Why Law Matters

Okay, so I sound like a broken record. Or like the lawyer I used to be. But dammit, the rule of law matters. And it matters—or should—even more to those of us who are not part of “the majority” at any given time.

 

Maybe it is because I grew up Jewish in a small town in Indiana, where many of my classmates still genuinely believed that Jews had tails. Maybe it’s because I went to college in the South during the sixties, when we were arguing about whether black folks should get to vote or be allowed into the local movie theater. Maybe it’s because I have a gay son, and lots of gay friends and relatives. If these experiences have taught me anything, it is the critical importance of impartial, enforcable rules that apply to all citizens, whether their neighbors like them or not.

 

To put it another way, your fundamental rights shouldn’t depend upon the outcome of the next election.

 

The problem is, the rule of law—the principle that citizens should be equal before the law, and the corollary belief that no one is above the law—has been under unremitting assault by this administration, and recent events have served to underscore the degree to which our fundamental institutions have been deliberately sabotaged. Bush’s commutation of Scooter Libby’s sentence occasioned the most outrage, but travesty that it was, it isn’t the sort of  thing I’m talking about. Election of a President with a fully-developed ethical sense (okay, any ethical sense) will stop that sort of abuse.

 

What worries me far more are the sorts of revelations that came out recently in the Washington Post’s devastating four-part series on Dick Cheney. Sure, he’s looney—but unlike our President, he’s also smart, and he has managed to inflict real and lasting damage to our governing institutions. The problem is, that damage isn’t visible to Joe Sixpack or the various talking heads that pontificate on what passes for news these days. It’s more insidious.

 

Equally insidious, and even more worrisome—especially to gay Americans and other disfavored minorities—is the damage being inflicted by a generation of judicial appointees chosen for their far-right ideology rather than their legal competence.

 

Recently, the Sixth Circuit Court of Appeals dismissed a lawsuit challenging the President’s domestic spying program. The court didn’t uphold the NSA spying—it really couldn’t have. Instead, it ducked the question by ruling that the plaintiffs had no “standing,” no right to sue. That’s a refrain we are going to hear more and more frequently; the Supreme Court dismissed a challenge to the Administration’s “Faith-based Initiative” last month on the same basis.

 

To define standing in terms more relevant to the gay community, what if the Massachusetts courts had ruled that only people who were already married had “standing” to challenge Massachusett’s marriage laws?  

 

This sort of decision is so dangerous precisely because non-lawyers are likely to shrug it off as some legal technicality. Few citizens understand that what these courts are doing is leaving laws on the books, but rendering them essentially meaningless. You don’t really have a right if no one can enforce it.

 

In the domestic spying case, the court said if the plaintiffs couldn’t prove that they were personally being spied on, they couldn’t sue—they couldn’t challenge the program. But of course, the program is secret, and without the ability to challenge it and subpoena relevant information, there is no way they can ever prove that they are among those being targeted. It’s a perfect catch-22. Before this case, being in the same category as the people being watched would have been enough; indeed, it was enough for the lower court, which had ruled that the program was illegal.

 

As I write this, the “Backward Bush” countdown clock I’ve installed on my computer says this administration has 562 days left in office. It can still do plenty of damage, of course, but it is the judges this President has installed—with the shameful “advice and consent” of a compliant Senate—who can really turn America’s clock back. And they will be on the bench for a generation.

 

Canada looks better all the time.

 

 

 

 

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Let’s Get Serious

Marion County’s dramatically—if erratically—increased property taxes have been the topic of non-stop conversation and exhaustive media coverage for the past two weeks.  I’m hearing lots of complaining. What I’m not hearing is serious consideration of the causes of the problem (finger-pointing doesn’t count) or suggestions for sensible measures to reduce unnecessary costs.

 

I know that one person’s “unnecessary costs” are the next guy’s “absolutely essential public services,” but—at risk of enraging more readers than usual—let me suggest just two measures that could reduce taxes and improve services at the same time.

 

  • Marion County supports eleven school systems. That’s eleven superintendents, making over 100,000 each. That’s eleven administrative structures, each with its own buildings and staffs full of deputy superintendents, curriculum experts, human resources departments and the like. Eleven transportation systems, bus fleets and dispatchers. Eleven food service operations. Eleven separate school boards, with per diems, travel budgets, and other expenses. Each school system hires its own lawyers, negotiates separately with the teachers’ union, builds its own schools, provides its own counseling, policing and standardized testing. Meanwhile, enrollments have been declining in several of those districts, even while costs continue to accelerate.

 

            The savings that would accrue from consolodating those districts would be         significant. (In 2006, the budget for IPS alone exceeded five hundred million            dollars.) We could also redirect resources from overhead into our classrooms, and            equalize services—and school tax rates—across the county.

 

  • A similar argument can be made for consolodating (or preferably abolishing) the outdated Township Trustee system. Over the years, most of the duties originally discharged by individual trustee offices have been assumed by other agencies. And repeated studies have confirmed that trustees are not cost-effective providers (to put it kindly) of poor relief, their  major remaining function.

 

So why are these two measures, which could yield substantial savings without sacrificing service, essentially off the table? Simple: politics and patronage.

 

In the case of the schools, it has been the politics of money and race. When Unigov was enacted, it was common knowledge that including the schools would have been the kiss of death—privileged white parents weren’t going to send their children to school with poorer children, especially if they were black. Demographics (and, one hopes, attitudes) in Marion County have changed considerably since 1971. It’s past time to revisit the issue. 

 

In the case of the Township Trustees, patronage is the culprit. As the county has become increasingly Democratic, suburban Trustee’s offices are among the last Republican strongholds, while the Center Township Trustee is a longtime source of Democratic jobs, especially for minorities.

 

Meanwhile, political game-playing hasn’t helped. When President Bush “cut” federal taxes, states were stuck with the costs of services those taxes had paid for. Then state governments realized that two could play that game, and shifted costs to local units of government.

 

Now local government has to decide who it will hurt: property taxpayers, or those with vested interests in keeping things as they are.  

 

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God and Taxes

As sure as the sun comes up in the morning, Indiana citizens can be counted on to grouse about taxes. While the complaints usually focus on how much we pay (no matter what the rate, it’s too much), I have a theory that it isn’t the absolute amount that gripes us. It’s whether others are paying their fair share, and above all, it’s what our taxes are being used for.

 

I may be idiosyncratic, but I’m very willing to pay taxes—my “civic dues”—for services I think government ought to be providing: police, fire and environmental protection, streets and sewers and parks. Individual lists may differ. It all comes down to what we think government’s job is.

 

Which brings me to Mitch Roob and the good folks over at Family and Children’s Services.

 

FSSA has been sued by the Freedom From Religion Foundation for paying a “Pastor” (the quotes are because according to the Star, the gentleman in question appears to have simply declared himself to be such—he lacks any credentials other than his own say-so) to provide “spiritual counseling” to the employees of that government agency. According to the Complaint, the Pastor was hired—for $60,000 a year!—to “encourage a faithful environment in the workplace.”

 

Why in the world is Indiana spending our tax dollars to provide “a faithful environment” for state employees? Put aside, for the moment, that this practice is likely a violation of the First Amendment’s Establishment Clause. Put aside the question of how a very Christian pastor will address the “spiritual needs” of Jewish, Muslim, Wiccan or freethinking employees. Even put aside the fact that this particular Pastor holds two other jobs and rarely shows up. Looking at it solely from the standpoint of what a government agency like FSSA is supposed to do, it is inexplicable.

 

Caseworkers at FSSA are among the most poorly paid and overworked members of the state workforce, as numerous studies have confirmed. Their clients are Indiana’s poorest and most disadvantaged citizens. Those clients have seen dramatic cutbacks in services over the past several years. The poor pay of caseworkers and pitiful level of benefits are routinely justified by a (genuine) lack of adequate funding.

 

So we violate the U.S. Constitution to pay a part-time “chaplain” nearly three times what we pay a caseworker, so that he can provide those caseworkers with a “faithful environment”?  

 

I may be a voice in the wilderness here, but I am quite willing to pay taxes that are used to help Indiana’s poor children and disabled adults, or to provide assistance to struggling Indiana families. I am equally willing to pay taxes to provide state employees who are doing proper government work with a living wage and manageable workloads. But if those employees want “spiritual counseling,” it is easily available from their own Pastors, Rabbis or Imans, at no cost to the taxpayers of Indiana.

 

If this is how my tax money is being spent, then yes, my taxes are too high.

 

    

 

 

 

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The Invaluable Snopes.com

My first reaction to George Will’s column in this morning’s Indianapolis Star was something along the lines of “George, you like to posture as a sophisticated, world-weary intellectual—and you’ve been taken in by another urban legend!”

 

The gist of Will’s complaint was that pro-gay political correctness was turning opinions into “hate speech.” Now, I’m no fan of laws against hate speech. In a free country, everyone is entitled to his/her opinions, and entitled to express them, no matter how stupid, scurrilous or unwise I might think those opinions are. But Will had his facts wrong. Worse, he was more or less parrotting part of an “Action Alert” issued by the notorously anti-factual American Family Association.

 

Which is where the invaluable Snopes.com comes in.  www.snopes.com/politics/sexuality/hatecrime.asp 

 

Snopes sets out the entire “Action Alert,” which purports to describe the pending Hate Crimes Prevention Act as a measure that “would make it a hate crime for pastors and churches to speak out against homosexuality.” The “Alert” references the same California lawsuit described by Will in his (equally inaccurate) column, as well as other “evidence” of increasing “censorship” of religious speech.

 

Snopes characterizes the AFA’s descriptions—politely—as “gross and misleading distortions.”

 

The case that both Will and the AFA mischaracterized involved a woman who complained about anti-gay materials posted on the bulletin board at her place of work. The employer removed it, and the person who posted it sued, saying his free speech rights had been violated. The court dismissed the complaint and upheld the right of an employer to remove materials in the workplace that cause dissention among employees or distract from the work environment.

 

The AFA clearly depends upon a widespread constitutional ignorance

among those who receive its “Alerts.” Anyone with even a passing familiarity with constitutional principles would see right through this one. The First Amendment’s Free Exercise Clause absolutely protects religious speech and belief—against government suppression. The Bill of Rights is a list of things that government cannot do.

 

As I used to tell my children, the government can’t tell you what not to say—but your mother sure can. And so can your employer.

 

Next time, George, check Snopes.

 

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Alternate Universe Cheney

Amazing. In his most recent bid to avoid anything remotely similar to accountability, Dick Cheney has taken the position that the Vice-President of the United States is not part of the Executive Branch.

 

That sound you hear is generations of Constitutional law professors dropping their teeth.

 

A bit of backgound: The National Archives oversees classified documents. An Executive Order requires that all members of the Executive Branch who are entitled to see such documents cooperate with the National Archives to ensure that sensitive materials are protected. For the past four years, Cheney has simply refused to comply. When the folks at the National Archives appealed to the Justice Department (the proper channel, however futile an appeal to Alberto Gonzales is likely to be), Cheney simply claimed that this law—like so many others—doesn’t apply to him, because he is not part of the executive branch.

 

As Maureen Dowd mused in the Sunday New York Times, “Even in my harshest musings about the vice-president, I never imagined that he would declare himself not only above the law, not only above the president, but actually his own dark planet—a separate entity from the White House.”

 

As other commentators have noted, this position raises some fascinating questions, among them why, if Cheney isn’t a member of the Executive Branch, he keeps claiming Executive privilege.

 

Or why, since the clear language of the Executive Order applies to anyone “entitled to receive classified documents,” it even matters, for purposes of the rule’s application, what he calls himself.

 

As Representative Rahm Emanuel recently stated, announcing legislation to remove the Vice-President’s office from an upcoming funding bill,  “The Vice President has a choice to make. If he believes his legal case, his office has no business being funded as part of the executive branch. If he demands executive branch funding, he cannot ignore executive branch rules.”

 

This bizarre episode would be funny if it didn’t point up a tragic truth: this is an Administration that does not adhere to nor operate under the most fundamental American value—the value of the rule of law.

 

From Abu Ghraib to Valerie Plame, from signing statements to Guantanamo, from the blatant politicization of the Justice Department to the recent revelations about FBI lawbreaking, Bush and Cheney persist in operating under their widely discredited, incoherent and self-serving theory of a powerful “unitary executive.” As a result, we are losing precious safeguards against government malfeasance that generations of Americans have fought and died to protect.

 

Maybe that sound isn’t Con Law professors’ teeth dropping. Maybe it is the sound of the nation’s Founders, spinning in their graves.

 

 

 

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