Bob Schwartz

Month: March, 2013

Why Do Some Republicans and Democrats Hate Voting?

Profiles in Courage
With the news that some Republican Senators (including presidential hopefuls like Rand Paul and Marco Rubio)  plan to filibuster new gun control legislation, thus avoiding any votes on the proposed restrictions, it is now clear: Some current Republicans—and some Democrats—hate voting.

The evidence is mounting. During the 2012 elections, there were numerous instances of Republican legislatures and officials adding voter requirements, reducing voting hours, etc., which made it more difficult or frustrating to vote. The intent was to suppress Democratic votes; the evidence of that might be considered circumstantial, except that Republican strategists, arrogantly or stupidly, told us that it was their intention.

As was pointed out during the election, voter suppression has a long and inglorious history in America. Suppression of black voting was an art form in the South, though nominally the party lines were seemingly different. At the depth of Jim Crow, the South was Democratic. (In modern terms, though, these were DINOs—Democrats in Name Only. These Southern Democrats were different, and after living for a while as Dixiecrats, they underwent political reassignment surgery and became Republicans.)

The latest manifestation of this antipathy to voting is in the U.S. Senate, legendary and self-proclaimed “greatest deliberative body in the world.” (Be respectful; stop laughing.) Filibusters are an integral part of the Senate. When a Senator or group of them wanted to prevent a vote, he or they would have to hold the floor, and talk until they dropped or had to use the bathroom, or until the bill’s proponents gave up—as seen in the movies, most famously Mr. Smith Goes to Washington, and as seen in the attempts to block civil rights legislation in the 1960s. That all changed with a new Senate rule, promulgated a few years ago by Democratic Senators, allowing Senators to block a vote by simply saying that there would be no vote. There is no vote unless 60 Senators agree. And no Senator—setting aside Rand Paul’s recent talking filibuster stunt—needs to even stand up and talk, or even appear on the floor at all.

To understand why it is so important not to vote, we have the cautionary tale of some high profile Democrats. Congressional votes are not just a problem at the next election; they can come back to haunt you years later. In 1996, many Democrats voted for the Defense of Marriage Act (DOMA), and a Democratic President, Bill Clinton, signed it. DOMA came before the Supreme Court this week, which served as an uncomfortable reminder to those Democrats that times—and the party line—have changed. The briefs in the case included a mea culpa from some of those legislators, and just last week, Hillary Clinton released a strangely dark and dour video confessing her evolution on the question of marriage equality (Bill had previously apologized).

Even worse problems dogged Democrats who in 2003 enthusiastically voted for the Iraq War. Besides John Kerry’s “for it before I was against it” election year explanation, the war’s anniversary last week left some of them in a “what was I thinking?” mode.

What they were thinking during the Iraq War vote, and during the DOMA vote, was: I am a person of conscience, but that conscience will do no good if I lose this seat, so I have to ask just how this will play back home. The answer for both DOMA and the Iraq War, under the circumstances of the moment, was: not very favorably.

The lesson for some: Whether it is voting at the polls or voting in the Senate, sometimes discretion is the better part of valor, and sometimes less is more, and sometimes less voting is just better.

In the case of the ballot box, trying to suppress voting is un-American. In the case of standing up and being counted in the Senate, not voting is a dereliction of duty since, as a Senator, that’s your job.

On the other hand, those who fight and run away live to fight another day. That’s how the saying goes. The primary part of that, though, is that you at least fight in the first place. If all you do is run away by, say, not voting, it’s all about survival, and not about conscience and accountability. You may win an election, you may even get to be President. But if you’re thinking about being in the next volume of Profiles in Courage, don’t bother looking for your name.

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Thank You for Your Service

IAVA
I continue to receive comments from veterans of the recent wars about the post The Tin Anniversary of the Iraq War.  Rather than just reply to each comment, here is what I want to say.

Politics debases our language. Language is a tool, and like all tools, can be used for good, for ill, or for some combination.

In the political context, it is hard to tell whether “thank you for your service” from various politicos is sincere, tactical or, most likely, both. But even if it is meaningful, it sometimes seems like an automatic phrase, much like the obligatory speech close “and God bless the United States of America.” It becomes a cliché.

The Vietnam War is not just a textbook case in modern American history. It is an entire encyclopedia. One of the sorriest lessons was the treatment of returning vets. “Thank you for your service” is something those vets rarely if ever heard. All these years later, they mostly still haven’t.

Here it is, to the veterans and the fallen of our wars, then and now, however essential or popular or ill-conceived the wars may be or have been, and to their families, friends and everyone who has supported them in all ways: Thank you for your service.

In a related note, thanks to the Iraq and Afghanistan Veterans of America (IAVA) for keeping the veterans of our longest wars out front and in our faces. Among our “never agains” should be never again asking Americans to sacrifice so gravely, then thanking them loudly or not at all, and then putting them at the back of the line. These people are not political props or calendar items, because every day is Veterans Day and Memorial Day.

Thank you.

Arguments on Marriage Equality, Part 1

Supreme Court
The audio and transcript of the Supreme Court arguments in Hollingsworth v. Perry, the Proposition 8 marriage equality case, are now available.

Without video, the best way to review these is to read and listen to them at the same time. Otherwise, you may not know which Justice is talking—though some of them have such distinctive voices, styles or insights that they are instantly recognizable. Hint: Justice Clarence Thomas is the one who is not talking; he never does.

The news channels deal with the lack of video (not permitted) by playing the audio, identifying the speaker on screen, and showing an artist’s sketch. You can do this yourself, creatively if you want. You might use a photo instead of a sketch, or you can just select a random picture of another distinguished Justice or lawyer, present or past.

The odds of correctly predicting outcomes in difficult Supreme Court cases like this are better than winning the Powerball lottery or picking all the NCAA brackets right, but not much. So here are some first impressions.

Standing

The path of this case is complicated. The California Supreme Court enabled same-sex marriage and for a few months couples did marry. Almost immediately, a group sponsored an initiative to reverse that decision by banning same-sex marriage in the state. The initiative passed, but the U.S. Ninth Circuit Court of Appeals declared the ban on same-sex marriage unconstitutional, thus allowing same-sex marriage to proceed. The sponsor of the initiative appealed and the Supreme Court agreed to hear the case.

That is where the standing issue comes in. The State of California refused to appeal the overturning of the initiative. This left the initiative sponsor as the closest thing to an interested party for purposes of appeal.

But maybe not legally close enough. The Supreme Court did agree to hear the case, but now appears to wonder whether the proponents of the initiative have legal standing to have brought the appeal in the first place. The Court is free at this point to reconsider the question and rule that their initial agreement to hear the case was “improvidently granted.”

The Justices spent a substantial amount of time during arguments on this standing question. If standing is denied, the Court won’t be deciding any of the other issues. The appeal is over, the decision of the Ninth Circuit will stand, and same-sex marriage will once again be the law of California. There is some discussion that for the moment, the Court would like to narrow whatever they have to say about same-sex marriage to California, and let the legal questions mature. If they don’t have to say anything, that narrowing takes place automatically.

How likely is that? If this was the only same-sex marriage case before the Court this term, it would be an easier route for them to take. It would allow more cases to move up the appeal chain, more Courts of Appeal to be heard from.

But it isn’t the only case like it this term, or even this week. Today the Court will consider the constitutionality of the Defense of Marriage Act (DOMA), passed by Congress and signed by Bill Clinton in 1996. DOMA prohibits the federal government from recognizing same-sex marriage, which among other things means that same-sex spouses enjoy no federal benefits. (This has proved to be an embarrassment for Democrats. Scores of Senators and Representatives submitted a brief in which they apologized for being wrong, and Bill Clinton has done the same thing in a recent op-ed piece.)

Procreation

Charles Cooper is the attorney representing the proponents of Proposition 8. Good lawyers get stuck with bad positions in tough cases, and this is that.

The primary argument for the constitutionality of a ban on same-sex marriage—aside from moral arguments, which are not legal ones—is that the tradition and essence and supreme societal value of marriage is procreation. You get married, above all, to have babies; if you can’t have babies, your right to marry is questionable or non-existent. Same-sex couples have no possibility of having children, at least the old-fashioned way (adoption being one of those modern, new-fangled techniques, like in vitro fertilization). Ergo, they have no right to marry.

The above is not hyperbole or sarcasm. For endless minutes, punctuated by occasional laughter, this is the argument that Cooper made, and that various Justices endorsed or, more frequently, questioned.

This part of the arguments has been widely covered, so there are no excerpts here. Listen and read for yourself. The discussion about the fertility of 55-year-old couples and of Strom Thurmond are worth the price of admission.

“The Experiment”

There was discussion of same-sex marriage being some sort of “experiment.” We supposedly have to wait for “scientific evidence” and “data” to determine how well it works.

The discussion of procreation was sad but silly, leavened by laughter. On this point, it is hard to laugh.

For the record, if marriage of any kind is an experiment, the results are in. Sometimes it goes blissfully right, sometimes it goes horribly wrong. Sometimes the children—who arrive in all sorts of ways and are raised in all sorts of permutations—turn out well, and once in a while they don’t. Some people like to go wild with the experiment, trying serial marriage and divorce (and marriage and divorce and marriage and divorce). It’s not an experiment for any of these couples. It’s just marriage. It’s life. It’s love. It’s being human connected.

Justice Antonin Scalia

[This space intentionally left blank.]

The Briefs on Marriage Equality

Amicus Brief
Today begins two days (March 26 and 27) of arguments before the Supreme Court on two related cases about marriage equality. One concerns Proposition 8, California’s voter-passed initiative to ban same-sex marriage.

The question presented on appeal in that case is this:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

The other case concerns the Defense of Marriage Act (DOMA), which prevents extension of various federal benefits to same-sex couples.

The question presented on appeal in that case is this:

Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.”

Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State

It is usual in important cases to have non-parties submit position papers to the Court, known as amicus curiae (friend of the court) briefs. The more significant or contested the controversy, the greater the number of individuals and organizations who want to offer their views—legal, social and otherwise—to help the Court decide. These briefs may be of various value to the Court, but they are all offered in friendship. These friends are often giving a bit of unsolicited advice, as friends do.

Whatever their value, these briefs are fascinating reading. Not unexpectedly, the number of amicus briefs in these cases is extraordinary: 96 in the Proposition 8 case, 80 in the DOMA case.

We will not be able to watch these historic arguments live, or even listen to them live. For reasons surpassing all understanding (something about tradition or about dignity or about lawyers—or even Justices—showboating for the media), cameras are not permitted in the U.S. Supreme Court. With all due respect—lawyers are bound to say that, since the First Amendment will not protect us from punishment for bringing disrepute on our judicial biggers and betters—there are probably plenty of calendars in and around the Supreme Court to indicate the year and century (2013, 21st).

Even if we are stuck only getting reports from the front line, there is something to do in the meantime. In fact, even after we do get the transcripts and audio of the arguments (remember, no cameras, ever), we can read all of the briefs in the case. There are the briefs from the parties to the cases and there are the 176 briefs from helpful friends. These friends include, among many of the prominent, famous and infamous, 50 U.S. Senators and 172 U.S. House members.

You can find the Proposition 8 briefs online

Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al.

You can find the DOMA briefs online

United States v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.

In case you have decided not to dip a toe into the amicus waters, following is a list of all the briefs. But please do give it a try. Some of it will be a tough legal slog for non-lawyers, so you might skip those parts. But some will be essential historical, political, social and cultural analysis and commentary. Whether or not you agree with all these “friends”, you will come away with an informed view of all the positions, from the most solid to the wildest.

Browse the list of briefs below. It might be educational and fun. And if you do read a few of them, you might have even more fun. Maybe even legal fun. Yes, there is such a thing. Just ask the Justices.

Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al. (Proposition 8)

Merit Briefs

  • Brief for Petitioners, Dennis Hollingsworth, et al
  • Brief for Respondents, Kristin M. Perry
  • Brief for Respondent, City and County of San Francisco
  • Reply Brief for the Petitioner, Dennis Hollingsworth, et al

Amicus Briefs

  • Brief for the American Civil Rights Union in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal
  • Brief for the American Psychological Association, the American Medical Association, the American Academy of Pediatrics, the California Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the American Association for Marriage And Family Therapy, the National Association of Social Workers and its California Chapter, and the California Psychological Association in Support of Affirmance (Addressing the Merits)
  • Brief for the Becket Fund for Religious Liberty in Support of Hollingsworth and the Bipartisan Legal Advisory Group (Addressing The Merits) (Also Filed in 12-307)
  • Brief for Catholics for the Common Good and the Marriage Law Project in Support of Petitioners
  • Brief for Center for Constitutional Jurisprudence in Support of Petitioner
  • Brief for the Citizens United’s National Committee for Family, Faith and Prayer, Citizens United Foundation, U.S. Justice Foundation, Gun Owners Foundation, The Lincoln Institute for Research and Education, Public Advocate of the United States, Declaration Alliance, Western Center for Journalism, Institute on the Constitution, Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, English First, and Protect Marriage Maryland PAC in Support of Petitioners
  • Brief for the Coalition of African American Pastors USA, the Center for Urban Renewal and Education, the Frederick Doublass Foundation, Inc., and Numerous Law Professors in Support of Petitioners and Supporting Reversal
  • Brief for David Boyle in Support of Petitioners, on the Non-Jurisdictional Issues
  • Brief for Eagle Forum Education & Legal Defense Fund, Inc., in Support of Petitioners in Support of Reversal
  • Brief for the Ethics and Public Policy Center in Support of Petitioners and Supporting Reversal or Vacatur
  • Brief for Equality California in Support of Respondents
  • Brief for the Family Research Council in Support of Petitioners Addressing the Merits and
  • Supporting Reversal
  • Brief for Foundation for Moral Law in Support of Petitioner
  • Brief for GLMA: Health Professionals Advancing LGBT Equality (Gay And Lesbian Medical Association) Concerning the Immutability of Sexual Orientation in Support of Affirmance (Addressing the Merits)
  • Brief for David Benkof, Robert Oscar Lopez, and Doug Mainwaring in Support of Petitioners and Supporting Reversal
  • Brief for Helen M. Alvaré in Support of Hollingsworth and Bipartisan Legal Advisory Group Supporting Reversal (Addressing the Merits) (Also Filed in 12-307
  • Brief for the High Impact Leadership Coalition in Support of Petitioners
  • Brief for International Jurists and Academics in Support of Petitioner Hollingsworth and Respondent Bipartisan Legal Advisory Group Addressing The Merits And Supporting Reversal (also filed in 12-307)
  • Brief for Judicial Watch, Inc. and Allied Educational Foundation in Support of Petitioners
  • Brief for Leon R. Kass, Harvey C. Mansfield and the Institute for Marriage and Public Policy in Support of Petitioners
  • Brief of Liberty Counsel, Inc. and Campaign for Children and Families in Support of Petitioners
  • Brief for the Lighted Candle Society in Support of Petitioners
  • Brief for Marriage Anti-Defamation Alliance in Support of Petitioners
  • Brief for Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing The Merits and Supporting Reversal (Also Filed in 12-307)
  • Brief for Minnesota For Marriage in Support of Petitioners
  • Brief for National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; the Church of Jesus Christ of Latter-Day Saints; the Lutheran Church-Missouri Synod; the Union of Orthodox Jewish Congregations of America; the Romanian-American Evangelical Alliance of North America; and Truth In Action Ministries in Support of Petitioners
  • Brief for Patrick Henry College in Support of Petitioners
  • Brief for Professor Daniel N. Robinson, Ph.D. in Support of Petitioners and Supporting Reversal
  • Brief for Scholars of History and Related Disciplines in Support of Petitioners
  • Brief for the States of Indiana, Virginia, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin in Support of the Petitioners (Addressing the Merits)
  • Brief for Social Science Professors in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for the State Of Michigan in Support of Petitioners
  • Brief for Thirty-Seven Scholars of Federalism and Judicial Restraint in Support of Petitioners
  • Brief for the Thomas More Law Center and Chuck Storey, Imperial County Clerk, in Support of Petitioners (Addressing the Merits)
  • Brief for United States Conference of Catholic Bishops in Support of Petitioners and Supporting Reversal
  • Brief for Utah Pride Center, Campaign for Southern Equality, Equality Federation and Twenty-Five State-Wide Equality Organizations (also filed in 12-307)
  • Brief for Catholic Answers, Christian Legal Society, and Catholic Vote Education Fund in Support of Petitioner Hollingsworth and Respondent Bipartisan Legal Advisory Group and Supporting Reversal (Addressing the Merits) (also filed in 12-307)
  • Brief for Coalition for the Protection of Marriage in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Dr. Paul Mchugh in Support of Hollingsworth and Bipartisan Legal Advocacy Group Addressing the Merits and Supporting Reversal (Also Filed in 12-307)
  • Brief for Liberty, Life and Law Foundation and North Carolina Values Coalition in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Pacific Legal Foundation, Ward Connerly, Ron Unz, Glynn Custred, and the Howard Jarvis Taxpayers Association in Support of Neither Party
  • Brief for Parents and Friends of Ex-Gays & Gays in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Concerned Women for America in Support of Reversal (Addressing the Merits)
  • Brief for Robert P. George, Sherif Girgis, and Ryan T. Anderson in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for American Anthropological Association, American Academy of Pediatrics, California, and Robert M. Galatzer-Levy, M.D., in Support of Respondents and Affirmance, Addressing California Proposition 8’s Stigmatizing Effects
  • Brief for Adoption and Child Welfare Advocates in Support of Respondents
  • Brief for the American Academy of Matrimonial Lawyers, the Northern California Chapter of the American Academy of Matrimonial Lawyers, and the Association of Certified Family Law Specialists in Support of Respondents
  • Brief for California Assembly Speaker John A. Pérez and Law Professors Concerned with Representative Democracy in Support of Respondents
  • Brief for American Companies in Support of Respondents
  • Brief for American Federation of Labor and Congress of Industrial Oranizations and Change To Win in Support of Respondents and Suggesting Affirmance
  • Brief for the American Humanist Association and American Atheists, Inc., American Ethical Union, the Center for Inquiry, Military Association of Atheists and Freethinkers, Secular Coalition for America, Secular Student Alliance, and Society for Humanistic Judaism, in Support of Respondents (Addressing the Merits)
  • Brief for the American Jewish Committee in Support of the Individual Respondents on the Merits (also filed in 12-307)
  • Brief for American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor (Also Filed in 12-307)
  • Brief for Anti-Defamation League Et Al. in Support of Respondents
  • Brief for Bay Area Lawyers for Individual Freedom, Et Al., in Support of Respondent
  • Brief for Beverly Hills Bar Association, et al., in Support of Respondents
  • Brief for Bishops of the Episcopal Church in the State of California, et al in Support of Respondents and Affirmance
  • Brief for California Assembly Speaker John A. Pérez and Law Professors Concerned With Representative Democracy in Support of Respondents
  • Brief for California Council of Churches, et-al in Support of Respondents and Urging Affirmance
  • Brief for the California Teachers Association and the National Education Association in Support of Respondents
  • Brief for California Professors of Family Law in Support of Respondents
  • Brief for the Cato Institute and Constitutional Accountability Center in Support of Respondents
  • Brief for Chris Kluwe and Brendon Ayanbadejo in Support of Respondents
  • Brief for Columbia Law School Sexuality & Gender Law Clinic and the Society of American Law Teachers in Support of Respondents
  • Brief for Constitutional Law and Civil Procedure Professors Erwin Chemerinsky and Arthur Miller in Support Of Plaintiffs-Respondents Urging Affirmance
  • Brief for Dr. Maria Nieto in Support of Respondents
  • Brief for Edward D. Stein, Joanna L. Grossman, Kerry Abrams, Holning Lau, Katharine B. Silbaugh and 32 Other Professors of Family Law and Constitutional Law in Support of Respondents
  • Brief for Family Equality Council; Colage; Our Family Coalition; Gay, Lesbian, and Straight Education Network; the Center on Children and Families; the Child Rights Project; and Sarah Gogin in Support of Respondents Perry, Stier, Katami, Zarrillo, City and County of San Francisco, and Edith Schlain Windsor, in her Capacity as Executor of the Estate of Thea Clara Spyer, Addressing The Merits And Supporting Affirmance (also filed in 12-307)
  • Brief for Garden State Equality in Support of Respondents
  • Brief for Gary J. Gates in Support of Respondents (On the Merits)
  • Brief for Foreign and Comparative Law Experts Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, and Ryan Goodman in Support of Respondents
  • Brief for Hon. Judith S. Kaye (Ret.), Profs. Stephen Gillers, Charles G. Geyh, and James J. Alfini, and Mark I. Harrison in Support of Respondents
  • Brief for Howard University School of Law Civil Rights Clinic in Support of Respondents (On The Merits)
  • Brief for International Human Rights Advocates in Support of Respondents
  • Brief for Jonathan Wallace, Meri Wallace and Duncan Pflaster in Support of Respondents
  • Brief for Kenneth B. Mehlman in Support of Respondents
  • Brief for Lambda Legal Defense and Education Fund, Inc. and Gay & Lesbian Advocates & Defenders in Support of Respondents
  • Brief for Leadership Conference on Civil and Human Rights, Bar Associations and Public Interest and Legal Service Organizations in Support of Respondents
  • Brief for Marriage Equality USA in Support of Respondents
  • Brief for Massachusetts, Connecticut, Delaware, District Of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington in Support of Respondents
  • Brief for National Center for Lesbian Rights in Support of Respondents
  • Brief for the National Organization for Women Foundation and the Feminist Majority Foundation in Support of Respondents
  • Brief for National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups in Support of Respondents (On The Merits)
  • Brief for the Organization of American Historians and the American Studies Association in Support of Respondents
  • Brief for Parents, Families and Friends of Lesbians and Gays, Inc. in Support of Respondents
  • Brief for Political Science Professors in Support of Respondents and Affirmance Addressing Political Power of Gay Men and Lesbians
  • Brief for Rev. Rick Yramategui, Rev. Herb Schmidt, and Rev. Darrell W. Yeaney in Support of Respondents’ Position on the Merits
  • Brief for the Southern Poverty Law Center in Support of Respondents
  • Brief for the State of California in Support of Respondents
  • Brief for Survivors of Sexual Orientation Change Therapies in Support of Respondents Kristin M. Perry, Et Al., and City and County of San Francisco, Urging Affirmance
  • Brief for the United States in Support of the Respondents
  • Brief for Walter Dellinger in Support of Respondents on the Issue of Standing
  • Brief for William N. Eskridge Jr., Rebecca L. Brown, Daniel A. Farber, and Andrew Koppelman in Support of Respondents
  • Brief for the Women’s Equal Rights Legal Defense and Education Fund on the Issue of the Special Interest of Women as a Gender in Support of Respondents
  • Brief for Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Barry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, And William Van Alstyne Addressing The Merits And Supporting Affirmance (also filed in 12-307)
  • Brief for Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Westboro Baptist Church in Support of Neither Party Suggesting Reversal

United States v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al. (DOMA)

Merit Briefs

  • Brief for Petitioner United States (On the Jurisdictional Question)
  • Brief for Petitioner United States (On the Merits)
  • Brief for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (On the Jurisdictional Question)
  • Brief for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (On the Merits)
  • Brief for Court-Appointed Amica Curiae (On the Jurisdictional Question)
  • Brief for Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Brief for Respondent Edith Schlain Windsor (On the Merits)
  • Reply Brief for Court-Appointed Amica Curiae (On the Jurisdictional Question)
  • Reply Brief On Jurisdiction for Respondent The Bipartisan Legal Advisory Group Of The U.S. House of Representatives
  • Reply Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the United States House of Representatives
  • Reply Brief for Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Reply Brief for the United States (on the Jurisdictional Questions)

Amicus Briefs

  • In Support of Petitioner United States and Respondent Edith Schlain Windsor
  • Brief for 172 Members of the U.S. House of Representatives and 40 U.S. Senators in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for 278 Employers and Organizations Representing Employers in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the American Bar Association in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the American Federation of Labor and Congress of Industrial Organizations, Change to Win, and the National Education Association in Support of Respondent Edith Schlain Windsor
  • Brief for the American Humanist Association and American Atheists, Inc., American Ethical Union, the Center for Inquiry, Military Association of Atheists and Freethinkers, Secular Coalition for America, Secular Student Alliance, and Society for Humanistic Judaism in Support of Respondents (On the Merits)
  • Brief for the American Jewish Committee in Support of Edith Schlain Windsor (On the Merits) (Also filed in 12-144)
  • Brief for the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the California Medical Association, the National Association of Social Workers And its New York City and State Chapters, And the New York State Psychological Association in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor (Also Filed in 12-144)
  • Brief for the Anti-Defamation League in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Bishops of the Episcopal Church in California, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington and the District Of Columbia; the Jewish Theological Seminary of America; Manhattan Conference of the Metropolitan New York Synod of the Evangelical Lutheran Church in America; the Rabbinical Assembly; the Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College; Rabbi Akiva Herzfeld of Shaarey Tphiloh; the Union for Reform Judaism; Unitarian Universalist Association; United Church of Christ; the United Synagogue of Conservative Judaism; Affirmation; Covenant Network of Presbyterians; Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns; Methodist Federation for Social Action; More Light Presbyterians; Presbyterian Welcome; Reconciling Ministries Network; Reconciling Works: Lutherans for Full Participation; and Religious Institute, Inc. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Cato Institute and Constitutional Accountability Center in Support of Respondent Edith Schlain Windsor
  • Brief for the Center for Fair Administration of Taxes (CFAT) in Support of Respondents
  • Brief for Citizens for Responsibility and Ethics in Washington in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Constitutional Law Scholars in Support of Petitioner United States (On the Jurisdictional Questions)
  • Brief for Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Barry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, and William Van Alstyne in Support of Respondent Edith Schlain Windsor (On the Merits) (Also filed in 12-144)
  • Brief for Dr. Donna E. Shalala, Dr. Louis W. Sullivan, Togo D. West Jr., Kenneth S. Apfel, Sheldon S. Cohen, Rudy F. Deleon, Jamie S. Gorelick, Michael J. Graetz, Dr. John J. Hamre, Benjamin W. Heineman Jr., Kathryn O. Higgins, Constance Berry Newman, and Harriet S. Rabb in Support of Respondent Edith Schlain Windsor
  • Brief for the Empire State Pride Agenda, Equality California, Equal Rights Washington, One Iowa, Equality Maryland, Vermont Freedom to Marry, Massequality, New Hampshire Freedom to Marry Coalition and Equality Maine in Support of Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Brief for Family Equality Council; Colage; Our Family Coalition; Gay, Lesbian, and Straight Education Network; the Center on Children and Families; the Child Rights Project; and Sarah Gogin in Support of Respondent Edith Schlain Windsor (On the Merits)(Also filed in 12-144)
  • Brief for Family Law Professors and the American Academy Of Matrimonial Lawyers in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Federalism Scholars in Support of Respondent Edith Schlain Windsor
  • Brief for Former Federal Election Commission Officials in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Former Federal Intelligence Officer in Support of Petitioner United States and Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Former Senators Bill Bradley, Tom Daschle, Christopher J. Dodd, and Alan K. Simpson on the Merits in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Former Senior Justice Department Officials and Former Counsels to the President in Support of Petitioner United States (On the Jurisdictional Question)
  • Brief for GLMA: Health Professionals Advancing LGBT Equality Concerning the Immutability of Sexual Orientation in Support of Affirmance (On the Merits)
  • Brief for Gary J. Gates in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Gay & Lesbian Advocates & Defenders and Lambda Legal Defense & Education Fund, Inc. in Support of Petitioner Unite States and Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Historians, American Historical Society, et al. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Honorable John K. Olson in Support of Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Brief for the Honorable John K. Olson in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Honorable Lawrence J. Korb, Radm. Thomas F. Atkin, Bg. Roosevelt Barfield, Dr. Coit D. Blacker, Gen. Wesley K. Clark, Richard Clarke, Hon. William Cohen, Cdr. Beth Coye, Hon. Russell D. Feingold, Bg. Evelyn Foote, Ltg. Robert G. Gard, Jr., et al. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Institute for Justice in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Los Angeles County Bar Association and Armed Forces Committee of the Los Angeles County Bar Association in Support of Respondent Edith Schlain Windsor
  • Brief for Family and Child Welfare Law Professors in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Leadership Conference on Civil and Human Rights, Bar Associations and Public Interest and Legal Service Organizations in Support of Respondent Edith Schlain Windsor
  • Brief for NAACP Legal Defense & Educational Fund, Inc. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for New York, Massachusetts, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Organization of American Historians and the American Studies Association in Support of Respondent Edith Schlain Windsor
  • Brief for OutServe-SLDN Inc. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Partnership for New York City in Support of Respondent Windsor and Affirmance of the Second Circuit (on the Merits)
  • Brief for Political Science Professors in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Professors Nan D. Hunter, Suzanne B. Goldberg, Kathryn Abrams, Katherine M. Franke, Burt Neuborne, and Angela P. Harris Addressing The Merits in Support of Respondent Edith Schlain Windsor
  • Brief for Scholars of the Constitutional Rights of Children in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (Sage), the National Senior Citizens Law Center, the American Society on Aging, the National Hispanic Council on Aging, the Southeast Asia Resource Action Center, and the National Organization of Social Security Claimants’ Representatives in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Survivors of Sexual Orientation Change Therapies in Support of Petitioner United States of America and Respondent Edith Schlain Windsor

 

  • In Support of Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives
  • Brief for the American Civil Rights Union in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for the Becket Fund for Religious Liberty in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for the Beverly Lahaye Institute and the National Legal Foundation In Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Catholic Answers, Christian Legal Society, and Catholic Vote Education Fund in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also Filed in 12-144)
  • Brief for Center for Constitutional Jurisprudence in Support of Respondent Bipartisan Legal Advisory Group (On the Jurisdictional Question)
  • Brief for Chaplain Alliance for Religious Liberty, et al., in Support of Respondent the Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Citizens United’s National Committee for Family, Faith and Prayer, Citizens United Fdn., U.S. Justice Fdn., Gun Owners of America, Inc., Gun Owners Fdn., The Lincoln Institute, Public Advocate of the U.S., Declaration Alliance, Western Center for Journalism, Institute on the Constitution, Abraham Lincoln Foundation, English First, English First Fdn., CLDEF, Protect Marriage MD PAC, Delegate Bob Marshall, and Senator Dick Black in Support of Respondent Bipartisan Legal Advisory Group (On the Jurisdictional Question)
  • Brief for Citizens United’s National Committee for Family, Faith and Prayer, Citizens United Foundation, U.S. Justice Foundation, Gun Owners Foundation, The Lincoln Institute, Public Advocate of the U.S., Declaration Alliance, Western Center for Journalism, Institute on the Constitution, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, English First, Protect Marriage Maryland PAC, Delegate Bob Marshall, and Senator Dick Black in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Coalition for the Protection of Marriage in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Concerned Women for America in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for David Boyle in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Dovid Z. Schwartz in Support of Respondent Bipartisan Legal Advisory Group
  • Brief for Dr. Paul McHugh in Support of Respondent Bipartisan Legal Advocacy Group (On the Merits) (Also filed in 12-144)
  • Brief for Eagle Forum Education & Legal Defense Fund, Inc., in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for the Family Research Council in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Foundation for Moral Law in Support of Respondent Bipartisan Legal Advisory Group
  • Brief for Helen M. Alvaré in Support of Hollingsworth and Bipartisan Legal Advisory Group (On the Merits) (Also Filed in 12-144)
  • Brief for Indiana and 16 Other States in Support of Respondent the Bipartisan Legal Advisory Group (On the Merits)
  • Brief for International Jurists and Academics in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Law Professors in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Liberty Counsel in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Liberty, Life and Law Foundation and North Carolina Values Coalition in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (also filed in 12-144)
  • Brief for Manhattan Declaration in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group (On the Merits)(Also filed in 12-144)
  • Brief for National Association of Evangelicals; the Ethics & Religious Liberty Commission of the Southern Baptist Convention; the Church of Jesus Christ of Latter-Day Saints; the Lutheran Church-Missouri Synod; the Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for National Organization for Marriage in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Parents and Friends of Ex-Gays & Gays in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Robert P. George, Sherif Girgis, and Ryan T. Anderson in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Social Science Professors in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for the United States Conference of Catholic Bishops in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for United States Senators Orrin G. Hatch, Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelbe and Roger Wicker in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Utah Pride Center, Campaign for Southern Equality, Equality Federation and Twenty-Five State-Wide Equality Organizations (Also filed in 12-144)
  • Brief for Westboro Baptist Church in Support of Neither Party Suggesting Reversal (On the Merits)

Moses on Krypton, Superman in Egypt

Mose & Superman
The story of the Exodus and Passover is a story of freedom, faith and return from exile. It is also a story about the universal question of identity: who am I?

According to the story told in the Book of Exodus, Moses is born a lowly Hebrew, a child of slaves. Set afloat by his mother to avoid Pharaoh’s slaying of the first born, he is found and given the Egyptian name Moses. He is raised as Egyptian royalty, though as a baby he is fed at the breast of his Hebrew mother.

It is never clear in the text when or how he first finds out about his heritage. We only know that he does discover that he is a Jew. He flees to Midian and marries Zipporah, who bears him a son. The name chosen for their son tells a story, the story of Moses and of the Jewish people. The name is Gershom, meaning “I have been a stranger in a foreign land.” (Exodus 2:22)

This famous phrase leads to a question: exactly which land is Moses a stranger in? Is he a Hebrew who has been a stranger in Egypt, despite living his entire adult life as a great Egyptian? Or is he an Egyptian suddenly identified with a people he never knew as his own?

A clue is found in the stories about Moses as a speaker. Twice Moses tries to tell God that he is speech challenged. When directed to address the Jews, Moses claims to be “slow of tongue” and “heavy of mouth.” When told to speak to Pharaoh, Moses describes himself cryptically as having “uncircumcised lips.” Some interpreters attribute this to an actual speech impediment, perhaps stuttering. But a different view is that Moses is trying to tell God something sensible: Moses does not speak Hebrew very well. And why should he speak Hebrew, when he has spent his life as an Egyptian?

At this point, we leave Egypt for a trip to Cleveland in the 1930s. Jerry Siegel and Joe Shuster are a couple of nerdy Jewish teenagers with a love of science fiction and a talent for comic book art. They had grown up with the stories of the Bible, including the tales of Moses. Consciously or not, they mixed these together into a comic book creation that would become a modern cultural icon: Superman.

In the Siegel and Shuster version, there is no infant floated off in a basket to avoid his death, and no Egyptian princess to find and adopt him. Instead, the Kryptonian infant Kal-el (a version of the Hebrew phrase Kol El, “the voice of God” or “all of God”) is rocketed off in a space capsule to avoid the planet’s destruction. The capsule crashes on Earth, and he is found and adopted by the Midwestern couple, Ma and Pa Kent.

The biblical infant is raised as an Egyptian and given the Egyptian name Moses; Kal-el is raised as an earthling and given the Midwestern name Clark Kent. The time will come for both of them, Moses and Clark Kent, to reclaim their true identities in order to tap into great power, to become super-men.

But this reclaiming of identity is not without difficulties. The man born Kal-el struggles with his disguises: Is he Superman pretending to be Clark Kent, or is he Clark Kent who has a second identity as Superman?

These particular stories of exile and identity are only two of many such stories in history and in popular culture. It is a story that repeats itself again and again, not only among the Jewish people in ancient and modern times, but among all people in all times and circumstances.

Think of the Jews in the midst of their Exodus, chronically uncertain about who they were and where they belonged. As much as they wanted to follow their faith and their leader to a promised place, their adopted home for generations—even if not by choice, even under the oppressor’s thumb—had been Egypt.

Think of Moses, caught between two worlds. Yet the struggle for identity turns out to be a source of strength for him. All that he accomplished could never have happened if he had been only an Egyptian or only a Hebrew. It was through his being both, and through his trying to resolve that seeming contradiction, that the events of the Exodus transpired.

Think of ourselves. We may believe that by staying in one place and simply holding tight to an unchanging way, we can maintain an identity free of questions, and we can avoid being strangers in a foreign land. But that is impossible. Those around us are constantly changing and the world around us is constantly changing. The land we think of as familiar becomes foreign to us, and we find ourselves strangers in it.

Being a stranger is unavoidable, and it can be a good thing. Like Moses, we discover who we are only when we question who we are in the particular place and time we inhabit. Along with the divine direction that he heard, it is this burning question of identity that drove Moses to do great things. It is a valuable lesson for all of us as we retell the story of the Exodus this Passover.

The Iraq War and the Ryan Budget: A Modest Proposal

Paul Ryan Budget
We have two budget crises. One is the budget itself, which is clearly in need of work to make concrete our priorities and the willingness of citizens to support those priorities in the form of taxes. The second crisis is political dysfunction, where real and constructive talk about those priorities and that support is transformed and devolved into useless politalk. One way that uselessness is hidden is by obfuscation and throwing around lots of numbers, details, and core American principles.

Simplify, simplify.

We just marked the 10th anniversary of the Iraq War. There is going to be disagreement about many aspects of that war for generations.

But there is consensus on two things.

The war was financially expensive. How expensive is another matter of contention. The Costs of War Project pegs it at a few trillion dollars, give or take. So how expensive? Very expensive.

The war was not paid for. More precisely, the war was paid for by debt, not by taxes. The United States had never done this before. There are two perfectly good reasons to ask Americans to pay for and sacrifice for wars. Wars are expensive. And taxing for war asks all citizens at all economic levels to make real sacrifice, even if they or their loved ones are not in harm’s way. As a political matter, when the sacrifice outweighs support for the war, there may be pressure to question or even end the war.

It is uncontested that George W. Bush and Congress did not ask for that sacrifice. Without arguing about how that happened, it is the fact. There is no argument about the result. In the midst of this massive borrowing to pay for the war, the economy fell down, and is still having trouble getting up.

With a sense of humility, and standing in the shadow of today’s esteemed Congress, here is a simple and modest proposal.

1. Agree on the financial cost of the Iraq War. For purposes of discussion, let’s say $3 trillion, though it is certainly more.

2. Agree to taxes that will generate that amount of revenue, not a cent more or less. That revenue would then be spent on all the important things that would otherwise be underfunded or unfunded, including every possible entitlement for veterans.

3. Once that money is raised and spent, taxes will revert to the earlier levels, and some members of Congress can go back to babbling, bickering and posturing.

Simple, maybe even naïve. Certainly too naive for the sophisticated politicians who are busy building a budgetary hall of mirrors that only they can navigate, where they think they can hide themselves and some simple, inconvenient truths.

Who Killed the Assault Weapons Ban?

Hoover Tactical Firearms
A ban on assault weapons is dead, at least for this session of Congress. Senate Majority Leader Harry Reid announced that the Democratic gun bill moving forward will not include it.

The political math is that 60 votes are needed to pass a bill in this new and not improved super-majority Senate voting, and there weren’t enough Democrats, let alone Republicans, to make passage possible. The political reality is fear. There are Democratic Senators who believe that a vote for anything that looks like a gun ban, however reasonable and popular, would cause them grief or worse back home and in the voting booth.

We had a ban on assault weapons for ten years, signed by Bill Clinton, allowed to expire under George W. Bush in 2004, and never revived. It was far from perfect or comprehensive, but at least it represented recognition that as a modern civilization, there are things we try not to do or allow to be done. This isn’t heaven, but we can make it a little less hell.

An earlier post mentioned that we have not seen, and as a matter of decency (we are civilized people, aren’t we?) will not see, the photos of the dead children at Sandy Hook School in Newtown. Since then, though, the Senate Judiciary Committee held a hearing at which a vivid word image was painted by a first responder. Maybe not a thousand words, but we got the picture.

Harry Reid could tell us, name by name, which Democratic Senators did not want to have a vote on this so they wouldn’t have to be accountable. They wanted to avoid the double-edged sword, cut once politically by supporters and voters who believe that any banned weapon is one too many, then cut again by those who can’t understand why military weapons are needed by the hunter or the psychopath next door. By Adam Lanza’s mother and, in the end, by Adam Lanza.

Maybe we are asking the wrong questions of our politicians. Maybe we shouldn’t be asking whether they believe in a ban on assault weapons, or in the possibility that such a ban might reduce the number of gun deaths by even a little, and might reduce the brutality of an already brutal world.

Maybe we should be asking our politicians whether they believe in ghosts. The kind of ghosts who visit all of us, in the moments before sleep, in sleep itself. Ghosts of things done or not done. For Senators, ghosts of bills passed, unpassed, and too many times, never voted on at all. Ghosts that aren’t abstract, but that take stark, all too real form. Ghosts that look like mangled, barely recognizable angels, just wanting somebody to speak—and vote—for them.

The Tin Anniversary of the Iraq War

Tin CupTin is the traditional gift to mark a 10th wedding anniversary, just as it is silver for the 25th and gold for the 50th. There is no tradition about the anniversaries of wars, so tin will have to do.

All wars are controversial, whatever the split in support (80/20, 20/80, 50/50, rarely true 100% support), whatever the rationale, whatever the price. Every American war has had its naysayers, contemporary with combat and in the rear view mirror of history. World War II came close to consensus, although even there questions are still raised about whether we were late getting in and whether the unprecedented brutal way we got out was necessary.

This paragraph was going to include a bunch of numbers about the Iraq War. But you are going to find those numbers everywhere: how many of our personnel served, how many were killed and wounded, how many civilians were killed and wounded, how much it cost in dollars. Those numbers are meant to demonstrate the price paid, in, as they say, blood and treasure. Here it is in brief: the price was staggeringly high.

And next is something surprisingly good to say about the Vietnam War. If we learned nothing else from that nation-dividing conflict, we learned this: whatever we believe about a war, we can never, ever, ever take anything away from the service of those who fight.

Some people miss an important point when they argue that we have to justify a war after the fact so that those who suffered won’t have suffered “in vain”. It is the exact opposite. When a war turns out in hindsight to present real questions about why, those who fought are maybe more our most loyal heroes, especially in a volunteer army. They didn’t answer a call to defeat some cosmic embodiment of evil (e.g., Hitler); they just loyally answered a call to serve. They deserve all we can give them (which, by the way, includes world-class medical care).

In August 2002 I sent an e-mail to some U.S. Senators, including Bob Graham of Florida and Robert Byrd of West Virginia. Both of them were skeptical about the rush to war, and both—particularly Byrd—believed that the role of Congress was being ignored.

This is an excerpt from that e-mail It is not here to reveal some astute analysis or prescience. Lots of people knew or suspected that something was wrong. It is just here as an artifact of a moment that led us to the anniversary today.

Sent August 29, 2002

Congress has the constitutional power to make war, which includes careful deliberation and action if necessary.

In the case of Iraq, you and Congress should assert that power immediately and clearly. Congress has previously allowed that power to erode in the face of political pressure, and now faces an administration that is using an atmosphere of fear (that it has intentionally or inadvertently helped create) to dare Congress to defy its claimed authority.

When you do exercise that power, as I hope you will, it should be more than a rubber stamp. The President seems to have a simplistic and maybe, with all due respect, a simple-minded view of world affairs. The role he is carving out for the U.S. as the world’s sheriff may be right in a moral sense, but is possibly disastrous in the world of the 21st century. Which evildoer is next on the list; which town is he planning to clean up?

This isn’t High Noon or The Magnificent Seven. We have been lucky in Afghanistan, though I expect things will fall apart there within the next year or so. The destabilization of Iraq, especially in the face of global disdain for our actions, could be much more costly.

Finally, I believe that the President’s strange game of hide-the-ball regarding his plans for Iraq (in the guise of not telegraphing our strategy) is wreaking havoc with our economic confidence. Anybody with any economic insight knows that things are much worse than anyone is willing to talk about, restraining such talk in the hope that consumers and businesses will regain lost faith in the future. There is no way that an attack on Iraq can help that situation, and a thousand ways it can and will hurt.

For the record, when the Iraq War Resolution did pass Congress in October 2002, Byrd, Graham and a total of 23 Senators (21 Democrats, 1 Republican, 1 Independent) voted against it. Of those, only a handful are still in the Senate: Barbara Boxer, Dick Durbin, Carl Levin, Barbara Mikulski, Patty Murray, Jack Reed, Debbie Stabenow and Ron Wyden. It has been more than ten years, so choice and death have taken the rest of them. One who did vote for it who is no longer in the Senate is John Kerry, who became Secretary of State after the “official” end of the Iraq War, and who, between the vote for the war and the end of it, ran for President.

It’s a funny old world.

Actor Is Typecast As Satan

Satan
The media is all atwitter over the observation that the actor who plays Satan in a new Bible series looks a lot or something like President Obama.

The Associated Press got a response from the producers:

Mark Burnett and Roma Burnett said Monday the Moroccan actor who played Satan in the History channel series has played Satanic characters in other Biblical programs long before Obama was elected president.

First, separate from any questions about motives or about whether Mohamen Mehdi Ouazanni does look like Obama, let’s quickly get past a gap in this reply. If an actor looks like the President, and you have some creative notion that this helps make it a good casting choice (for artistic, political or publicity reasons), his having played Satan before just might be a bonus. Or if his experience as Satan is the driving reason, then the look-alike feature might be a bonus. The earlier Satan experience doesn’t fully dismiss any possibilities.

Beneath all this is a commentary on the craft and business of acting. From the producers’ comments, it appears that Mohamen Mehdi Ouazanni is, or is on his way to, being typecast as Satan. He played the part before, he is playing it now (and getting lots of attention for it), and may then be asked to play it again. If Charlton Heston had done a few more Moses movies after The Ten Commandments, what would his later career have looked like? Would he have been waiting around for the next Moses movie, instead of giving us Ben Hur, Planet of the Apes, Soylent Green, etc.? No major actor has ever reprised the role of Jesus, either, because besides the fact that there is no sequel to the story, it is the kind of part that is hard to shake.

There is a silver lining, though. Whether or not there are other Satan parts in this actor’s future, there is no doubt that in years to come, we will be seeing all kinds of films about Barack Obama. Some will even cast Obama as a metaphorical devil—a part he already plays in lots of political punditry. When those films are finally made, there will be a call for actors, and maybe having played Satan will be a real qualification.

Another Reason We Need Assault Weapons

Attack of the 50 Foot Woman
The 1950s were the reel golden age of science fiction movies. Consider the shots above from Attack of the 50 Foot Woman (1958). It is the story of a rich socialite turned into a giant woman by a giant alien. She seeks revenge on her cheating husband, something made easier by the fact that she is…50 feet tall. (She is also pretty sexy, wrapped in what looks like a few very big sheets, needed because her designer socialite clothes did not grow.)

The sheriff discovers that a pistol is no match for the giant alien, and as you can see, her husband learns that his pistol is useless against her. (She is ultimately stopped when the sheriff shoots an electric transmission tower she is standing next to.) This is an old story and a lesson we should have learned by now: pistols are not effective against aliens, monsters, people turned into monsters, etc.

Assault rifles may do no better, but at least they might give you a fighting chance and a little extra time to escape. The NRA, for some reason, has failed to make this argument. But it is both appealing and rational. The chances of the government turning against all its citizens may be small, but it could happen, and the NRA believes it and promotes the possibility. The chances of alien invasion, experiments gone rogue, the sudden appearance of strange new enemies may be small, but it could happen too.

In that case, would you rather be carrying a pistol, rifle, or shotgun, or do you want some serious firepower? You know the answer.