damnum absque injuria

September 13, 2015

Why All of Kim Davis’s Defenders are Wrong

Filed under:   by Xrlq @ 3:38 pm

Kim Davis’s supporters have made a wide variety of arguments in support of Rowan County, KY’s rogue clerk. Many of these arguments are mutually contradictory, all of them wrong. This article is intended to address all of them, and will be updated to address any I might have overlooked on the first go.

  1. Kim Davis is the only one following the law.
  2. Um, no. By refusing to issue licenses to gays, she’s violating the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, as interpreted by the Supreme Court in Obergefell v. Hodges. By simultaneously refusing them to everyone else, she’s violating Kentucky Revised Statutes 402.080, 402.110 and 402.230 which spell out the circumstances under which a county clerk shall – not may – issue a marriage license and record a marriage. There is no plausible interpretation of either federal or state law she can be reasonably said to be in compliance with.

  3. But she has a First Amendment right to follow her conscience!
  4. Everyone has a First Amendment right to believe whatever they want. If your religion calls for human sacrifice, you certainly have the right to believe in them but you have no right to carry them out. In Employment Division v. Smith (1990), the Supreme Court ruled that the Free Exercise Clause of the First Amendment merely protects against laws targeting religion or religious practices. It provides no defense whatsoever to a neutral law of general applicability, solely because that law happens to conflict with someone’s religion.

    Wait, you say, didn’t the Supremes rule just the opposite last year in Burwell v. Hobby Lobby? Actually, no, they didn’t. The Hobby Lobby case was decided under the Religious Freedom Restoration Act, which was passed in response to Smith, and not under the First Amendment. For avoidance of any doubt, Justice Ginsburg noted in dissent that:

    Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990).

    Justice Antonin Scalia, who authored the Court’s opinion in Employment Division v. Smith, did not write any opinion in Hobby Lobby. He surely would have, however, if he had disagreed with Justice Ginsburg’s characterization of his past opinion.

    Even RFRA, let alone the First Amendment, has never been successfully invoked by private citizens, let alone government actors, to justify discrimination.

  5. OK, so if she isn’t following the law after all, Kim Davis is practicing civil disobedience. Yeah, that.
  6. Civil disobedience is for civilians. As County Clerk, Davis is not acting as a private citizen resisting an unjust regime but as an arm of the regime itself. That’s not what civil disobedience is about. When a confused tax collector asked what he should do about Henry David Thoreau’s refusal to pay, Thoreau’s advice was to resign. Justice Scalia has offered the same advice for judges who cannot in good conscience apply any other law, such as the death penalty. Yet even where civil disobedience is considered morally justifiable, accepting the punishment for violating the law in question is part of that deal.

  7. Gay marriage wasn’t the law in Kentucky when Kim Davis took her oath, so shouldn’t have to follow that law now.
  8. Government officials swear to uphold the law in effect at all times during their tenure, not to enforce stale laws that used to be in effect when they first took office. Imagine the outrage if any traffic cop who’s been employed since 1995 were to ticket drivers for going 70 mph in a 75 mph where the speed limit was once 55. That is essentially the argument Davis’s supporters are making.

    Further, as one who’s been on the job for less than a year Ms. Davis can scarcely plead ignorance that gay marriage was on the horizon when she took office. Throughout the 2014 election season, gay marriage was the law in Kentucky, albeit stayed pending appeal. Judge John G. Hayburn issued his first ruling in Bourke v. Beshear on February 12, 2014, more than three months before the May 20 Democratic primary, and a more general ruling in the perfectly named Love v. Beshear case on July 1. Those decisions were ultimately reversed 2-1 by the Sixth Circuit, thereby creating the circuit split that would make a Supreme Court ruling inevitable, but not until November 6, 2014 – two days after Davis was safely elected. By the time she was sworn in the Supreme Court case was all but assured.

  9. Kim Davis is upholding the Kentucky Constitution.
  10. No, she isn’t. Article IV, clause 2 of the U.S. Constitution provides it “the supreme Law of the Land” and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. Compliance with a state constitution is no defense – nor in any way relevant – to a violation of the federal one. Nor, I might add, does the Kentucky Constitution make any claims to the contrary.

  11. But the Supreme Court didn’t really change Kentucky’s law, only the Kentucky Legislature can do that.
  12. As noted above, two of the cases that were consolidated into Obergefell (Bourke v. Beshear and Love v. Beshear) were in fact rulings from Kentucky. But it doesn’t matter, anyway. State appellate decisions bind entire states, federal appellate cases bind entire circuits, and Supreme Court rulings bind the entire nation. By way of comparison, Roe v. Wade legalized first trimester abortions across the country, not just in Texas, and Loving v. Virginia decision of 1967; it did not remain illegal until Alabama finally got around to removing that odious statute off the books in 2000 (with over 526,000 mini-Kim Davises voting to keep that void, racist statute on the books even then).

  13. Where in Article I, Section 8 of the Constitution does it give Congress the power to define marriage?
  14. Nowhere. Good thing Congress didn’t do that, this time. They did with the Defense of Marriage Act, though, which was rightly struck down in Windsor for all the wrong reasons. In my view, it should have been struck down for exceeding Congress’s enumerated powers. It was instead struck down for violating equal protection. But it has nothing to do with Obergefell or Kim Davis.

  15. Where in Article I does it give the Supreme Court the power to redefine marriage?
  16. It doesn’t. Article I outlines the powers of Congress, not the courts.

  17. OK, Smartypants, where in Article III does it give the Supreme Court the power to redefine marriage?
  18. Article III provides that

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority … In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    Congress has made no exceptions for marriage. If the authors of DOMA were smart, they could have included a provision stripping courts of jurisdiction to review the constitutionality of traditional marriage laws including DOMA itself. Fortunately or unfortunately, the authors of DOMA were not that smart.

  19. Obergefell violates The Tenth Amendment.
  20. Actually, no, it it doesn’t. In fact, it doesn’t implicate the Tenth Amendment at all. The Tenth Amendment provides that all powers “not delegated to the United States by the Constitution, nor prohibited by it to the States [emphasis added]” are reserved to the states or the people. The Fourteenth Amendment explicitly prohibits the states from “depriv[-ing] any person of life, liberty, or property, without due process of law” or “deny[-ing] to any person within [their respective] jurisdiction[-s] the equal protection of the laws.” Since those were the central allegations of the marriage cases, the Tenth Amendment by its terms does not apply.

  21. Oh, c’mon. Traditional marriage doesn’t deprive anyone of liberty without due process or violate anyone’s equal protection!
  22. That’s your opinion. Four of the current nine Supreme Court Justices agree with you. The other five do not. All nine agree, however, that the plaintiffs alleged traditional marriage laws violated these two constitutional provisions. Therefore, there can be no question that the court had jurisdiction to decide whether they did or not.

  23. Courts can’t strike laws down. Marbury v. Madison was a power grab, not a legitimate constitutional ruling!
  24. Before you even start down that path, know what you’re saying. You’re not just invalidating gay marriage and re-criminalizing sodomy in the Bible belt. You’re not just invalidating abortion rights, re-segregating society, teaching the Koran in government schools, or outlawing small religious sects altogether. You’re also endorsing Chicago and DC’s “right” to imprison gun owners simply for owning guns, elected officials’ “right” to censor public criticism of themselves 30-60 days before an election, and every other government’s “right” to discard the Bill of Rights as a mere Bill of Suggestions.

    Marbury was decided in 1803. Since then, Congress and the states have amended the Constitution 16 times. Not one of those amendments sought to rein in or even “clarify” the judicial power under Marbury. Nor was any needed, really, given Congress’s plenary power under Article III to make whatever “Exceptions” to jurisdiction it wants, yet have never seen fit to do so. By the time the Fourteenth Amendment was ratified in 1868, Marbury was two generations old. Congress knew what powers they were giving the courts.

  25. The Fourteenth Amendment doesn’t apply to the states. That’s judicial activism!
  26. Actually, no, it’s called reading the damned Constitution. Not all parts of the Fourteenth Amendment apply by their terms to the states, but the Due Process and Equal Protection Clauses clearly do:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.]

    There is no non-frivolous reading of “no state” or “nor shall any state” that would not have these clauses apply to the states. A decent case can in fact be made the other way, that the Supreme Court was activist indeed in Bolling v. Sharpe for ruling that the Equal Protection Clause could apply anywhere else.

  27. OK, you got me there. Equal protection and due process do apply to the states after all. But all they prohibit the state from doing is denying constitutional rights.
  28. That’s true, but kinda misses the point. The Fourteenth Amendment is itself part of the Constitution, and due process and equal protection are themselves constitutional rights. You may be thinking of the doctrine of selective incorporation, which has been the vehicle by which most of the Bill of Rights has been incorporated against the states by way of the Due Process Clause. No serious constitutional scholars have suggested that is all the Due Process Clause does, or that it implicates equal protection at all.

  29. What about her beliefs, though? Why should she have to endorse a lifestyle she finds sinful?
  30. She’s not being asked to “endorse” anything. Marriage licensing laws, like gun licensing laws in most states and driver licensing laws in all, are purely nondiscretionary. If I get a driver license from the DMV, it’s not because the clerk personally approves of my car or of the idea of me driving. It’s because the clerk had a check list of legal requirements that needed to be met, saw that I met them, and signed off on those facts. Marriage licenses are no different.

  31. Judge Bunning jailed Kim Davis because of her beliefs.
  32. Judge Bunning jailed Kim Davis for contempt. The purpose of civil contempt is to compel compliance with an injunction. Fines work for most people in most cases, but they wouldn’t have worked in Davis’s since others would have paid her fines for her.

    For whatever good it does, As a Bush appointee who by some accounts doesn’t even agree with Obergefell, Bunning most likely shares Kim Davis’s beliefs.

  33. Oh yeah? Well, San Francisco Mayor Gavin Newsom had his clerks do the same thing in reverse in 2004, and he didn’t go to jail.
  34. Not exactly. Both violated clearly written laws on gay vs. straight marriage, and both were told by a judge to stop. Newsom stopped. Davis didn’t.

  35. What about sanctuary cities? No one goes to jail over those!
  36. Indeed they don’t, for the same reason Gavin Newsom wasn’t jailed, and Davis herself wasn’t jailed over any of the marriage licenses she denied from June 24 through September 3: you can’t be held in contempt for violating an injunction that was never issued in the first place.

    So why aren’t any such injunctions issued? Probably because they can’t be. As noted above, federal law as well as the federal Constitution are the supreme law of the land, and state and local governments cannot lawfully act to undermine it, but per Printz v. United States they can’t be commandeered by the federal government to enforce it, either. States are perfectly free to commandeer cities, however, so if there are any sanctuary cities in your state call your legislator.

  37. OK, OK, I get that the office should issue the licenses, but putting her in jail seems excessive. Couldn’t the judge have accommodated her some other way?
  38. He can and he did. The judge’s original suggestion was to simply allow her deputy clerks to issue the licenses themselves, but she ordered them not to. Eventually, while she was rotting in jail, her clerks started issuing them on their own, and she was let out. If she doesn’t interfere with them, then presumably she’ll stay out.

  39. But what about ….?
  40. No. Just … no.

Have I missed anyone?

UPDATE: Here’s the final version of my article.

March 27, 2013

When Roofies Are Outlawed, Only Outlaws Will Have Roofies

Filed under:   by Xrlq @ 8:30 am

The renewed debate on gun debate has sparked a meta-debate over whether one particular argument – that criminals don’t obey gun laws – is a valid one. On one side, a recent article by James Schlarmann of the aptly-named “Political Garbage Chute” has been making the rounds lately, suggesting that the argument can never be valid for gun control or anything else. On the other, Jennifer Townsend and others maintain that a law followed only by the law-abiding is a waste of everyone’s time, or worse. Elliot Fladen splits the baby, arguing that “criminals don’t follow the law” works for malum prohibitum (bad because prohibited) crimes but not for malum in se (inherently bad) crimes. In my view, “criminals don’t obey laws” is a valid argument, but one whose value is often overstated. Further, as I will explain below, it is more useful for the gun debate than it is for most other issues of contention.

First, let’s dispose of the living, breathing strawman that is Schlarmann. While concerns about compliance (or lack thereof) may not be dispositive, this doesn’t mean lawmakers should dismiss them entirely. Of course not everyone will comply with any new law, and of course that doesn’t mean all new (or old) laws are bad. But it’s one thing to have a law some people won’t comply with, and quite another the pass one that no one will. And by “no one” I don’t mean literally no one, but none of the target population we ought to care about. National Prohibition had a 100% compliance rate among teetotalers, and everyone who didn’t drive in the 1970s and early 1980s was in full compliance with the national 55 mph speed limit, but both laws became national jokes, and were rightly repealed as a result. If a tree falls in the forest and no one hears it, did it really make a sound? If Congress or the Legislature passes a new law and no one complies with it, is it really a law?

On the flip side, while concerns about compliance (or lack thereof) may not be something legislators should dismiss entirely, this doesn’t mean they are dispositive. Take, for example, the death penalty debate. Liberals frequently claim the death penalty is not a deterrent. If they are correct, surely no lesser penalty can deter, either. Yet I have never heard even the most ardent liberal argue that laws against murder should be repealed, if for no other reason, then because locking up a person who has committed a murder in the past may prevent him from committing more murders in the future. So there can be a value to having a criminal law on the books, even if no one is deterred.

At first blush, this would seem to support Elliot’s malum prohibitum / malum in se distinction, as murder is an inherently bad act, while merely owning the instrument in question is not. Locking up or executing pepple predisposed to commit murder will surely result in fewer murders, which is unambiguously a good thing. Locking up or executing people for possessing Tiddlywinks will surely result in fewer people owning Tiddlywinks, but what’s the point? Similarly, locking up people for possessing firearms will result in fewer people owning firearms, but if that effect is only seen among those least likely to misuse them, it again seems to be a useless exercise.

That said, not all malum prohibitum laws are as silly as bans on Tiddlywinks, let alone as silly as gun control. While some “date rape” drugs may be prescribed to certain individuals for other, legitimate purposes (Rohypnol, a.k.a. “roofies,” have been prescribed for insomnia), there is no legitimate reason for the rest of us to have easy access to them. As surely as a person not deterred by the stiff penalties for murder won’t be deterred by the relatively lax penalties for merely possesing the gun, surely no potential rapist would be deterred by the relativity lax penalty for merely possessing the drug. Still, if a violent felon on parole is found in possession of a firearm, or if anyone is found in possession of date rape drugs at a bar, with no medical justification, would it not make more sense to lock them up now rather than waiting around until someone actually gets hurt?

Constitutionally, we have a right to bear arms but not roofies. Ignore that for now. The policy reason for banning roofies but not guns is because guns are useful tools for good and evil, while unprescribed roofies are useful tools for evil alone. Gun control creates a balance of power problem that is essentially nonexistent in most other debates. For any topic, the “criminals won’t obey this new law” is as good as the NRA slogan, “when guns are outlawed, only outlaws will have guns.” Try it on for size:

  1. When murder is outlawed, only outlaws will commit murder. Good, we need as few murders as possible.
  2. When date rape is outlawed, only outlaws will rape their dates. Good, we need as few rapes as possible.
  3. When date rape drugs are outlawed, only outlaws will have date rape drugs. Good, unprescribed date rape drugs are useless to the rest of us, anyway. Try fending off a rapist with a roofie.
  4. When bananas are outlawed, only outlaws will get enough potassium.
  5. When large sodas are outlawed, only outlaws will piss off Michael Bloomberg.

Note that there are some aspects of the gun debate where “only criminals will comply” becomes as silly for guns as it is for roofies. Take, for example, the ban on undetectable “plastic” guns. Unless you are planning on breaching security of some courthouse or airport, what use is a “plastic” gun to you? Similarly, the ban on certain individuals from owning firearms is a reasonable concept, even if the criteria themselves could use some work (lifetime for nonviolent felons seems over the top). So generally, the “criminals won’t obey X” argument is only a strong argument against X if it’s also a problem that non-criminals will.

July 3, 2012

Filed under:   by Xrlq @ 10:37 am

Lawmaker salary: $14,000.
Vote-counting machine: $200,000
Overriding a veto because your legislator fracked up: Priceless.

May 8, 2012

What Secret Ballot?

Filed under:   by Xrlq @ 12:26 am

Here’s how I’m voting this morning, and why.

  • President: Romney. Yes, Gingrich and Santorum are still on the ballot, apparently because Gingrich and Santorum merely “suspended” their campaigns rather than formally ending them. Paul is still on the ballot, as he’s not in it to win it, just to complain. My favorite candidate of all is No Preference, but I don’t think he has a good chance of securing the party nomination, either. Let’s get on with the program. Romney’s the nom’nee, voting for anyone else on the Republican ticket is a farce.
  • Governor: Pat McCrory. Not necessarily the most conservative candidate, but probably the most competent, and certainly the most conservative electable candidate. Better to win with McCrory than lose to the Carolina Strangler.
  • Lieutenant Governor: Dale Folwell. Never heard of any of these guys, following GRNC guide by default.
  • Auditor: Rudy Wright. Fern Shubert is mostly a one-trick (immigration) pony politically, though in fairness she has also worked as an auditor for … um … Arthur Andersen. But at least she is a CPA, which is more than I can say for Greg Dority or Debra Goldman. That leaves us with Rudy Wright and Joseph DeBraggar. Both have formidable credentials as auditors, but as a four term mayor of Hickory, Wright comes with strong political experience as well. So while I’d gladly support either in the general, I’m giving Wright the nod in the primary.
  • Commissioner of Agriculture: Bill McManus. Incumbent Steve Troxler’s second term as been a mixed bag, and his primary challenger’s message of limited government is a welcome alternative.
  • Commissioner of Insurance: James McCall. From viewing their web sites, it’s clear McCall is actually interested in insurance issues, and has specific plans for reforming insurance in this state. It’s equally clear the other two are garden variety politicians who view the Commissioner of Insurance as just one more elective office to use as a springboard to somewhere else. [Causey responds.]
  • Secretary of State: Mike Beitler. Libertarian candidate in 2010, this time he wants to win. The GRNC endorsement can’t hurt, either.
  • Superintendent of Public Education: Ray Martin. In this survey only two of the five Republican candidates, Martin and Tedesco, endorsed both school vouchers and merit pay, the two most important issues to me as far as education is concerned. But when it comes to other issues, Martin is the only candidate who would allow unmarried couples to adopt, extend anti-discrimination laws to include sexual orientation, and even allow physician assisted suicide. Easily the most libertarian of the bunch. He probably won’t get the nomination, but it won’t be for want of my vote.
  • Treasurer: Steve Royal. Never heard of any of these guys, following GRNC guide by default.
  • State Senate (Dist. 33): Stan Bingham. Solid, GRNC-backed incumbent. Why change a winning game? Then again, if for some reason you think Eddie Gallimore or Sam Watford would be better, no need for the usual worries about electability. No Democrat filed in this district so whoever wins today’s primary will win the seat.
  • State House (Dist. 80): Jerry Dockham Solid, GRNC-backed incumbent. Why change a winning game?
  • Board of County Commissioners: NOTA. Can’t find enough information about any of these guys to vote intelligently; leaving this one blank.
  • Constitutional Amendment One: No. Totally unnecessary for preserving traditional marriage, counterproductive for everything else.
  • Constitutional Amendment Two: Yes. Just kidding, there is no Amendment Two.

UPDATE: Either I voted, or someone else who knows my real name and street address did. Close enough! I ended up voting for Jarvis and Shell for County Commissioner, mostly to reward them for taking the time to have their people come out to the polling place. I left the third race blank, so the computer tried to talk me into voting for someone.

May 6, 2012

Vote No One Amendment One

Filed under:   by Xrlq @ 1:05 pm

Sister Toldjah asked for her readers’ thoughts on Amendment One, the marriage amendment on Tuesday’s ballot. Amendment One would add this language to Article 14 of the North Carolina Constitution:

Sec. 6. Marriage.

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

For starters, I should note that I originally supported California Proposition 22 in 2000, along with the identically worded Proposition 8 in 2008, even while opposing Virginia’s broader amendment in 2006, and plan to vote against North Carolina’s on Tuesday. Here’s why.

First, my own views on the subject have shifted over the years. While married, and not anticipating divorce, I used to be for traditional marriage, but neutral on domestic partners and civil unions. The rationale was something about babies vs. bathwater: why compromise the genius of millennia of Anglo-Saxon over a a social experiment the gays themselves didn’t even want more than a generation ago? My error was assuming family law was at least almost as sensible as the areas of law in which I practice. One divorce later, I now know nothing could be further from the truth. That bathwater is way nastier than I ever imagined it was, so nasty I can safely assume that if there ever was a baby in there to begin with, there certainly isn’t one now. Further, many of the aspects of family law I find so distasteful are the product of a bygone era in which men provided for women, who in turn were unable to provide for themselves. Many social conservatives won’t attack that inequity because deep down inside, they still long for the old world order upon which it is based. Feminists won’t attack it either, because however unfeminist its origins, its effect in the modern world is to systematically favor women. I can think of few better ways to expose family law for the farce that it is, than a few high-profile divorces among gay couples, where the “woman” claiming lifetime alimony is another man! If that’s the catalyst we need to prompt the reforms that were long overdue anyway, so be it.

Second, I continue to believe strongly that legal marriage ought to be defined by legislatures, not the Constitution or the courts. All three marriage amendments stripped courts and legislatures alike of the power to legislate. I didn’t much care about that with Prop 22, as California’s voter initiative law allows voters to easily reverse themselves anytime they want, just as a legislature could. Nor did I object to Prop 8 as a constitutional amendment, as the California Supreme Court had left voters with no choice but to make this a constitutional issue. Not so Virginia or North Carolina, both of whose amendments require(d) only a simple majority on election day, but would require a much more grueling political process to be repealed or amended later.

Third, while Amendment One is sold as a protection against runaway courts, its language, like that of so many other marriage amendments, goes much further than that. If real concern was to prevent judicial meddling, this is all we would have needed:

Sec. 6. Marriage
Nothing in this Constitution shall be construed to require this State to recognize any domestic union other than a marriage between one man and one woman.

Instead, we’re offered a much broader initiative, which bars not only courts but the General Assembly itself from either broadening the definition of marriage or crafting any potential marriage substitutes in the future. Bad idea.

Fourth, I’m not aware of NC courts taking the activist approach that is typical of liberal states like CA or MA, and thus find concerns about judicial activism overblown. Bear in mind that as a state constitutional amendment, Amendment One can’t do anything about federal courts, or even its own NC courts while interpreting federal laws. Could a court rule that “[n]o person shall be denied the equal protection of the laws” (NC Const. Art. I, Sec. 19) guarantees a right to gay marriage while “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. Amend. 14 Sec. 1) does not? Stranger things have happened, I suppose, but now that courts are finally weighing in on what (if anything) the Fourteenth Amendment has to say about gay marriage, I think that position is becoming increasingly untenable. Yet that is the only position under which Amendment One will do anything for traditional marriage at all. If both provisions are held to require gay marriage, the federal Constitution wins and Amendment One won’t do anything. If neither is construed that way, we didn’t need Amendment One to begin with.

Lastly, while I think I have offered some pretty good arguments for voting against Amendment One, I’d be remiss if I didn’t identify some very bad ones as well. Contrary to what you have seen in the ads, Amendment One will not make it legal to beat up your girlfriend, skip out on child support, or affect your rights as a parent in any way. These laws do not depend on marriage now, nor any other “legal domestic union” that does not even exist now. They won’t start depending on it on Wednesday. No, it won’t affect your ability to privately contract for any marriage like benefits you may desire; the second sentence of the amendment expressly preserves that right. No, it won’t take away your domestic partnership benefits if you are employed by anyone but the government. There is a real concern that it might cause problems for government employers and employees, an issue likely to end up in the courts sooner rather than later. My guess is that domestic partner benefits will remain a viable option for any employer, including government acting as a market participant, but it is just that, a guess, and certainly not a slam dunk. Worst cause (plausible) scenario: government employers have to find some way to get a little creative, e.g., offer health benefits to all persons who happen to be living in a particularly household, whether they are in a domestic relationship or not.

UPDATE: William Teach has more.

February 9, 2011

Family Law is FUBAR, Part 2: Does Getting Accustomed to Something Entitle You To It?

Filed under:   by Xrlq @ 11:37 pm

When you get accustomed to something, you tend to feel like you own it, but usually you don’t. No one feels entitled to a job they just started, but if you’ve been working for the same company for 20 years and suddenly get laid off, you feel like your rights have been violated, even though they probably haven’t been. Conversely, you probably don’t feel as “entitled” to the house you just bought as you do to the one you’ve been living in for half your life, even though your legal entitlement is the same in either case. So when, and under what circumstances, is being accustomed to something actually a factor in deciding if you are entitled to it? As a former President might say, it depends upon what the meaning of the word “it” is. Here’s a table:

Meaning of “It” Entitled?
Your apartment No
Your job Negative
Your girlfriend/boyfriend Rotsa ruck
Your favorite store or restaurant always being there Nopers
Living rent-free off your parents Fuhgeddaboudit
Leeching off your spouse Yes
Your favorite rock band not breaking up As if
Just about anything else under the sun Don’t hold your breath

Doing nothing while married to someone who does something can pay big dividends. For Lorna Wendt, doing nothing paid $20 million. Nice work if you can get it.

February 6, 2011

My Big Gay Flip-Flop

Filed under:   by Xrlq @ 9:52 am

As you’ve probably noticed, I don’t post here much anymore. These days, most of the links and snarky remarkies that would have have gone to the blog end up on Twitter or Facebook rather than here. However, I do still think there’s a place for the blog, particularly when it comes to lengthy, often link-ridden discussions that don’t play well on Facebook or come anywhere close to the 140-character limit. This post is the first of several such entries.

Re the heading, no, I didn’t turn gay, but yes, I have mostly flipped on the issue of gay marriage. I still believe, as I did before, that the issue ought to be decided by the democratic law-making process, and not by judges straining to give the Equal Protection Clause a meaning none of its proponents or even opponents anticipated, and which almost certainly would have been worded differently if they had. Cf. Phyllis Schafly, who almost singlehandedly killed the Equal Rights Amendment in the 1970s, in part by arguing that a comparably worded clause in that amendment would be construed to cover gay marriage. Most thought her argument a stretch but we now know it was prescient. So while I don’t want judges getting involved in this, I do think that allowing same-sex marriage is a legislative decision that voters or legislatures, depending on the law of the particular state, should seriously consider.

The reason for my change is simple. In my heavy blogging days, when Mrs. Ex was Mrs. X and divorce was unthinkable, I naïvely assumed that our existing family law was brilliantly developed over the millennia to make the laws specific to traditional marriages as absolutely perfect as they possibly could be. Well maybe not quite so absolutely, but in that direction. I did not oppose civil unions as an alternative to same-sex marriage, but did reason that the concept of a permanent same-sex union – something most gays themselves didn’t want as recently as a generation ago – was an experiment that should be conducted separately from traditional marriage for at least a generation, with each legislature considering changes to each law separately. Maybe certain blood tests are needed for straight marriages, but not gay, or vice versa. Maybe some are needed for male-male unions but not female-female ones. Maybe no-fault marriage was a terrible idea for straights that should be rescinded someday, but for reasons having nothing to do with gays (and maybe in fact a reason gays didn’t want marriage at all in the bad old days). Too many variables that needed to be experimented with separately for a generation or so. After that period, if our Legislature’s best ideas for male-male unions, female-female unions and male-female unions all just happened to be exactly the same, we could merge the legal concepts then. In the meantime, let’s not corrupt almost a thousand years of common law genius with a brand new experiment. Baby, bathwater, etc.

My new view, after having recently gone through a divorce, is that family law is FUBAR. If you are one of those fortunate ones whose marriages go swimmingly from the day you say “I do” until one of you is dead, good for you. Family law is technically just as bad for you as anyone else, but that won’t matter since none of those crappy laws will ever be applied in your case. But those of us who they do apply to know firsthand just how bassackwards and, in some cases, downright ugly, the laws can be. North Carolina in particular is a judicial hellhole in this regard. In an ideal world, are the best rules for gay unions the same as the best rules for lesbians, let alone straights? Who knows? But I do know that both should be written on a clean slate, and if adding gays to the mix is the political catalyst we need to get the debate going, so be it. The next few posts are going to explain why I think family law is messed up, and what I think ought to be done about it. As always, comments are welcome.

January 28, 2011

Haha, Pwn3d

Filed under:   by Xrlq @ 7:39 am

It’s official: Chicago voters will get the government they deserve. The only thing they didn’t deserve was for two unelected judges to deny them that choice because “resident” means one thing and “reside” means something totally different. Good on the IL Supreme Court for straightening that out.

January 16, 2011

A Belated Epiphany

Filed under:   by Xrlq @ 10:38 pm

Sarah Palin is a Rorschach test, not an actual candidate. Discuss

November 1, 2010

My Non-Secret Ballot

Filed under:   by Xrlq @ 9:20 pm

On the off chance that anyone still reads this blog and/or cares how I voted on Friday, or on the even offer chance any such person lives anywhere near my district, here’s how I voted on Friday and why:

  • Straight Party: Republican. Just to see if all the other fields would populate with Democrats. No Democrats in North Davidson County, so no such luck.
  • U.S. Senate: Richard Burr. Time to finally break my Senate streak, dammit.
  • U.S. House of Representatives: Howard Coble. Duh.
  • NC State Senate (Dist. 33): Stan Bingham. No one else was on the ballot. What else was I going to do, write in Leesa Mercowsky (and if you’re from AK and inclined to vote for her, be sure to spell her name that way or it might not count)?
  • NC House of Representatives (Dist. 80): Jerry Dockham. See above re Leesa Mercowsky.
  • :District Attorney (Dist. 22B) Garry Frank, in lieu of Mercowsky.
  • Board of Commissioners: Kepley, Truell, Watford and Yates. Just testing the straight ticket function to make sure it works in this precinct.
  • Clerk of Superior Court: Brian Shipwash. Can’t remember how to spell Leesa’s last name, so there we are.
  • Register of Deeds: David Rickard. Yup, the straight ticket function worked again.
  • Supreme Court Associate Justice: Barbara Jackson, by default.
  • Court of Appeals Judge (Calabria seat): Ann Marie Calabria. Indy Weekly asked both candidates for one of the most important recent Supreme Court cases, and whether they agreed or disagreed. Calabria cited Heller, in agreement. Gray cited Citizens United, in disagreement. The incumbent judge thinks it is important to preserve one part of the Bill of Rights, while her challenger thinks it equally important to eradicate another. What else do you need to know?
  • Court of Appeals Judge (Elmore seat): Rick Elmore. I like Walker’s philosophy, but who are we kidding? The Court of Appeals is not an entry-level job.
  • Court of Appeals Judge (Geer seat): Dean Poirer, by default. Geer does seem like a pretty solid judge, though, so I shan’t lose any sleep over her being re-elected instead.
  • District Court Judges, Soil and Water Conservation District Supervisor: Everyone who ran. No more jobs than applicants, so if you were that applicant, you’re hired.
  • Davidson County Board of Education: Left this part blank, as I couldn’t find enough information about these candidates to vote intelligently.
  • Constitutional Amendment: Yes to a ban on convicted felons serving as sheriffs, as “why the hell doesn’t this apply to all elected offices????!!!!” was not on the ballot.
  • Court of Appeals Judge (Wynn seat): In order of preference: Doug McCullough, Jewel Ann Farlow and Chris Dillon, in that order. Like all three as judicial philosophies go, but ranked McCullough first due to qualifications. The winner will be determined by instant runoff.

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