Author Archives: Sheila

Snoopgate

Newsweek calls the revelation that the Bush Administration has been routinely spying on thousands of American citizens “Snoopgate.”

 

For his part, President Bush has angrily condemned the leak of information about his domestic spying program—indeed, he has shown far more righteous indignation than he demonstrated over disclosure of the identity of CIA agent Valerie Plame, even though that leak arguably did endanger national security.

 

Bush’s defense of his actions boils down to two claims: as President, he has “inherent authority” to do anything he damn well pleases; and following the law would be “too cumbersome.” The first claim is too specious to require rebuttal. (If the President has “inherent power” of that magnitude, why do we need the Patriot Act? And what about the President’s constitutional duty to uphold and obey the laws?) The second is equally without merit. As Newsweek notes, the special court set up by Congress in 1978 can approve eavesdropping “in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify to the court.” The court has also looked favorably on Administration applications: since 1979, out of “tens of thousands” of requests, the court has denied exactly four.

 

Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or others who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.) And indeed, the New York Times reports that the FBI is gathering covert intelligence on such threats to American security as Greenpeace, PETA, Quaker anti-war groups, and—right here in Indianapolis—a Vegan Community Project. Recently, FBI agents interrogated a student at Dartmouth who was researching a paper on communism for his Fascism and Totalitarianism class, because he had requested a copy of Mao Tse-Tung’s “Little Red Book” through inter-library loan.

 

I feel safer already.

 

As columnist Marie Cocca has noted, we now have a government that spies on its own citizens, detains hundreds of people without ever charging them, and maintains prisons throughout the world where we evidently engage in what most people call torture. And the President justifies going to war in Iraq—despite the absence of WMDs—because that evil Saddam spied on Iraqi citizens, detained people without due process, and engaged in torture.

 

On December 9th, Doug Thompson, a former GOP operative who now writes for Capitol Hill Blue, reported on a meeting between Bush and Republican Congressional leaders on reauthorization of the Patriot Act. According to Thompson’s three (unnamed) sources, when a Congressional aide said there were valid constitutional concerns about certain provisions of the Act, the President screamed “Stop throwing the Constitution in my face. It’s just a goddamned piece of paper.”

 

Despite my strong disapproval of this Administration, I did not believe that story when I read it. But given the most current revelations, it sure seems a lot more plausible.

 

  

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Rue-minations

In the mid-1990s, the National Constitution Center surveyed national attitudes and beliefs about the Constitution and Bill of Rights. They concluded that Americans “revere” the Constitution—and have virtually no idea what’s in it. 

 

I frequently find myself thinking about that study, because it goes a long way toward explaining why many of our public debates generate more heat than light.

 

Indulge me by taking a little test (no peeking at the answer!) You go to your local license branch when it opens, and wait with a roomful of others while clerks complete opening preparations. Before they begin business, the branch manager asks for silence. A prayer to Jesus comes over the speaker system. The clerks then join in a chorus of a hymn, after which the branch officially opens for business. This is (a) an exercise of free speech rights, or (b) a violation of the Establishment Clause?

 

The answer is (b). Why?

 

The Bill of Rights is essentially a list of things that government may not do. One of those things is “establish” (sponsor, endorse or favor) religious beliefs. Another thing governments may not do is interfere with the private expression—religious or otherwise—of citizens. So the first question a court must ask when a plaintiff is alleging a First Amendment violation is: was this individual expression, which is protected? Or is it government speech, which must follow constitutional rules?

 

In the case of the license branch, it is pretty clear that the manager controls the speaker system and gets to decide who uses it, and for what purposes. The manager is a government employee, the BMV is a government agency, and that makes the opening prayer government speech. If the manager was on a busy street corner praying, government could not properly interfere with his devotions; when he is acting on behalf of the state, it is obliged to do so.

 

People fulminating that the recent ruling about prayer at the statehouse was a violation of “free speech” should read Judge Hamilton’s decision (which—despite the Speaker’s assertions—was based upon unambiguous precedent). As Hamilton points out, citizens cannot just wander up and offer prayers from the Speaker’s podium; it is not a “street corner,” but a venue controlled entirely by government. Since what is said there must be considered government speech, it is subject to rules that could not be constitutionally applied to private speech. One of those rules is that if prayers are to be offered in such an environment, those prayers must be genuinely inclusive. Not just inclusive of Christians (although, according to the Christian plaintiffs, they didn’t even pass that test), but inclusive of all Indiana citizens.

 

I have sometimes used this space to be critical of Governor Daniels, but in this case, I think he got it just about right when he said it was “regrettable” that a compromise could not have been reached without litigation. I’m told the plaintiffs tried.

 

Evidently, the Speaker figured political victories aren’t won in court.

 

 

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Living Through the Culture Wars

I know that sociologist pooh-pooh the “culture war” thesis. They insist that Americans have more in common than the prominence of wing-nuts of all varieties would suggest. I sure hope they are right, because it sometimes seems that reason and logic have been banished from the horizon.

 

A couple of recent examples (if we held a contest, there would be too many contestants to review!) include the following:

 

·        In the ongoing effort to pretend that “Intelligent Design” is science, and thus introduce a religious philosophy into public school science classes, there are a number of pseudo-scientific websites where “research” by “credible scientists” is posted. My absolute favorite—and I am not making this up, honest—was a post a couple of days ago that purported to “explain” why human males, alone among mammals (I don’t know if this is true, by the way), do not have bones in their penises. According to the post, all other male mammals have such a bone (no sick jokes about “boners” please), but the human must rely upon “hydraulics” to achieve an erection. The scientific paper examining this phenomenon found the reason for the disparity: we have misread Genesis all along. When God removed a rib from Adam in order to make Eve, it wasn’t the rib at all—it was the bone from the penis. And the evidence is there for all to see, because the scrotum is the scar left from the surgery. (The post did not address why an operation by an all-powerful God would have left a scar. Oh well…details.)

 

·        The ongoing mental case named Bill O’Reilly continues his vendetta against the hordes of Satanists who make War on Christmas. Of late, his hysterical accusations have taken a dangerously anti-Semitic tone; he recently accused George Soros (Jewish) of wholly funding the ACLU (not even predominantly Jewish—last numbers I saw suggested the ACLU is about 5% Jewish—but frequently portrayed that way) in order to wage war on Christianity. And boy, have they been successful! I guess we just don’t see that success as we listen to the most Christian President in history, pass Ten Commandment monuments erected in courthouses and city halls, and pass constitutional amendments based upon specifically Christian doctrines.

 

I could, unfortunately, go on and on and on. Tolerance seems quaint—indeed, the wing-nuts claim that failure to privilege their beliefs is intolerant.

 

In Indiana a few days ago, a federal judge—following unambiguous precedent—told the Speaker of the Indiana House that he could continue to begin sessions with prayer, but the prayer had to be genuinely inclusive—not just inclusive of different Christian denominations (arguably, it hadn’t even been that—the plaintiffs were all Christians. One was a retired Methodist minister.) The outcry was immediate. The Speaker, who knows a wedge issue when he sees it, called it outrageous, part of the plot to eradicate Christianity, and a violation of freedom of speech.  This from a man who went to law school, and presumably would not have graduated had he not known the difference between government speech and private expression.

 

On the national level, we are quite likely to place Samuel Alito on the Supreme Court. This is a man committed to expanding government power, overturning a woman’s right to choose, and dismissive (at best) of civil rights for women and African-Americans.

 

I keep telling myself this will all pass, that we are just having a bad couple of decades. But if something doesn’t re-establish sanity soon, I may have to abandon that increasingly forlorn hope.

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A Constitutional Burden of Proof

There’s been a lot of discussion of a memo written by Samuel Alito, President Bush’s Supreme Court nominee, in which he stated “The constitution does not protect a right to abortion.” This sentence reminded me of language in Bowers v. Hardwick, since overruled, to the effect that the constitution does not protect a right to homosexual sodomy. Both statements are, of course, quite true. But both betray a growing—and troubling—conception of both government’s power and the purpose of the Bill of Rights.

There is, in fact, only one “right” protected by the Bill of Rights—the right to be free from government control over any of our behaviors or decisions, unless government has specifically been given the power to exercise such control. In other words, the citizen has no duty to find an affirmative right to engage in any particular activity; the burden of proof is on the government, which must demonstrate its authority to do whatever it is proposing to do.

Roe v. Wade is often said to have “legalized” abortion, but that is not an accurate description of the ruling, although the practical effect was the same. The Court said that the decision to abort or not prior to what used to be called “quickening” was one of many personal, “intimate” decisions that are none of the government’s business; that is, one of the many areas of our lives protected against the coercive power of the state. In Lawrence v. Texas, the case that overruled Hardwick, the Court said government simply lacks the authority to dictate the sexual conduct of consenting adults. 

If this seems like a quibble, it isn’t. We sometimes forget that the argument between the Federalists and anti-Federalists over the need for a Bill of Rights was never an argument about whether such rights should be protected. It was a debate between those who feared the future growth of state power and the “tyranny of the majority,” and thus wanted to “go on record” that certain government intrusions were off-limits, and those who argued that since the new government had only the powers specifically delegated to it, it simply had no authority to infringe individual liberties. They worried that efforts to list “protected” rights would allow people in future generations to argue that any rights not specifically listed were unprotected.

The Ninth and Tenth Amendments were the compromise: they reiterated that government does not have powers unless those powers have been specifically granted; and expressly stated that the failure to enumerate a right was not to be construed as evidence that such a right was not “retained” by the people or the individual states.    

Arguments that a “right to privacy” is not protected by the Constitution conveniently ignore the history and quite specific language of the Ninth and Tenth Amendments. That is why Judge Alito’s formulation concerns me.

I’m past worrying about the prospects for Roe—it won’t be overruled anyway. The Court will just keep limiting its reach until it is meaningless. I’m worried about a Supreme Court that begins each analysis by demanding to be shown where the rights in question are expressly protected. That isn’t the question. The question is: where is it written that government has been given the right to interfere? 

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SJ 7 and the Jews

Why Jews Should Oppose SJ 7

Opening Remarks at Jewish Community Relations Council Workshop on

Same-Sex Marriage
For the JCRC, there are really two questions about SJ 7. One is a policy question, and one is a question my grandmother would have asked. The policy question is: would this be good or bad for Indiana? The grandmother question is: would it be good or bad for the Jews?
There are a lot of bad public policies. Since the JCRC has limited resources, those resources need to be focused on issues that clearly threaten our community and our religious values. I think SJ 7 is such an issue, and is something the JCRC should actively oppose, because it isn’t just bad policy; it is also bad for the Jews.
I won’t spend a lot of time on the reasons it is bad policy, because those will undoubtedly be addressed by others. Let me just quickly enumerate some of them:

  • It’s bad for economic development. Indiana is trying to recruit and grow high tech industries that employ a significant number of gay people. Sending a message that Indiana doesn’t value gay citizens won’t help.
  • It’s bad for business. The language of Part B virtually ensures that there will be a lot of costly litigation over its application.
  • It’s bad for civil liberties. SJ 7 would write discrimination into the constitution—a precedent I don’t think we want to set.
  • It’s bad for families. This ban would do absolutely nothing to “protect” families, and claiming that it would is illogical. Look at the four most common justifications:
1) Gays are immoral. If legislators care so much about morality, why do they let rapists and murderers marry?

2) Marriage is for procreation. Then why do we let old people and sterile people get married?

3) Gay parenting is harmful to children. There isn’t a scrap of credible research supporting that assertion. Most of the “studies” cited as “evidence” come from the same good scholars who first alerted us to the fact that Sponge-Bob Squarepants is gay.

4) Same-sex unions will undermine the institution of marriage. We aren’t told how or why. For that matter, the same thing was said about interracial marriages, and about letting women own property and vote.
These aren’t reasons—they are excuses. So SJ 7 is bad public policy. But SJ 7 is also bad for the Jews. Not just because Jews do better in open and tolerant societies, although we do, but because the Jewish community has an enormously important stake in preserving the constitutional separation of church and state. SJ 7 is an effort to turn a religious belief held by some Christians into the law, in a state where many citizens—including many Christians—do not share that belief.
Now, all laws are based to some extent on a society’s shared moral premises—shared being the operative term. But in our constitutional system, in order to be legitimate, laws must be justified by what philosophers call “public reasons”—secular civic purposes that are not grounded solely in religious doctrine. Let me suggest an example: In Judaism, we circumcise baby boys eight days after birth. There is research suggesting that wives of men who have been circumcised may be less likely to get cervical cancer. (That research is actually a lot more credible than the research cited by proponents of SJ 7.) If we had enough votes, should we pass a law requiring that all male infants be circumcised, irrespective of the wishes or beliefs of the child’s parents? If we leave out the eight-day wait and don’t require that a mohel perform the circumcision, would such a law be a secular exercise of authority?
Or take a less fanciful example: women’s rights were fiercely resisted for decades, in substantial part because a majority of Americans believed God wanted women to stay home and be submissive to their husbands. That isn’t what policymakers said, of course—they talked about protecting the “traditional family.”
This is not just about marriage. The people who support this ban believe homosexuality is evil, and that equal rights for gays are an endorsement of evil. They are the same people who oppose application of Indiana’s civil rights laws to gays and lesbians, the same people who defeated a city ordinance extending health care coverage to domestic partners of gay city workers. The organizations opposed to same-sex unions are the same ones that sent angry letters to the editor when Mitch Daniels and Carl Brizzi adopted employment policies protecting workers from being fired for being gay.
This measure is part of a much wider campaign to marginalize an entire group of people because some Christian denominations disapprove of them, and part of an ongoing assault on separation of Church and State. If there is one thing Jews have learned over the centuries, it is that we do not do well in a society that gives government the right to decide whose beliefs and “lifestyles” are acceptable.
Here’s the deal: the First Amendment means that Jews have to honor the free speech rights of Nazis and anti-Semites. We have to protect the right of religious figures to say things like “God doesn’t hear the prayer of the Jew,” or “God hates fags.” And people whose religions disapprove of homosexuality have to swallow hard and honor the right of all Americans to equality before the law. They don’t have to approve, they don’t have to invite gay people (or Jews) to dinner. They can picket gay pride, they can denounce gay culture, they can run homophobic political candidates. But in a society that separates church from state, they cannot deprive an entire group of people of equal treatment before the law. That is the line in the sand—and once it is erased, no one is safe.
Since we’re talking about religion, let me just conclude by referencing a passage from Leviticus that I don’t hear quoted by proponents of SJ 7. It describes an old ritual in which the high priest placed his hands on the head of a goat, and confessed the sins of the people. The goat was then sent into the wilderness, taking the sins of the people with it.
When people are frightened, when their world no longer seems comprehensible, they need someone to blame and send into the wilderness—a scapegoat. The Germans wanted a reason for their lost war and ruined economy, and blamed the Jews. In Salem, when things went wrong, it was the witches. Today, for those who find themselves surrounded by social change and events they can’t understand or control, it’s “the homosexuals” and “the gay agenda.” It is understandable, but it is an enormously dangerous road to travel.
And—as my grandmother would have said—it’s a road that is very bad for the Jews.

Thank you.
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