"No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” Humorist Finley Peter Dunne, writing as his alter ego, Mr. Dooley, in 1901.
This post was supposed to go up yesterday. But a clerical error at the Supreme Court threw things into chaos for about 24 hours. But by the close of business today we had two big developments; marriage equality in Nevada and in West Virginia.
Meanwhile, the of Idaho charged forward with an almost certain to fail appeal of the recent decsioin by the ninth circuit. The actions of the Governors of Idaho and Nevada are completely consistent with my basic premise: the march of marriage equality tracks with the will of the voters. West Virginia is a slightly more complex example. Although the President only got 36 percent of the vote in 2012, its governor is a Democrat and I think it's safe to say that opposition to gay marriage is now untenable in national Democratic party politics.
As of this writing, 27 states (and DC) with marriage equality and 24 states without. All but three states that voted for Obama have marriage equality. Michigan is the only state where the President got more than 51% of the vote that does not have marriage equality. Only four Romney states have marriage equality and one of them, Indiana, was carried by Barack Obama in 2008.
Today, I re-crunched the numbers I had prepared for this blog yesterday. It would have been inaccurate and wrong to not give West Virginia it's due place in history. Thankfully, West Virginia is a small state so it didn't move the numbers much. So I crunched the numbers. In the 27 jurisdictions with marriage equality, President Obama got 55.8% of the vote and Governor Romney got 42.3%. That's a 14 point blowout, with a margin of nearly 10 million votes. In the 23 states without marriage equality, the President got only 45.1% and Romney netted 53.4%. That's an eight and a half nine point deficit for the President totaling over 5 million votes.
So the equality states are solidly Democratic and the other states are solidly Republican. This disparity will level off in the coming weeks. Idaho's stay of the 9th Circuit's ruling could be lifted as soon as tomorrow. Officials in Kansas and North Carolina have hinted that they might not pursue their appeal further. In a matter of weeks, if not days, we'll have another handful of states with marriage equality. I'll probably update the numbers once again when those results are in. But my point has been made. This movement has been driven by the people and their representatives and even the judges appointed to serve them are not immune to popular sentiment. In this instance, that happens to be a mitzvah.
The states in the left column were carried by Barack Obama. The states in the right column were carried by Mitt Romney. Dark Blue indicates marriage equality. Nevada is green because as of this moment, it only has civil unions. The light blue and red states have no legal recognition of gay relationships.
Another exciting day for marriage equality, with two major developments. To keep up with these changes I have added a new wrinkle to the above table. The states with yellow font are states where gay marriage is still not permitted but that are in circuits which have ruled to strike down state bans on gay marriage. (Colorado became the first to do so earlier today.) Most likely these states will begin to flip in the coming days and two weeks from now, the chart will be mostly blue.
The most western states might take a little longer. Today that the Ninth Circuit upheld two trial court rulings against state bans of gay marriage. But that means these rulings are not directly affected by the Supreme Court's surprising decision to not hear appeals from other circuits. Alaska, Montana and Arizona can probably hold off the inevitable for a little while, although I'm sure there will be an expedited movement to change that fact in all of those states.
Idaho and Nevada also had an option to delay the inevitable. Today's ruling came from a three judge panel of the Ninth Circuit. Those states could have requested a hearing in front of the entire Ninth Circuit but it is a virtual certainty that the result would be the same. The early indications are that they will not waste their taxpayers money on that. So as soon as tomorrow, I hope to update my chart again.
But today is truly historic. We now have 25 states with marriage equality and 25 without. Throw in DC and we can say that a majority of jurisdictions in this country have full marriage equality, barely ten years after Massachusetts became the first.
Another point of history is that today might be the very last day that this country has "civil unions" as the closest facsimile of marriage available to gay people. Colorado went past that point today and Nevada is expect to do the same tomorrow. Soon, my map will be just blue or red. And it's trending blue, in a hurry.
UPDATE (and it's awesome): The Opinion from the Ninth circuit in the Idaho case includes the following sentence, which ends with a footnote: Same-sexmarriage,GovernorOtterasserts,is partofashifttowardsa consent-based,personalrelationshipmodelofmarriage,whichis moreadult-centricandlesschild-centric.(12) Footnote (#12) Reads:
Blue for Equality, Green for Civil Unions, Red for Neither
This morning the Supreme Court declined to hear seven pending appeals related to gay marriage bans. The immediate consequence is that gay marriages are legal in Virginia, Indiana, Wisconsin, Utah and Oklahoma. Within weeks, it will also be legal in West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming. That latter group of states is not reflected in the above chart because I've been trying to track the gradual progress of this issue in order to show that the law is following the will of the people. More about that later.
The news caught me by surprise. It only takes four of nine justices to hear a case and my assumption was that the four conservative justices, who voted against Windsor, would vote to hear it. But at least one of them chose not to hear all of these cases. We may never know how the vote went, but there are three plausible scenarios:
1. Chief Justice Roberts didn't want to deal with this case just yet. He might not want the headache and publicity of a high-profile gay marriage case. I'm pretty sure that deep down, he does not give a shit about this issue, and would much prefer to go back to handing out privileges to corporations and chipping away at the rights of criminal defendants.
2. The Justices are waiting for a circuit split. Perhaps he would rather wait until next year or until a circuit split arises.The Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, might soon rule in favor of the right of states to ban gay marriages. If that happens, then the issue will be more pertinent a year from now and even some of the liberal judges might vote to hear that case.
3. Antonin Scalia had a moment of integrity. Well, stranger things have happened. In his Windsor dissent, Justice Scalia predicted that the Court's opinion would inevitably lead to a ruling that states did not have the power to ban gay marriages. After all, the Windsor majority held that the federal government could not deny the due process rights of American citizens. It's not much a of a leap to infer that state governments also could not do so. By that logic, the principled thing to do would be to let the lower court opinions stand. Tony, if that's what you did....I salute you. But let's just say I have my doubts.
Where we Stand and Where We Go Next.
Whatever the reason, the headline is that more than 50 million people will live with marriage equality. For the first time, some permanent damage has been done to my underlying theory about the spread of this freedom tracking with democratic trends. It's obvious at a glance that blue states are nearly unanimous in allowing gay marriage. But now a small number of red states have marriage equality too. Included among them is Utah, the state where the lowest percentage of voters chose the President last time out. Wyoming, the President's 2nd worst state in 2012, will soon join Team Equality too.
The next big decisions will come from the sixth and ninth circuits. If Marriage Equality prevails in both, only Deep South and a swath of the Great Plains will not have full marriage equality. If there is a split, then the state by state fight will resume for another year. And this time next year, I'll probably be blogging about how the Supremes are going to take a case and give us a final answer. And that opinion will come out at the start of the next next general presidential election.
Whenever violence flares in Israel, each side has a plausible claim that the other "started it". But "it" is here a relative term in this conflict, which which can only be understood from multiple scales of time, distance and culture. I've organized this post chronologically, since it's the easiest way to try to understand what's going on there, at least for a history major like me.
1. The Origin Story.
The most depressing view of the Israeli/Palestinian conflict is the one rooted in theology. Jerusalem is a sacred site in both the Old Testament and the Koran. Jews believe that the Temple Mount is where "the divine presence" resides. Sunni Muslims believe that this very same spot is where Mohammed ascended to heaven. Fundamentalist Christians agree with the Jews on the significance of this spot, with some believing that the site must be a Jewish temple in order for the second coming of Christ to happen.
Being a lapsed Catholic Atheist, none of these views have ever been persuasive to me. And I think the religious dimension of the conflict is over stated. (Yes, really.) Of course people pay lip service to the theological importance of this site. And some small percentage of people are willing to die for that idea. But most of the religious fervor is really the outgrowth of cynical political manipulation. There is a lot of political grief to be avoided by pretending this fight is about God Almighty. But really it's about real estate.
I'm old enough to remember when the Troubles in Northern Ireland were thought to be intractable because of the religious differences between Protestants and Catholics there. But people got over it. I don't expect the Middle East to become as secular as a prosperous Ireland became in the 1990s, but I do take the point that these differences can be overcome, and it doesn't take a miracle to make it so.
2. The Middle Part of the 20th Century.
Modern day Israel was created by the Western Powers in the aftermath of the near extermination of European Jewry during World War 2. One popular view is that the allies felt guilty about not doing more to prevent or mitigate the Holocaust. There is some truth in that. Britain was certainly anxious to get out of the empire business and Israel seemed like a feel-good story in the immediate post-war years. Eventually the Brits and the Americans, as is their wont, drew some lines on a map of what had been called Mandatory Palestine (yes, really) and carved the area into an Arab state and a Jewish state.
The Arab world never embraced this plan and soon enough, a war broke out. Israel eventually won that war. The rest of the Arab world eventually gave up the fight, but refused to recognize Israel as a legitimate state. Over the next few decades, the cause of the Palestinian people became a popular one in the Arab world. By 1967, the Arab powers were planning an invasion of Israel. Israel preemptively attacked those military forces in what became known as the Six Day War for the swiftness with which Israel destroyed the military forces of Egypt, Jordan and Syria. Israel occupied a large swath of land outside its original borders in order to prevent any future invasion attempts.
So, depending on your point of view, this conflict is the fault of:
a. The Brits in 1948 for cavalierly abandoning a region that it had been responsible for without much concern for what came in its wake.
b. The Arab powers for planning an invasion of Egypt.
c. The Israelis for preemptively starting that war and/or occupying more land in its aftermath.
There is some truth in all of these theories. Together they add up to the truth. But most folks only focus one one of them. Which one they prefer to believe correlates very strongly with their ethnic and religious affiliations. Knowing this little bit of history will do little to resolve the current crisis.
3. The Recent Past.
In 1979 Egypt became the first Arab power to formally recognize the right of Israel to exist. In exchange for this, they got back the land they had lost as a consequence of the Six Day War. This did not exactly open the flood gates of Arab countries rushing to recognize Israel. But by the 1990s the international community began to get both sides to talk to one another and Israel eventually agreed to grant autonomy to the portions of their country with majority Arab Muslim populations. The goal was to eventually create a Palestinian state, but the Palestinians walked away from a deal negotiated with a left-wing Israeli government, and facilitated by the Clinton administration that would have given them almost all of the land they wanted. The Palestinian Authority was afraid that if it made the concessions required by the deal, more radical elements, such as Hamas, would supplant their standing, and assume political power. (Spoiler alert: this happened anyway, at least in Gaza, even though Arafat walked away from a very fair offer of a Palestinian state.)
In recent years, Israel has been governed by right-wing coalitions led by the Likud Party. Gaza has been governed by Hamas since 2006. Hamas and Likud both owe their political status to appearing tough on the other side. Likud has been very aggressive about building settlements on land that belonged to Palestinians before 1967 and has imposed harsh restrictions on the people of Gaza. Hamas refuses to recognize the right of Israel to exist and their political appeal is rooted in posturing as the real champions of Palestine, committed to the destruction of Israel.
4. The Current War.
So now we have two peoples governed by parties who owe their political viability to demonizing the other side. Israel has accomplished great things. Among these great things is its survival as a pluralistic democracy surrounded by a host of hostile, undemocratic countries. But its survival has come at a price, not just in blood but to compromises with its own principals. Israel agreed to let the Palestinian people have a kind of pseudo-sovereignty but has retained de facto military control over its territory and economy. Worse still, it has continued to build illegal settlements on land acquired after the 1967 war. Even before this war, the conditions in Gaza were dire and analogies to apartheid South Africa were not without merit.
The Palestinian people in Gaza have reacted to these deprivations by electing governments run by Hamas. Hamas was born in the 1980s as a reaction to the decision by the PLO to seek a negotiated two-state solution with Israel. Hamas' charter calls for the destruction of Israel and the establishment in its place of an Islamic state. It also dabbles in Holocaust denial and all sorts of unsavory behavior that you would expect from a bunch of religious fanatics raised to believe they are at war with Satan.
During the course of the first half of 2014, Hamas fired about 150 rockets into Israel. Most of these rockets missed their targets or were shot down by Israel's Iron Dome defense system. Hamas even erected a statue of one such rocket to celebrate this futile campaign. On June 12th, three Israeli teenagers were kidnapped. Three days later, the Israeli government accused Hamas of committing the crime. They denied it, but in a typical bit of insane political theater, the head of Hamas "blessed the hands that captured" the teenagers, explaining that such actions were a duty of Palestinian people.
So a few weeks later, Israel began to bomb Gaza. A couple hundred Palestinians were killed. Hamas increased its own bombing campaign, but to little effect. Only one Israeli citizen was killed during the opening phase of the current war. Early on in the conflict, Egypt offered to broker a ceasefire between the two sides. Israel agreed and held its fire for six hours. Hamas did not, and continued launching its futile, wasteful, ineffective weapons, which were either shot down by the Iron Dome or landed some place where little damage could be done. Eventually Israel resumed its rocket campaign, and the body count in Gaza continued to grow, while no additional Israelis died.
Eventually Israel launched a ground offensive. This of course has caused hundreds of more Palestinian deaths, and resulted in the death of a few Israeli soldiers. The latest estimates are that about 600 Palestinians have died and that 25 Israelis have died. A majority of the dead Palestinians were civilians. All but one of the dead Israelis was a soldier. (The three kidnapped Israeli teenagers were also killed, in the run up to the war, as well as one Palestinian teenager who was apparently kidnapped by Israelis to avenge their deaths.)
5. What's Next: More of the Same.
The war will stretch on for another week or two, perhaps a bit longer. Eventually Hamas will run out of rockets to fire. Once the Netanyahu government is convinced that Hamas has been temporarily deprived of its ability to launch significant numbers of rockets into Israel, it will stop shooting. Then, both sides will declare victory. And both sides will be right. Hamas will look "tough" for having refused the ceasefire and for having waged its foolish "resistance" against a far superior military power. Likud will look "tough" for having inflicted a lot of casualties and for temporarily removing an immediate security threat by destroying Hamas' tunnels and depleting its armory.
For awhile, both sides will go back to "normal". Israel will keep building illegal settlements. Hamas will continue to posture as the one true force of opposition to Zionism. And in six months, or a year, some other crime or atrocity or diplomatic slight will give one side an excuse to rsume trying to kill the other.
6. What is to be done?
Israel is not a project of lines hastily drawn by a dying empire on its way out the door. It is a country. A rich and powerful one, whose citizens lead a very comfortable lifestyle and whose artists and musicians and scientists are the envy of the world. It is here to stay. Eventually I hope it elects a government that realizes that the policies of settlement construction and oppressive occupation are not helpful to its long term interests.
Palestine is still a wish. It has many friends and world opinion is increasingly sympathetic to the plight of the Palestinian people. Perhaps this fight will eventually be remembered as the time that Israel went too far and changed the diplomatic sympathies of its fellow wealthy democracies. But an even better outcome would be if it became the fight that finally made the people of Gaza realize that Hamas does not have their best interest at heart. Hamas can not win a military campaign against Israel. And the Palestinian people can't expect the world's sympathy for very long if they continue to elect leaders that would rather bite the ankles of the enemy than build something positive for its people.
There is no reason that the land of Israel can't be divided into two sovereign nations. But the current conflict benefits those who are in power there. It makes it easy for them to stay in power. They don't have to solve the problem for as long as the enemy behaves so inhumanely.
I am not optimistic about this situation being resolved. Such a resolution will require a degree of foresight and political patience that is not commonly found and is unlikely to be bred by the current cycle of violence. Eventually someone will have to be the good guy and walk away from a useless, never ending fight in favor of an uncertain future. For Israel this would mean electing a government that recognizes that the construction of settlements on Arab land is counterproductive to long term security and that renounces the harsh restrictions it imposes on the economy and movement of Palestinian people. For Gaza it would mean electing a government that accepts the permanent existence of Israel and the futility of the military resistance that now serves as a poor, unsatisfying substitute for a realistic vision of its future. In the mean time, Israel will continue to compromise its democratic principles for a false sense of security. And the people of Hamas will accept a persistent, futile struggle rather than accept the reality of their situation.
The leftist tendency to root for the under dog and to empathize with the oppressed may make Hamas' "resistance" to Israel seem noble. I'll admit that it's hard to accept defeat, particularly when you are so certain that justice is on your side. The price of this stubborn resistance to reality is being paid by hundreds of unarmed civilians. They deserve better than that. They deserve a nation of their own. Spitting into the wind will not get them there.
Dark blue states have marriage equality. Green states allow same-sex civil unions. Light blue states were carried by Obama but do not recognize gay relationships. All of the red states were carried by Romney. At this moment, none have marriage equality or civil unions.
Yesterday I finally got around to updating my marriage equality map. I did this primarily because Oregon had decided not to appeal a federal court decision to overturn that state's constitutional prohibition of gay marriages. I fully expected the opposite outcome in Pennsylvania but today was pleasantly surprised to see that I was wrong. The Republican governor of Pennsylvania announced that he would not appeal the decision because such an appeal would be "extremely unlikely to succeed."
So that moves Pennsylvania to the dark blue on our chart. It is the nineteenth state to adopt full marriage equality. At this moment, the nineteen states with full marriage equality have a total of 231 electoral votes. If you add in the three states with other forms of legal recognition, those states have 256 electoral votes. But there are nearly a dozen other states where the ban on gay marriages have been overturned by a judge. One such state is Michigan, the only state where Barack Obama got greater than 51% of the vote in 2012 that doesn't have at least some legal recognition of gay relationships. Add just Michigan to the mix, and we will have a majority of states that recognize gay couples. Add the other swing states like Virginia and Ohio and we sail past 300.
The court battles will rattle around for several months at a minimum. But the path is clear and we are beyond the point of no return. Marriage equality is coming.
Last year saw a rapid expansion of marriage equality, often by state legislative action. This year little has been achieved by legislatures because most of the remaining states have some kind of state constitutional limit on marriage equality and many of those states are run by Republicans. So the action has turned to the courts with same-sex couples suing on the grounds that these state bans deny them their federal right to equal protection under the law.
The results have been unanimous. Judges in states from across the political spectrum have ruled that bans on same-sex marriage are unconstitutional. In most of these states the governor or attorney general has promptly stepped into to appeal the ruling and to ask for a stay of the opinion pending that appeal. These appeals will take several months and when they begin to get decided, we could see different results form different courts. Arkansas' ban was actually struck down in state court. But their state supreme court may reverse it. I suspect that most federal circuits will uphold the rulings of the district courts and strike the law down.
For this, we can thank Anthony Kennedy. Last year he could have ruled to strike down the Defense of Marriage Act for a number of narrow reasons. But his opinion was broad. He said that the law violated the freedom of a person under the Fifth Amendment. Justice Scalia pointed out in his dissent that while the opinion only applied to the federal legislation, it would inevitably apply to state laws as well. For once, Nino was right. More than a dozen federal judges have looked at the issue in the past year and they all agree that state bans on marriage equality are impermissible.
I have not updated my marriage equality chart since December. Back then only Utah's state ban had been struck down. I turned Utah blue that proved premature as the state stopped issuing wedding licenses to gay couples after a few days. The new map reflects four categories of states:
1. Eighteen blue states (plus DC) where Marriage Equality is a legal finality. I have colored Oregon blue because the state has announced that they will not appeal the decision of the federal district court and an outside group was told they lack standing to pursue that appeal. Gay marriage is alive and well in Portlandia, for good.
2. Nineteen red states where marriage is still limited to heterosexual couples. In the following months several of these states will probably flip to grey or blue because a number of cases are being litigated in these states.
3. Ten grey states where the ban on gay marriages have been stuck down but the ruling is being appealed. Some of these rulings are more narrow than a complete removal of the law from the books. (For instance a judge has ruled that while Ohio has the right to only issue wedding licenses to straight couples, it must recognize gay marriages performed in other states.)
4. Three green states where gay relationships are offered some legal protection through either civil unions or domestic partnerships.
A plurality of Americans now live in the states with full marriage equality. To put it in presidential election terms, these blue states have 211 votes in the electoral college. The red states have 175 and the grey 127. The three green states have 25. A year from now, the various federal circuits will probably tip enough of the grey states into the blue category that a an outright majority of Americans will live in states that have full marriage equality. Some of those appeals will go onto the Supreme Court. If there is a substantial split among those circuit rulings, the court will have to take one of the cases.
The most likely outcome is that that case will be heard during the 2015/2016 court calendar. If the court is still constituted as it presently is, the court will most likely rule that no state has the right to deprive gay people of the right to marry. And then I will celebrate by posting a sea to shining sea map of 50 blue states.
Last Sunday, the Chicago Sun-Times ran a lengthy article about the success of the polio vaccine. For reasons known only to their confessors, they decided to also run an op-ed by Jenny McCarthy, the face of ignorance on the subject of vaccines. In what may be an encouraging sign of where the public discourse is going, Ms. McCarthy (falsely) claims that she is not anti-vaccine. She even had the temerity to title her article "The Greay Area on Vaccines." You can read her article here, but you won't learn much of anything if you do.
I dutifully wrote a letter to the editor. Yesterday I was pleased to receive a call from the Sun-Times informing me that my letter had been chosen for publication in today's (April 16th) paper. This morning I bought a copy of the paper and saw that my letter had not been published. I called the aforementioned employee, hoping to hear that my letter would appear the next day. I was told that it would not. Apparently this employee had been out for a couple days and didn't realize that they had already run letters responding to McCarthy. (These letters must have appeared in Monday's edition, which is the only edition since Sunday that I did not read. But they are not preserved on the Sun-Times web site.)
So my 15 seconds of print edition fame were not to be. That is personally disappointing of course. I was excited to have my letter printed because I think it makes some very salient points. I reproduce it here, where it will reach a much smaller and more sympathetic audience than the readership of the Chicago Sun-Times. Enjoy.
"Jenny McCarthy's attempt to recast her position on vaccines as moderate is dishonest. First she carefully avoids mentioning that she championed the false claim that vaccines cause autism. That claim has been thoroughly debunked by the scientific community. Her new position is that children should receive only one shot per visit to the doctor. But she offers no evidence as to why the vaccine schedules should be changed. She just has a gut suspicion that this would be better for children. That is not how medical science works. There is no "gray area" when it comes to vaccines. There is science and there is superstition. Ms. McCarthy continues to peddle ignorance on this subject and she should not be taken seriously."
Well, I'm sure that letter would have resolved the issue forever. But it was not to be. But don't cry for me. There are plenty of people who had worse days than me. This guy, for example, is about to ruin the next five or six years of his life.
