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Why Are SSM Rights Doing Better Than Reproductive Rights

[ 221 ] June 28, 2015 |

Chris Neal/KANSAN

I don’t think Erik and I actually disagree, but since I’ve seen a variant of this argument going around I think it’s worth clarifying an important point. As of now, the right to same-sex marriage is secure in all 50 states; reproductive rights are not, and the trend in some states is getting worse. This might, on the surface, seem to be a reflection on the strategies applied by activists.

But it’s really not. Here’s the thing: in the states most aggressively restricting reproductive rights, there was zero chance Republican-controlled statehouses were going to legalize same-sex marriage rights. And despite the gains that LBGT activists have made in changing public opinion, these states aren’t about to provide civil rights protections to gays and lesbians either. Here are the reasons why same-sex marriage is more secure in red states than reproductive rights:

  • Anthony Kennedy is much more sympathetic to gay and lesbian rights than to reproductive rights
  • That’s it.

This doesn’t mean, of course, that supporters for reproductive freedom shouldn’t fight for everything they can. But the brutal truth is that until there’s a median vote of the Supreme Court nominated by a Democratic president things are going to continue to get worse no matter what activists do.

The Single Stupidest Conservative Talking Point

[ 43 ] June 28, 2015 |

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With a blog post title like this, I confess that there are lots of stupid conservative talking points. But the winner is “derp, modern Democrats are the real racists because Jefferson Davis and Robert Byrd were racists, derp.” This is in fact the single stupidest conservative talking point. Of course the National Review, noted magazine of segregationists and apartheid supporters, is happy to float that argument out in reference to the Confederate flag. Nikki Haley of course is the real civil rights hero.

I also appreciate how such arguments completely leave out the active support of Republican presidential candidates for the flag. When you are this hackish, might as well go all the way.

July 2015: Probably a Very Bad Month for Abortion Rights

[ 89 ] June 28, 2015 |

Been feeling good about the nation in the last few days? Well, that’s fine and all. It’s the weekend. Now get back to fighting to preserve basic reproductive rights for women that are under severe attack from your Confederate-flag waving, gay marriage hating states.

If the Supreme Court doesn’t step in by the end of June, almost every abortion clinic in Texas will stop providing terminations, leaving only eight clinics in six cities to offer services to the 27 million people in its borders. That scenario is devastating. It also might not be the worst thing we see happening as July unfolds. July 1 is also the implementation date of a number of laws that were passed this legislative session, and depending on certain judicial decisions the state of abortion access may be dramatically changing starting in just a few more days.

A last-minute temporary injunction of Kansas’s new ban on D&E abortions will keep that state from losing the ability to offer abortion services past the first trimester, a situation that would have occurred otherwise as of July 1. District Court Judge Larry Hendricks announced on Thursday that the ban will be put on hold for now while litigation surrounding the law continues. Without the injunction, abortion clinics must either induce labor to end a pregnancy that has proceeded past 14 weeks gestation, or simply tell the patient to carry her pregnancy to term.

Meanwhile, July 1 is also the start date of a new 48-hour, face-to-face waiting period the Tennessee legislature passed earlier this spring. That waiting period, as well as a law requiring all abortion clinics meet much more stringent, medically unnecessary “ambulatory surgical center” regulations, was signed by the Governor in May and also will be enforced at the first of the month. A request for an injunction was filed late on June 25, and it is unclear yet if a judge will block it.

One never knows what Anthony Kennedy will actually do so maybe the Court does step in here. I remain skeptical. The gay rights movement has had a lot more victories in recent years than the women’s movement and one can argue that gay men now have more rights than women of any sexual orientation. The fight for freedom must include the right to accessible abortion. That’s in real trouble for large swaths of the nation.

Book Review: Jacob Darwin Hamblin, Arming Mother Nature: The Birth of Catastrophic Environmentalism

[ 15 ] June 28, 2015 |

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When teaching about postwar America, I always tell my students that just about anything that happened in this nation during the Cold War has its roots in Cold War politics or fed back into Cold War issues. Jacob Hamblin’s 2013 book Arming Mother Nature demonstrates how this is true for what he calls “catastrophic environmentalism,” or the idea that human activities will transform the world in shocking and horrible ways. Hamblin shows how this thinking comes straight out of the military-industrial complex that was researching how total war of the quite possible World War III would also be an environmental war. By using biological weapons and detonating hydrogen bombs, the death of millions of people could bring a nation to its knees. But in planning for these future wars, the military also needed to understand just how turning the environment into a catastrophe would affect humans. Thus the same scientists that were developing these weapons were also providing early ecological understanding of how humans impacted the planet. The apocalyptic language of people like Paul Ehrlich and Rachel Carson makes a great deal of sense in this context, when much of our early environmentalism used Cold War language as a response to the threat of technological development to the planet. After all, those researching and promulgating Cold War doctrine used the exact same language to describe their own plans.

American scientists expected to arm nature in war against the USSR. World War II scientists had already explored this sort of warfare and the Japanese had gone forward with it. To briefly quote Hamblin “scientists in the decades after World War II worked on radiological contamination, biological weapons, weather control and several other projects that united scientific knowledge of the natural environment with the strategic goal of killing large numbers of people”(4). This could be everything from experiments with bull semen and seed storage to help Americans survive such an attack to destroying regional food supplies to starve nations into submission or launching disease bombs to spread deadly illness. In all of these plans, scientists wanted to deploy nature itself as a weapon.

But wouldn’t such warfare kill millions of Americans as well? Sure, but these scientists held two strong beliefs that made them optimistic about long-term recovery. First, they largely did not believe humans could really control nature in the long term. Thus, they might make short-term alternations that could win a war but in the long term nature held all the cards and the old natural balance would eventually be restored. Second, they believed Americans had a better capacity to rebuild their society than the Soviets because they felt the American free market economy would recover more quickly than socialist state planning. Pure ideology at play here.

The Soviets, North Koreans, and eastern Europeans did accuse the Americans of actually deploying these plans, such as the Czechs blaming the expansion of the Colorado potato bug across their nation on American biological warfare. But mercifully, actual deployment remained largely theoretical, even if Al Gore Sr. suggested dumping all of our nuclear waste on the border between North Korea and South Korea to stop any further communist incursions. But far too much of this program did become active in Vietnam where the U.S. engaged in significant environmental warfare through the use of napalm and other herbicides. Students at Penn discovered in 1966 that one of its chemistry professors was researching a government project to create diseases in rice that could be used in Vietnam. This not only led to campus protests in the country but a rethinking of ethical relationships between scientists and the government, leading to pressure for academic scientists to break ties with its military sponsors working on biological warfare.

Interestingly, the overwhelming public and international reaction to American environmental warfare led Richard Nixon to harness the growing popular movement of environmentalism to his own international agenda. Nixon decided to sacrifice the most far-fetched parts of the American environmental warfare program such as weather control and biological weapons through international treaties in order to save what mattered to him–the nuclear program. He tapped into not only the rhetoric of ecocide coming out of the anti-Vietnam movement but broader environmentalism to make him seem like a strong leader on the issue, but always within a Cold War context. First, he forced NATO to create a committee on environmental issues for collective security around the issue. Then he tried to make the U.S. the international leader on the environment, leading to the Stockholm conference of 1972 and the UN Environment Programme. Nixon had shed the U.S. of programs that now seemed more trouble than they were worth, made himself look like a global environmental leader, and ensured that the core mission of U.S. military research remain untouched. Smart politics if typically cynical.

My one critique of the book is that when discussing the rise of environmentalism, Hamblin does not really engage with how it was a truly a popular movement and how such catastrophic ideas affected the grassroots either before or after people like Barry Commoner, Carson, and Ehrlich wrote their famous books. Particularly frustrating is how he defines Nixon in this environmentalism, noting “many of the key pro-environment national developments came during his presidency, including the creation of the Environmental Protection Agency.” (190) I have said many times on this blog, this says almost nothing about Nixon and much about the overwhelming congressional majorities responding to popular pressure that passed these bills. In the bigger picture of the book, this is pretty minor and I realize that Hamblin is not a bottom-up historian of the environmental movement, but I don’t see how reinforcing myths about Nixon the environmentalist is useful.

Finally, the question of whether catastrophic environmentalism is effective in dealing climate change remains a bit unclear. Hamblin does not come down strongly on this issue, but he’s a bit skeptical. He notes that the major problem with such claims is that they are fairly easily debunked and notes how Bjorn Lomberg has taken up that mantle on climate change. Yet it’s unclear to what extent Lomborg has really made much difference in these debates and I think far more effective is what Hamblin notes earlier–the embrace of free-market economics and use of patriotism to attack environmentalism as well as the belief that humans can’t really truly control the natural world that finds its way into right-wing talking points around the earth naturally warming or extinction or other parts of the “debate.” The end of the Cold War ended the threat of catastrophic warfare but not the language or culture that rose up around it, attitudes that still influence both environmentalism and those who oppose the environmental movement.

In truth, this complex and fascinating book has a lot more going on than I can say here. You should read it.

Happy Hour

[ 90 ] June 27, 2015 |

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This debate over whether happy hours should be banned, as they currently are in Illinois, has a clear answer: no. I have lived in states with happy hour. I currently live in a state that does not have them. I don’t see a discernible difference in people’s behavior after work. What happens here is food-based happy hours or evenings like $1 oysters that effectively do the same thing to get people in the door. The real issue here is with driving after going to happy hour. And that’s an important problem. But it’s also a manageable issue. First, a lot of people going to happy hour are going to be responsible citizens. Second, a lot of those people in a city like Chicago are already taking public transportation because driving into the heart of the city to go to work is unpleasant. Third, bartenders can be strict about how much they serve. Fourth, we know from a lot of experience that prohibitionist policies don’t work. We’ve all seen plenty of people at bars who are completely irresponsible no matter what the prices of drinks are. Offering a slightly lower drink price for a couple of hours is not going to radically change the number of people who are doing so.

I suppose in an ideal world, either nobody would need to drink at all or we would not have cars and free public transportation should shuttle us rapidly from place to place so that drunk driving would never be an issue. Neither of these things will ever happen. So given that, the question is how to manage it. Ultimately, if people want to get loaded, they are going to do so no matter what the state says about it. Promoting responsible drinking, training servers and bartenders to watch out for customers who are drinking too much, encouraging taxis and public transportation, and offering low-priced food to go along with the drinks are all policies that will encourage a positive result while also offering bars and restaurants a new line of business. I thought the opinion that suggested happy hours would help bars offset the likelihood of higher minimum wages was sensible and reinforces how we can create a policy that helps everyone here.

Again, none of this is dismissing the severe problem of drunk driving. But not allowing Illinois residents to go to a happy hour is not going to solve that problem.

Big Win in the Fight for $15

[ 1 ] June 27, 2015 |

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Big victory for home health care workers in Massachusetts. The workers and their union, SEIU, came to an agreement with the state government to raise their minimum wage to $15 by July 2018. That’s still pretty far off given that they already make at least $13.30. But it’s also the first statewide agreement in SEIU’s Fight for $15 campaigns and that’s well worth noting and celebrating.

The Role of a Single Activist

[ 85 ] June 27, 2015 |

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Most of you already know about the awesome event of this morning, when an activist by the name of Bree Newsome climbed up the flagpole outside the South Carolina capitol building and took down the Confederate flag hanging there. This fantastic episode of direct action ramps up the pressure on South Carolina to get rid of the flag and continues placing the anti-flag movement in the public eye where it has been since the attack on the Charleston church last week. Newsome and her companion James Dyson were arrested for–wait for it–defacing a public monument. That’s the best possible charge she could face since it then invites discussion over whether the American swastika is really a public monument that should have legal defense. Not to mention whether simply taking down the flag is actually defacing anything.

What’s also interesting about this to me is the outsized role single activists can sometimes have in moving conversations forward, setting off new movements, and exposing the power structure that oppresses people. Most of us are simply not going to climb that flag pole. But we probably should. In Out of Sight, I discuss a woman named Liz Parker, who took it upon herself to go to a store of the British department chain Matalan with a signboard shaped like a coffin that read “Matalan Pay Up! Long Overdue for Rana Plaza Victims.” Local newspapers reported her protest, providing a bit on insight for readers on the horrors of global production.

Again, any of us can do this kind of thing. Sure we might be escorted off the property at our nearest Walmart, but it will take at least a few minutes before the police arrive. We might even be charged with trespassing, which is why it certainly helps to have a group of supporters rather than be a lone wolf. In other words, it’s more useful to be Rosa Parks and have an organized movement behind you than be James Meredith and just start a new action like the March Against Fear. But even Meredith, in no small part of course because of the role he played in desegregating the University of Mississippi and because he was subsequently shot, could force a movement to move in a particular direction through his actions.

The point is that we do have it in all of us to take an action that creates a positive change in society. The psychology in not doing those things is perhaps less interesting than in those who actually do them since that is so much rare. We are social animals, fearful, worried about how it will affect us in the future, lazy, whatever. I’m no better at this than the average person. But what Bree Newsome did today was once again show that the individual can do fantastic things to make the world a better place.

On Scalia’s Showoff Dissents

[ 212 ] June 27, 2015 |

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Longtime readers won’t be surprised, but as far as the “blistering dissents” often praised even by liberals I’m pretty much in agreement with this:

This is an odd sense of wit. Scalia is not just wrong. He is wrong in the same way that the thousands of anonymous conservative Twitter accounts with default egg avatars swarming liberal politicians and pundits are. He writes his dissents using the same jokes and the same arguments. If Scalia’s ostensibly witty writing displays a keen legal mind, then we are witnessing the blossoming of a new age of legal scholarship in Hillary Clinton’s at-replies. Because Antonin Scalia is, essentially, a Twitter egg.

[…]

In reality, though, there was nothing creative, new, or even sick about Scalia’s burn. The SCOTUScare joke is rather dumb, very obvious, and has been kicking around the right-wing #TCOT Twitter bunker since at least the time of the Supreme Court’s first Affordable Care Act decision in 2012. Here, for instance, is Wall Street Journal Editorial page writer David Feith using the word in a tweet from the day the 2012 case was decided…

…Despite Feith’s conservative bona fides—he’s the son of Iraq War era Under Secretary of Defense and “dumbest fucking guy on the planet” Douglas Feith—the tweet earned no retweets, no favorites, and no replies. And with good reason (sorry Dave!). Scalia’s SCOTUScare crack, like many of his other King one-liners from “jiggery-pokery” to “pure applesauce,” is straight from the dregs of modern American political commentary, not even worthy of the low standards of the National Review. If an angry Twitter egg tweeted “we should start calling it scotuscare u libtard” at a journalist, the best he could hope for would be an ironic retweet. Scalia’s dissent might as well have been a Benghazi acrostic.

For Scalia, replacing rigorous legal analysis with dumb jokes and angry tirades is nothing new. For years, he has been writing dissents that sound like something from the POLITCO comments section, or at best a Glenn Beck book. Take his dissent to the Supreme Court’s 2003 decision in Lawrence v. Texas holding that laws criminalizing same sex intercourse are unconstitutional. Scalia’s response to a detailed majority opinion tracing the history of the rights of gay persons was a screed that read more like your drunk uncle’s Thanksgiving rant than cogent legal analysis. Scalia bemoaned a decision that was “the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” He goes on to hit virtually every tired homophobic talking point, from fearmongering over “[gay] teachers in their children’s schools” to “let me be clear that I have nothing against homosexuals.” [This last one is even worse in context — “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”–ed.] This is by-the-numbers conservative punditry that was played out even twelve years ago.

Obergefell is a particularly good place to start, because all of the Court’s most conservative justices filed dissents and Scalia’s was far and away the least substantive. Its 9 pages essentially boil down to one simple argument: it’s wrong for an unrepresentative committee of nine lawyers to make policy choices not clearly compelled by the Constitution. Given the actually existing practice of judicial review in the United States this argument is not merely trite but useless, offered in bad faith, and from someone who joined Shelby County (after embarrassing himself at the oral argument) is intolerable.

Aside from the feeble judicial restraint argument, Scalia devotes space to cruelly mocking Kennedy’s literary style. Now, I agree that Kennedy’s opinion was hardly a model of judicial craft, and I could have done without some of the Hallmark philosophizing of its first pages. Having said that, Scalia responding to these passages with a bad 50s take-my-wife-please comedy routine is self-refuting. The most over-the-top attacks on Kennedy also collapse on themselves:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.

First of all, the quote hardly justifies the vitriol — a little pompous, but I’ve seen worse, and the underlying point is coherent and accurate. But the “hide my head in a bag” punchline can’t help but remind us of another Kennedy-authored opinion Scalia joined and has belligerently defended: a little thing called Bush v. Gore. I think we’ve established beyond doubt that Scalia is incapable of embarrassment. And say this for Kennedy: in his sometimes awkward and pretentious way, he was taking the text and purpose of Section 1 of the Fourteenth Amendment seriously, making the case against invidious discrimination and the arbitrary denail of fundamental rights. Sometimes, as in the concluding paragraph, it even works well enough:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Not exactly how I would have written it, but I’ll take it over “Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?” any day.

And then there’s Scalia’s assertions that “the stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis” and “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” This is a little much from someone who the previous day issued a dissent larded with a bunch of anachronistic euphemisms for bullshit in a desperate attempt to mask the fact that the argument he was making was an incoherent mess with the end of advancing a nakedly partisan campaign to take access to health care away from millions of people. (In a rare-moment of self-awareness, Scalia attempts to pre-empt this obvious response: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression.” How convenient!) Roberts could have devoted multiple paragraphs to Scalia setting aside his own principles of statutory interpretation to produce a nonsensical reading of a law that dovetails with his own policy preferences, but he just let the multiple cites from Scalia opinions speak for themselves. Sometimes, when rhetorically twisting the knife, less is more.

Toobin: “In dissent, Scalia cranked up his increasingly tired act as the Court’s sound-bite generator.” Now that’s good writing.

RAND!

[ 22 ] June 27, 2015 |

7818077_f496The latest in my Kentucky-in-the-APAC series takes a look at RAND!

Paul’s association with offshore balancing stems, in large part, from his father’s embrace of the concept. Ron Paul ran for President in 2008 on a non-interventionist platform, distinguishing himself from the rest of the GOP field. The elder Paul has made a career of arguing the quasi-isolationist (to borrow the term of his critics) position on foreign affairs.

But what does offshore balancing mean for the Asia-Pacific? We can imagine that a Paul presidency would resist the temptation and risk of commitment to Japan or any of the South China Sea claimants with respect to potential conflict with China. If offshore balancing can’t avoid war over a few rocks in the East China Sea, or a few piles of sand in the South China Sea, then it’s not worth very much as a strategic perspective.

Friday Night Advice

[ 46 ] June 27, 2015 |

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Don’t climb on beaver dams.

Civil Disobedience?

[ 135 ] June 26, 2015 |

I really do wonder what precisely Huckabee has in mind when he’s talking about civil disobedience here. Form a human barrier to prevent gay people from entering the county clerks office? Unsurprisingly, it’s a bit tricky to conceptualize a resistance strategy for a law that doesn’t require those opposed to it to actually do anything. Of course, he seems to suggest that Abraham Lincoln was engaged in civil disobedience against the Dred Scott decision, so he may not be too clear on the concept.

A Footnote I Can Agree With

[ 85 ] June 26, 2015 |

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While most of Thomas’s dissent today is deeply misguided, I do think he makes an excellent point in Footnote 8:

The majority also suggests that marriage confers “nobility” on individuals. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

I have found marriage happy and congenial myself. But the idea that my choice somehow makes me better than anyone else is indeed self-aggrandizing nonsense.

…Rebecca Traister has related thoughts.

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