=10387-7015053-oeq6HW&t=4
Rep Bart Stupak (D-MI), sponsor of the House bill said this of his motivation to introduce the legislation:

“In April … crude oil was $7 a barrel cheaper than last year (but) gas prices were almost 50 cents a gallon higher. Clearly there’s more at play than simply the world crude oil market.”3

In April, more than two-thirds of Americans reported that their gas bills were causing financial crunches, with a full third saying it was having a “serious” impact on their families.4

That same month, the top two US companies, Exxon-Mobil and Chevron-Texaco, announced a combined $14 billion in first quarter profits.5

It seems like even the oil industry has gone too far this time, and it’s time to balance the scales. The Senate passed a price-gouging measure out of committee last week, and the House bill now has over 100 co-sponsors from both sides of the aisle.

The oil industry is nervous. They’ve sent their lobbyists to the Hill in full force to stop—or at least weaken—these bills, and they’re pulling out all the stops. The American Petroleum Institute, an industry front group of more than 400 oil and gas companies, even threatened that new laws could increase gas prices more.6

Enough is enough. This summer, we can stop Big Oil from profiting at the expense of American families. Can you sign the petition to ask your representative to make gasoline a price gouging a federal crime now?

Sign the petition:
http://pol.moveon.org/stoppricegouging/?rc=oil_petition&id=10387-7015053-oeq6HW&t=5
Don’t forget to pass it on to your friends—this week is an historic opportunity to send Big Oil a message that we’ve had enough.

Thanks for all you do.

–Ilyse, Natalie, Eli, Tom, and the MoveOn.org Political Action Team
Tuesday, May 22nd, 2007

Sources:

1. “U.S. gas prices jump more than 11 cents,” Atlanta Journal-Constitution, May 21, 2007
http://www.moveon.org/r?r=2595&id=10387-7015053-oeq6HW&t=6

2. “Debate on [H.R. 1252], offered by Energy and Commerce Oversight and Investigations Subcommittee Chairman Bart Stupak, D-Mich., will kick off Tuesday with a hearing in Stupak’s subcommittee. It is possible that an Energy and Commerce markup will follow. But Democratic leaders might opt to bring the bill up to the floor under suspension of House rules by Wednesday.”
Excerpted from National Journal’s Congress Daily, Monday, May 21, 2007

3. “Lawmaker Links Gas Prices to Investments,” Houston Chronicle, May 16, 2007 http://www.chron.com/disp/story.mpl/ap/fn/4810598.html

4. “As Gas Prices Rise Again, Democrats Blame Big Oil,” Washington Post, May 11, 2007 http://www.moveon.org/r?r=2591&id=10387-7015053-oeq6HW&t=7

5. “Lawmaker Links Gas Prices to Investments,” Houston Chronicle, May 16, 2007 http://www.chron.com/disp/story.mpl/ap/fn/4810598.html

6. “Lawmakers’ blood pressure rises with prices at the pump,” TheHill.com, May 17, 2007 http://www.moveon.org/r?r=2586&id=10387-7015053-oeq6HW&t=8

The Stupity of Sex Laws in Texas 21 May 2007

Posted by Todd in Commentary, Democratic Theory, Law/Courts, Queer Theory, Sexuality.
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The world will never be the same without Molly Ivins. Watch, laugh, weep.

Hat tip to Ed Brayton.

Abortion 26 April 2007

Posted by Todd in Commentary, Gender, Law/Courts, Sexuality.
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With the Supreme Court upholding the bans on so-called “partial birth abortion” (a rare procedure used only in dire circumstances) without the expected health exception, abortion has made its way back into my consciousness. I’m pro-choice, reflexively so, and view the moral questions around abortion to be a deeply complex and personal amalgam that individuals must grapple with for themselves. I do not think the state has any business interfering. And I think most pro-lifers should pay more attention to their own lives instead of trying to regulate other people’s crotches.

Stories like this man’s (yes, I said man) bring home for me why this issue is so frought and so personal and why the Supreme Court has rightly ruled that it’s an issue of privacy and why the Roberts Court was wrong this week:

from Disgusted Beyond Belief.

Hitchens on Free Speech 15 March 2007

Posted by Todd in Christianity, Commentary, Democratic Theory, History, Islam, Judaism, Law/Courts, Religion.
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I have a love-hate relationship with Christopher Hitchens, whose columns in the Nation I used to love to read, but who continues to baffle me with an almost irrational support of the war in Iraq. But lately he has emerged as a modern-day Voltaire (at the risk of overstating), poking at sacred cows (i.e., religion) and insisting on the necessity and ultimate Good of radical free speech. Like Voltaire, he seeks purposefully to offend his reader-listener precisely because he can and believes he should be able to do so.

In Canada, hate-speech is against the law and several European countries are leaning toward outlawing “offensive” speech. This is a dangerous gigantic leap backward to Voltaire’s day, when people who said things offensive to the powers-that-were (i.e., the king and the church) were imprisoned, tortured, fined, or killed for speaking their minds. Here, Hitchens speaks at Hart House at the University of Toronto during a debate about the possible decriminalization of hate speech in the frosty country to our north.* Hitchens offends everyone from Canadians, to gays, to muslims and christians, to women, Austrians and people from Yorkshire. But he does so to make his point: Free speech must remain inviolate. Watch it knowing you’ll be offended at least once, and then listen for its core argument.

Thanks be to One Good Move for posting the speech. Here are a couple of excerpts on Youtube.

Part 1:

Part 2:

Part 3:

Part 4:

*Canadian multiculturalism is in some ways extreme in its niceness and its fear of offence, but rises to the level of anti-democratic principle as the government reifies racial, ethnic, linguistic and religious identities by funding them merely to exist. I love Canada, and was probably a black jewish lesbian from the Northwestern Territories in my last life; but I fear their efforts to create a pluralist utopia may actually end up destroying some basic freedoms.

Knowledge: Faith & Reason 21 December 2006

Posted by Todd in Academia & Education, Democratic Theory, Ethics, Law/Courts, Philosophy of Science, Religion, Science.
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My alma mater (soul mother?) University of Kansas, Hall Center for the Humanities hosted a series of lectures this fall in their Difficult Dialogues series, including an amazing range of people talking about the role of religion and science in public life.  They are in RealMedia format, and so require RealOne Player. They are worth the time. I’m about 1/2 way through Judge Jones’ talk (the judge who presided over the Dover intelligent design case of last year), and will comment later.  Here’s a link to the Hall Center’s web site, and the links to all the talks.

KU: Hall Center for the Humanities

Covering: The Hidden Assault on Our Civil Rights (Review) 6 November 2006

Posted by Todd in Democracy, Democratic Theory, Gay and Lesbian Culture, Gay and Lesbian History, Gay Rights, Homosexuality, Law/Courts, Queer Theory, Reviews.
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[Note: This is actually less a review than me trying to get Yoshino’s arguments straight as I think about their implications.]

As the United States becomes more and more diverse culturally, the questions raised by multiculturalism in the past 50 years become all the more pressing, as we try to rethink what a pluralistic democracy could and should mean for a population of people so widely different from each other. Europe is facing similar dynamics, but their history of immigration and cohesion is so much longer and so much more recent that their experiences are and will continue to be different. But on both sides of the pond, we’re trying to grapple with protecting people’s rights to “be” their cultural identity, while at the same time balancing that with the rights of others. As a gay man, I’m often confronted with these kinds of dilemmas, as I feel the erosion of gay cultural spaces and practices by the encroachment of the dominant culture into gay neighborhoods (for example). For all minorities, the tensions between assimilating (in it’s most basic sense of becoming more like the majority, or mainstream, culture) and remaining or reaffirming one’s difference can be vexing, to say the least.

Kenji Yoshino’s book, Covering: The Hidden Assault on Our Civil Rights, locates the problem in a new kind of cultural pressure, where individuals are protecting in being different, but not in acting different. Borrowing the term from the important American social-psychologist Irving Goffman, Yoshino argues that minorities are required to cover their cultural differences in order to maintain their position in the public sphere, keep their jobs, avoid violence, gain social acceptance, or avoid conflict in day-to-day activities. Yoshino uses the gay experience in the 20th century of working toward civil rights as a kind of prototype of the experience of other kinds of minorities who move through the kinds of assimilation required in different phases of acceptance: conversion, passing, and finally covering. Here, the history of gay rights reflects the individual’s process of moving from trying to be something he is not (conversion), to trying to pass (knowing he is gay, but trying to avoid acting in anyway that would give away his hidden status), to covering (being openly gay, but trying to act in ways required by the dominant culture to avoid offending).

Yoshino deftly interweaves history with personal experience with legal decisions and analysis to demonstrate what is problematic in the dominant culture’s attempts to force minorities to assimilate, to become like the “mainstream.” On a personal note, I have to say that Yoshino’s experiences of his sexuality were so parallel to mine as to literally in some places take my breath away. Conversion is basically the idea that heterosexuality is normal and natural, and that gay individuals should (must) convert into heterosexuals (Yoshino rehearses the long and vexing debates in American psychiatry and psychology in this regard; and then completely botches a critique of the biological/medical evidence of homosexuality’s origins). In contemporary America, Yoshino sees the vestiges of conversion in the “no-promo-homo” laws around the country, where you are allowed to be gay in public, but you are not allowed to act gay (whatever that may mean). This distinction has been continually held up by the courts for the past 30 years or so, especially in the work place. Yoshino argues that the revolution of the Gay LIbbers in the early 1970s was to argue that “gay is good,” to argue for the validity of homosexuality per se, rather than to argue for the immutability (the naturalness) of homosexuality, which is where the law resides. Yoshino is basically wrong in the history (ONE magazine was arguing that gay is good in the mid-1950s, and the San Francisco gay community was making similar public arguments 8 years before Stone wall), but that doesn’t detract from the salience of the argument. Regardless, the problem is the continued efforts in the public sphere to force gay men and women to change their behavior to conform to social ‘norms.’

Passing is much more common than conversion now, as we’ve left behind increasingly the notions that an individual can and should try to change into a heterosexual. Passing is like wearing the ‘albatross’ of truth around our gay necks, Yoshino says, a weight that presses against you as you try to move through your life without revealing your secret. Again making basic historical mistakes, but nonetheless making a valid point about passing, Yoshino argues that the internalization of the imperative to be straight causes gay people to despise what they see in the mirror and to try to appear “normal” at all costs. One of my pet peeves about gay history, especially in the popular imagination, is the reliance on Stonewall as a marker. But Yoshino explains, interestingly, that Stonewall is our communal coming out story, the marker of our refusal to convert.

It’s really in Chapter Three that Yoshino hits his stride. Here we see a gay community divided by the issue of covering, where status within the community and vis-a-vis the dominant culture are measured in the ability or desire to cover one’s sexuality. The “normals” (e.g., Andrew Sullivan) are the ‘pro-covering’ crowd, those who want to downplay or eliminate gay cultural difference; and the “queers” (e.g., Michael Warner), those who want to emphasize their differences. Both sides are openly gay, but have a different orientation to assimilation. I appreciated Yoshino’s openness to both arguments as valid decisions within American culture (a stance I myself take in analyzing 1960s gay male culture in my upcoming book on that topic); Yoshino argues ultimately that what matters isn’t an individual gay person’s personal choice regarding covering, but rather the context of their making that decision. Covering becomes bad when it is coerced and not chosen, when it is imposed rather than a personal decision of preference for cultural style.

The problem comes from the structural coercion toward covering. Moving to race and gender covering, Yoshino points to a series of court cases wherein cultural differences are seen as something you “do” and not something you “are”, and because the civil rights tradition in the U.S. has focused on protecting what is immutable in the individual, the courts rule almost always against what you “do”. So a woman who wears cornrows to work (race), or another woman who has a baby (sex), can legally be discriminated against because these are “choices” not immutable qualities of the individual. Yoshino criticizes these court decisions, arguing that the standard is actually wrong: the employer (or state) should have to demonstrate a reasonable explanation of why the individual should cover. In other words, the question isn’t whether or not a person can cover, but whether or not a person should cover in a given context. Again demonstrating his flexibility, Yoshino argues that there may indeed be compelling reasons to require covering (one example he gives is of a muslim woman being required to unveil for government identification photographs), but that often the cases that actually go to court don’t amount to compelling reasons for covering (e.g., why *should* an African American woman be required to take her hair out of cornrows for work? why should a female bartender be required to wear makeup?). With sexual covering, Yoshino also demonstrates an interesting contradiction: Women are required to ‘reverse-cover’, as they are often required to act out the feminine role rather than cover it up; indeed, women in the workplace are often required both to cover their femininity and to enact femininity at the same time, creating a kind of cultural double-bind they cannot escape.

In both the race and the gender chapters, I couldn’t help but recall the arguments I’d recently read by Michael Benn Walters about race and gender inequality. And I also couldn’t help but be horrified by Yoshino’s facile use of ‘race’ as a gloss for something that is unitary and consistent, especially with things like cornrows: He treats such cultural practices as immutable, even as he criticizes the court for requiring immutability for protection. Ultimately, he pulls himself out of those problems by making his argument: That the burden should be on the state to demonstrate a compelling reason to foreclose a cultural practice, rather than on the individual to demonstrate that their practice is immutably part of their identity.

In the last section of the book, Yoshino’s argument becomes the most compelling, as he moves from a problematic analysis of religious freedom (again, I couldn’t help but scream to myself, “But religions are truth claims that must be debated in the public sphere!”) to an analysis of how we might go about protecting against covering demands. In a nutshell, Yoshino argues that we move from a Civil Rights model (which focuses on protection of groups) to a Human Rights model, which universalizes our needs and desires as people living together in American democracy. Interestingly, Yoshino suggests that the more diverse we become in America, the more exhausted we grow of multiculturalism and the more evident our shared humanity. The recent Lawrence v. Texas decision overturning sodomy laws is a prime example: The rationale for the court decision was not that gay men should be protected in their practices as a group, but rather that all individual adults in America should have an expectation of privacy regarding their consensual intimate sexual acts and choices. He also sites Tennessee v. Lane, wherein a wheelchair-bound woman sued the state of Tennessee because she couldn’t get into court buildings and perform her job. The court ruled that all americans have a reasonable expectation of the ability to enter into public buildings, especially courts, and ruled in her favor. This is a universalization of the rights argument, where when an issue of covering or passing comes before the court, the court rules based on human rights of the individual rather than on protected group status.

Most disappointing in Yoshino’s book was the lack of historical depth or accuracy (but to be fair, he’s functioning off of dominant narratives) and too often sliding into a kind of racial and ethnic essentialism that makes me extremely uncomfortable. What I find most hopeful about Yoshino’s formulation is that it allows for the diversity of actual practice, for individuals to chose the cultural afflilations and practices that work for them, allowing for example, both the normals and the queers to exist in the U.S. without either being privileged in the public sphere.