Thursday, February 18, 2010

Hate and Fear of Homosexuals in Iowa

In April 2009 the Iowa Supreme Court unanimously ruled that same-sex marriages were permissible in Iowa. Apparently this ruling has caused several Iowa legislators to lash out in their hate and fear (not to mention idiocy, but more on that in a minute).

Iowa has a Safe Schools Law to protect students in Iowa schools from harassment and bullying. At present, Iowa’s law apparently provides that it is illegal to harass or bully another student because of that student’s “age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status”. (Note that I have not read the entire statute, but I do wonder why it might be acceptable to bully or harass another student because of the student’s favorite football team, musical preference, style of dress, or any of the host of other non-protected class reasons for which kids are bullied.) However, Iowa Republican state representatives Jason Schultz and Matt Windschitl apparently thinks that harassing or bullying gay students is a good thing. So, they’ve introduced a bill (HF 2291) that would delete the words “sexual orientation, gender identity” from the statute.In other words, it would apparently be OK to harass or bully a student as long as you did so because the student was gay. And just so that you don’t think I’m being creative in my description of the bill’s effects, here is how the bill’s sponsors describe the purpose of the draft legislation (emphasis added):

This bill strikes sexual orientation and gender identity from the definition of the term "trait or characteristic of the student" used for purposes of protecting students in public and nonpublic schools from harassment and bullying.

What a lovely lesson to be taught in our schools: Go ahead and harass and bully those gay kids!

But in case that wasn’t enough, Rep. Schultz has also introduced another bill (HF 2313), that appears designed to prevent Iowa courts from ever issuing another ruling like that which permitted same-sex marriage:

602.1100 Judicial authority.

1. A judicial officer shall not use judicial precedent, case law, penumbras, or international law as a basis for rulings. A judicial officer shall only use the Constitution of the United States, the Constitution of the State of Iowa, and the Code of Iowa as the basis for any ruling issued by such judicial officer. The only source material that may be used for interpreting the Constitution of the United States by a judicial officer in this state shall be the Federalist papers and other writings of the founding fathers to describe the intent of the founding fathers, and if such source material is used, the full context of the source material must be used by the judicial officer.

2. This section is not reviewable by the court.

3. A violation of this section by a judicial officer shall be considered malfeasance in office and subjects the judicial officer to impeachment under chapter 68.

Unfortunately, it is probably difficult to explain how incredibly stupid this bill really is, but I’ll try.

To begin to illustrate the problem, let me relate a story. Shortly after beginning my career as a lawyer, I was downtown with my girlfriend (now wife) and several other friends. For reasons that I don’t remember, one wanted to see where I worked. So we walked over to the building where our office was and rode the elevator up to take a look. For some reason, this girl was fascinated by the firm’s law library (which was actually rather small…). She asked me why we needed so many books. My first few attempts to explain how the “law” works fell on deaf ears (or, perhaps more precisely, went in one ear, flew through the vacuous emptiness, and exited the other ear). So I tried a different route. I pulled out a volume of the Indiana Code and looked up the statute dealing with murder and showed it to her (the key language was “knowingly or intentionally kills another human being”). Then I asked her whether it was a murder if a police officer shot a criminal who was holding a gun to a victim’s head? What if the criminal wasn’t holding a gun to a victim’s head, but rather, was running away from the police officer? What about a doctor, I asked, who had to make an emergency decision of whether to save the life of a near-term fetus or the mother following an terrible traffic accident? What about two kids playing with their father’s gun when it accidentally goes off? What if one of the kids had been pointing it at the other, thinking it wasn’t loaded? What if the person who pulls the trigger was drunk or under the influence of drugs or medication? What if the person who pulls the trigger was acting in self-defense? What if the person who pulls the trigger thought he was acting in self-defense, but no real danger existed?

Now most lawyers can easily see through and address these examples, but they served their purpose with my friend. I explained to her that statutes could only handle so many issues. The legislature could try to think of events that might occur and decide whether they should be crimes or what the law should say about them, but it is impossible to imagine every single possibility. That, I explained, was what case law (common law) was for. Of course murder probably wasn’t a very good example to use, but for someone with no experience with the law it worked very well.

But I think that this story illustrates the point of the importance of common law as a supplement to statutes and constitutions: There is only so much that the legislature can address in advance. Filling in the gaps and applying the law to particular situations is the job of judges and, under our system, has been for hundreds of years (predating the founding of the United States). People complain about lawsuits, but most of the issues that make it to the Courts of Appeals or Supreme Court deal not with issues that are clearly set forth in statutes (or constitutions), but rather with the trickier issues that aren’t subject to such readily obvious answers. That is one of the main reasons that we have an independent judiciary.

But think what else this proposed Iowa bill would do. First, how well do either the US Constitution or the Iowa Constitution address the advances in modern society or the changes in public attitudes. For example, what does either Constitution say about the right to privacy on Facebook? What does either Constitution say about ownership of a frozen embryo following a divorce? Does either specifically address whether the police need a search warrant to train heat detecting equipment on a house to see if the house might have heat lamps commonly found in marijuana operations or whether the police can track a GPS unit in a cellphone? With this proposed bill, Iowa courts and the law of Iowa could never adapt and grow. The law would always be stuck in 1789 (and whatever year the Iowa Constitution was adopted) plus whatever statutes the legislature adopted. And just think of the inconsistencies that could cause. One Iowa court might say that Iowa’s Constitution allowed something while another court might disagree. Without resort to case law and precedent, there would be no way for anybody, courts or citizens, to anticipate what the law would be. This law might actually lead to more litigation; after all, if there is no case law to look to for guidance, each and every issue not clearly set forth in statute will need to be relitigated over and over and over. If judge’s are bound by precedent (as they are now), then we have a pretty good idea of what the law should say about any given subject, though with the understanding that as society and our world change, the law can change and grow with it.

One other thing about this bill is worth noting: Why the reliance upon the Federalist papers and other documents about the intent of the Founding Fathers? (And who, precisely, are the founding fathers?) Why do we need to look to their intent if the Constitution is supposed to be able to stand up on its own? We don’t look outside of a contract unless there is an ambiguity (of course that rule is from common law…), so is the Iowa legislator suggesting that the Constitution is ambiguous? But if it is ambiguous, isn’t it then appropriate to look to common law? And how, I wonder, do we decide which documents of the Founding Fathers may be used? Is Jefferson’s letter setting forth his opinion that the First Amendment erected a wall of separation between church and state one of those documents? I suspect advocates of prayer in school would disagree; after all, they’ve contended for years that what Jefferson may have said in a private letter has nothing to do with the Constitution.

I could probably go on at length (as if this hasn’t been long enough already…). In the end, these two bills simply provide ample evidence of the fear (and hatred) of some on the right toward gays and toward the possibility that court’s might view gays as being a protected class subject to equal rights, just as African-Americans were in the Civil Rights era. Plus, the second bill demonstrates just how profoundly stupid some legislators really are and how little they understand about how American jurisprudence really works.

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Monday, January 25, 2010

IN Touch: A Threat to Our Rights

My thirteenth post on The Indianapolis Star's IN Touch blog is now online. As I've said previously, I'm going to keep re-posting those entries here (at least until someone from the Star asks me to stop). Go ahead and visit the post on the IN Touch site, anyway.
On Jan. 20, the Indiana Senate Judiciary Committee considered SJR 13, which would amend the Indiana Constitution to define marriage and prohibit the General Assembly from legislating civil unions in the future.

Proponents of SJR 13 talked about the need to "protect" marriage and spoke about "threats" to traditional marriage. Yet neither the sponsor of SJR 13 nor any of its proponents identified those threats from which marriage must be protected. Not one of them even tried to explain how failure to amend the Constitution would have a negative impact on their marriages or families. Not one of them explained how failure to amend the Constitution would solve crises faced by Indiana, such as taxes, budget shortfalls, education, decaying infrastructure, crime and poverty. Yet they were all so concerned by this phantom threat that they want to amend not just the Constitution but the Bill of Rights.

Take a few minutes and read the Indiana Constitution (while most of us are familiar with the U.S. Constitution, how many can honestly say they are familiar with Indiana's Constitution?), in particular Article I (the Bill of Rights). Our constitution (especially the Bill of Rights) largely focuses on either the structure of government or the rights granted to Hoosiers. Do we really want to start amending our Bill of Rights with provisions that serve to restrict, rather than enhance, those rights? Do we really want to amend our constitution now in order to make it harder for future generations of Hoosiers to enact laws that extend rights?

The current issue is not whether same-sex marriage should be allowed in Indiana; it is already prohibited by state law. The question is whether we, as a people, are so threatened by the possibility of same-sex marriage that we are willing to amend our constitution to address that perceived yet unidentified threat, and whether we want our Bill of Rights to restrict rather than grant rights.

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Friday, January 22, 2010

How to Recapture Democracy from Corporate Money

Yesterday the Supreme Court of the United States ruled in Citizens United v. FEC that campaign financing laws that prohibited corporations from directly spending money on campaign advertisements violated the First Amendment free speech rights of those corporations. In doing so, the Supreme Court overruled (or ignored) nearly one hundred years of jurisprudence and precedent (and isn’t that just the sort of “judicial activism” that so incenses the right?). The concern with this ruling is that corporations (especially large corporations) will be able to spend large amounts of money to influence elections notwithstanding that the expenditures of large amounts of money in that way is seen to have a corrupting influence on elections and also may have the effect of rendering an individual citizen’s voice even less relevant. By the way, I do recognize that the Supreme Court’s opinion also appears to let unions spend on political advertising in the same way; my comments here, though addressed to corporations, should also be thought of as applying to unions, too.

The perception (which could, I suppose, be wrong) is that this ruling benefits Republicans who are generally seen as being more closely aligned with “big business”. Just imagine what the next election will look like if the drug companies and insurance companies are able to spend unlimited amounts of money on campaign advertisements (and you thought all of the ads for Viagra, Cialis, and Levitra were obnoxious…). Or just think of the impact locally if a particular corporation was denied a zoning variance. What might the next mayoral or city or county council election look like. Another concern worth noting is the possibility that foreign-owned corporations could spend money to influence American elections. Just imagine if Hugo Chavez decided to have CITGO (now owned by Venezuela) or if China used any of the corporations that is has purchased to air campaign advertisements.

So what can be done to rectify the problem? First, straightforward revisions to campaign finance laws probably won’t work, especially while the right holds a 5-4 majority on the Supreme Court. For that matter, while the Republicans hold their 41-59 majority in the United States Senate, it will be tough to get anything to pass there, either. But presuming that Democrats could get a Republican or two (Sen. McCain, for example, co-sponsor of the McCain-Feingold campaign finance law, and a strong supporter of campaign finance reform…), what sorts of laws might solve the problem without running afoul of free speech issues?

So, here are just a few thoughts that I brainstormed (but note that I haven’t read the Supreme Court’s opinion); I admit that I haven’t worked through all of the ramifications, but it was a fun exercise:

  • Congress (or a state that wanted to limit the actions of corporations in that state’s elections) could pass a law that provides that corporations (which, you’ll recall, must be incorporated or organized according to the law of a particular state; they’re not born like, say, humans) can only spend money on campaign advertisements if a majority of shareholders approve of the expenditure. That should have nothing to do with First Amendment issues, as the law deals with corporate governance instead. The law could even provide that only individual shareholders (not other corporations) would be entitled to cast votes in such a corporate vote. Or maybe the law could provide that only shareholders eligible to vote in the election in which the advertisement would air would be eligible to vote on whether the corporation should expend the funds to advertise in that election campaign. And imagine if the law required the prospective advertisement to be shown to shareholders not less than, say, 90 days before any vote could be taken. And maybe, to pass, the advertisement would need the affirmative approval of 60% of the shareholders (after all, it apparently takes 60% to pass any legislation in the Senate…).
  • A law could be passed that would require the CEO of the corporation (or even the entire board of directors) to be filmed and shown in the advertisement saying “I approved this ad” much as candidates have to do now in their own ads.
  • Ordinarily, the standard for defamation is much more difficult to meet when a “public figure” is the target of the allegedly defamatory statement. In many jurisdictions, to be found liable of defamation against a public figure, the speaker must be found to have acted with actual malice (rather than just being shown to have made a false statement). Perhaps we could pass a law that would lower that standard to be the same as applied to allegations of defamation against non-public figures when the alleged defamatory statement is made in the context of a campaign advertisement. While corporations may now have a constitutional right to free speech, they have no constitutional right to a different standard to be applied in determining whether speech is defamatory. At least with this approach, corporations would most likely tend to be careful of what they might say about a candidate that the corporation opposed.
  • I’m not sure if this would fly, but what about a law that taxed, at a much higher rate, the fees received by media outlets for campaign advertisements, but provide a safe harbor if the fees were received from a not-for-profit or candidate?
  • Or we could enact laws similar to those for non-profits that provide that a non-profit is allowed tax-exempt status only if it refrains from certain forms of political advocacy. We could provide a base corporate tax rate of 99% but provide that the rate would be reduced if the corporation refrained from certain forms of political advocacy.
  • We could require corporations who spend money on election advertisements to provide a copy of each advertisement to each and every shareholder of the company (imagine the cost of having to send DVDs of each advertisement to each of potentially millions of shareholders). Remember when AOL used to send all those CDs?
  • Here’s a nasty little idea: We could provide that in the event of a corporate bankruptcy, the debts of a corporation are not wiped out to the extent of spending on election advertising and that the shareholders would be responsible for those outstanding debts to the extent of that spending.
  • Or how about a law that provides that only corporations that pledge not to expend funds on campaign advertising are entitled to enter into contracts with the government.

Well, that’s all I’ve come up with so far. What do you think? Setting aside whether Senate Republicans would ever sign on to any of these sorts of proposals, would any of these ideas help restore balance to the electoral process?

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Thursday, January 21, 2010

My Testimony in Opposition to Senate Joint Resolution 13 (Proposed Amendment to the Indiana Constitution to Define Marriage and Prohibit Civil Unions)

On January 20, 2009, I testified before the Indiana Senate Judiciary Committee. The committee was considering Senate Joint Resolution 13 (SJR 13) which would amend the Indiana Constitution to define marriage and to prohibit civil unions. Here is the full text of the proposed amendment which would, if adopted, be added to Indiana’s Bill of Rights:

Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

I usually endeavor to keep separate my personal thoughts and opinions from those that I espouse on behalf of organizations with which I am affiliated (in particular the Indianapolis Jewish Community Relations Council for which I currently serve as president). My testimony before the Judiciary Committee was on behalf of the JCRC and in my capacity as president of that organization. Nevertheless, given the importance of the issue (it is, after all, a proposed amendment to Indiana’s Constitution) and the fact that my testimony is not only public record but was also aired on the Senate’s live web feed (and will apparently be available on the Senate’s archived feed at some point in the future), I have decided to reprint my prepared testimony here. I want to take a moment and give due credit to Mark Sniderman, a friend and colleague on the JCRC Board, who testified against SJR 7 (the predecessor to SJR 13) back in 2008. My testimony was based, in part, on his prepared remarks; I deleted some and added some, but he deserves credit for preparing a well thought out and articulated presentation that I was able to use as a framework for my remarks.

I’m sure that my actual words were not identical to my prepared testimony. Furthermore, in order to meet the five minute time limit that I was asked to observe, I selectively edited my prepared testimony as I went; I’ve endeavored to indicate the provisions that I omitted in red. In addition, I contemporaneously added to my testimony to address some of the arguments (or lack thereof) that had been offered by proponents of SJR 13. I’ve also endeavored to provide at least an idea of what that portion of my testimony consisted of in green.

Finally, I want to note that the JRCR has not taken a position on same-sex marriage and I was not testifying in favor of same-sex marriage (though I personally support it). Rather, JCRC’s position, as I tried to articulate in my testimony, is that we oppose efforts to amend the Constitution to restrict, rather than enhance, rights.

Thank you Mr. Chair, Ranking Member, and Members of the Committee. My name is Michael Wallack. I am an attorney in private practice and I am privileged to rise on behalf of and in my capacity as the President of the Indianapolis Jewish Community Relations Council, in opposition to Senate Joint Resolution 13. The JCRC is comprised of representatives from every synagogue and Jewish membership organization in greater Indianapolis.

Our Jewish community supports the rule of law to assure equal rights, and we oppose constitutional amendments that restrict, rather than enhance, the rights of Hoosiers. Thus, we accordingly oppose SJR 13.

I believe that it is important to understand that we did not arrive at our position without due consideration; in fact, our community engaged in a process of learning, debate, and discussion, that lasted for nearly a year before we adopted our position. Several supporters of SJR 13 (and its predecessor) participated in that process in an open forum that we hosted on the subject. But eventually our community did adopt a position in opposition to the effort to amend our State’s Constitution.

We unconditionally support the core values of religious liberty, the separation of church and state; the safeguarding and advancement of civil rights; and the principle of equal protection under the law.

Jewish tradition teaches that each individual life is sacred and of infinite value. We are commanded to assist the less fortunate; to speak for those who cannot be heard; to stand by those who are unjustly treated; to be animated by the spirit of tikkun olam — the repair and mending of the world.

We Jews have known discrimination merely for being, or appearing to be, different; from the politest snub to unspeakably worse. Discrimination against any group of people is an insult to Jewish values. We are committed to a society that is just, compassionate, and fully democratic. Moreover, we strongly value the notion of a pluralistic, democratic society that, while recognizing the will of the majority, protects the rights of the minority.

What, then, do we owe one another as citizens? At the very least, we cannot decide that some people should be forever barred from possessing the rights and benefits of others, if the voters, through their elected representatives, want benefits and rights to be shared. Federal and state laws now grant over 1,100 rights and benefits to married couples and their families but deny them to unmarried couples. However long they live together, however deep their commitment to one another, by law unmarried couples may not possess the right to joint ownership and transfer of property; the right to participate in pension and social security benefits, health insurance programs, health care decisions, and hospital visitation, among others.

These rights are bedrock. But the proposed amendment would forever deny them to unmarried couples because — and only because — some declare their love to be objectionable.

Current and future legislators, the people’s representatives, would be powerless to assist, however urgent the need, however appropriate the assistance. The Constitution itself would have to be amended, yet again.

Charity, compassion, benevolence, a commitment to equal respect and dignity help determine the quality of life in a country. But the animating principle of the United States is that the rights of the citizens cannot be dependent merely on charity or good will.

Our state, like every other, needs to become more just, not less. Enshrining discrimination into our State’s Constitution runs contrary to that goal.

The JCRC is also dedicated to the separation of church and state. We affirm the right of faith communities to prescribe their own standards for recognizing religious marriage, for it is religious ceremony, not civil law, that sanctifies marriage. Our Jewish community, like most faith communities, will not surrender to the government the power to determine what merits sanctification in our own tradition.

But SJR 13 would nullify a right that religious communities have held since the founding of this country. It would dictate to religious faiths what they can and cannot sanctify in their houses of worship. It would establish a precedent for the state to narrow the realm of religious liberty when it wishes – that is to say, whenever it is popular to do so. What if it become popular to prohibit those of differing faiths to marry, much as it was once popular to prevent those of different skin color to marry? Are those popular values that should be enshrined in a Constitution?

SJR 13 would embed the religious doctrine of some into our state Constitution, to the exclusion of others. It would undermine the principle of separation of church and state – the very principle that ensures religious liberty for people of all faiths and beliefs.

And, let there be no mistake, religious liberty is the principle to which we are committed. The JCRC deeply respects the sincere convictions of religious groups that believe that same-sex marriage is prohibited by passages found in their authoritative religious texts. We do not, however, believe that some religious groups have the right to use the government to impose their religious beliefs upon others. The Indiana Constitution includes numerous provisions that describe the relationship between the church and state, and Article I, Section 4 states it clearly:

No preference shall be given, by law, to any creed, religious society, or mode of worship... .

Ind. Const., Article I, § 4 (Freedom of Religion). The Equal Privileges and Immunities clause trumpets the same principle:

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

Ind. Const., Article I, § 23. These constitutional provisions are bold and manifest: our legal rights shall not be dictated by religious beliefs; nor should civil laws restrict the free exercise of religion; and when our government provides benefits, it must do so to all on equal footing

We affirm the rule of law. For laws to work, they must be clear. Their working must be predictable. Their consequences must be measured. But the rhetoric surrounding this Amendment is feverish. Perhaps worse, it is cloudy and obscure. Not one legislator has offered a clear definition of “status identical or substantially similar to that of marriage”. The mere existence of so much contention over the meaning and effect of this Amendment is reason enough to stop. Let us all agree to this rule of civil society: before we amend our Constitution, we should understand, broadly and generally, the effects of our actions.

As a result of our commitment to our core values, the Indianapolis JCRC:

1) opposes any constitutional amendment that constricts rather than enhances rights; and we therefore oppose SJR 13; and

2) opposes any effort that would diminish the authority of clergy to practice their own religious requirements regarding marriage.

To those of you who will vote against this proposed amendment, I offer our gratitude.

To those who have no doubts about the merits of the amendment, I say to you: you have a duty to question the wisdom of amending the Constitution itself to impose the religious views of some who seek to restrict the civil rights of others. Laws can be passed, then repealed. Amendments to the Constitution can hardly ever be reversed, and never quickly.

To those who may have doubts and concerns about this amendment, I ask only this: be generous in spirit, defend the principle of religious liberty, and lead us where we know -- in our very best moments -- we ought to go.

[I noted that proponents of SJR 13 not only failed, but actually made no attempt at all, to explain what the “threat” to marriage was. I explained that none of the proponents had explained how their marriages or families would be harmed by same-sex marriage and I posited that they did not even attempt to explain this threat because they recognized that the perception of a threat was patently false.]

It is also worth noting that this Amendment will not create any new jobs in Indiana; it will not solve our State’s deficit; it will not be a cure to tax woes; it will not improve our schools or our roads; it will not reduce crime or find more homes for orphaned children. Given all of these issues, is an amendment to the Constitution solely for the purpose of restricting rights really the best thing for this General Assembly to focus upon?

I have come before you on behalf of the Indianapolis Jewish Community Relations Council. But I am not less an American for being a Jew. I ask you, I urge you: do not make government the agent of one religious doctrine. Many serve G-d. It is not for the State to decide that Protestant prevails over Catholic; that Christian prevails over Jew; that Jew prevails over Muslim, Buddhist, Hindu, or any other faith.

I thank you for your time and consideration.

None of the senators asked me any questions. It is worth noting that several senators, in particular Sen. Greg Taylor (D-Indianapolis) and Sen. Tim Lanane (D-Madison County), asked numerous questions, both of proponents and opponents of SJR 13; moreover, it is also worth noting, as Sen. Taylor did in explaining his vote, that the Republican senators asked very few (if any) questions during the entire hearing.

The Democratic senators each gave brief speeches to explain their votes against SJR 13. The Republican senators simply voted “yes”. In the end, SJR 13 was approved by the committee by a vote of 6-4. All four Democrats voted against SJR 13; six of the seven Republicans voted in favor (one was not in the chambers when the vote was taken).

Finally, as long as I’m on the subject, I want to take a few moments to address (briefly; I plan to come back and address some of these points in much more detail at another time) some of the arguments made by proponents of SJR 13:

  • James Bopp, Jr., claimed that courts have “seized control” of the issue of gay marriage. While courts have certainly been involved in the issue, to suggest that they’ve “seized control” (his phrase) is misleading, at best. If we are to accept his suggestion, then it must also be true that courts “seized control” of issues like segregation and civil rights (remember Brown v. Board of Education) or, more recently, gun control (Heller and the Chicago gun control cases).
  • Bopp also suggested that courts shouldn’t have a role in determining the legality of gay marriage because the “people will have spoken”. Of course that argument completely misses the point of the role of the courts in our system that recognizes a separation of powers. The people can do a lot of things through their legislators or referenda, but that doesn’t make those things right or legal. I suspect that a majority of people could be convinced to outlaw Islam or require schoolchildren to pray to Jesus; it would be up to the courts to recognize that doing so violates the Constitution. When people like Bopp make this argument, what they’re really saying is that we don’t want to give the courts the chance to tell us that legislation that we’ve proposed does not conform to the rights and privileges granted by the Constitution (or, more correctly stated, retained by the people). It is critical to remember that in our constitutional system, the will of the majority cannot trump the rights of the minority. That is precisely why we have a Bill of Rights in the first place.
  • Bopp also argued that the possibility of litigation over Indiana’s current prohibition on same-sex marriage is reason enough to amend the Constitution. By that logic, however, any statute passed by the General Assembly that was, in any way, controversial, should I suppose be in the form of an constitutional amendment because virtually all legislation draws litigation of one form or another. But that is not the purpose of a Constitution.
  • The best (funniest?) moment (at least to me) of Bopp’s testimony came in response to a question (from either Sen. Lanane or Sen. Taylor). Bopp said that the amendment was necessary to protect marriage from the General Assembly and the Courts; he said that was the role of the Constitution: to protect rights from the General Assembly and the Courts (oddly enough, Tim Tracy, speaking on behalf of the Indiana Family Institute, said almost the exact same thing in response to a question about the separation of powers). I don’t think that Bopp (or Tracy) quite recognized what he really said, though he was precisely right. The Constitution does protect the rights of Hoosiers. Defining marriage in a way that restricts rights is, in actuality, the exact inverse of the what the Bill of Rights does.
  • Curt Smith (speaking on behalf of the Indiana Family Institute) argued that the limited definition of marriage should be added to the Constitution because “marriage is a unique, social good”. But if marriage is, indeed, a social good, shouldn’t it be encouraged in various forms, including same-sex marriage? Why is one marriage a social good while another marriage is a “threat”? And how does that impact civil unions? Wouldn’t they be a social good, too?
  • A Hispanic pastor (I didn’t hear his name) argued that the Constitution should be amended because the “Bible is the infallible word of G-d”, because “G-d discriminates against right and wrong”, and that homosexuality was a behavior (a choice) that was wrong (thus discrimination against gays is acceptable, a position that none of the other proponents adopted…). He also said that referring to same-sex marriage as a civil rights issue was “offensive” and “disgusting”. I don’t think that I really need to respond to his arguments beyond saying that I found much of his testimony to be both offensive and disgusting. (Thankfully his testimony was offset by the testimony of Rev. Linda McRae of Central Christian Church who talked about what the Bible really says about marriage.)
  • Micah Clark (I think) claimed that “if marriage can mean anything, it ultimately means nothing.” I’m not really sure what this means; I suspect that it is his attempt to make the slippery slope argument (oooh, if we allow gays to marry, what will be next? Polygamy? Incest? Pedophilia? Bestiality?). Of course, these same arguments were used to support anti-miscegenation (laws against interracial marriage).
  • Glenn Tebbe, Executive Director of the Indiana Catholic Conference, argued that marriage should be protected in the Constitution (again, what is the threat?) because marriage is a “faithful lifelong partnership”. Of course, by that reasoning, divorce should probably be prohibited in the Constitution, too.
  • Finally, Eric Miller (of Advance America) claimed that protecting marriage (again, from what?) was “in the best interests of families and children”. Of course, he didn’t get around to explaining how “protecting” marriage was in the best interests of families and children. After all, wouldn’t a married same-sex couple be a “family”? Wouldn’t children be better off in a committed, loving, two-parent relationship than in a single-parent family, let alone in foster care or an orphanage?

Those are the sorts of arguments being advanced by the opponents of same-sex marriage and the proponents of the constitutional amendment. One other point worth making: Not a single one of the people who testified in favor of SJR 13 offered any reason whatsoever as to why civil unions were bad, let alone why the General Assembly should be prohibited from adopting civil union legislation in the future should that be the will of voters expressed at the polls.

Please call your senator (and representative, for that matter) and tell them to oppose SJR 13. You don’t have to support same-sex marriage; but please tell our legislators not to amend Indiana’s Constitutions to restrict, rather than enhance, the rights of Hoosiers.

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Tuesday, December 1, 2009

Apparently I’m Not Eligible to Run for Office as a Republican; How About You?

So the Republican National Committee is considering a “purity test” to determine which candidates will get party support in the 2010 elections. For those who’ve missed this, here is the full text of the resolution (sponsored by Indiana über-conservative James Bopp):

Proposed RNC Resolution on Reagan’s Unity Principle for Support of Candidates

WHEREAS, President Ronald Reagan believed that the Republican Party should support and espouse conservative principles and public policies; and

WHEREAS, President Ronald Reagan also believed the Republican Party should welcome those with diverse views; and

WHEREAS, President Ronald Reagan believed, as a result, that someone who agreed with him 8 out of 10 times was his friend, not his opponent; and

WHEREAS, Republican faithfulness to its conservative principles and public policies and Republican solidarity in opposition to Obama’s socialist agenda is necessary to preserve the security of our country, our economic and political freedoms, and our way of life; and

WHEREAS, Republican faithfulness to its conservative principles and public policies is necessary to restore the trust of the American people in the Republican Party and to lead to Republican electoral victories; and

WHEREAS, the Republican National Committee shares President Ronald Reagan’s belief that the Republican Party should espouse conservative principles and public policies and welcome persons of diverse views; and

WHEREAS, the Republican National Committee desires to implement President Reagan’s Unity Principle for Support of Candidates; and

WHEREAS, in addition to supporting candidates, the Republican National Committee provides financial support for Republican state and local parties for party building and federal election activities, which benefit all candidates and is not affected by this resolution; and

THEREFORE BE IT RESOLVED, that the Republican National Committee identifies ten (10) key public policy positions for the 2010 election cycle, which the Republican National Committee expects its public officials and candidates to support:

(1) We support smaller government, smaller national debt, lower deficits and lower taxes by opposing bills like Obama’s “stimulus” bill;

(2) We support market-based health care reform and oppose Obama-style government run healthcare;

(3) We support market-based energy reforms by opposing cap and trade legislation;

(4) We support workers’ right to secret ballot by opposing card check;

(5) We support legal immigration and assimilation into American society by opposing amnesty for illegal immigrants;

(6) We support victory in Iraq and Afghanistan by supporting military-recommended troop surges;

(7) We support containment of Iran and North Korea, particularly effective action to eliminate their nuclear weapons threat;

(8) We support retention of the Defense of Marriage Act;

(9) We support protecting the lives of vulnerable persons by opposing health care rationing and denial of health care and government funding of abortion; and

(10) We support the right to keep and bear arms by opposing government restrictions on gun ownership; and be further

RESOLVED, that a candidate who disagrees with three or more of the above stated public policy position of the Republican National Committee, as identified by the voting record, public statements and/or signed questionnaire of the candidate, shall not be eligible for financial support and endorsement by the Republican National Committee; and be further

RESOLVED, that upon the approval of this resolution the Republican National Committee shall deliver a copy of this resolution to each of Republican members of Congress, all Republican candidates for Congress, as they become known, and to each Republican state and territorial party office.

Chief Sponsor:
James Bopp, Jr. NCM IN
Donna Cain NCW OR
Cindy Costa NCW SC
Demetra Demonte NCW IL
Peggy Lambert NCW TN
Carolyn McLarty NCW OK
Pete Rickets NCM NE
Steve Scheffler NCM IA
Helen Van Etten NCW KA
Solomon Yue NCM OR

I don’t want to waste time discussing whether a purity test is a smart idea or a bad idea; hey, it’s their party. But I do want to take on each of the ten themes expressed in the test itself.

(1) We support smaller government, smaller national debt, lower deficits and lower taxes by opposing bills like Obama’s “stimulus” bill;

OK. I get that Republicans were opposed to the stimulus bill. The problem is, I don’t recall hearing many Republican ideas to help prevent the economy from taking a nose dive into a true depression. One thing that Republicans don’t seem to grasp right now is that there is a huge difference between being opposed to something and offering up a viable alternative. Think of it this way: If you suggest eating Chinese for dinner, I could say, “Gee, I don’t feel like Chinese; why don’t we go for Italian, instead.” From there, we could have an open and honest debate about which would be a better meal choice. On the other hand, if I was a Republican, my response would be more like this: “Gee, I don’t feel like Chinese (after all, they’re communists!); so we’ll just skip dinner tonight.”

I also fail to understand the constant mantra about “smaller government” as if by simply making government “smaller” we make it better. I’m less worried about the size of the government than I am with the effectiveness of that government.

As to the national debt and deficits, I seem to recall these going up, not down, under a Republican administration. It seems that Republicans are firmly opposed to debt and deficits except for debt and deficits that they like. Finally, I’d like to be certain what Republicans mean when they say “lower taxes”; lower taxes on whom? The wealthiest Americans who can easily afford to pay a bit more from the money that they’re parking in illegal offshore bank accounts? Why is it that I doubt that “lower taxes” means repeal of regressive taxes like sales tax.

(2) We support market-based health care reform and oppose Obama-style government run healthcare;

First, does that mean that Republicans will support an end to the anti-trust exemption for insurance companies? After all, an anti-trust exemption doesn’t really seem consistent with market-based insurance reform. Second, when Republicans talk about “Obama-style government run healthcare” does that mean that they oppose Medicare, Medicaid, the VA, and military healthcare? Those programs are, of course, all government run. What about the insurance provided to members of Congress? Finally, what type of reform do Republicans support? Remember that the plan offered by Senate Republicans didn’t prohibit exclusion based on pre-existing conditions (among a host of other failings). We’ve had a largely “market based” system (with anti-trust exemptions) for years and look where that’s gotten us. And how exactly do Republicans plan to handle the millions of uninsured Americans? Insuring a measly 3 million additional Americans over 10 years (while leaving 30-50 million uninsured) doesn’t really seem to be a solution to the problem. Then again, so long as the “solution” is merely opposition and obstruction…

(3) We support market-based energy reforms by opposing cap and trade legislation;

I wonder how many Republicans can actually explain what cap and trade legislation means. And, for that matter, I wonder how many of the Republicans who oppose cap and trade also believe that global warming is a myth. The funniest part of this is that cap and trade is a market-based reform. That is the whole idea; allow the market to put a value on the right to pollute and provide cost incentives for reducing emissions. And again, note that as usual, what Republicans oppose is spelled out clearly (Obama’s stimulus bill, Obama-style government run healthcare, cap and trade) but what Republicans support is much, much more nebulous (smaller and market-based). Again, it is easy to be opposed to a particular, narrowly-defined policy; it is much more difficult to articulate an alternative.

(4) We support workers’ right to secret ballot by opposing card check;

In all honesty, I don’t know enough about card check to really get into this discussion. I will note, however, that it seems strange, in the entire universe of issues for Republicans to focus on, that card check makes the top ten.

(5) We support legal immigration and assimilation into American society by opposing amnesty for illegal immigrants;

This point is one of the most insidious of all of the points on the Republican purity test. Why? Did you note that Republicans don’t just support legal immigration, but also support assimilation? In other words, Republicans are telling immigrants to come in legally, but once here, they had better jettison their cultural (and religious?) heritage and assimilate into American society. And why is that I suspect that the Republican version of “American society” is the same thing as Glenn Beck’s “white culture”?

In addition, I’m not quite sure how supporting legal immigration and assimilation is accomplished “by opposing” amnesty. What does one have to do with the other? More importantly, what precisely is the Republican plan to deal with illegal immigration and the illegal immigrants who are already here? Again, they oppose a particular policy (amnesty) without offering a solution to the existing problem.

(6) We support victory in Iraq and Afghanistan by supporting military-recommended troop surges;

First, who doesn’t support “victory in Iraq and Afghanistan”? Do Republicans really think that either President Obama or Democrats support “defeat”? It seems to me that the real question is the definition of “victory”. More importantly, I find it quite odd that when the Republican purity test finally gets around to specific things that Republicans are supposed to support, the focus is on a particular strategy advocated by the military. The last time I checked, the military was overseen by civilian leadership. It is important to remember that the issues being looked at by military planners are almost exclusively military. We don’t ask or expect military planners to look at diplomatic consequences of a particular policy, the cost to implement that policy (what about that support for a smaller national debt…?), the cost in lives or impact upon military families (I suppose that the military might factor this in to the calculation, but I don’t really know), or the desire of the American electorate to engage in the particular military operation. I suspect that generals recommended attacks on the Soviet Union during the Cold War, but we allowed civilian leadership to decide what was in the best interest of the country. So too should civilian leadership decide what is in the best interests of America when it comes to Iraq and Afghanistan. If that means a surge, then so be it; but the decision needs to be made on the basis of all known information and should take into consideration all relevant matters, not just the matters relevant to the battlefield itself. Military strategy options should be developed by military planners but decisions regarding those strategic options should be made on the basis of national interest, not just military necessity.

(7) We support containment of Iran and North Korea, particularly effective action to eliminate their nuclear weapons threat;

This one leaves me a bit puzzled. First, the use of the word “containment” harkens back to the Cold War and fears of Soviet expansion. I suspect that the real issue being “supported” is limits on the ability of North Korea or Iran to export nuclear technology or terrorism. And again, who doesn’t support those ends? Do Republicans really think that President Obama or Democrats oppose “containment” of Iran or North Korea? More problematic is the phrase “effective action to eliminate their nuclear weapons threat”. What precisely does this mean. Again, I doubt that anybody supports ineffective actions. The real question, of course, is what action would be effective? So, for example, are harsh sanctions “effective”? Maybe I’m wrong, but when I read this particular point of the purity test, I take it to really be referring to military action as the “effective action”. Maybe I’m wrong. But if not, I’m troubled by the idea that Republicans are being asked to support a military action without necessarily considering either alternatives or consequences. Forget Iran for the moment; what would be the consequences of the use of force against North Korea? Do we really want to elect leaders who want war on the Korean peninsula?

(8) We support retention of the Defense of Marriage Act;

I’m not going to take the time in this particular post to explain why I oppose the Defense of Marriage Act (and why I believe it might be unconstitutional) or to explain why I support same sex marriage (or at least domestic partnerships that have all of the benefits and obligations of marriage). Instead, I’ll simply note that of the items that Republicans apparently view as the litmus test for whether a candidate is worthy, opposition to same sex marriage counts for 10%. I still don’t understand how the issue of whether a loving, committed couple can be allowed to enjoy the benefits of “marriage” can rise to this level of importance. And, for the record, I note that those states that have allowed same sex marriage have neither imploded, been struck by wave after wave of natural disasters, nor sunken into the bowels of the earth; moreover, I note that in those states the institution of heterosexual marriage remains alive and well.

(9) We support protecting the lives of vulnerable persons by opposing health care rationing and denial of health care and government funding of abortion; and

I’m glad that Republicans oppose health care rationing. I’m curious to know how they plan to stop insurance companies from continuing to ration care or, for that matter, how they intend to stop the effective rationing for those people who can’t afford health insurance. Republicans also oppose the denial of health care. That seems like a pretty clear blanket statement; yet last time that I checked, Republicans were set against health care for illegal immigrants (remember Rep. Joe Wilson’s “you lie” moment?). And recall, once again, that the Republican health care reform proposal did not prevent insurance companies from denying coverage based on pre-existing conditions.

With regard to the funding of abortions, first I note that it is a blanket opposition. There is no nuance or exception for matters of rape, incest, or life of the mother. “Gee, sorry, that you’re gonna die ma’am, but if you can’t pay for the abortion on your own, we can’t help you!” Talk about compassionate conservatism. I also have a problem with enshrining certain types of moral issues into federal funding policies. Why, for example, are Republicans opposed to funding abortion but not drugs for erectile dysfunction or hair replacement? More importantly, why are Republicans opposed to funding abortion but not opposed to funding the death penalty, wars, torture, and illegal wiretaps? If every issue to which a large group of voters objected on moral grounds were excepted out of government funding, I suspect that very little would be funded (then again, I suppose that Republicans would view that as good, so long as the military was still fully funded). I also have a problem with the exception for abortion given that other religious traditions come to the issue of abortion with a different understanding and mindset. Thus, while the denial of funding may satisfy a conservative Christian worldview, it may also run directly contrary to a Jewish understanding of when abortion is acceptable. If my religious tradition has a different understanding of the issue, why should someone else’s religious understanding determine how federal spending impacts upon my religious beliefs? (For a more in depth discussion of religious views of abortion, see my post Keep Your Religious Doctrine Out of My State’s Laws from January 2008). I get that conservatives don’t want their tax dollars to pay for abortions; I don’t want my tax dollars to pay for torture. Republicans will do almost anything to protect the “unborn”; but once a child is born, don’t look to the Republicans for help or protection, no sir!

(10) We support the right to keep and bear arms by opposing government restrictions on gun ownership;

Like abortion, I’ve written before about my thoughts on gun control and the Second Amendment and I won’t belabor the point here. But I do want to point out the fact that the opposition to “government restrictions on gun ownership” is another blanket statement. There is no exception for children, the mentally ill, or felons (or terrorists for that matter) and there is no exception for assault rifles or armor piercing bullets or rocket-propelled grenades (or nuclear weapons…). So it would seem to me than any Republican who supports even modest gun control legislation would not pass the party’s proposed purity test.

And what happened to honoring the tenets of this recitals from the preamble of the proposed resolution:

President Ronald Reagan also believed the Republican Party should welcome those with diverse views

Somehow the notion of welcoming diverse views doesn’t seem to come through in the proposed purity test.

As a counterpoint to the Republican purity test, take a look at this purity test for Democrats proposed by Devilstower on Daily Kos:

(1) We support the rights extended to Americans extended under the Constitution. All the rights. For all Americans.

(2) We support thoughtful, pragmatic solutions that protect American lives, American standards, and American pocketbooks. This includes finding solutions that don't require bombing anyone.

(3) We support an America that has diversity in race, thought, background, and religion not out of some hazy idealism, but because it is our nation's greatest strength.

(4) We oppose torture in any form, in any place, at any time, for any reason.

(5) We support American business, and recognize that an unregulated market is an unfair market, an unstable market, and a market doomed to failure.

(6) We support American workers, and know that when workers are allowed to organize they make their jobs, their companies, and their nation stronger.

(7) We believe that the reputation of our nation is valuable and must be zealously guarded against those who place expediency ahead of law.

(8) We believe in spreading democracy and human rights to the rest of the world by vigorously upholding those ideals here at home.

(9) We believe that access to our government is not for sale. Not in the courthouse, not in the White House, and not in the legislature.

(10) We believe that the health of our planet is not a zero-sum game, not a game of "you go first," and not a game.

What is interesting is that I don’t necessarily completely agree with each and every point in this “purity test” either (for example, I’m very hesitantly willing to consider torture in a true ticking time bomb case). Nevertheless, I think that the ideals espoused by this purity test are certainly worth considering, at least as a comparison to the proposed Republican purity test. Read both sets of positions and then ask yourself in which version of our country would you rather live?

Finally, ask yourself whether a purity test like that proposed by the Republicans makes sense. Which would you prefer: (a) party that has pre-determined how its members must think and how they must vote on certain issues; or (b) a party that tells its members to think for themselves, honor their ideals and values, and represent the voters that elected them, rather than the party to which they belong.

Oh, one more thing, as long as I’m looking at purity tests and lists of values and ideals. Charles Johnson, the founder of the right-leaning blog Little Green Footballs has announced that he is parting ways with the right because of:

1. Support for fascists, both in America (see: Pat Buchanan, Robert Stacy McCain, etc.) and in Europe (see: Vlaams Belang, BNP, SIOE, Pat Buchanan, etc.)

2. Support for bigotry, hatred, and white supremacism (see: Pat Buchanan, Ann Coulter, Robert Stacy McCain, Lew Rockwell, etc.)

3. Support for throwing women back into the Dark Ages, and general religious fanaticism (see: Operation Rescue, anti-abortion groups, James Dobson, Pat Robertson, Tony Perkins, the entire religious right, etc.)

4. Support for anti-science bad craziness (see: creationism, climate change denialism, Sarah Palin, Michele Bachmann, James Inhofe, etc.)

5. Support for homophobic bigotry (see: Sarah Palin, Dobson, the entire religious right, etc.)

6. Support for anti-government lunacy (see: tea parties, militias, Fox News, Glenn Beck, etc.)

7. Support for conspiracy theories and hate speech (see: Alex Jones, Rush Limbaugh, Glenn Beck, Birthers, creationists, climate deniers, etc.)

8. A right-wing blogosphere that is almost universally dominated by raging hate speech (see: Hot Air, Free Republic, Ace of Spades, etc.)

9. Anti-Islamic bigotry that goes far beyond simply criticizing radical Islam, into support for fascism, violence, and genocide (see: Pamela Geller, Robert Spencer, etc.)

10. Hatred for President Obama that goes far beyond simply criticizing his policies, into racism, hate speech, and bizarre conspiracy theories (see: witch doctor pictures, tea parties, Birthers, Michelle Malkin, Fox News, World Net Daily, Newsmax, and every other right wing source)

And much, much more. The American right wing has gone off the rails, into the bushes, and off the cliff.

I won’t be going over the cliff with them.

I disagree with Charles Johnson on many issues, but I’ve always found him to be reasonable and fair minded. When he takes a position, he almost always backs it up. Ever since I came across Little Green Footballs during the Israel-Lebanon war in 2006, I’ve found his site to be a destination to see what the rational right is thinking. As Johnson has frequently noted over the last several months, too often what the right is thinking isn’t rational at all.

So anyway, it looks like I won’t be eligible to run for office as a Republican in 2010. Shucks.

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Tuesday, November 17, 2009

Why Competition Across State Lines May Not Really Be Such a Great Idea

One of the oft-repeated ideas in the current healthcare debate is that Americans should have the right to shop for health insurance across state lines. The argument is usually framed in terms of increased competition that will bring prices down and increase the quality of insurance packages available. And after all, who wouldn’t be in favor of increased competition?

Well, this is one of those issues that sounds great in a sound bite, but if you dig just a little bit below the surface, you will recognize some real problems and why this idea may not be so great after all.

Right now, insurance companies are regulated in the states in which they provide insurance. Thus, if you are a resident of Indiana, your insurance is provided by an insurer licensed by the Indiana Department of Insurance. Here is how Carol Cutter, the Commissioner of the Indiana Department of Insurance describes the Department’s role:

The purpose of the Indiana Department of Insurance is to protect Hoosiers as they purchase and use insurance products to keep their assets and their families from loss or harm. Consumers may need assistance with certain claim situations or just help in understanding how their policies work.  Our other primary obligation is to monitor the financial solvency of the insurance companies domiciled in Indiana so that the legal promises made in insurance policies are honored. To these ends, our Department staff is committed to providing exceptional customer service for both our consumers and our companies, and to maintain a fair and objective viewpoint as we examine each issue and circumstance within our jurisdiction.

I presume that other states have their own insurance departments that (again presumably) see their role in similar terms.

Now think about corporations for a minute. Have you ever noticed how many corporations are domiciled in Delaware? According to the Delaware Division of Corporations “More than 50% of all publicly-traded companies in the United States including 63% of the Fortune 500 have chosen Delaware as their legal home.” Why is that? After all, Delaware doesn’t have any large cities. The reason is simple: Delaware’s legislature made a conscious decision to enact laws that were seen as favorable to corporations (and in particular to corporate management, often at the expense of shareholders). Similarly, Delaware enacted less restrictive interest laws in order to make Delaware an attractive state of domicile for banks. At the end of the 19th Century, Delaware, New Jersey, and New York engaged in a race to attract corporate businesses. But when it comes to the protections given to shareholders, some might think of that race as a race to the bottom.

And that is what interstate insurance competition would lead to: A race to the bottom. States, in particular states with smaller populations or less homegrown industry, would be encouraged (don’t forget the strength of insurance lobbies) to enact laws that would be more favorable to the insurance companies. Those companies could then be domiciled in those states and offer their insurance packages across state lines into states with more rigorous consumer protection standards, greater solvency requirements, or more items that must be covered (mental  health or cancer screening, for example). So suddenly you, an Indiana resident, might be buying insurance from a company that the Indiana Department of Insurance has little or no ability to regulate but which is, instead, regulated by another state that has made the decision to lessen consumer safeguards to “drum up business”.

Let me offer one concrete example of how this might work and how it could impact a consumer. In Indiana, courts have ruled that when interpreting an insurance contract, any ambiguity is to be strictly construed against the insurer. (See, e.g., Cinergy Corp. v. Associated Elec. & Gas, 865 N.E.2d 571 (Ind. 2007)). In other words, if there is an ambiguity about what something means in an insurance policy, an Indiana Court will read that policy in a way that favors the insured rather than the insurance company. The basic reason for this presumption goes to unequal bargaining power and the fact that the insurance company drafted the policy and had the best opportunity to craft precise language. Insurance contracts (like most well-drafted contracts) include a “choice of law” provision, in which the parties agree as to which state’s laws will govern interpretation of the contract. Usually the chosen state will be the state that is the home (or principal place of business) one of the parties. So think how appealing it would be for an insurer to choose as its home or principal place of business a state that adopted the opposite presumption; that is, a presumption in favor of the insurer (as opposed to the insured). Or imagine how appealing it would be to an insurer to be domiciled in a state that does not require insurance policies to provide mental health coverage or cancer screenings to be included.

Don’t think for a moment that I’m just making up this worry or that the idea had never crossed the minds of those advocating for interstate insurance competition. The Republican healthcare reform bill [pdf], which does allow for interstate competition (and which also, by the way, does nothing to prevent insurers from denying coverage to those with pre-existing conditions…) requires that the fine print of an insurance policy include the following language (emphasis added):


(See page 130.) Have you ever read the fine print of your insurance policy? Did you understand it?

Essentially, those who propose allowing interstate competition for health insurance packages already recognize that states may engage in a regulatory race to the bottom to encourage insurers to become domiciled in their state (think fees and taxes, not to mention the possibility of jobs).

Oh, one more thing about that Republican bill. When it comes to which state an insurance company could choose for “headquarters”, the bill specifically includes Guam, American Samoa, and the Northern Mariana Islands (see page 121-122). Just imagine having to travel to Guam, American Samoa, or the Northern Mariana Islands to engage in litigation with your insurer! (Most contracts include a choice of jurisdiction and venue as well; so long as one of the parties is domiciled or has a principal place of business in that “state”, most courts will recognize and enforce that choice of jurisdiction and venue.)

I’m sure that there are many, many other issues to consider in the debate about whether it is a good idea to allow for interstate competition in health insurance plans. But be sure to recognize that there is a downside to what, on its face, sounds like a great idea.

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Tuesday, August 18, 2009

IN Touch: Keep religion out of alcohol sales debate

My tenth post on The Indianapolis Star's IN Touch blog is now online. I'm going to keep re-posting those entries here (at least until someone from the Star asks me to stop). Go ahead and visit the post on the IN Touch site, anyway.

A recent article in The Star ("Panel thirsts for facts in Sunday alcohol sales debate") discussed some of the pros and cons of Sunday retail alcohol sales. Among the arguments promoted by the Indiana Association of Beverage Retailers against expanded Sunday alcohol sales was this: "Remember the Sabbath: Sunday is a religious day. Liquor shouldn't be sold on it." There are, of course, two problems with this particular argument.First is the recognition that alcohol is already sold on Sunday in bars, restaurants, and at sporting events. The issue is not whether alcohol should be sold on Sunday, but whether retail sales should be allowed. I doubt many Hoosiers would support a return to the ban on restaurant alcohol sales on Sunday.

Second, and more problematic, is the suggestion that "Sunday is a religious day." Well, it is for some, but not all. Jews worship the Sabbath on Saturday, Muslims on Friday, and others not at all. Some religious traditions ban all use of alcohol while others include alcohol as an important part of religious observance. If government is going to legislate on the basis of religious tradition, how should government reconcile those competing positions?

It should not be the job of the government to regulate what people can and cannot do on religious grounds. If your religious views tell you not to purchase, consume, or sell alcohol on your Sabbath, then that is your right. But those religious views should not be enforced, through governmental action, on others who may have honestly held but divergent religious views (or no religious views at all). There may be good arguments against Sunday retail alcohol sales, but religious belief should not be among them.

(Note that in the above-copy I've corrected several typos that were created by the editing that was done to the original version of the post that I submitted. I also added the link to the original article that my post referenced.)

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Wednesday, July 29, 2009

Indiana's Arcane and Archaic Alcohol Laws

Anybody who has ever purchased beer or wine in an Indiana grocery store should be well aware of some of the dumbest laws in the country. For those unfamiliar with Indiana's arcane and archaic alcohol laws, let me give a quick introduction. Rather than simply explain the laws, I'll use a scenario or two to illustrate.

So, it's late on Saturday afternoon and your wife tells you that some friends are going to come over and you're going to grill some burgers. Sounds great. She tells you to run up to the grocery to buy some burgers and beer. You hop in your car, run up to the corner grocery, and get ready to make your purchases. The burgers are easy. The beer? Well that's another story. Because your friends are coming over soon, it would be great to have some cold beer, wouldn't it? But this is Indiana and you're in a grocery store. Sure you can buy beer and wine and maybe other types of spirits, but guess what? You cannot purchase cold beer. Nope. Not in an Indiana grocery store. For that, you'll have to go to a package liquor store.

You decide that you'll just throw the beer in a cooler when you get home instead of running to a second store (and besides, you know that you'd probably pay more for the beer at a liquor store...). After all, your friends will be over soon. So you get in line to pay for your purchases. A young girl, probably in high school, is ringing up purchases for customers. When your turn comes, she smiles and starts to ring up your items. She runs the burgers and chips and paper plates over the bar code scanner until all that is left is the beer. But instead of taking the beer out of the cart and running it over the scanner, she presses the intercom button and asks for assistance in her aisle. What? She notices your perplexed look and explains that she isn't yet 19 so she isn't allowed to sell you the beer. After waiting a few minutes (much to the annoyance of the customers in line behind you), another, older, cashier comes over, picks up the beer, runs it over the bar code scanner, presses a button on the cash register, and then walks away. The original cashier finishes the transaction and collects your money. The bag boy -- who can't be more than 15 or 16 -- picks up the beer, puts in a grocery bag, and then offers to carry your bag to the car for you.

Of course, had it been Sunday afternoon, the grocery wouldn't have been able to sell you the beer at all...

Did you get all that? Let me summarize. Among Indiana's idiotic alcohol-related laws, is a prohibition on grocery stores selling cold beer (if I recall, package liquor stores are prohibited from selling milk; I'm not sure if the prohibition is only for cold milk or if they can sell condensed milk...) and a cashier has to be at least 19 to lift the alcohol out of your cart and run it over the scanner but can take your money for the alcohol. And there doesn't appear to be any age requirement for a bag boy to carry the alcohol out to a car.

I have not taken the time to go find the actual statutes or rules that are operative here; it didn't really seem worth the effort. After all, the question is really one of policy, not implementation.

I suspect that the "no cold beer" law is some sort of protection for the package liquor stores (who most likely are able to charge more for the cold drinks that they can sell). So, I guess that the pros and cons of that law really come down to purely economic issues. But I would query why the package liquor stores need that type of protection from the state. Either their business model is sound or it is not. After all, isn't that what people have been saying of late about all sorts of businesses and industries...?

But I really don't understand the need to have a 19-year old scan the alcohol. First, why are we treating a 19-year old differently than an 18-year old? They're both adults, yet neither is old enough to drink (whether the drinking age should be lowered to 18 may make an interesting discussion for another day). So why is 19 the "magic" age? Furthermore, why is it a problem for an 18-year old to pick up a case of beer and run it over a bar code scanner but acceptable for that same 18-year old (or an even younger employee) to put that case of beer in a bag and/or carry it to a customer's car? And don't forget that the 18-year old cashier can complete the purchase and accept the customer's money (thus, in effect, "selling" the alcohol to the customer). What is it about the act of scanning the price of the alcohol that is so troublesome?

I've only been able to come up with two explanations and one falls on its face almost immediately. The first explanation is that we don't want "underage" employees to sell alcohol (probably because it will "corrupt" them or lead to some other evil result). But, as I mentioned above, the underage cashier is able to complete the transaction and take the money. All the underage cashier is apparently prohibited from doing is scanning the bar code of the beer. This explanation also fails because the distinction between scanning the bar code, completing the transaction, and carrying the alcohol to a car is a perfect example of a distinction without meaning.

The only other explanation would be that we want older cashiers to handle the transactions so that they can properly check the age of the purchaser and do a better job of enforcing the applicable alcohol laws. Of course, the number of times that I've been carded when buying alcohol over the last, oh, 15 years, I can probably count on one hand. And again, I don't understand the distinction between 18-year olds and 19-year olds. They can both vote and can both die in Iraq, but we can trust one to check IDs and not the other?

Perhaps there is another explanation that I can't think of; I'd love to hear it. But absent some good explanation, these laws should be repealed.

Two other alcohol related laws are worth mentioning. First, of course, is the ban on alcohol sales on Sunday. Well, it isn't really a ban; after all, you can purchase alcohol at a bar or stadium or restaurant. Hoosiers for Beverage Choice is working on this issue (and on the cold beer in grocery store issue). I just want to add two thoughts on the subject. First, even before it was legal to sell alcohol in restaurants and bars on Sundays (I think that the law changed in the late '70s), it was legal to sell alcohol on Sundays at a facility with a paved race track of not less than 2 1/2 miles (of course, the only facility that fell into that exception was the Indianapolis Motor Speedway, home of the Indianapolis 500, which was run on Sunday). If always gotten a chuckle out of that one; apparently, even when Indiana was dry on Sundays, the legislature recognized the importance to the state of the Indianapolis 500 and did what was necessary to help.

More importantly, it seems obvious that Sunday was day chosen for a limited ban on alcohol sales for religious reasons. I guess that I our legislature felt that on Sunday Hoosiers should be in church (or at a sporting event or restaurant or bar) and not at a liquor store. But we are, in essence, limiting the rights of all Hoosiers to engage in a certain form of legal commerce and recreation, apparently in order not to offend the religious sensitivities of other Hoosiers. We don't prohibit the purchase of meat on Fridays during Lent and we don't prohibit the purchase of pork or other products prohibited by certain religious belief. So why do we elevate one particular sensitivity in order to appease a particular religious constituency? Blue laws like this one (or the ban on selling cars on Sundays) have no place in the 21st Century and should be repealed.

Finally, it has recently come to my attention that for some other arcane and idiotic reasons (having primarily to do with protections for alcohol wholesalers), some wineries and wine clubs are prohibited from shipping their wines to addresses in Indiana. One might ask the legislature -- elected to represent the people of Indiana -- to explain why they believe it appropriate to protect wholesalers at the expense of individual Hoosiers. Just curious.

As Indiana fights to attract jobs and economic investment, our legislature has to look carefully at laws that make Indiana a less attractive destination and/or which make us look like hicks still living in the 19th Century. Blue laws are at the top of that list.

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Wednesday, May 27, 2009

What Is an Activist Judge? (And a Few Bonus Thoughts)

Now that President Obama has nominated Judge Sonia Sotomayor to the Supreme Court, we will undoubtedly begin to hear the Republicans proclaim that she is an "activist judge" and, thus, should not be confirmed to the bench. The next time that you hear that phrase, however, stop and think about what it really means. We often hear Republicans using the phrase "legislate from the bench" when describing a so-called activist judge. Again, what does that phrase mean? If a friend or colleague describes Judge Sotomayor as an activist judge, ask them to explain precisely what that means and don't let them simply say that she legislates from the bench. Ask for specific examples of what is meant by judicial activism and legislation. And if the only thing that your friend or colleague can come up with is some mumbo jumbo about creating new rights, you might ask what, precisely, is wrong with finding that people have certain rights...

Anyway, when thinking about the answers to those questions, consider the following. By one measure, legislating from the bench could be thought of as countermanding the will of the elected leadership of the nation, in other words, invalidating legislation passed by Congress or a state legislature. Back in 2005, The New York Times examined the voting records of the nine Supreme Court justices for the period from 1994 through 2005 to see which ones most frequently struck down Congressional laws. Before looking at the results, take a minute guess which justices you think will have been the most active at striking down laws, then see if the actual results conform to your guess:

Thomas 65.63%conservative
Kennedy 64.06%moderate
Scalia 56.25%conservative
Rehnquist 46.88%conservativereplaced by Roberts
O’Connor46.77%moderatereplaced by Alito
Souter 42.19%liberalto be replaced by Sotomayor
Stevens 39.34%liberal
Ginsburg 39.06%liberal
Breyer 28.13%liberal

For those who are not Court watchers, I've noted above which justices are generally thought of as liberals, moderates, or conservatives and I've made notes about the justices that are no longer on the bench (and who replaced them).

Or, take a look at these results from a similar study done by Cass Sunstein for The Washington Independent in which he examined the rate of the justices of upholding agency decisions:
Breyer 82
Souter 77
Ginsburg 74
Stevens 71
O’Connor 68
Kennedy 67
Rehnquist 64
Thomas 54
Scalia 52

Did you notice anything odd about those results? The three conservative members of the Court were far more likely to strike down laws passed by Congress (or were less likely to uphold agency decisions) than were the liberal members of the Court. But how can that be? Wouldn't the act of striking down a law passed by Congress be a case of legislating from the bench, the hallmark of an "activist judge"? Hmmm. Things to think about as the nomination process moves ahead.

I'm sure that I'll have more thoughts on the nomination in the weeks to come, but I did want to offer a small taste of what I suspect we can expect from the nomination process. Here, for example, is a portion of the comments of Sen. James Inhofe (R-Oklahoma) (and yes he's the senator that I took to task for hypocrisy in an IN Touch posting) about Judge Sotomayor:

In the months ahead, it will be important for those of us in the U.S. Senate to
weigh her qualifications and character as well as her ability to rule fairly
without undue influence from her own personal race, gender, or political

I wonder whether Sen. Inhofe has the same concerns about white men? After all, if Judge Sotomayor is confirmed, there will only be six white men left on the Court. Moreover, clearly white men have never been influenced by their own race, gender, or political preferences, have they? I mean, it isn't like white men ruled that separate but equal was acceptable. (It is also worth noting that, if confirmed, Judge Sotomayor would be the sixth Catholic to sit on the current bench.)

Second, Republicans from Karl Rove on down the food chain are already expressing concerns that Judge Sotomayor might not be "smart enough" to be on the Supreme Court. To quote SCOTUSBlog:

The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.

Oh, and she was also an editor of the Yale Law Review and the editor of another Yale law journal.

I suspect that those who claim that Judge Sotomayor isn't smart enough are the same people who weren't particularly impressed by candidate Obama's academic credentials and who thought that Sarah Palin's attendance at tiny schools nobody has ever heard of was more than sufficient for her to be elected to the office of Vice President. (See my previous post Elitism in Politics for more on that thought.)

Over the coming weeks and months, you will hear plenty of criticism (and praise) for Judge Sotomayor. Just remember to consider the source of the comment, whether the source has an agenda, whether the source knows what they're talking about (it is easy to comment on a judicial opinion; it is another thing entirely to actually read the opinion and then speak knowledgeably about it), and whether the source has been even-handed in criticisms of other nominees (and the nomination process). Then take some time and do some independent reading. Don't just listen to a particular soundbite that may be taken out of context; go listen to the speech (or at least more of it). Don't just presume that what an advocate tells you is, in fact, true; go see for yourself. To get you started, here's an article from SCOTUSBlog on her judicial record.

And, for the record, I have not yet had an opportunity to review her judicial record or learn much more about her than what has been on the news over the last day or so. Thus, I have not made up my own opinion as to whether she should be confirmed or will likely make a good justice. I'll make an informed decision as I learn more.

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Thursday, January 22, 2009

Guns in Dorms!

For every good bill introduced in the Indiana General Assembly, there are a handful of bad bills. And each year there are also a handful of bills that are so bad that they are just idiotic. Senate Bill 12 (authored by  Sen. Johnny Nugent, R-Southeast Indiana) is the winner (at least so far) of dumbest bill of the 2009 legislative session. The bill would add one new chapter (consisting of once sentence) to the Indiana criminal code:

A state educational institution may not regulate in any manner the ownership, possession, carrying, or transportation of firearms or ammunition.

When I first saw this bill I presumed that it was in response to the tragic events at Virginia Tech University and Sen. Nugent’s letter to the editor of The Indianapolis Star (in response to an opinion column opposing the bill) confirms that presumption. While I understand (well, kinda…) Sen. Nugent’s desire to allow college students to pack heat in order to protect themselves from nutcases who might be intent on violence on campus, it doesn’t take much thought to see why SB 12 is a really, really bad idea.

Let’s consider a few things. First, most students don’t live by themselves on campus. Thus, the gun, when not carried by the student, will likely be sitting in a dorm room to which many other people (roommate(s) and friends, for example) will have access. My freshman dorm room was often a bit like Grand Central Station and there weren’t many good hiding places. And remember that college roommates don’t always get along (I used a jar of gefilte fish when I needed a little privacy; my Korean roommate preferred to use his mom’s kimche). Fights among roommates (whether merely verbal or escalating to something more) are not uncommon. Add to this brew the fact that we are talking about young adults, many of them away from home for the first time, often under a great deal of stress (presuming that they are taking their studies seriously). Do we really want to introduce guns into that situation? Oh, I forgot to mention alcohol. Last time that I checked, use of alcohol (and even drugs) was fairly common on college campuses. And we know how well guns and alcohol mix.

And let’s go back to Virginia Tech for a moment. I suppose that the shooter might have been stopped had another student been armed. Maybe. But unless the other armed student (students?) really knew their way around their firearms, how much collateral damage (i.e., other students) would have been caused. Police officers undergo extensive training before being allowed on the street with a weapon, but virtually anyone can obtain a license to own a gun. If you are the parent of a college student, would you be comforted to know that your child might be protected from a crazed serial killer by other students with concealed weapons? Or, are you more concerned that those weapons will pose an even greater danger to your child than the rare serial killer?

And ask yourself this: Why limit this statute to colleges? Why not allow guns in high schools or hospitals or courtrooms? Maybe if the passengers aboard the planes on 9/11 had been armed, they would not have been hijacked (of course, the passengers defending the planes might have shot out windows and caused the planes to crash anyway…)! Maybe we should require everyone to have a gun! Yeah, that’s the ticket. If we all have a pistol on our hip, an assault rifle on our shoulder, a few grenades on our belt, and maybe a rocket launcher strapped to our back, no one will mess with us and we’ll be free of crime and violence forever! Of course one little misunderstanding could get pretty ugly, very quickly, but I guess that is the price that we should pay for safety, right?

Sarcasm aside, I think that guns are dangerous. They are supposed to be. But when it comes to college campuses, I think that students will be much safer in a gun-free environment. Sure, from time to time someone may come along with a means and motive to do harm. That, unfortunately is part of our society (of course, if that person had a more difficult time obtaining a gun in the first place…). But to address that rare occurrence by allowing yet more weapons is simply asking for trouble and yet more  violence. We should be looking for every opportunity to reduce the chance of gun violence rather than increasing that chance in order to reduce the isolated really bad instances of gun violence.

Please call your legislators (remember, you can check the Indiana General Assembly’s “Who Are Your Legislators?” page to learn who your legislators are and get their contact information) and tell them to oppose Senate Bill 12.

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Playing a Little Offense

Finally, some on the left (or maybe just center) have decided to stop playing defense in the Indiana General Assembly and have, instead begun to offer bills to counter some recent efforts by the religious right. Allow me to offer two examples that have been introduced in the latest session.

House Bill 1317 (authored by Rep. Linda Lawson, D-Hammond) and its companion Senate Bill 258 (authored by Sen. Jean D. Breaux, D-Indianapolis) would require schools that adopt an abstinence-only sexual education curriculum to notify parents of that curriculum choice. Parents would then have the option to have their child excluded from that curriculum. More importantly, the notice from the school’s principal about the use of an abstinence-only curriculum would tell parents:

Your child is receiving abstinence-only human sexuality education.

Abstinence-only education does not teach students how to prevent pregnancy or sexually transmitted diseases other than by remaining abstinent.

Your child is not receiving the following:

     (A) Information on methods, other than abstinence, for preventing pregnancy and sexually transmitted diseases, including HIV/AIDS.
     (B) Medically accurate instruction on the risks and benefits, including safety and efficacy, of Food and Drug Administration (FDA) approved methods for:
          (i) reducing the risk of contracting sexually transmitted diseases, including HIV/AIDS; and
          (ii) preventing pregnancy.
     (C) Medically accurate instruction regarding the correct use of FDA approved methods for:
          (i) reducing the risk of contracting sexually transmitted diseases, including HIV/AIDS; and
          (ii) preventing pregnancy.
     (D) Instruction that provides lesbian, gay, bisexual, and transgender students with the necessary skills for making and implementing responsible decisions about relationships and sexuality, including the use of all effective methods to prevent sexually transmitted diseases, including HIV/AIDS.
     (E) Instruction that provides sexually active students with the necessary skills for making and implementing responsible decisions about relationships and sexuality, including the use of all effective methods to prevent pregnancy and sexually transmitted diseases, including HIV/AIDS.

You have the right to review the abstinence-only curriculum in its entirety. Written and audiovisual educational materials used in abstinence-only education are available for inspection.

You have the right to excuse your child from all or parts of abstinence-only instruction.

You have the right to be involved in your child's education.

There are several points to be made about this bill and the notice that it would require. First, for years, those on the right have argued that parents, not just school administrators, should be making decisions about education. This bill follows that philosophy, but, for a change, is giving parents a say in academic curricula decisions that are important to the religious right.

More importantly, look again at what the the notice to parents would say. I suppose that proponents of abstinence-only education will argue that a child in an abstinence-only program does, in a fashion, learn some of the things mentioned in the notice; after all, abstaining from sex will prevent the transmission of HIV/AIDS and other sexually transmitted diseases. Of course, that argument presumes that abstinence-only education works. Studies have shown (see for example, “Experts say US sex abstinence program doesn’t work”) that abstinence-only programs do not lessen teen pregnancies, reduce the transmission of sexually transmitted diseases, or delay the age at which children become sexually active. Children in such programs who do become sexually active will not, as the notice reminds parents, have learned those skills and lessons. For that matter, those children, when they become young adults and do become sexually active (even those who wait until marriage), still will not have received the appropriate education on these subjects.

As fellow blogger Masson notes:

Might as well require [school principals] to send out a notice saying, “Hi, we’re being criminally negligent with your child’s education. How soon would you like our resignation?”

I don’t know about you, but I’d prefer that my children had the facts (and medically accurate facts at that) instead of making decisions in an knowledge vacuum.

Please call your legislators (and you can check the Indiana General Assembly’s “Who Are Your Legislators?” page to learn who your legislators are and get their contact information) and tell them to support House Bill 1317 and Senate Bill 258.

House Bill 1238 (authored by Rep. Vanessa Summers, D-Indianapolis) and its companion Senate Bill 20 (authored by  Sen. Sue Errington, D-Muncie) is, in essence, the opposite of the pharmacist refusal bill that I wrote about during the 2008 session of the Indiana General Assembly. Last year’s bill would have given a pharmacist legal cover for failing to dispense legally prescribed medications on the basis of the pharmacist’s religious beliefs. House Bill 1238, in contrast, would require that a pharmacy dispense properly prescribed contraceptives in accordance with the way that the pharmacy dispenses other medications (and, if the pharmacy does not carry the prescribed contraceptive, the pharmacy would be required to obtain the contraceptive or locate the closest pharmacy that does carry the prescribed contraceptive). Even more importantly, the bill provides that “the pharmacy will not intimidate, threaten, or harass the pharmacy's customers in the delivery of services”. In the other words, the pharmacist could not attempt to bully the patient into not using the contraceptive. It seems like such a simple proposition, yet I suspect that this bill will face fierce opposition.

Please call your legislators (remember, you can check the Indiana General Assembly’s “Who Are Your Legislators?” page to learn who your legislators are and get their contact information) and tell them to support House Bill 1238 and Senate Bill 20.

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