fresh politicization of gay marriage

The question of whether a pair of homosexual adults ought to be able to enter a federally recognized marriage has been under debate for twenty years or so. Hawaii appears to have forced the issue in the early 90s with the interesting case of Baehr v. Miike. The Hawaii Supreme Court remanded a trial court dismissal of a suit alleging Hawaii’s ban on same-sex marriages was illegal. The Court found in 1993 that, because the ban was discriminatory based on sex, it was subject to “strict scrutiny” and hence the burden of proof that the law was sound rested with the state “by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.” This led to a remarkably childish legislative and judicial back-and-forth which culminated in the People of Hawaii enacting, by a vote greater than two thirds, a constitutional ban in 1998.

At around the same time there had also been federal wrangling over the legal status of homosexuals. Bill Clinton campaigned in 1992 on ending fifty years of refusing to allow gays in the military, which was derailed in part by then-Joint Chiefs Chairman Colin Powell, leaving us with the widely reviled Don’t Ask, Don’t Tell (DADT) policy. In 1996, Congress enacted the dubious Defense of Marriage Act (DOMA), which federally codified marriage as being only between a single heterosexual couple on fears that the US would be forced to recognize Hawaiian gay marriages due to the Full Faith and Credit clause in its Constitution. Many states followed suit in the intervening years; at present, 42 states ban gay marriage, 31 of them through Constitutional provision.

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why Ron Paul should win the primary

Let’s face it: no republican will become president in 2013.

That’s quite a bold claim, so allow me to defend it. The contentious republican nomination race continues without an obvious winner emerging as yet. There is still talk of a white knight coming to the rescue at the last minute, and this idea isn’t new: popular New Jersey governor Chris Christie was shamelessly pestered despite emphatic refusal to enter the race last summer, but he’s more likely to join the Romney ticket as VP; Indiana governor Mitch Daniels has been the target of speculation to fill this role, but he has also explicitly declined, and his official GOP response to Obama’s State of the Union speech in January, while popular on the far right, was quite frankly horrible in both content and presentation; even former Florida governor Jeb Bush is getting the eye, but it seems inconceivable that the republicans would risk their shot on a third Bush four years after the second one left office with the lowest approval rating in Gallup history. In short, the white knight scenario is not happening.

So four republicans remain in the presidential primary, and one of them will be named at his party’s convention in August for the general election barring some unlikely brokered convention scenario. But whom?

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who are the republicans kidding in the contraception debate?

I wrote last week about the controversy over the administration’s rule that originally mandated Catholic-affiliated institutions provide their employees with insurance that covers contraceptives, which was later revised under a hail of holy bullets to require the insurance companies themselves to provide contraceptives directly to employees of impacted organizations. This compromise seemed so reasonable that I expected the issue to go away quickly. In fact, according to Joan Walsh, a host of Catholic organizations approved of the altered rule, “including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA,” and only the bishops remain steadfast in their condemnation. According to their statement, issued shortly after word of the change was announced eight days ago, “the only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.” That seems to imply they want the rule to go away for everyone, not just Catholics. I’m as surprised as I am sure you are to learn the Catholic church might suggest something that seems on it’s face to be a ridiculous idea.

Actually, it isn’t just the bishops who persist in maintaining opposition to the contraception rule. Perhaps enabled by the continuing attacks from the Catholic church, the republicans have continued to take to the media to push back. Sean Hannity assembled an all-male panel of religious figures the night of the announcement, who compared the administration to Nazi Germany and claimed they would go to prison or even sacrifice their lives over “the war on religion.” (John Stewart’s excellent take on this panel is a must-watch.) Last Thursday, Foster Friess, who probably sacrificed a lucrative franchise of fast food joints named after himself to instead become a millionaire mutual fund owner and a Rick Santorum supporter and bankroller, told MSNBC that back in his day, “they used Bayer aspirin for contraceptives. The gals put it between their knees, and it wasn’t that costly.”

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the catholic birth control controversy

I didn’t really want to weigh in on the recent scandal about forcing Catholic-run institutions, like universities and health charities, to provide birth control to women. But it turns out this is a thorny issue that has gotten a lot of press, and most of it seems subpar. If you want a job done right…

The issue is that the Catholic church has a religiously based objection to birth control: its official policy is that “any action which, either in anticipation of the conjugal act [sexual intercourse], or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible” is “sinful” on the basis that it “is in conflict with God’s laws.” I will not address this position on its merits because it has none, so instead, let us assume it is a fact and proceed.

The first amendment is quite clear that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and religious freedom is one of the most jealously defended rights in America. Forcing a religious establishment to engage in behaviour that it finds to be “sinful” and “in conflict with God’s laws” clearly seems to make difficult the free exercise of not engaging in sin and following God’s laws. One counterargument is that no one is forcing Catholic women to use birth control, and that it should be up to them to do the honourable, guilty Catholic thing and bring that damned accident to term (read: post-collegiate job interviews); but in practice, given that a vast majority of Catholics use birth control despite its sinful nature, the church will end up directly paying for something it finds abominable under this rule. That means individual pharmacists filling prescriptions for the morning-after pill against their consciences, to say nothing of selling condoms and the pill to insured employees, etc. So I understand the rancor.

But consider the flip side of this argument. The first amendment prohibits any law “respecting an establishment of religion” too. Allowing a special exemption to a rule the rest of America has to follow on the basis of a religious belief seems as much a violation of the first amendment as the requirement was in the first place. Salon‘s Joan Walsh recently articulated a point that had occurred to me as well: suppose the Catholics had objections against child labour and occupational safety laws, to use her example. Would we then similarly grant them an exemption and let their altar boys into the coal mines? Then again, juvenile coal mining would never be an issue, since the same bishopric now crying foul about sinful behaviour have been putting those altar boys to a very different kind of use for the last few decades.

In response to the loud whining about this rule leveled not just by the child-molesting, latin-chanting, zombie-worshiping monotheists, but also by leading republicans (including Rick Santorum and the House Speaker), the Obama administration has changed the rule: now objecting organizations need not provide coverage, and instead women can get it directly from insurance providers. This strikes me as a reasonable compromise, except that, as NPR points out, many Catholic organizations are self-insured, meaning the rule change has no effect for them. And as that same NPR piece documents, not all Catholics are placated by this choice. Indeed, Rick Santorum still maintains that birth control shouldn’t even be a health insurance issue since it is comprised of “relatively small expenditures.” Nothing like Viagra, right Rick?

Really, this issue serves to underscore how unworkable partial health regulation is. Obamacare is the underlying justification for this rule, but if the administration really wanted to ensure health access, it would have demanded stricter legislative regulation on coverage if not a public option outright. Then the answer to this and related dilemmas wouldn’t be a change of the rule, but an option to abandon Catholic coverage entirely. By leaving health care to the private sector, there is still every possibility that market forces will leave gaps in coverage that government insurance would not abide. Of course the question remains whether a public option as a coequal to the private options could be competitive without being an unsustainable subsidy. The question of Obamacare generally is one I plan to explore iff it survives its pending Supreme Court challenge to be argued next month. Stay tuned.

thoughts about third parties

The GOP primary battle continues to rage, but Mitt Romney continues to dominate. Let’s recap: among viable non-Romney candidates, only Newt Gingrich remains in the race. Rick Santorum won in Iowa, but just barely, and has come in third or worst in all the other states to date. Ron Paul has yet to carry a state and admits he doesn’t yet know which ones he might. Newt Gingrich has only won so far in South Carolina, a racist southern state more likely than most to find resonance with “blacks should demand paychecks not food stamps” bullshit; and even then, his victory might well be attributed to a bump from some jabs he managed to get past the inept moderator at the debate held there days before the primary.

With contests in Minnesota and Colorado tomorrow, Romney is well positioned to double his collection of wins: according to PPP, he’s the clear favourite in Colorado and is in a more or less dead heat with Santorum in Minnesota. A win for Santorum there will not breathe life into his dying, unelectable bones, but the obvious loss Gingrich is about to face will surely kill all that remains of his momentum. It seems clearer and clearer that what has been conventional wisdom for months — that Romney will be the nominee — has been right all along.

All this would be considerably less interesting if there were any other uncertainties in the race. But Obama will not be primaried, and with unemployment rates starting to seriously drop, providing cautious optimism for some that a recovery is starting to kick back in, his reelection seems all but certain. Barring some cataclysm, does it seem reasonable to suppose that Romney could beat Obama? The latter is likely to enjoy something close to a repeat of the record black turnout in 2008, and Romney isn’t too popular even among conservatives (hence the unending support for the not-Romney candidate trending up at any moment). Obama is starting to put his toe in the general race now, saying he “deserves a second term” in an interview with NBC ahead of the Super Bowl. That’s a pretty nice time to have the national airwaves, and polls are showing he would do well in a race with Romney.

But all this is very sad! We must choose between a sitting president with a dubious record and a flip-flopping venture capitalist no one really likes. This ‘fact’ was ironically highlighted for me as I was reading Federalist 66 the other day and noticed this choice bit from Hamilton:

The [House of Representatives] will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen.

Ha! Of course, this did happen, but only twice out of the 56 presidential elections held so far. In 1800, before the 12th amendment changed the rules of the electoral college, the House deadlocked repeatedly and finally elected Thomas Jefferson after 35 votes. And in 1824, following the dissolution of the Federalist party, four candidates each gained a fairly significant slice of the electoral vote. Andrew Jackson beat his next closest rival, John Quincy Adams, by 10 points in the popular vote and 15 electoral votes, but missed a majority by more than 30 electoral votes. The House eventually selected Adams after Henry Clay, also running, gave the former his support; Clay was eventually named Secretary of State in what was called a ‘corrupt bargain.’

So given the Constitution has baked into it a way to resolve disputes between candidates when none obtains a majority of electors, a mechanism Hamilton thought would be used ‘frequently’, why has it remained unused for nearly two centuries? Even from the earliest days of the republic, the two-party duality has been a potent force in general elections. The Federalists and Anti-federalists were not officially recognized parties like ours today are, but they were responsible for bitter election battles in the late eighteenth century. Parties were more dynamic between that 1824 standoff and the civil war, but the formation of the Republican party in 1854 saw more or less the final manifestation of the two-party system we see today, with only a handful of serious third party bids since.

Modern laws make it harder for third parties. Ballot access usually requires meeting some minimum signature bar in a petition, which means parties need nationwide local coordination, something which requires a large establishment. Debates are basically bi-partisan affairs and usually do not include third parties. Mass defection to a third party might swing the election to the least desirable of all three (consider the charge that Nader lost Gore the election in 2000). States almost always award electors on a winner-take-all basis, so the incentive for voters in each state to make their voices heard on the national stage by picking perceived winners is high.

In that vein, I think the biggest reason that the two-party system persists is inertia. The parties are well-established and can pretty easily either gobble up any fringe third-party platform (or ridicule it as being Unserious, as has been happening to Ron Paul’s candidacy generally). Most issues are binary as far as the average voter is concerned: you’re either mostly for gay rights, or you’re mostly against them; you want increased social programs, or you want to cut them back; you mostly want to drill for oil or you mostly want to research green energy. It doesn’t help that these ideas mostly align with conservative or liberal ideologies very nicely: conservatives tend to want to stick to the ancient ways, while liberals want to change most aspects of society and government.

Then there’s the related issue of bipartisan consensus. Perceived political realities force politicians to cave to certain positions, which then silences debate. Look to Clinton’s welfare reform, “tough on crime” laws which had led to unprecedented incarcerations, the jingoism of the runup to Iraq war that seems to have returned but this time against Iran; and of course, the notion that taxes should not go up except maybe for the other guy. When both parties largely agree on so much, it can be difficult to see what the usefulness of a third party could be. Is there a third major platform in American politics today? Evidently not.

And that is the main problem. The Tea Party was swallowed by the Republicans since they aligned closely enough to allow it. Obama has already begun to adopt of the rhetoric of Occupy and might win several of its less aware and passionate members. But this is too bad. An adversarial third (or fourth, or fifth) party would make this election battle a lot more interesting than the inevitable “lesser of two evils” Obama-vs-Romney scorched earth, no-holds-barred steel cage match. And if more people demanded better at the ballot box, they would get it: that’s a political reality. Consider that before holding your nose for Obama (or Romney if you have no soul) in November.

the GOP primary disaster

It isn’t news that the republican party doesn’t have many hopeful options. Romney, the only major candidate from 2008 to try again, is widely reviled and failed to surge at any time, unlike his fellow candidates, in this incredibly drawn out process. But don’t the republicans realize yet that he must be their guy?

All the other candidates are either unelectably crazy/extreme (Santorum for being too dogmatic about nuclear families and hating gays; Paul for not being a “team player” and towing the neocon imperial line, not to mention his array of crazy ideas that are either unpleasant to the right, or the left, or both at the same time; and Bachmann for being almost certainly insane), or else have the kind of baggage that has either forced them out already (Cain, with his multiple sexual harassment allegations, likely years-long affair, and hilarious policy proposals) or is bound to (Perry’s debate gaffes, HPV vaccine waffling, and general unpopularity with his own state; Gingrich’s own affairs, House ethics violation, racial insensitivity, and suicidal mean streak against Romney). The only halfway decent major republican candidate left is Jon Huntsman, the ‘other’ mormon in the race who bet the farm on New Hampshire and came in a definite but distant third.

So given all this, and as this politico analysis makes clear, Romney is pretty close to tying this thing up. Current polls (Rammussen and PPP [pdf]) have Romney in first in South Carolina with at least a 5 point lead over Gingrich, and he’s probably only doing that well given his status as a good old boy from Georgia. This inevitable development has evangelicals who are afraid of Romney desperately scrambling to get behind a non-Romney candidate, and since Santorum is the latest of the non-Romneys to enjoy a polling surge and did well in Christian hicktown Iowa, he’s their man. In truth, we will need to wait at least until South Carolina is decided to know who is likely to be the republican candidate, since South Carolina has a history of being a violent contest that helps zero in on a winner for the ticket (though this would seem to favour Romney since Wikipedia claims that, while the primary has chosen the eventual nominee every time since 1980, it is also “considered a firewall to protect frontrunners.”)

But let’s remember the function of the primaries! It is to choose a candidate for president that the republicans both want to and think can win in the general election. Even suspending disbelief long enough to suppose that Santorum might win the GOP nod, I leave it to the intrepid reader to consider how much of a chance he will have at unseating Obama, who remains inexplicably popular (hovering around the mid-to-high 40s despite war crimes, an intransigent congress, and sustained economic hardship — more on these in coming posts). Romney, for all his faults, seems like the only candidate with any chance of having broad enough appeal to seriously challenge the sitting president, a fact which his team has been betting on for some time.

But that’s just the problem. Romney is deeply unpopular among republicans for the same reasons he will be unpopular generally. He has flip-flopped shamelessly on important topics like abortion and health care. He is an unlikable millionaire thanks to his prowess at aggressively reorganizing businesses, often by firing people and retaining large payments even when he failed. A sign of desperation among his opponents is that even they are attacking his record at Bain Capital. If republicans think they can get away with attacks like those, surely democrats will be able to. And in the present climate, that sort of attack is likely to resonate with a lot of moderate voters, if not a few out-of-work conservatives. That means the impending Obama-Romney matchup is not going to be the slam dunk for the challenger we’d expect it to be with high unemployment and simmering civil unrest.

All things considered, the republicans have wasted a perfect opportunity to unseat a failed incumbent, and all because no one was available or willing to rise to the occasion. In a nation of 300 million people, is this disaster the best they could offer?

UPDATE: Hours after posting this entry, Jon Huntsman’s staff leaked that he will be withdrawing tomorrow. This is not surprising given his finish in New Hampshire, but it does make his bizarre enthusiasm on finishing third even more cringe-worthy, and it is quite sad in light of the fact that The State, a South Carolina newspaper, just endorsed Huntsman earlier today. Given that I just named him the only other half-decent candidate, Romney is that much closer to securing the nomination and probably losing the election. Barring further economic decline or some spectacular disaster (imagine an analogue to the gulf oil spill that people might actually care about), it just doesn’t seem possible that Romney could win, unless of course millions of center-left nonpartisans commit suicide out of abject hopelessness.