On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

"Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…"

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan's W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so...get to it.

Inslee Running For Washington Governor, Supports Full Marriage Equality

Congressman Jay Inslee (WA-01) announced his candidacy for Governor of the State of Washington in Seattle Monday, and Your Erstwhile Reporter was present.

The candidacy was announced with a speech that focused on “process improvements” and the invocation of new technology jobs as an economic engine for job growth (and in fact the event took place at the headquarters of a company that has developed seed-derived biofuels that have been used to power military and commercial aircraft).

But that’s not the part that’s going to be the most interesting for the civil-rights supportive reader.

The most interesting part is that Inslee was quick to offer his support for full marriage equality in the State of Washington, should he find himself elected.

So before we get to the good stuff, let’s do a bit of historical review.

The Congressman has compiled a mixed record on issues that matter to the LBGT community during his time in Congress, and most of it can be considered supportive. He did vote to pass the “Don’t Ask, Don’t Tell” (DADT) repeal, and he co-sponsored the Domestic Partnership Benefits and Obligations Act of 2009, which made it out of the House Oversight and Government Committee, only to die in the House Judiciary Committee. (The bill would have provided same-sex partners access to the spousal benefits of their Federal employee family members.)

An additional bill, HR 1024, would have given same-sex couples an expectation of equal treatment during immigration proceedings; this was also cosponsored by Inslee. (It also died in committee.)

However…when it came time in 2009 to try to repeal the Federal Defense of Marriage Act, the House got a bill together (HR 3567) that Inslee was not willing to cosponsor; it died, again, in House Judiciary.

Now here’s where I get a bit suspicious: a similar bill was introduced in the 112th Congress, on March 16, 2011, and of the 115 co-sponsors, virtually all signed on before April 6th. There are 5 who signed on later…including Congressman Inslee, who was one of two co-sponsors who all signed up on June 15th, which was just 12 days before his announcement.

The historical review complete, let’s talk about Monday.

I walked into the after-announcement “press availability” just in time to record this exchange:

REPORTER: "Congressman, would you address two social issues that are in the headlines these days. One, where do you stand on gay marriage, two, where do you stand on the legalization of marijuana?"

INSLEE: "Thanks for your easy question, sir, uh. Um, so I believe in marriage equality, and the reason I believe in that is that uh, I've been married for 38 years, and I fundamentally believe that no government, and no politician should deny any of my fellow Washingtonians the right to have what I have, which is a stable, committed, you know, meaningful relationship. So I'm gonna support, uh, the legalization of that equality in the State of Washington. And when we do that, uh, we will do it to make sure in a way that no religious organization doesn't have the right to have their own definition for their own purposes, under their belief of spirituality. This is a situation where we can have both equality, which is a quintessential Washington value. And I said I love the State, one of the reasons I love the State of Washington is we have been leaders in equality in so many different ways; this is another place where I think Washington should lead.

Uh, marijuana, there are two things I know we should do for sure. Number one, we have got to get the intention of the voters of the State of Washington to be honored, which does allow the use of medical marijuana in the State of Washington...and right now, that intent of the voters is being frustrated by the Federal government, which is threatening the Federal--uh, State government any time you try to enforce the will of the people. So we need some changes to frankly, get the Federal government off our backs when it comes to the ability of Washingtonians to have access to medical marijuana.

Second, I believe that we should stop wasting so much of our resources in our criminal justice system associweated--associated with mari--marijuana, particularly personal use of marijuana. This is something that is really does not bring value or--or reduce significant levels of crime, and we need to reprioritize our law enforcement away from chasing folks who are involved in--in marijuana; we got enough problems in our criminal justice system, I'm aware of that, I guess in part because my daughter-in-law is a forensic scientist at the crime lab I've got a sense of the challenges. Law enforcement's strapped; they got a lot of problems to deal with.

As far as total decriminalization, I'm not there yet at this moment. I'm a parent, I'm just not comfortable right now, uh, and that's my position."

OK, so that’s a pretty interesting story, and we could leave it right there – but there is one extra bonus to the thing that is so good, so deeply ironic…that you may remember the ending of this story long after you forget the lead:

I got a parking ticket, I did, attending the event, issued by a Parking Enforcement Officer with an amazingly appropriate name…and that ticket was issued to me for a violation that occurred one block over from Harrison Street in Seattle’s South Lake Union neighborhood …which means I showed up to watch the leading Democratic contender for Governor in 2012 announce his candidacy…and when it was all over, Officer J. Hell had issued me a ticket on Republican Street.

And all that proves the truth of what I’m always saying:

Some days you don’t even have to write jokes.
You just have to harvest ‘em.

On Reopening For Business, Or, What? No Flying Cars?

So I took a bit of a break this past month, and I figured by the time I came back y’all would have things sorted out: people would be surely by flying around with jet packs by now, God would have sent fires and floods to smite the unrighteous, and, if I really got lucky, Barack Obama would have “grown a pair”.

And now that I’m back, debt negotiations are about to commence between that same Barack Obama and the Republican Congressional Leadership, things like Social Security and Medicare cuts are apparently on the table in order to protect tax cuts for the rich, and certain quarters of the Republican Party aren’t even trying anymore to hide their racism.

All of which suggests that I shouldn’t be looking for a jet pack anytime soon.

But there is some good news: God is apparently working hard, and states like Oklahoma and Arizona and Florida and Georgia and Texas have been alternately aflame or aflood, apparently as a result of their unrepentant behavior…and on the economic front, New York City’s Stonewall Inn is going to make a ton of money this summer hosting weddings.

That gives us a lot to talk about…so let’s get right to it.

Pessimism is cowardice. The man who cannot frankly acknowledge the “Jim-Crow” car as a fact and yet live and hope, is simply afraid either of himself or of the world. There is not in the world a more disgraceful denial of brotherhood than the “Jim-Crow” car of the southern United States; but, too, just as true, there is nothing more beautiful in the universe than sunset and moonlight on Montego Bay in far Jamaica. And both things are true and both belong to this, our world, and neither can be denied.

--From “On Being Black”, by W.E.B. DuBois

We gotta start with the most “WTF?!?” news first: Personhood USA is a group that figures the only reason we want to make sure that abortion rights are protected for women who are raped, either by members of their own family or others…is because we really don’t understand how wonderful it can be for women to enter motherhood in this way, or for those children to enter the world; all of which presumably means that for these folks, the dark cloud of rape and incest has a silver lining that the rest of us never really think about.

To help make the point, and to help advance legislation that basically says that as soon as two sets of haploid chromosomes become a diploid a child is born (this to try to criminalize abortion in the State), Personhood Mississippi sent their representative, Rebecca Kiessling, on a week-long “Conceived in Rape Lecture Series”.

“I am not the rapist’s child!”, Kiessling declares in a written statement, which I personally think is going to be tough to sell to some poor kid who’s been forced by law to sit down at Thanksgiving dinner next to his father and grandfather – and there’s only one guy sitting there. Especially in a State that isn’t exactly big on providing mental health services to these victims.

But let’s move on to happier subjects:

I live in Washington State, and for the past several years Democrats in what you might think is an aggressively liberal State are fighting a losing battle to keep it that way; much of this, frankly, rests on the shoulders of Governor Christine Gregoire, who, not unlike many other Democratic leaders nationally, has simply not chosen to take the fight to the Republicans.

But this may change, as Congressman Jay Inslee is apparently going to announce his candidacy for the State’s top office on Monday.

I have to confess that I personally am looking forward to this, as Inslee has been pushing a lot of issues that I care about over the years, including real health care reform and an energy policy that tries to remove Saudi Arabia from their position as America’s “best frenemy forever”.

I don’t have the exact quote handy, but I once saw Inslee, on the floor of the House, describe a Bush budget as having the same effect on someone as it would be if you hit them over the head with their own artificial leg, and I’ve been a fan ever since; if he takes that attitude to the campaign and governing we’ll be the better off for the effort.

The number of states looking to screw over their workers is growing fast, and so far Barack Obama hasn’t been able to locate those “comfortable shoes” he said he’d be putting on so he could march right alongside those same workers.

I want to be helpful here, Mr. President, not mean…so maybe you might want to check out the Nike Factory Store over there at the outlet mall in Potomac Mills, which is out in Virginia just a bit past Arlington National Cemetery. (It’s right next to the Burlington Coat Factory and that Japanese place in the food court). I have shopped at one of those Nike stores a time or two, and they have lots of comfortable shoes – and boots, too, which are really great for marches.

Now I like these right here – but I wouldn’t pay $120 for ‘em; instead, I’d wait for them to drop to below $50…but workers in Wisconsin and Ohio and Michigan and New Jersey don’t have that kind of time, so if I were you I’d pay the extra money and treat it as a campaign expense or something…and then I’d actually fulfill my promise and get out and wear those shoes, before the Republicans start running that pesky YouTube video as a campaign ad…which, sooner or later, they probably will.

When Osama Bin Laden was killed just a mile or so from Pakistan’s military academy we all wondered how it was possible for the world’s most wanted man to be there and, somehow, no one in authority knew about it.

And now (alleged serial killer, notorious Mob boss, FBI informant, and “Next Most Wanted Man”) Whitey Bulger was just captured a few blocks from the Santa Monica pier, in an apartment he rented for 15 years, which just happens to be 4.5 miles from the FBI’s Los Angeles field office up on Wilshire Boulevard.

Just sayin’.

Not a word from me about Anthony Weiner. Instead, go read what K.Flay had to say about all this, as she has it exactly right. (If you visit she will also, out of the kindness of her heart, hook you up with lots of her music, free of charge, which is très sweet.)

Olbermann is back, if you did not yet know, on Al Gore’s Current channel, which means you probably have to go to the website to see him (unless you have either DirecTV, or Dish, or a cooperative cable company), but it’s worth the effort.

Since Current lacks content, he can be seen “on air” at nearly any hour of the day (the “official” time: 8 PM weeknights on the East Coast, 5 on the West), which reminds me of “Spahn and Sain and pray for rain” in a couple of ways (much respect, “Vanguard”); we’ll be watching to see how that shapes up over time with great interest.

Next up, perhaps the best story of “taking your enlightenment where you find it” in history:

So the Dalai Lama walks into a bar and tells the bartender:

“Make me one with everything”

Does everyone remember that guy in Florida a few weeks back who said God wanted him to burn the Qur’an, so he went out and burned him some?

Has anyone noticed that, just a few weeks later, Florida is now so overwhelmed with fires that they are running out of people to send to fight them…and that most of them, evidently, were started by lightning?

So…does that make you more or less likely to be an atheist – or a comic – or do you find that compassion in the face of the bad karma of others is the right way?

In our final comment today, we offer congratulations to New York’s LBGT community, who, thanks to the passage of marriage equality legislation, are now just as free to be just as miserable as any other married couple in the State. In your honor, we’ll close out today’s story with a joke, courtesy of the great Henny Youngman:

So the wife and I are laying in bed, and she looks over at me and says: “What’s the matter, honey? Can’t you think of anyone else either?”

On Why Method Matters, Or, Lawrence O’Donnell, Let’s Talk About DADT

I had the MSNBC on last Thursday night, and Lawrence O’Donnell was talking to Ari Berman of “The Nation” about the new Obama Campaign Chief of Staff, Jim “Not Part Of Loggins &” Messina.

In the course of that conversation O’Donnell said something about the recent repeal of the “Don’t Ask, Don’t Tell” (DADT) legislation that suggests to me that he could use a short reminder of how that legislation fits into the larger view of what the LBGT community is looking for as the march toward true civil rights continues.

Luckily for Mr. O’Donnell, I am available to help him out on this one; that’s why today we’re going to audit “LBGT Agenda 101”—or at least the “Cliff’s Notes” version, anyway.

“In name we had the Declaration of Independence in 1776; but we gave the lie by our acts to the words of the Declaration of Independence until 1865; and words count for nothing except in so far as they represent acts. This is true everywhere; but, O my friends, it should be truest of all in political life. A broken promise is bad enough in private life. It is worse in the field of politics…”

--From Theodore Roosevelt’s “The New Nationalism” speech, Osawatomie, Kansas, August 31, 1910

So the first thing we better do so all this can make sense is to give you a bit of transcript to read, and the context into which it fits. I’m going to highlight what is particularly important to this discussion.

O’Donnell and Berman were, as we note above, talking about Jim Messina (Berman has an article up at “The Nation” entitled “Jim Messina Is Alienating Obama's Base”), and Berman was explaining that folks on the left have concerns about Messina because of his history working for Rahm Emanuel as Obama’s Deputy Chief of Staff, and as Chief of Staff for Max Baucus (who is today one of the most “corporate” elected officials working at Senate, Inc.).

This includes the LBGT community, who have already had trouble with Messina; some feel he tried as hard as possible to bury the DADT repeal issue on the theory that there’s no need to fight needless fights when the LBGT community ain’t gonna be voting Republican anytime soon anyway.

Now here’s the part of the transcript that we care about; Berman will be speaking first:

…And that`s all we can do, is look at what has he done. And in his time at the White House, in his time working for Baucus, he`s clashed with Democratic activists, with grassroots organizers over and over and over again. And that`s a pattern through his career that I found in this article.

O`DONNELL: On Don`t Ask, Don`t Tell, you have complaints about how long it took and -- but they succeeded.

BERMAN: Absolutely.

O`DONNELL: So when you succeed -- in my experience, working in the Senate, there`s all sorts of tensions and negativity within the party as you`re moving toward a goal. And then when you succeed everybody forgets it. They go hey, we did it.

So…Lawrence…let me explain what you got wrong here:

Most of the time, when you succeed in the Senate, you’re pursuing a single legislative item, and success is a good thing indeed.

But DADT repeal can’t be considered in a vacuum, and it is only one of four legislative “fronts” on which the battle for full civil rights has been joined.

I write a lot about Social Security, and legally married same-sex couples can’t collect those benefits the same way opposite-sex married couples do; the same is true with Medicare…and forget about “Married – Filing Jointly” at tax time.

All of that is because of the Federal Defense of Marriage Act (DOMA), and its repeal is the second metaphorical “front” in our civil rights battle.

The law could be overturned in the courts, but a lot of folks assume that the issue will rise to the Supremes and they’ll “find” a reason to uphold DOMA.

That means Congress might the only place to get something done (and a lot of the same folks think Messina slow-walked the issue in ’09, which might have been the best chance the Democrats had to move this along). Now that the ’12 Presidential is coming up—and DADT repeal was handled the way it was—it’s presumed that Messina is going to be even less help than ever before.

If you’re gay and you’re looking for a job, everyone from Cracker Barrel to Exxon/Mobil seems to look down on you, on one level or another (and if you’re perceived to be a transgendered person, it can be even worse).

After you get the job, if your boss thinks you’re part of the LBGT community, it might get you fired with no real legal recourse…but if Congress were to pass an Employment Non-Discrimination Act (ENDA), some of this might get better—and once again that makes last year’s battle over DADT relevant.

The fourth battle is the same issue in a different venue; just last month Minnesota’s Al Franken and Colorado’s Jared Polis introduced Student Non-Discrimination Act (SNDA) bills in the Senate and House, respectively, designed to protect LBGT elementary and secondary students from harassment at the schoolhouse.

That’s the short and the sweet of the thing, Lawrence, and that’s why the means by which DADT repeal was enacted is not going to make anyone forget much of anything.

After all, the guy who helped make life tough for those trying to get DADT repeal passed is now the Official Presidential Campaign Gatekeeper, and if the history of DADT repeal is any guide there isn’t gonna be a lot of Presidential help with the other three parts of this legislative agenda—unless, of course, the Administration needs to turn on the gAyTM for some reason.

Here’s one last example of how all this DADT repeal “process” matters.

You may recall this open letter from the Obama ’08 Campaign, where Obama said:

“…as President, I will place the weight of my administration behind the enactment of the Matthew Shepard Act to outlaw hate crimes and pass a fully inclusive Employment Non‐Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity.

As your President, I will use the bully pulpit to urge states to treat same‐sex couples with full equality in their family and adoption laws.”

Now, knowing what we do about how DADT repeal passed…do you, Mr. O’Donnell, think it is more or less likely that the President will use the bully pulpit to pass a fully inclusive Employment Non-Discrimination Act—and do you see why the way one piece of legislation “Hail Mary-s” its way into law might impact the way a whole community feels about the rest of its legislative goals?

And for the LBGT community, this isn’t just “ordinary” legislation.

This is about the right to have a place to live, and a job, and the right to marry, and the right to have a marriage recognized everywhere, just like anyone else’s, and not getting separated from your partner of 20 years just because the county says so—and it’s also about how a community is sick and tired of hearing that “if you help us today…in a few more years you won’t have to be a second-class citizen any more”.

I really do like your work much of time, Mr. O’Donnell, but you really did whiff this one by concentrating entirely on the one thing and missing the larger picture—but hey, none of us are perfect, and hopefully this’ll be a useful object lesson for the next time.

Now get out of here and make some TV, ya crazy nut.

On Petals And Metal, Or, Today And Tomorrow, Street Actions Are Afoot

For the past couple months I have been talking a lot about “taking it back”, and I have two great chances for you to do just that over the next two days.

One of them involves actions that are taking place all over the USA—but the other is a very special and particular event which will be taking place in Vancouver, British Columbia on Wednesday.

This’ll be a short story…but by the time we’re done, you’ll have stuff to do this week.

A young lady visitor on the set of “Never Give a Sucker an Even Break” asked W.C.Fields if he liked flowers. Fields replied he was very fond of Four Roses.

--Ronald J. Fields, from the book “W.C.Fields By Himself”

So here’s what’s up:

Tomorrow, MoveOn.org and a ton of others are planning “Defend the American Dream” rallies around the country…in fact, as of the time this was written there are 277 events planned, all on the same day.

A few weeks ago Social Security workers held “informational picketing” events at Social Security offices around the country to make Americans aware that proposed Republican budget cuts would create huge “bumps in the road” for those who want their Social Security checks to go out on time, or who might like to speak to an employee on the same day they call the office.

That’s part of tomorrow’s program as well, with Washington DC’s office a sort of starting point from which our anger with what’s been going on can spread.

So if you’re in DC tomorrow, right after office hours, the event will take place at 5:30 PM at the Social Security office at 2100 M Street NW, and there is a handy “meetup page” to give you more information if you need it.

But maybe you’re not going to be in DC.

We still got you covered: this page right here will let you enter a zip code and find an event near you.

For example, there’s a Rally at the San Diego County Administration Center—which, as y’all know, is maybe eight blocks from the end of the runway at Lindbergh Field—and Jim Brown and Virginia Huschke, who are putting on the event, report that they had 1000 people show up last week at the same place for the same thing…so you gotta be there.

Maybe you’re in Michigan…and if you can get to the Veterans’ Memorial in Niles after work tomorrow, United Steel Workers Local 13729 and MoveOn Michiana want you. The Memorial, for those unaware, is located at Waterfront Park, right by the Main Street Bridge and across the street from Massimo’s Pizza—which means afterwards you can pick up a meatball sub or somethin’ and not even have to cook dinner. (Maybe it’s just me, but I am not down for the ranch pizza.)

If you’re in Mobile, Alabama, swing by the cannon at Mobile Memorial Park (on Government Street), where hundreds of protesters intend to use the cannon to take the city hostag—no, wait, I made that part up.

They are intending to have a lovely demonstration, however…and if you think Alabama is an unlikely place for this kind of rally, think again: folks who might have been big on the Tea Party a few months ago are starting to think again, and this is a great chance to help those with seeds of doubt do a bit of “germinating”, as it were.

So that’s tomorrow’s set of events…but what about that Vancouver thing we were talking about?

Well this is good.

“The Yes Men” are well-known pranksters, and some of their past efforts to “correct corporate identities” have been downright diabolical, including the time they pretended they were the Dow Chemical Corporation, and they held a press conference to announce that Dow was assuming all liability related to the industrial accident at Bhopal, India, which killed at least 3400 people…which, naturally, forced Dow to go on TV and immediately announce that the people of Bhopal could basically go suck an egg, because Dow wasn’t actually planning on forkin’ over a dime on their behalf.

Now on Wednesday, at noon, in beautiful downtown Vancouver BC, a prank is going down…and The Yes Men want you to help make it work…and they want you in costume.

Can you make yourself look like a reporter? They’re particularly looking for you to bring a camera—and if it’s on a tripod, that’s even better.

If you resemble a “businessperson at lunch”, they want you too.

Even random “crowd folks” are wanted in a “come as you are” kind of a look.

Now the only hitch we have on this is the meetup information, which they were supposed to send on Monday. For the moment, with no better information available, why not plan to hang out at the Downtown Vancouver Library around 11AM, and I will either update this story to add new information, or I’ll keep sending them messages to arrange for someone to come by the Library and find the group of “reporters” and “businesspeople at lunch” and “random crowd members”.

I told you this would be a short one, so that’s the deal: after work today, there are “Defend the American Dream” rallies all over the country for you to attend, which can be found right here, and on Wednesday, The Yes Men will be putting on one of their very special pranks in Downtown Vancouver—and they want you to come on down and join in the fun.

“Taking It Back” is important, but there’s no reason we can’t have a good time while we’re doing it, and that’s what these events are all about…so go have a good day at work—but on the way home, take some time to stand up for your country.

And if you can work it out, bring the kids.
After all, a really good education starts at home…and this, this thing we’re doing right here…this is education.

On Taking It Back, Or, Wisconsin Recalls, Explained

News is suddenly moving so fast that it’s becoming hard for me to keep up; that’s why we’re not finishing the story today that we just began Tuesday. You know, the one about Titan Cement suing two North Carolina residents who appear to be doing nothing more than speaking the truth.

Unfortunately, other important news has forced itself to the front of the line, and it’s going to demand that we break schedule, whether we like it or not.

That’s why today we’re going to be talking about Wisconsin, and how workers there are fighting back against the State’s Republican legislators and Governor, who seem to have gone out of their way this past three weeks to govern without the consent of the governed.

It’s kind of chilly today in Wisconsin…but I can assure you, things are heating up fast—and it ain’t because of spring.

"I will tell you this: Any business where two partners don't trust each other, any business where one party says, 'You need to do X, Y and Z because I told you,' is a business that is not only not run well, it is a business that can never be as successful as it can be,"

--Former National Football League Players’ Association executive director DeMaurice Smith

As so often happens, we need a bit of background:

In Wisconsin, a recall involves first, the collection of signatures, then, if you get enough, a recall election.

Once the proper papers have been filed, those who want to recall an elected official have 60 days to gather signatures for a recall petition that equals 25% of the number of votes cast in the prior gubernatorial election in that “political subdivision”.

What that means in English is that if you’re looking to recall a State Senator and the last time a Governor ran, 50,000 votes were cast in that Senator’s District, you need to gather 12,500 signatures in 60 days to force a recall election in that District.

The election is not to ask the question: “Should this officeholder be recalled?”

Instead, the incumbent will run against other candidates, and whoever has the most votes either keeps or takes over the office.

It is possible that multiple candidates will emerge from within the same Party; if that happens a “recall primary” election is held.

A primary would take place four weeks after the signatures are turned in, the recall election itself would be six weeks after that, and both elections would be held on a Tuesday; all of this according to Article XIII, Section 12 of the Wisconsin Constitution.

You can’t recall someone until after they’ve been in office for a year, so the Governor can’t be recalled…today…but because the Senate elects half of its Members every two years there are a group of State Senators who can be recalled; they were elected in 2008.

If three Republicans were to be recalled and replaced by Democrats, the State Senate would change from majority Republican to majority Democratic.

If you’ve ever been to Embarrass, Wisconsin (home of The Chair That Grew), you’ve visited Robert Cowles’ 2nd District. (For the record, it’s more or less 100 miles due north of Milwaukee, and there’s some football team that plays in Green Bay that’s also in his District.) He’s been a Senator since 1987, and in ’08 he ran unopposed. His District voted 52-46 for Obama over McCain in ‘08, and chose Bush over Kerry by almost exactly the same margin in ‘04.

I do not have a feel for who might run against him, but I have some calls out to try to get an answer; if I learn more, we’ll add it to the story.

One Senator who might be in trouble is Alberta Darling (so far as I know, she’s unrelated to cricket great Joe Darling), who represents District 8, which is basically Milwaukee’s northern suburbs.

In ‘08 she only won by 1007 votes (of about 100,000 cast).

It’s worth noting, however, that her District cast the most votes for Governor in 2010; as a result her opponents will be required to gather more valid signatures than in any other District (20,343, by one reckoning).

Her opponent last time was Sheldon Wasserman; he’s a former State Representative, an OB/GYN from Milwaukee, and a member of the State’s Medical Examining Board.

(On a side note, it looks as though the Governor might be messing with the Board as well; he refused to allow two recent physician nominees selected by the Board to be seated, and he’s apparently looking to nominate his own people.)

Just as in District 2, this District voted for Obama in ’08, and Bush in ’04.

Sheila Harsdorf, who currently chairs the Senate Committee on State and Federal Relations and Information Technology, was sent to Madison to look after the interests of the State’s westernmost District, “The Fightin’ 10th”, as Sir Rev. Dr. Stephen T. Colbert, DFA, would say.

Even though she thinks State workers are taking too much from the public Treasury…her relationships with the Federal Government are so good that she had no problem taking in $195,000 in Federal farm subsidies over a ten-year period for Beldenville’s Trim-Bel Valley Farms, of which she just happened to be a 50% owner as recently as 2008 (for all I know, she may still be an owner, more current information was unavailable).

This is another one of those Districts that went for Obama in ’08 by just about the same margin as it went for Bush in ’04.

Luther Olsen of the 14th (located about 40 miles or so due north of Madison) is another farm owner; he owns 20% of Waushara’s Riverview Farm; they also happily accepted at least $58,502 of your money and mine, because Olsen, like Sheila Harsdorf, apparently believes that’s a better use of our money than, you know, paying a public school teacher or something.

(Fun Fact: did you know Golda Meir, the former Prime Minister of Israel, used to be a Milwaukee public school teacher?)

Olsen did not face an opponent in ’08…and once again, this District went Obama in ’08, Bush in ’04—although it went about 4 points farther for Bush than for Obama.

And that brings us to Randy Hopper.

This District (the 18th, which most notably includes Oshkosh and Fond Du Lac) is another one of those Republican seats that are considered among the most “gettable”; that’s because just 163 votes separated Hopper and his ’08 opponent, Jessica King.

There’s also this:

“I have a lot of correctional facilities, a couple universities, and a couple of tech schools [in my district]. I have the second largest population of state employees in the state.”

Hopper also chairs the Senate Education Committee…and there’s also a story going around that his wife is telling people that he’s been providing some “private lessons” to his 25-year-old mistress down in Madison; this according to the “MAL Contends…” blog—and that’s not going to help a family-values candidate.

He owns two radio stations, one an AM-talk Ag Report and Hannity broadcaster, the other an FM station that caters to the “music at work” market; this may allow him to mitigate some of the potentially-about-to-occur bad publicity, and certainly can’t hurt at election time.

Perhaps the most unrepentant Republican during this process has been Glen Grothman of the 20th (which actually, literally, includes Fredonia, and that has to have some deeper meaning…), and he can afford to take a strong stand.

This guy might well be a mortal lock in this District: the Sheboygan area is one of the most reliably Republican-voting regions of the State over the past 30 years, and of all the Senate candidates who faced opposition in ’08, he won with a larger margin of victory than any of ‘em. (He didn’t get 61% of the vote in ‘08…he won by 61% of the vote.)

(Fun Fact #2: Our friends at the Milwaukee Journal Sentinel created these two most excellent voting trend maps for your dining and dancing pleasure; they illustrates how Wisconsin can swing wildly back and forth between Republican and Democratic “electoral domination”.)

Moving on: Mary Lazich, of the 28th, occupies another seat that is going to be tough to get—her District encompasses Milwaukee’s western suburbs (a reliably Republican voting region; in both ’04 and ’08 Republican Presidential candidates won with over 60% of the vote), she did not face an opponent in ’08, and this is another District that will require more than 20,000 signatures to force an election.

“…Fate has been hounding me like a Mormon missionary with an Amway franchise…”

--A. Whitney Brown, appearing on the television show “Almost Live!”

We’re going to complete today’s “Recall Roundup” with one of the most vulnerable of all the Senators: Dan Kapanke, the Senate Majority Caucus Chair (and a pretty good ”get” if you’re running a recall campaign). He’s from the 32nd, which is all the way across the State from Milwaukee, on the Minnesota border, pretty much in Wisconsin’s southwest corner.

He won by less than 3 points in ’08, his District voted 61%-38% for Obama over McCain…and 53%-46% for Kerry over Bush in ’04, which is the largest margin of any of the 8 Republican Senators currently under recall threat. (Go back and have another look at those voting trend maps, and look at what’s happened to this corner of the State.)

He’s hard right on social issues, but the Farm Bureau loves him.

He is quoted as saying that he expects the signature gathering effort in his District to be successful (only about 15,400 signatures are needed) …and he’s also quoted as having the belief that there is such a thing as a Wisconsin State Senate arrest, despite the presence of an “immunity from arrest” clause in the Wisconsin Constitution.

As of March 8th, 57% of voters in the 32nd would rather have “generic” than Kapanke in a recall election, and they had to close the road outside his house on Friday to keep the hundreds of peaceful protesters gathered there safe.

Now before we close today…we need to offer “big ups” to DavidNYC, who posted a fantastic interactive results spreadsheet at the Swing State Project site; we’ve been referring to it a bunch in this story and you should have a look at it yourself.

And with all that said, that’s today’s “scorecard”, folks, and you can keep track of all the races—or volunteer to help—from one handy location: WisconsinRecall.net…so bookmark the spot, help out any way you can, and let’s start with Wisconsin…and then move on to Ohio and Indiana and Michigan next.

Campaign Manifesto #1: In A World Of Phonies, It’s Time For A Fake Candidate

We have spent the past two years watching as insanity has gripped Congress, and even more so with Republicans now running the House.

We have a wavering President, far too many feckless Democrats, and Republicans that have decided to dive headfirst into total “insane mode” in a full-blown effort to destroy this country just as fast as possible.

To give but one example, in my own District, WA-08, we are represented by the absolutely useless Republican Dave Reichert, whose best-known legislative achievement is that he has virtually no record of any legislative achievement whatever.

Now we’ve had a very interesting relationship, you and I, over these past few years; in my efforts to “bring you the story” I’ve been a fake political consultant, a fake lobbyist, even a fake historian…and now, I think it’s time to try to bring our relationship to a new level.

And that’s why, America, I’m announcing my fake candidacy for Congress.

It was almost too good to be true. Richard Milhous Nixon, the main villain of my political consciousness for as long as I can remember, was finally biting that bullet that he’s been talking about all these years. The man that not even Goldwater or Eisenhower could tolerate had finally gone too far—and now he was walking the plank, on national TV, six hours a day—with The Whole World Watching, as it were.

That phrase is permanently etched on some grey rim on the back of my brain. Nobody who was at the corner of Michigan and Balboa on that Wednesday night in August of 1968 will ever forget it.

Richard Nixon is living in the White House today because of what happened that night in Chicago. Hubert Humphrey lost that election by a handful of votes—mine among them—and I had it to do again I would still vote for Dick Gregory.

--From “ Fear and Loathing in the Bunker ”, by Hunter S. Thompson

So let’s start with the obvious question: why a fake candidacy?

Well…why not?

Obviously, I can be just as fake as any real politician, and, as we discussed before, we have years of history together to prove it.

Can I be more useful to the District than Reichert?
Hey…even a fake me can do that.

After all, it’s not like there’s a high bar to jump over or anything.

It was four years in office before he actually got anything passed…and according to Congress.org, by 2008 he was ranked number 401 out of 435 in terms of how much power he exerts in the House…and that’s 9th out of 9 for the Washington State delegation. (Reichert’s own Congressional website reports he was ranked 166th out of 435 in 2006—and that means he fell more than 250 spots in a single term.)

So basically, all I have to do is take the Oath of Office…and we’re pretty much tied.

Now Dave tries to some extent to “ straddle the middle ”, as a result he supports environmental legislation but he’s against “card check”; he also voted to extend children’s health care coverage. He supported the repeal of “Don’t Ask, Don’t Tell”.

His stance on Social Security?

Do a search for Social Security on his Congressional website, and you get “No documents matched your query”. Look for Social Security as an issue on his site and you can find this:

Congressman Reichert has fought to protect seniors’ Medicare and Social Security benefits, preserve their access to needed health care services, and make prescription drugs more affordable

(You have to look under “ Seniors ” to find it…but at least it’s there.)

According to FreedomWorks, Reichert had no position worth reporting on Social Security when they attended his April ’05 Social Security workshop…although another attendee reports he had this to say about removing that “tax cap” that represents a giant tax dodge for the richest among us:

Raising the cap was portrayed by all three as a tax hike, which they oppose because “the government shouldn’t be taking any more out of families’ hard earned budgets.”

OnTheIssues has this to say about his Social Security record:

No issue stance yet recorded by OnTheIssues.org.

By the way…did I mention that Reichert is currently serving on the House Subcommittee on Social Security ?

That’s a pretty high level of useless, and it’s exactly this kind of “get up and go” that explains how Reichert managed to fight his way right on up to number 401 in effectiveness among those 435 Members of Congress.

Me, I support the “Rich People Pay, Too” approach: no matter what your wage income might be, you gotta pay Social Security tax. No more “once you get rich, it’s a free ride”.

And guess what? If we just made all wage income taxable for Social Security purposes…the problem is actually solved —and it might not even require that much reform.

Law and order?

Reichert is a former Sheriff, and a man who cultivates the image that he personally caught the Green River Killer . When a bill came up to get the Justice Department off the backs of medical marijuana users, Reichert voted “ no ”.

I am most assuredly not a former Sheriff…and as a fake candidate, I would propose a different approach:

If you elect me, and we can get the bill passed, once a week I will personally dose up Members like Louie Gohmert and Michelle Bachmann and Joe Barton with large amounts of LSD…and I will then transport them right back to the House floor…and then one hour a day we’ll set up something like the obstacle course on “ MXC ” and then have them run it…and I will introduce a bill to set up a special “Premium Content” partnership with C-SPAN that charges $14.95 a month so that you can see the uncensored “GoDaddy” version of the video, with the money to be used to lower the Federal deficit.

I support medical marijuana—but I would limit the co-pay, by law, to $10.

Civil rights?

Reichert opposes same-sex marriage, and only gets a 50% rating from the NAACP…and I’m one of the only people you’ll ever meet who was officially notified he was gay by email —and if one of my family members had a “homosexual relationship”, unlike some Members, I wouldn’t keep it on the “ down low ”.

I’m more or less broke, just like you—and they tell me that, if you win, there’s pretty good health insurance —but I’m not looking for donations, from any source…with one exception:

At the moment this is a fake candidacy, but I’m thinking about asking a group to consider underwriting this as a comedic art project—and if they do, that would be the only money the “fake campaign” would accept.

So there you go: from here on out, there will be more “Manifestos” from the fake campaign—and in the next one, we’ll be talking, once again, about how you can support a candidate like Reichert, who’s basically a joke…or you can support a candidate like me, who really is one.

On Asking Experts, Part Two, Or, What's An LBGT Voter To Do?

It’s been a few days now since we began a conversation that addresses the issue of how frustrated some number of LBGT voters are with the Democratic Party this cycle; this because they find themselves either frustrated at the lack of progress on the civil rights issues that matter to them, or because they see both the Democratic and Republican Parties as unreliable partners in the struggle to assure equal rights for all.

In an effort to practice some actual journalism, I assembled a version of an online “focus group” at The Bilerico Project (“daily adventures in LBGTQ”), with the goal of gathering some opinions on this subject in the actual words of those frustrated voters.

Part One of this story focused on “stating the problem”, and today we’ll take on Part Two: in this environment, with Election Day staring us in the face, what is an LBGT voter to do?

As before, there are a variety of opinions, including a very informative comment I was able to obtain from a genuine Member of Congress, Patrick Murphy of Pennsylvania’s 8th District, and that means until the very end you won’t hear much from me, except to help “set the stage” for the comments that follow.

A monk asked Ma-tsu [Baso]:
What is Buddha?
Ma-tsu replied: “The mind is Buddha”

A monk asked Ma-tsu:
What is Buddha?
Ma-tsu replied: “The mind is not Buddha”

--From the book “Zen Flesh, Zen Bones: A Collection of Zen and Pre-Zen Writings”, compiled by Paul Reps and Nyogen Senzaki

We’ll begin today’s discussion with a housekeeping note: in order to keep the story moving in a linear fashion, from one topic to the next, in some instances I edited portions of multiple comments from the same person into one comment. I also edited some comments for length.

The disclaimer out of the way, let’s start the conversation with Zoe Brain, who sums up Part One rather neatly in one comment that absolutely did not have to be edited together:

We had a Dem super-majority in the Senate.
We had a Dem majority in the House.
We had a Dem president.

It wasn't enough. We need more. So let's use the only weapons we have for behaviour modification; our money and our votes, to make sure that the next time this can possibly happen, around 2020 (though 2028 is more likely), we won't have a repeat performance.

Andrew W responds with a bit of legislative “nuance”...and in doing so, he makes the point that looking beyond Democrats for solutions may be the way to go:

A "Democratic Super Majority" is different than an LGBT-Majority. We have never had an LGBT super majority. In the current US Senate we have only 56 votes. After November we will have 51 or 52 votes.

Stop saying "Democrats." It misses the point. Our challenge is to find 60 US Senators that support our equality.

SoFloMo makes a similar point:

Perhaps we have become too comfortable surrounding ourselves with other gay folks and straight allies. We're terrified of losing the only friends we've had in politics, so we cling to them despite the abuse.

We need to encourage one another turn our outrage into concrete action. Just feeling bad won't do any good.

Here’s some more from Andrew W:

We spend way to much talking about the "Religious Right," bigotry exists in anyone that accepts the traditional Christian belief that we are wrong. That's 70% of Black voters and they are primarily Democrats...

... We need people as our allies, not organizations. We need to educate, enlighten and enroll our neighbors, friends, co-workers and even strangers. Two-thirds will support our equality - especially if we leave religion and politics out of the conversation. Both religion and politics divide people - we just want to ask people to stand for one thing, our equality.

Try it out over the next week. You'll be surprised.

So let’s get to the big issue: vote, or don’t?

Here’s Bill Perdue’s take on the question...

On Tuesday, November 2nd, 2010...vote left or cast your protest vote by sitting it out (barring important referenda, propositions or initiatives).

The only good vote is a protest vote. In a system run by competing gangs of like minded hustlers voting is not important except as a way of validating that system....

...It's a fool's errand to believe that participation in a rigged electoral system is the way to change. It's the road to perpetual lesserevilism, betrayal and defeat.

Elections can be used to organize and educate movements in struggle but elections don't bring change except in the sense that they (rarely) ratify changes forced by mass actions in the streets, workplaces and barracks. Those are the kind of battles we can win and those are the kind of battles that produce fundamental, permanent change as opposed to hopey-changey.

...followed by Andrew W:

While "mass demonstrations" may sound appealing or possibly effective, they aren't going to happen. The biggest crowd in D.C. is likely to be for two cable-tv comedians at the end of this month.

Polling data indicates the religious grip on "beliefs" (including the traditional Christian belief that homosexuality is wrong) is weakening. Of all those that define themselves as "religious" only about one-third are "literalists" and I would suggest their beliefs are virtually unchangeable. I'm not suggesting we try to change those minds, but rather we marginalize them by enrolling the other two-thirds. Most of them will put equality before religion.

The other dynamic is age - we are much more likely to get support from those under the age of 40 because they are less religious.

We need the young people that put Obama in office to turn out on November 2nd. Unfortunately, many in this audience have heard the GetEQUAL [a pro-civil rights group] narrative that "Obama didn't keep his promises." Young people are likely to believe that "we're angry" and not vote...

GrrrlRomeo has some thoughts as well:

The second thing I'd tell them is don't think of it as voting for Democrats, think of it as voting against conservatives. Look, anti-gay Christian conservatives have no problem holding their noses and voting for a Republican just to vote against gays or abortion.

I'm sorry that people were under the impression that we could really get this stuff done in 2 years. There are 420 bills backed up in the Senate. It's obvious to me that the Republicans were doing everything they could just to make the Democrats fail so that the progressive base would throw one of our predictable tantrums and not turn out.

I do understand. I was with the Green Party in 1996 and 2000 as I was unable to forgive Clinton. But whatever Obama hasn't done...he has not done anything so unforgivable as Clinton signing DOMA [the Federal Defense of Marriage Act].

More on the subject, from symbiote

I would tell a frustrated gay voter this: Own it! You vote. You make your choices. You allow yourself to be lied to, over and over, in a repetition of craving. It is time to look for candidates who support equality for all, and vote for them--even if they don't win. It is a natural consequence of change that the first people for whom we vote will lose.

But if continue to vote for people solely on the idea that they are "electable," then we will never build support for candidates that share our views, and thus, we ourselves destroy their "electability."

Andrew W opines further on what a voter should expect from a politician—and what they shouldn’t:

... After reflection, I would add this: tell this "democratic voter" that there is no "promise" in politics, only "hope." As in life there are no "guarantees." All we can do or expect is our best efforts. The idea that politicians have "let us down" is not the exception, it is the rule. We should learn from that. We should understand we cannot "hire" politicians to save us - we need to do it ourselves.

Politicians are motivated by their constituents beliefs - it is what gets them elected. That is OUR job - changing minds. Instead of expecting politicians to handle the job, we should simply do it ourselves. We've spent 40 years betting on politics and we have little to show for it. That should make all of us think twice about continuing to believe "somebody else" will save us. Our equality is our responsibility...

... Our only political hope is targeting a few States where public opinion could change enough to turn the tide. Senators will either reflect the views of their constituents or they will be replaced. We need to change those views.

An additional question I had for the “focus group” was what you say to voters who do not differentiate between “the Democrats” or “Congress” and supportive and unsupportive legislators?

Here’s what Tim W’s thinking:

I would tell them the same thing I have said many other times. If the Democrat is a true ally in actions and not in words then they deserve our vote. If not I will be voting for someone who is. We are where we are because the Democrats feel we have no where else to turn to. The politics of fear that we aren't as bad as the Republicans doesn't cut it anymore...So the old scare tactics don't work. Democrats need to be held responsible for their actions.
We definitely should not be giving money to the DNC [Democratic National Committee], DSCC [Democratic Senatorial Campaign Committee], OFA [Organizing for America, the Barack Obama campaign’s “legacy” organization], or the newest branch of the Democratic Party the HRC [Human Rights Campaign, a pro-civil rights group]. That money is being wasted to elect the Ben Nelson and Blanche Lincolns of the world. Give money to candidates that are pro-gay be it Dem, Rep, or Green.

Bolton Winpenny offers another perspective:

I recently started publicizing the idea to stop supporting democrats that don't support us...While I understand the risk of giving republican's power, I don't think we have much gain that warrants a large risk. This conversation, along with the Get Equal campaign, "We'll Give when we Get" and other similar sentiments makes a big statement that the Democrats will hopefully listen to...Things are changing in the Republicans where they seem more interested in anti-abortion and anti-Christian than they are anti-gay...

What does work is spreading awareness and education... Shortly after LGBT Freedom Week 2010 a PA [Pennsylvania] senate subcommittee voted down 8 to 6 (tabled) a move to add "one man and one woman" into our constitution. Two years prior, the same committee, with only one member change, passed a similar bill 4 to 10.... Four votes changed after a state-wide campaign to spread awareness and education over the LGBT plight for equality.

Bill Perdue would tell you that, in some instances, you just won’t find any supportive legislators:

If they're in unions or one of the other struggle movements they should be encouraged to break with the Democrats and move left.

Their real incentives come from corporations so we have to provide an counterbalance of mass movements and mass demonstrations to get concessions. When the profit margin hits the fan, as it does in the case of ENDA [the Employment Non-Discrimination Act] and equal wages, expect no concessions.

Still another topic from the group: what’s to come after this election?

Deena has a theory:

Bielat will defeat Barney Frank and Pelosi will no longer be speaker of the house when Republicans win the majority. In one sense that will be tragic yet in another it will set the tone for 2012 when progress can be made. I think it is the best change in recent history because the house will know lip service is what it has always been -- BS. Obama will also have to pay attention or he is toast in 2012.

As does Bill Perdue:

The next anti-incumbent Congress will do no better than the last anti-incumbent Congress and in 2012 the Republicans will suffer for it. They're as rancid and rightwing as their Dem cousins and even less popular, because they don't bother lying about it...

And now: a point of personal privilege.

I have kept my opinions out of this discussion, because it really wasn’t about me, but as we close out this conversation—and the election cycle—I am going to tell you that there was one comment that struck me as being the closest to what I might say if I was a voter in this situation; it comes from John Rutledge, and it required no editing at all:

I have been in the same angry place as the writer before and will likely be again. After all, this is personal. This is our lives.
I just read the Obama interview in the Rolling Stone. I hear a brilliant mind, fair and balanced. Possibility is alive, like never before. It is also close to passing us by with the upcoming elections. Now is not the time to indulge in wallowing. I now this fight is tough, but we just can not give up. We have to continue to push. Being resigned and cynical is only being that. It makes one useless to bring about change. So choose. Go home and bitch to whoever is willing to listen, be ineffectively righteous, or suck it up and get in the game. Grow or blow.

Finally, as I promised, we’ll wrap all this up with a comment from Congressman Patrick Murphy (PA-08), who has been absolutely supportive of advancing civil rights for LBGT citizens, despite the fact that he’s a freshman in Pennsylvania, which kind of makes him “double vulnerable”.

I managed to catch up with Murphy on a live chat at Bilerico, where I asked him what he would tell voters who see Democrats as unreliable partners and don’t recognize that some Members are more supportive than others.

We’ll close out this conversation by giving him the last word on the subject:

...Some of you have brought this up today and I couldn't agree more. The far-right wing and hate mongerers are coming at me with everything they have because they know that if they knock me off, no member in a tough district will stick their neck out for DADT or other LGBT issues for years. I need your help to win this thing and show these guys that we won't back down from doing what's right.

On Living With Idiots, Or, An Open Letter To Islam

Dear Islam,

You know, it seems like every time I write a letter I have to begin by apologizing for not having written in so long, and that’s the case again today.

We only get a few days of real summer up here every year, and I was out having fun at golf tournaments and doing a bit of climbing around the local hills—and you know, I do love doing a bit of nothing at all from time to time—but while I was away, things have gotten even crazier than usual around here...and I’m sorry to say, you’ve been on the pointy end of the crazy stick, which is something that never should have happened.

Things have been so nutty that you’re probably thinking America has something against Islam—in fact, you might be wondering if we have something against our own Constitution.

Well, we don’t, most of us, and I’ll take a few minutes today to help y’all understand just what is going on in this country.

So you’re going to be hearing a lot about this disturbed guy in Florida who thinks that he can save the world by burning Qu’rans on September 11th—and you’re going to be asking yourselves: “Why would America allow anyone to do that?”

Well, the answer’s kind of paradoxical, and it has everything to do with the same Constitution that protects freedom of religion in the first place.

You see, it also protects the concept of freedom of speech...which, in itself, probably requires a bit of an explanation.

Freedom of speech, as you can imagine, isn’t absolutely free (for example, there is the famous “yelling fire in a crowded room” example), but to a far greater extent than you might think, we really are able to say things that would shock most of you not living here.

At the moment, just to illustrate the point, we have all kinds of people suggesting the President is taking the country in the wrong direction, or a secret Muslim (as if that were somehow bad)...or even that he’s some sort of weird mixture of Stalin and Hitler and Satan Himself who was born in Kenya...and every one of them is free to stand on any street corner and hold a sign proclaiming exactly that, just as much as they want.

Matter of fact, those are the same people that are mad at you, Islam, for the moment, even if they know nothing about Islam...and that brings me right to the next thing I need to tell you.

The only reason a lot of Americans are mad at you, Islam...is because there’s an election on, and the only way Republicans can win elections is to try to scare Americans into thinking that the United States will instantly collapse from whatever useful threat they think up—unless enough of us vote Republican.

Now in normal times, Islam, Republicans would be trying to scare us about gay people trying to eat our babies, or something equally stupid, but that hasn’t been working as well as it used to lately—and what they would really like to say this election cycle, they can’t (“Those Jesus-hating liberals elected a nigger and now they’re gonna impregnate your daughters and gay marry your sons!”)...and that leaves you, Islam, as the next most desirable overt target for Republican fear-spreading professionals.

(You and, of course, those “illegal aliens” who are busily beheading people in the Arizona desert every night.)

Now there is no doubt that a portion of our population is entirely ready to jump on this bandwagon with no encouragement at all, and that’s where we get the fools who think having a Qur’an BBQ party somehow makes some kind of sense.

My guess is that about 20% of us are that stupid—and based on our current population, that means about 60,000,000 fools are bumping and stumbling their way across the American landscape on any given day, struggling, as Aimee Mann says, “with the undertaking of simple thought”.

Apparently because it’s just hanging there, many of them sort of slide down and congregate in Florida, and sure enough, a few of them did gather together in that particular State to form into the human blood clot that planned this little 9/11 protest, and that’s how we got to where we are today.

Now I’m sorry that we can’t just bring this to a stop, but we do allow idiots to say their piece in this country, whether it’s a good idea or not...so they do, even if the Government and The Not Blindingly Stupid Among The Population don’t like it...and all I can really tell you by way of consolation is that as soon as Election Day is past, much of this will come to an end—unless it works so well that Republicans keep it up for a few more election cycles, until it fails to work any more.

Anyway, Islam, try not to let it upset you too much, try to keep in mind that this is really about American electoral politics and the desperate need to create fear (which is all the Republicans have left)...and most importantly, try to keep in mind that if good old-fashioned American racial segregation was back in style then no one would even be talking about you—instead, the same people that are on your back today would all be doing their best Dr. Laura impressions 60 or 70 times a day, and they’d go right back to assuming Muslims and Hindus and Sikhs are all the same people, just like they did in happier times.

So that’s what’s been up around here, and I hope to hear from you soon as well—and of course, if you’re in the neighborhood sometime, drop me a note and we’ll go grab a coffee and laugh as the fools walk by.

Your friend,

fake

On Organized Fearmongering Revealed, Or, “Lock Up The Kids…It’s The Gay!”

The airwaves (and the print and blog waves, for that matter) are filled with the news that a Federal Judge in California has declared that State’s Proposition 8 to be unconstitutional, which could clear the way for the resumption of same-sex weddings in the State.

Ordinarily, this would be the point where I would present to you a walkthrough of the ruling, and we’d have a fine conversation about the legal implications of what has happened.

I’m not doing that today, frankly, because the ground is already well-covered; instead, we’re going to take a look at some of the tactics that were used to pass Prop 8, as they were presented in Judge Vaughan’s opinion.

It’s an ugly story—and even more than that, it’s a reminder of why it’s tough to advance civil rights through the political process, and what you have to deal with when you’re trying to make such a thing happen.

So first things first: one of the sites where my postings are to be found is The Bilerico Project, and over there Dr. Jillian T. Weiss has gone to the time and trouble of explaining the nuts and bolts of this ruling in a very accessible way; I’d commend to all of you who are looking for that background a visit to her story.

With that out of the way, here’s what I want you to know about how Prop 8 was presented, promoted, and defended: the entire process was designed to use ignorance, fear, disinformation, and God to make same-sex couples a national threat to you and your babies—and when it came time to defend this proposition in court, those who supported Prop 8, frankly, ran away and hid, which had a lot to do with the eventual outcome of the findings of fact, and, of course, the findings of law.

(If you weren’t aware, a court’s opinion will often present as a narrative of the evidence, followed by “findings of fact”, then “findings of law”. In the appeals process, findings of fact are rarely overturned; findings of law are frequently overturned.)

The “Defendants and Defendant-intervenors” (to use the exact language of the Court) who support Prop 8 intended to call 10 expert witnesses to explain why Prop 8 fulfills some sort of rational purpose.

Some of them were “deposed” (a sort of “pre-interview” conducted under oath before trial)…and that did not go well: by the time the trial came around only two of the original 10 were actually called to testify. Of the missing eight, two had their deposition testimony offered into evidence by the Plaintiffs, who were able to use the testimony of the Defendant’s expert witnesses to show the Judge that Prop 8 deserved to be overturned.

After that process was over, here’s what the Judge had to say about the Prop 8 campaign’s tactics:

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

One of the two defense experts who did testify was David Blankenhorn; he’s the founder and president of the Institute for American Values. Here’s what the Judge had to say about that testimony:

Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.”

Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.

Just so everyone knows…in this story, I’m editing the Judge’s opinion to remove various notes (example: “Tr 1900:13-18”) in order to make things more readable.

There were four defendants who were there by virtue of their being the “official proponents” of Prop 8 (other defendants included the Governor, State Attorney General, and certain Public Health officials and County Clerks, each in their administrative capacities); one of those was Hak-Shing William Tam, and, again, I’ll let the Judge handle this one:

Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website “1man1woman.net.” 1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, and because Proposition 8 will cause states one-by-one to fall into Satan’s hands. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he “believe[s] in what they say.”. Tam identified “the internet” as the source of information connecting same-sex marriage to polygamy and incest.

(The links were not part of the original text.)

The Judge referred specifically to a letter Tam sent to the “friends” of his website during the Prop 8 fight which really shows what these folks are thinking:

“This November, San Francisco voters will vote on a ballot to ‘legalize prostitution.’ This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda —— after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children * * * We can’t lose this critical battle. If we lose, this will very likely happen * * * 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan’s hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children’s grandchildren? 3. Gay activists would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church.” (as written)

You can gain more insight into Tam’s thinking from his own trial testimony. Again, from the opinion:

Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”

Are these the views of just one very disturbed citizen, caught up in hyperbolic campaign frenzy?

Apparently not…because here’s what the Catholic Church was saying a year after the Prop 8 vote:

Catholics for the Common Good, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, Excerpts from Vatican Document on Legal Recognition of Homosexual Unions (Nov 22, 2009): There are absolutely no grounds for considering homosexual unions to be “in any way similar or even remotely analogous to God’s plan for marriage and family”; “homosexual acts go against the natural moral law” and “[u]nder no circumstances can * * * be approved”; “[t]he homosexual inclination is * * * objectively disordered and homosexual practices are sins gravely contrary to chastity”; “[a]llowing children to be adopted by persons living in such unions would actually mean doing violence to these children”; and “legal recognition of homosexual unions * * * would mean * * * the approval of deviant behavior.”

Plaintiff’s witnesses, without exception, were found to be credible, and among those was Dr. Gary Michael Sagura, a Stanford University Professor of Political Science:

“[T]he American public is not very fond of gays and lesbians.” Warmness scores for gays and lesbians are as much as 16 to 20 points below the average score for religious, racial and ethnic groups; over 65 percent of respondents placed gays and lesbians below the midpoint, below the score of 50, whereas a third to 45 percent did the same for other groups. When “two-thirds of all respondents are giving gays and lesbians a score below 50, that’s telling elected officials that they can say bad things about gays and lesbians, and that could be politically advantageous to them because * * * many parts of the electorate feel the same way.” Additionally, “the initiative process could be fertile ground to try to mobilize some of these voters to the polls for that cause.”

“[Proponents’ expert] Dr Young freely admits that religious hostility to homosexuals [plays] an important role in creating a social climate that’s conducive to hateful acts, to opposition to their interest in the public sphere and to prejudice and discrimination.”

“[T]he role of prejudice is profound. * * * [I]f the group is envisioned as being somehow * * * morally inferior, a threat to children, a threat to freedom, if there’s these deeply-seated beliefs, then the range of compromise is dramatically limited. It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That’s just not the basis for compromise and negotiation in the political process.”

As the Judge notes, all this hating has had an effect on actual crime and violence:

“[O]ver the last five years, there has actually been an increase in violence directed toward gay men and lesbians”; “gays and lesbians are representing a larger and larger portion of the number of acts of bias motivated violence” and “are far more likely to experience violence”; “73 percent of all the hate crimes committed against gays and lesbians also include an act of violence * * * we are talking about the most extreme forms of hate based violence”; the hate crimes accounted for “71 percent of all hate-motivated murders” and “[f]ifty-five percent of all hate-motivated rapes” in 2008; “There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.”

So what can we make of all this?

How about this: there’s a community of people who feel that Teh Gay poses an imminent danger to their marriages, their children, and their way of life—but when it comes time to actually explain why, in a court of law…they can’t offer a bit of evidence, except to say “it’s on the Internet” or “because God told me so”.

In the meantime, the group who isn’t actually a threat to anybody is the group most likely to be targeted for violent attacks—because some people are just so sure they’re such a threat to our marriages, our children, and The Good Ol’ American Way.

Political compromise is not likely—and political courage isn’t either, which may be why there’s still so much “not asking” and “not telling” going on these days.

Whether this opinion is upheld or not, its deeper truths remain for all to see; I’ll close today’s discussion with a deeper truth of my own:

If you belong to a political or racial minority…or if you’re a “plain old White American”, facing the prospect of soon becoming a minority group…you better figure out, and quickly, that those same forces of prejudice you’re directing at these people can be turned against you, too (as they were, against the Chinese, not so very long ago, and as they are, against Blacks and Hispanics and Arabs, to this very day), just as soon as it’s convenient for the political needs of another.

The reason we fight prejudice isn’t just to protect the group being affected…but to protect us all from the people who will manipulate this stuff for their own use—and if you don’t think the fear of The Gay Baby Molester, and the Scary Hispanic Border Jumper, and the New Black Panthers isn’t being used by Conservatives, right now, to keep you from thinking about the problems they created as November draws nigh…well, then, Gentle Reader, you’re missing out on Politics 101.

On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.

In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM).

I don’t usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as “the Feds” from time to time), is not so happy at the moment.

As with last time, there’s a lot of ground to cover, and the sooner we get to it, the better.

In the companion case, Massachusetts v HHS, the Plaintiff was the State of Massachusetts, who alleged, convincingly, that the DOMA definition of “spouse” was forcing the State to illegally discriminate against its own citizens.

Today’s Plaintiffs are seven same-sex couples, all legally married in Massachusetts, and three survivors of same-sex spouses.

They all seek to overturn Section 3 of DOMA; the definitions of “marriage” and “spouse” are the issue in question.

The Feds report that Congress is acting under the authority of Article IV Section 1 of the US Constitution, which allows them to determine the “effect” of certain legal instruments issued by the various states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

When DOMA (H.R. 3396 (104th)) was enacted, in 1996, Section 2 changed the “effect” of marriage by allowing one State, for the first time, to ignore the legal proceedings of another:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

The Federal Government also refuses to recognize that same-sex couples are married, and over the years several of these Plaintiffs, who are federal employees, have been trying to enroll their same-sex spouses in various federal health care plans, including the surviving spouse of now-deceased former Representative Gerry Studds; all were denied.

Other plaintiffs seek certain Social Security benefits, including survivor benefits, and one seeks to have their monthly Social Security payment adjusted upward based on how much their spouse earned.

The final group of plaintiffs want to be recognized as married couples for federal income tax purposes.

The Court denied standing to Representative Studd’s spouse; this because other legal action must be concluded before this Court could act on his claims.

The Judge pointed out that 1138 various federal benefits are at issue; many of them non-monetary.

He also reviewed the statements made by various Members of Congress as DOMA was being enacted; these statements all revolved around how the moral fiber of the Nation was threatened by same-sex marriage, or something similar.

Now we need to address how Courts resolve questions related to equal protection. This, from the opinion:

“To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” But Courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, Courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest."

The Plaintiffs assert DOMA should fail under the strict scrutiny standard, and explain why...but the Judge ignores those arguments; this is because the Judge believes DOMA fails the rational basis test, which is the “easier” of the two standards:

“...a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]...

...As such, a law must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects...”

Attorneys for the Defendant assert that Congress wanted to achieve the following:

“...(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”

The Court the notes that those same attorneys have now “disavowed” Congress’ stated intents in defending against these lawsuits...but that doesn’t matter, because, when passing legislation:

“...the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”

As a result, the Court will examine those proffered motivations.

The Court believes there is no truth to the idea that banning same-sex marriage somehow encourages responsible child-bearing; the Feds acknowledge the same.

“But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting.”

The Judge goes on to point out that it’s not all about procreation: childless heterosexual couples are allowed to marry, and the ability or inability to breed has never been part of deciding who can marry.

Is “traditional” marriage nurtured or protected by banning same-sex marriage?

The Court notes that telling same-sex couples they can’t “Federally” marry probably won’t make them want to marry members of a different sex...especially if they’re already married, as all these Plaintiffs are.

The Court also can’t figure out how making same-sex couples pay more income tax makes heterosexual marriages more secure.

“What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” And this the Constitution does not permit...

...Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....” (Emphasis is original)

With the Defendants already behind 4-0, they have presented to the Court new “rational bases” for the purposes of this litigation:

They now assert that Congress can impose the status quo through legislation until the states work it out for themselves, and that DOMA was the only way to make sure everyone gets the same federal marriage benefits; they also feel that when new social problems come along, Congress is allowed to employ an “incremental response”.

Judge Tauro disagrees. He continues a conversation he began in Massachusetts v HHS that relates the long history of marriage as a state-regulated activity. He suggests the government has no legal interest in pursuing a uniform national definition of marriage; in fact, says the Judge, the Feds have deferred to the states all along on who is married, and, with this one exception, still do.

He provides numerous current examples from law and regulation:

“...42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the Courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”)...”

Judge Tauro notes that the states were even allowed to decide for themselves the validity of interracial marriages until the 1960s:

“The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”

Tauro disposes of this argument by reminding everyone that the question of interracial marriage was also just a bit controversial, in its time.

He then reminds us that this is the first time the Federal Government has ever defined marriage; he also notes that all previous efforts to create a Federal definition were attempted Constitutional Amendments; he assumes this was because Congress knew that absent an Amendment, they couldn’t define marriage for the states.

“...The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.”

The Defendant tries to explain that DOMA is an incremental approach, but the Court dismisses this explanation. The Judge explains that DOMA does not incrementally advance same-sex marriage; instead, it permanently denies it to the Plaintiffs.

On the other hand, the Feds do recognize any opposite-sex marriage, under any state’s laws, and there appears to be no federal consistency in how marriage is defined...except to ban same-sex marriage.

The Court provides an example: a 13- and a 14-year-old opposite-sex couple could marry in New Hampshire, and even though Judge Tauro feels no other state would sanction such a marriage, the Feds would, because New Hampshire says their married, and that’s good enough for the Federal Government.

The Feds argue for “consistency” in applying marital benefits and assert that DOMA reduces the federal administrative burden, and the Court dismisses both arguments: a consistent approach would be to treat all married couples equally, and there seems to be no extra administrative burden associated with same-sex married couples relative to opposite-sex couples when it comes to things like getting the spouse on the health insurance or processing a tax return as “married – filing jointly”.

The marriage license is the administrative issue, and that’s already been taken care of by the various states involved.

The Plaintiffs argue that DOMA actually makes things less consistent and more complex; the Judge agrees.

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it...

...As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Well, I’ll tell you what...this is pretty heady stuff right here: you very rarely see a Federal Judge absolutely reject the positions of the Federal Government, but in this case Judge Tauro has.

He feels that the 10th Amendment reserves to the states the right to define who may marry and how, and that this has been the case since before we sent Marines to the shores of Tripoli.

He sees the Federal Government as having provided no rational basis for DOMA, twice; in fact, he feels that the effect of DOMA is exactly the opposite of what the Government attorneys claimed was the intent of Congress at the time the law was passed.

To put it very simply, just because the majority in Congress in 1996 may not have wanted same-sex couples to marry doesn’t mean the Constitution is on their side...and all that means there is a lot of thinking going on in the Department of Justice around an appeals strategy...but we have done enough for today, so we’ll leave that discussion for another time.