Balkinization  

Saturday, November 22, 2003

JB

The Conservative Case for Same Sex Marriage

I was pretty much in agreement with David Brooks' column arguing for same sex marriage, until I got to this last little bit of prose:

The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.

When liberals argue for gay marriage, they make it sound like a really good employee benefits plan. Or they frame it as a civil rights issue, like extending the right to vote.

Marriage is not voting. It's going to be up to conservatives to make the important, moral case for marriage, including gay marriage. Not making it means drifting further into the culture of contingency, which, when it comes to intimate and sacred relations, is an abomination.


Liberals have not been pushing gay rights as "a really good employee benefits plan." They have been pushing it as a civil rights issue, but that is because a central feature of equal citizenship is and should be the ability to solemnize one's most precious, intimate and long lasting commitment to another person through marriage. Slaves could be prohibited from marrying in the antebellum South. With freedom came basic rights of citizenship, which included the right to marry.

Brooks' conservative case for marriage is based on the notion that everyone (and if you read the whole column, you will see that he especially means everyone who has sex) should be married, and that it is "scandalous" that people who "claim to love each other" should not be married. On this Brooks and I disagree: I reject his insinuation that if you love another person you must also want to marry them or else you don't really love them. Marriage is not for everyone. The notion that everyone must conform in lock step to the same set of social practices is the darker side of Brook's so-called conservative case for same-sex marriage, and it conflicts with the view of many conservatives (and liberals too, I might add) that individual choice about the most important matters in one's life should be respected.

Yet the question is more complicated than simply one of liberty versus conformity. Like Brooks, I believe that stable families are a good thing, particularly (but not exclusively) because of children. For that reason, I also agree with him that it is important to encourage marriage and fidelity. But marriage is hardly a perfect institution; it still contains within it the remnants of older ways of thinking about families that can be stifiling and oppressive, particularly to women. Given its imperfections, we should not assume that if a person does not want to get married that signals that there is something wrong with them or that they are incapable of real love. That conclusion is insulting; moreover, it assumes that there is nothing wrong with the institution of marriage that could cause a reasonable person to avoid it.


Friday, November 21, 2003

JB

Is the Federal Marriage Amendment A Bait And Switch Game?

I've been thinking about the proposed Federal Marriage Amendment (FMA), whose text is available at the website of the Alliance for Marriage. The proposed text of the amendment reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The Alliance for Marriage argues on their website that this language is designed to keep courts from imposing same sex marriage on the states, and to keep legislatures from passing laws authorizing same-sex marriage, but it does not prohibit state legislatures from passing laws creating civil unions for same-sex couples.

I'm not so sure. The text is cleverly and confusingly written: The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them. Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits simlar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence.

If the FMA had been designed to do what its proponents claim it will do, it should have been drafted as follows:

Section 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status be conferred upon unmarried couples or groups.

Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples or groups.


Thus, Congress and state legislatures may provide all of the incidents of marital status except marital status itself. As you can see, such an amendment is not particularly difficult to draft. The fact that there is a gap between what the text says and what the Alliance for Marriage says the text will do suggests to me that they are not being entirely forthcoming about the reasons for the Amendment.





Tuesday, November 18, 2003

JB

Massachusetts Supreme Judicial Court Holds Ban on Same Sex Marriage Unconstitutional


Massachusetts's highest court has struck down the state's ban on same sex marriage, following the lead of Vermont. The decision was 4-3. The Supreme Judicial Court gave the Massachusetts legislature 180 days to come up with a legislative solution to the problem. This is roughly similar to what the Vermont Supreme Court did. However, Massachusetts politicians have already been considering an amendment to the state constitution that would prohibit same sex marriage. One of the key factors in the Vermont case was that the Vermont Constitution is very difficult to amend. If the Massachusetts Constitution is like most state constitutions, is entirely possible that the Supreme Judicial Court's decision will be overruled. Both Alaska and Hawaii amended their state constitutions to prevent same sex marriage when it looked as if courts would strike down legislative bans.

The Massachusetts case will probably cause renewed calls for a protection of marriage amendment at the federal level, which will probably not succeed, because it is so difficult to amend the U.S. Constitution. More importantly, it threatens to place same sex marriage in the middle of the 2004 elections. Republican politicians will probably view this as a new wedge issue to beat up Democrats with, especially in the South. Nevertheless, it's still unclear what the fallout will be. It makes a great deal of difference that this decision has come after the Supreme Court's opinion in Lawrence v. Texas rather than before it, even though the two issues are analytically distinct.



UPDATE: David Krinsky writes:

the MA constitution is quite difficult to amend; doing so
requires a vote of two consecutive sessions of the legislature
followed by a statewide referendum. See Mass. Const. art. XLVIII.

Even if such were likely to pass--and in MA, I have my doubts, since
anti-gay-marriage amendments have been successfully defeated
before--there's absolutely no way that it can happen until today's
ruling has been in effect for over a year, even with the 180-day stay.




Thursday, November 13, 2003

JB

Fun and Games in Cyberspace

Today I'm off to NYC to a conference on electronic gaming, including multiplayer games in networked environments and virtual worlds. It's called The State Of Play, and it's jointly sponsored by New York Law School's Institute for Information Law and Policy, and Yale's Information Society Project, of which I am the director.

The schedule of events is here. Wired News is covering the event, and there's an article about it here,with a quote from yours truly. I'll be talking about freedom of speech as it relates to game development and game behavior, and what happens when the boundaries between the game space and real space are blurred or transgressed.



Sunday, November 09, 2003

JB

It's Time to Chuck Those Prior Restraints

If you are wondering what all those rumors swirling around Prince Charles are about, you can find the answer here. The Straits Times is not bound by the court order which constrains the U.K. press from reporting details on the story. In the meantime, the tabloids in the U.K. adopted their familiar method of getting around court orders and threatened libel suits: "continually printing the same odd photograph of Prince Charles standing with another man in a field, without explaining why the photograph had any significance."

The growing media scandal shows how foolish the U.K.'s rules about prior restraints on speech are. In the age of the Internet, it's pretty easy to find out in other papers what the British papers can't publish. Anyone who knows how to use Google's news function can pretty quickly find the substance of the rumors.



Saturday, November 08, 2003

JB

The Internet and The Future of Campaign Finance

Many progressives are distressed that Howard Dean has chosen to forgo matching funds for the primary season, believing that it heralds the death of campaign finance regulation. I am somewhat less concerned.

There are three basic reasons to restrict campaign finance. The first is that you don't want elections decided simply by who raises more money so that the policy differences between the candidates become essentially irrelevant to determining who wins. The second is that you are worried that the drive to raise funds will produce an arms race that will divert representatives from governing because it will force them to spend more and more time raising funds and cuddling up to wealthy donors. Third, you are worried that there will be corruption or at least the appearance of corrpution-- Even if large donations do not result in quid pro quos, they do help secure access to the candidate and thus predispose candidates toward the interests of the very rich and powerful.

Raising funds through the Internet, which the Dean campaign has pioneered, changes the picture somewhat. The Internet makes it possible to raise lots of money in relatively small sums from a very large number of people. That means that an increasing percentage of a campaign's money comes from small scale Internet donations. Then the second concern is reduced because it takes less of the candidate's time to raise money. Rather, the candidate needs a better infrastructure to organize and deliver contributions. He or she can spend more time campaigning rather than courting individual donors because campaigning reaches a broader audience and thus produces more funds. The third concern is reduced because the distribution of contributions is flatter. That means that there are fewer people who can genuinely claim the right to specialized access, which tends to lessen the problem of corruption or the appearance thereof. And, I would argue, the first concern is somewhat reduced because the ability to raise funds is more genuinely correlated with popular support. The candidate who raises the most money is the candidate who can energize the most people to support him or her financially.

Is Internet financing of campaigns a panacea? No, not by a long shot. But we can hope that Dean's Internet model eventually comes to dominate the model that President Bush has adopted, which relies on contributions from wealthy individuals whom the President has rewarded with very large tax breaks. When you think about it, the President and his donor base have been engaged in a not very subtle quid pro quo: He lowers tax rates on the wealthiest Americans, and they, in turn, do their best to get him elected. Bush's strategy raises all three of the concerns mentioned above-- money displacing votes, the arms race, and the danger of corruption-- much more than the Internet model.

So there is reason to be glad about what Dean is doing. If he demonstrates that his model works, and and if both major parties turn to the Internet and to a broad base of smaller contributions as the best way to finance a campaign, we will ameliorate the influence of money on politics. That is not because there will be less money in the system, but because it will be raised and delivered to the candidates in ways less corrosive of the democratic process. There is still much more that we could do: for example, we could make candidates less dependent on fundraising by creating a bank of media time distributed to candidates for public office. In any case, the campaign finance system in this country is badly broken; we need to think how to make it work for democracy rather than against it.



Sunday, November 02, 2003

JB

Dean and the Guys with the Confederate Flag on their Pickup Trucks

Howard Dean is getting lambasted for remarks he's made about gun control and the Confederate flag recently. On Saturday he said that he wanted to be "the candidate for guys with Confederate flags in their pickup trucks."

But to me, at least, an earlier Dean remark is much more important. Speaking in South Carolina on February 13, Dean remarked: "There's no reason why white guys who have a Confederate flag in the back of their pickup truck shouldn't be walking side-by-side with blacks, because they don't have health insurance, either."

For some time now, the Republican Party has successfully taken a two-track approach to cultural and economic politics, pushing populist appeals on social issues while promoting economic policies that benefit largely the well-to-do, defending the latter on the grounds that a rising tide will lift all boats. Democrats, on the other hand, have long stood for economic policies that, I believe, are more in the interests of poor and working class Americans. Republican cultural appeals on issues like abortion, the flag, gun control, feminism, homosexuality and affirmative action have sought to prevent a multiracial coalition of working class Americans from forming; they have repeatedly pulled white working class voters, and particularly white working class men, away from the Democrats. Simultaneously, the Republican party has tried to cast the Democrats as the party of elitist snobs out of touch with mainstream values. I have always believed that such accusations are deeply unfair: it is clear from the last Presidential election that the vast majority of the people who vote Democrat are middle class and working class people. Nevertheless, the accusation of cultural elitism has been extremely valuable for the Republican Party's electoral chances. Perhaps in the long run the Democrats may win the fight over values, but in the short run they will lose a lot of elections.

Dean's statement about forming a coalition of whites and blacks who have similar interests in health care, reflects, I think, a perfectly sensible approach. The Democrats should be a more populist party, focusing on *both* the interests and the values of working class and middle class Americans. That means that liberal Democrats will have to compromise on cultural issues that part of the party's liberal base thinks important.

Many people don't trust the Democrats because they believe, rightly or wrongly, that the Democrats want to take away their guns. I remember a billboard in Texas during the presidential election in 1988, with a quote from Michael Dukakis saying that he just didn't believe that people should own guns. It is that kind of message that turns large numbers of Americans off the Democratic Party.

The reason is that the gun control question is about much more than the specific issue of gun regulation. It is a cultural indicator or cultural signal-- one of a small number of highly resonant cultural symbols that people use to ascertain a person's larger set of values and commitments. The Republican Party has understood and manipulated this feature of human psychology particularly well since 1968, deliberately choosing appeals on a key set of issues that allow many Americans to feel that the Republican party stands for their values, even if Republican candidates by and large are not working in their economic interests.

Speaking as a liberal Democrat, I would much rather compromise on what is in practice a largely symbolic issue like gun control than on economic issues that hit ordinary people where they live. (It is largely symbolic because the only laws that can be passed at the national level will have only minor effects in combating the misuse of guns while distinguishing these cases from the appropriate use of guns by law abiding citizens.).

I would rather that the Democratic party be more populist than it currently is. Let me be clear: I don't particularly like Dean's way of exemplifying the working class Americans he wants to appeal to: the Confederate Flag, after all, reemerged into popular consciousness as a symbol of massive resistance to Brown in the 1950's and 1960's. But I do think that it is important to show people who have a gun rack on their pickup trucks-- to change the metaphor-- that the Democratic Party is working in their interests. In my view, the elitists that people should be worried about are not cultural elitists but economic elitists, people who want to grab everything and leave ordinary Americans to fend for themselves. The Democratic Party will do much better if it compromises on a few cultural issues like gun control while promoting the economic issues that more Americans can identify with.

It is already quite clear to me that the Republicans would like to fight the 2004 election on cultural issues like patriotism, guns, and the flag, and they will try to paint the Democratic nominee, whoever he or she may be, as elitist and dangerously out of touch with mainstream American values. Dean's views on gun control will help counteract that strategy. One must combat a serious misunderstanding here: It is not a simple either-or choice between maintaining egalitarian and progressive values on the one hand, or surrendering to the conservative Republican cultural agenda on the other. The Republican cultural agenda is not a natural collection of positions that logically go together; it was carefully selected and honed to create a winning political coalition and split the Democratic coalition apart. Thus, the strategy for the Democrats is to find a different combination of positions, some liberal, some moderate, that appeal to the values as well as the economic interests of more Americans. Dean's more moderate approach on gun control may not by the only way to do that, but it is certainly one way.



Thursday, October 30, 2003

JB

Is Atrios Responsible for Libel?

The blogosphere has been abuzz over the cease and desist letter issued to Atrios by Jeffrey J. Upton, an attorney purporting to represent Donald Luskin, an NRO Online Contributor:

You recently linked to Mr. Luskin's October 7, 2003, posting on his website entitled "Face To Face With Evil," in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption "Diary of a Stalker" for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin. Picking up on the theme you introduced, several have made false assertions that Mr. Luskin has committed the crime of stalking. Such a statement constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages. As a result of your control over and participation in the comment section of your site, as well as the fact that Mr. Luskin has personally brought these libelous comments to your attention already, you face personal liability for their distribution. Determining your identity for the purpose of making service of process can be easily accomplished through a subpoena to Blogspot.com.


This is a nuisance suit. Unfortunately, Atrios will have to hire an attorney, but he should win easily. Despite Mr. Upton's suggestions to the contrary, Atrios is not liable for the postings in the comments section. And he has no duty to take them down. This is a consequence of section 230 of the 1996 Telecom Act. See my previous discussion on when bloggers can be sued for libel:

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means
that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what
someone else who publishes on the blogger's site says.


Of course, Luskin could sue Atrios for Atrios's own comments, for example, that Atrios suggested that Luskin was a stalker. But read in context, Atrios' post is (a) not an allegation of actual criminal behavior, and (b) is a protected statement of satire and opinion. He is making fun of Luskin's own comparison of himself as someone who stalks Paul Krugman. Luskin's argument that Atrios has libeled him shouldn't survive a motion for summary judgment. Of course, the real problem is that getting to that point will cost Atrios money to defend himself.

Luskin should be ashamed of himself for having any part in sending this letter. It's a disservice to the blogging community, and inconsistent with respect for freedom of expression.

What's most upsetting is that he is employing a frivolous lawsuit in order to punish someone for exercising their First Amendment rights and that he is piggybacking an abusive subpoena to expose Atrios' identity. So he's not only engaged in frivolous litigation (aren't conservatives against frivolous lawsuits?), but also an abuse of the discovery process (aren't conservatives opposed to the dirty tricks of trial lawyers?). I guess Luskin is only opposed to frivolous lawsuits by other people, and dirty tricks by lawyers who are not representing him.

That's a protected statement of opinion too, by the way.



Sunday, October 26, 2003

JB

Not Even A Program?

The Washington Post reports that Iraq did not even have an active program to construct nuclear weapons:

According to records made available to The Washington Post and interviews with arms investigators from the United States, Britain and Australia, it did not require a comprehensive survey to find the central assertions of the Bush administration's prewar nuclear case to be insubstantial or untrue. Although Hussein did not relinquish his nuclear ambitions or technical records, investigators said, it is now clear he had no active program to build a weapon, produce its key materials or obtain the technology he needed for either.



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