Gay Marriage Considered Under the Equal Protection Clause

Perhaps it would be good, from time to time, to drop the grandiloquence and the witty turn of phrase and do more close-in legal analysis of some things which are in the public realm of discussion these days.  Such as, gay rights & gay marriage, two issues given higher visibility by the nomination of Rick Warren as the Communicator with our Invisible Friend as the religious start of a secular proceeding next month.  (First question: why are we praying at a state function?  It's unConstitutional in the extreme.)

I am taken to task from time to time for not observing the distinction which the Christian Evangelicals, as exemplified by Rick Warren and his Orange County cult, maintain between "tolerance" for homosexual activity and "endorsement" of such activity.  Herein, I am told, lies my failure to comprehend.  Evangelicals have "compassion" for gays; it's just that their belief system does not allow them to go so far as to "sanction" or "legitimize" such unholy practices as marriage between two persons of the same sex.  If I could understand this, you see, I would see The Light.

One wonders, of course, if the confidence of Evangelicals is this serene and untroubled, why Rick Warren told his Webmeister to take down the "No Gays Allowed" part of his website (saddlebackfamily.com) a few days ago.  It seems so...what's the phrase?  PR driven.  It's almost as if some deal got worked out by the Obama Transition Team and the madhouse in the OC.  (I was honestly trying to keep this post high minded, but it's just too much fun to write like this.  Sorry.)  Wouldn't you love to have a transcript of that telephone call?  "Hey Rick," Rahm says, "we don't mind you busting gays there in wherever the hell you are, but you gotta pull that 'Keep Out' sign from the website, capisc? We're taking some real heat from our side."  Rick:  "No problem. It's not like I believe any of this shit anyway.  It's just red meat for the Wal-Mart sales staff in the pews."  

Still...and along more serious lines.  The fundamental error in the specious distinction offered by the Evangelicals, which they use as a means of avoiding a charge of bigotry, is based on two false premises: First, civil rights in this country are not determined according to a religious standard.  And second, civil rights are not a matter of majoritarian "tolerance;" it is not the province of Evangelicals, or any other pressure group, to determine who gets to enjoy their fundamental human liberties.

The first error is based upon a confusion, in the case of gay marriage, between religious and secular institutions.  The state-sanctioned union of two people in marriage carries with it a great number of practical ramifications and exists as a legal arrangement. While the state permits marriage ceremonies to be performed by religious officials, marriage licenses are issued by the state.  You can get married with a marriage license in a ceremony performed by a judge, for example.  But the Catholic Church does not issue marriage licenses binding on the state.

Gay marriage offends the religious ideas of the Evangelical right wing because they perceive of marriage as a holy arrangement ordained by God.  That's fine if they want to believe that.  Such an attitude is not binding on the State.  The inability of the Evangelicals to see this easy and fundamental distinction lies at the root of their difficulty in being fair.  An analogy might make the point clearer.  If Evangelicals believed that the black man was a racial inferior who should be denied public office (as the Mormons, world leaders in this new intolerance, once did), that would not make the case for such discrimination.  The Equal Protection Clause would strike down the discrimination anyway, and the First Amendment's Establishment Clause would be cited in support of the ruling.

It is simply because "marriage" and "family" have acquired such a totemic, proprietary status among Evangelicals that they feel they have the right to enforce their bigotry in this area of civil rights. The "institution" of marriage will be threatened if gays are allowed to marry, they say.  No it won't.  The institution will be enhanced and made more generally available.  Pastor Rick's fear that gay marriage will lead to polygamy, pedophilia and incest, as he expressed in an interview on national TV, demonstrates only one thing: he's a really dumb guy, which is another reason I'm scratching my head over this Obama sell-out.  (Pastor Rick also expressed his desire to sleep with all the beautiful women he sees.  Oh man, there is going to be such a scandal someday down in Saddleback.  Obama is so going to regret this choice.)

The second point is that we don't subject fundamental civil liberties to popular vote.  We protect fundamental rights from "the tyranny of the majority," in de Tocqueville's wonderful phrase.  One day (ironically, after Obama replaces the Medieval thinker Antonin Scalia with a secular judge) the Supreme Court will rule, under the Equal Protection Clause, that gays, possessing an unalterable natural trait, sexual orientation, are denied equal protection on the basis of that innate characteristic by preventing them from marrying in the one, honest way they can.  This ruling will be, first, a victory of science over religious obscurantism and its sin-obsessed views of homosexuality, and second, a triumph of compassion and justice over bigotry.

As a civil libertarian and a believer in freedom of religion, I will, of course, go on arguing for the fundamental right of Evangelicals, Mormons, Catholics and others afraid of science and progress to be safe and secure in their discrimination and hatred, as long as it doesn't spill over into their old practices of violating secular laws, such as burning people at the stake.  Also, I would encourage them to read the New Testament a little more closely, since it doesn't really have a bad word to say about consensual homosexuality.  It was concerned with pederasty, a form of sexual assault upon adolescent prostitutes and slaves which was as much a problem among heterosexuals as the "gays" of Biblical times.  This is the sort of distinction which Pastor Rick, of course, is not likely ever to grok.  Jesus himself was a very tolerant guy; I'm pretty certain I know how he would have voted on Proposition 8.

A Christmas Story

The story surrounding the birth of Jesus on December 25 in Bethlehem is occasionally worth a second look, as part of one's own maturation process, because so much of what we take for granted about the story is based on childhood impressions that, for one reason or another, we never bother to disturb with later reading. The birth is described in what Christians call the "New Testament" and what Jewish scholars call "Mishagoss."  

I suppose it's actually unlikely that Jesus was born on December 25; one factor often cited is that the weather would not have been conducive to shepherds tending their flocks in the field.  But let's check today's weather in the West Bank and see:  It's 54 degrees, with an overnight low predicted of 40. Light rain.  C'mon: shepherds could hack that.  Other objections include the contention that Christians borrowed the birthdate of Mithra, a pagan character who was born on the Solstice of the old Julian calendar, which happens to be December 25.  Coincidences happen, I say.

Only Matthew and Luke actually write about the birth of Jesus. Mark & John shine it on, and pick up the story later.  Matthew goes into a lot of detail about Herod's role in the story.  Herod was a local despot and Roman puppet who heard about this birth and was a little worried about his sinecure being disturbed by the upstart.  So he convened a council of scribes and the rest of his cabinet to talk it over.  He's the one, according to Matthew, who sent the Magi to track down the newborn.  "Bring him to me, " he said, "so I can worship him too."  Heh heh.  That crafty Herod.  The Three Wise Men "followed a star" to Bethlehem, which was a neat trick, in a way, because Jerusalem was only about 8 kilometers from Bethlehem. Plus, stars tend to move east to west in the night sky, and Bethlehem is south of Jerusalem. Anyway, this star shone on one particular house in the West Bank and the Magi knew they had arrived. Matthew says it was just a house, by the way, not a manger.  Luke's story has the manger, which was fortunate because a lot of Christmas carols would not work without a manger.  Try singing "Away in a house..." if you don't believe me.

Never mind.  Matthew's always been a little sloppy, but what I like about him is his vivid imagination.  He came up with names for the gifts they gave to Jesus, and he also added the part where another angel comes to Joseph & Mary and tells them to go to Egypt to avoid Herod's ethnic cleansing, another in an apparently endless series of pogroms to which Jesus's people have been subjected.  So they decamp for several years, and Herod's slaughter of the innocents (all kids under two years old) rages through the Holy Land.

Herod's reputation would suffer more but for the historical game-changer that he died in 4 B.C.  I chalk this minor error up to Matthew's lack of access to Google.  It's easy to take potshots at Matthew now, because that looks like a huge blunder.  But keep it in context.  Anyway, Joseph & Mary return home after a few years.

Luke places J&M in Bethlehem to respond to a census ordered by the Roman Emperor.  They move from Nazareth to Bethlehem, which is odd since a census usually records where you live.  One must applaud Joseph's courage; to move his pregnant Jewish wife on a four-day journey.  "Hey!" she says.  "I'm about to blow here!"  "It's not my kid," Joseph retorts.  That's why the alter kakers liked Joseph at the card tables.  Always quick with a retort.

Although he knew it was his kid.  Matthew wasn't too good at translating Hebrew either, or maybe he was led astray by relying on a second-rate Greek translation. (How did Matt even get the job writing the first Gospel?  Where did he get his history degree, Oral Roberts?  Was he on a basketball scholarship?)  The ancient Hebrew word found in Isaiah 7:14 was "almah," which means a young woman of marriageable age, not a virgin.  "Bethulah" means virgin, but the Greek Septuagint translation renders "almah" as "parthenos," which indicates virginity.

Luke never has the doughty couple and their heralded offspring flee to Egypt.  They just go home after the "census," although maybe that didn't happen either, since there was no direct Roman rule over Nazareth or Bethlehem at the time of Jesus's birth.  I'm getting confused now, since I think this part of the history is screwed up by Luke, not Matthew.  Also, these census operations only applied to Roman citizens, and Joseph was a Galilean.  Other than that...What I will commend Luke for is that he doesn't libel the already-dead Herod by accusing him of mass murder.  The slaughter of the innocents is only in Matthew.

Yeah, there are other problems.  Matthew & Luke don't even agree on the name of Joseph's father, how many generations there were between David & Jesus, or even whether Jesus was within the "royal succession."  Jesus himself didn't seem to care and I commend him for it.  I commend him for a lot of things.  He doesn't need to be God for me to appreciate him as an extraordinary Jew born to a nice Jewish couple, and to honor his deep wisdom about ways that humans ought to conduct their lives and treat each other.  All this from a humble man, the son of a carpenter, a Jewish man, in other words, who made his living by being good with his hands -- now there's your Christmas Miracle.

You Too Can Be Successful

In our new Gilded Age it seems that only the Robber Barons really make out.  Reading about the pathetic saga of Bernard Madoff and his Ponzi scheme, one is led to think that in our society, where probably 99% of the populace go about their personal and wage-earning lives with integrity and a naive, trusting faith, that the Little Guy just doesn't have a chance anymore.  Add up all the cons, frauds, schemes, deregulation over the last twenty years or so and you must come to the conclusion that in modern American society, only crime pays.  Enron, the mutual fund scandals (inside dope to big investors, which Spitzer prosecuted - it's why he had to go), Martha Stewart, the subprime/Moody's/Big Investment Bank conspiracy -- these are headlines, but they barely scratch the surface.  The truth is that the entire financial system in the United States, including these vaunted "markets" that Bush/Paulson want to prop up, are all absolutely rotten to their core.  And in a decadent system where everyone has abandoned the idea of true productivity, the only people who are going to make money are the short-sell players (like John Paulson's hedge fund) and the crooks.

This is why it's so natural for Henry Paulson to embezzle $350 billion authorized by Congress and give it to friends and associates to reimburse them for the losses stemming from their criminal enterprises.  Congress members, like Barney Frank, cluck about it -- they're "disappointed," but they don't do anything.  It's actually what Congress expected.  Their campaign finance bills are paid by the same crooks.  Our liberal "friends" in high places, like Chuck Schumer of New York, who has personally guarded the capital gains rate tax advanage of hedge fund managers making billions; Joe Biden, who offered full-throated support for that awful Bankruptcy "Reform" Act to protect his credit card company friends -- get wise, little people. They are not looking out for you.  

When you look at it this way, you begin to see that the main difference between Bernard Madoff and someone like John Thune at Merrill Lynch is that Madoff dispensed with formalities and simply stole his investors' money outright.  He just cut out the pretend part - the part where he "invests" your money in some worthless "security" which evaporates like water on a Phoenix sidewalk in mid-July.  The investment bankers played a different game, which was to package millions of mortgages which they knew to be dodgy into huge "bonds," then paid Moody's to slap a Triple A sticker on this pile of crap, then used the imprimatur of the august, thoroughly corrupt ratings service to sell the "securities" to pension funds, hedge funds, high rollers and Norwegian School Teacher Credit Unions. The investment bank took its money at the front end; commissions and fees, which soared into the billions, which they doled out to the best con men among them.  Unfortunately for the banks, a lot of them also bought their own bullshit, or got caught up in credit default swaps which tied them inextricably into the demise of the American financial system.

So look -- why should you be left out?  When I was doing securities litigation a couple of decades ago, I studied the venerable art of the Ponzi scheme up close, as a lawyer trying to recover money for an "investor" in such a fraud.  It's not easy because Ponzi operators are not big on keeping detailed books.  The "books" which do exist are about nonexistent things: investments never made, dividends never paid.  I'm not saying in your own Ponzi scheme that you won't have to use your imagination - that's the fun!  Be like Bernard Madoff and give your pathological lying full latitude.  Make it all up.

He cheated his friends, Elie Wiesel, charities, Steven Spielberg, foundations, schools, hospitals, universities.  The one question I have to ask: aren't you sort of asking for it if you give your money to someone who pronounces his last name Made-off?  I guess.  On the other hand, it shows you just how far you can push things.  Could you set up a Ponzi called the Ima Rippov Fund? Why not try it?!

The basics are simple.  You have an external burn rate (EBR) and an Internal Burn Rate (IBR).  Let's see your fund in action.  It has a name, like Bernie's "Ascot Partners."  (Classy, huh?)  Yours has a marine theme - the "Pond Sea Fund."  That's pastoral and soothing, I think.  You start with ten good friends who put a million up (have them mortgage their houses to the 125% level) and you promise them 10% per annum. So your EBR (what you pay out) is $1 million per year.  You pay yourself $1 million too. You have to have fun while you're doing this.  Look at Bernie: apartment in Manhattan, house in the Hamptons, house in Palm Beach, villa in France, 55-foot yacht. It didn't all go strictly into overhead.

Your friends will do most of the work for you after that.  They're making 10% on their money!  Spread the word to children's cancer hospitals, the March of Dimes, disaster relief funds, Lighthouse for the Blind, your college alma mater - let them all in on this good thing.  The math does not change much.  When you hit $100 million, your EBR is still only $10 million, and you may as well increase your IBR to $10 million too.  Start buying real estate, nice second, third, fourth homes, in countries which do not allow extradition for financial crimes.  Also, get a good long range jet and a pilot who can fly beneath radar cover.

And whatever you do, don't make Bernard Madoff's mistake. Don't stay too long at the fair.  Sure, you could push your haul to $100 million, $500 million, a billion dollars.  What's the point beyond a certain number?  Finally, on that big day, you declare the Internal Burn Rate is going to 100%, payable immediately.  However much is in the Pond Sea Fund is yours. You wire it to that waiting account.  You put on your nice black suit and get into your nice black Mercedes and drive down to the general aviation field of your local airport where your fake flight plan (everything you've done for years is fake, this is easy) calls for a 3 am takeoff.  You leave all your troubles behind, including suicides among your friends, destitution, deaths of untreated children, fired teachers at the schools you destroyed, foreclosures left and right, alcoholism, despair, hopelessness.  Really, a whole lot like what an awful lot of Americans are going through after investing in "honest" securities with Lehman Brothers, Goldman Sachs, Merrill Lynch, Fannie Mae, Freddie Mac.  So now you've done it - you've achieved a real American success. One not requiring a bailout, either!  But just like your heroes in the "straight" financial world, it's going to work best if you enjoy it somewhere else.

Economic Optimism & Other Illusions

Habitual Swimmers at the Pond are aware of my contention that Paul Krugman, ace economics columnist for the stately New York Times, is occasionally displaced by his Doppelganger, a guy who's not too bright and uses Krugman's byline.  Recently, I'm fairly sure the DG was in residence when Krugman wrote that the public debt was less important than people usually think because "it's basically money we owe ourselves."  I appreciate that the man won the Nobel Prize, but unless he means by "public debt" only that part of the national debt which the U.S. Treasury owes to the various trust funds (e.g., Social Security) which have been systematically looted in order to run the military industrial complex over the last 30 years or so, then his remark makes absolutely no sense.  At least 50% of the national debt is in the form of Treasury obligations (bills & bonds) of various maturities owed to private U.S. citizens and foreign citizens, banks and sovereign wealth funds.  It's just - well, stupid to say anything else.  And we're talking over $5 trillion, and of that amount over half is owed to foreigners.  That is not money "owed to ourselves;" it is very real debt, and the obligation exists against a backdrop of the Obama Administration's determination to invest in a recovery plan which will cost, initially, at least one trillion dollars.  And because of the many bailouts, TARP projects, promises to shore up the auto industry, etc., the deficit for fiscal year 2009 (which we're currently in) is clearly going to exceed a trillion dollars, by far the largest deficit (by a factor of two) in U.S. history, and almost all of that deficit is going to add to the real debt the country owes to real creditors.  The recovery plan of Obama's first year will clearly result in a deficit for fiscal 2010 at least as large, which means the nationald debt at the end of 2010 will exceed $12 trillion, pushing $13 trillion, and almost all of the new debt will take the "real" form as opposed to the DG's idealized notion of illusory debt.  Thus, we're looking at $8 trillion as the non-owed-to-ourselves part of the national debt, and that's difficult to laugh off the way Herr Krugman does.

I think the Doppelganger may have taken advantage of the twinned Christmas/Hanukkah week to push Paul out of his chair again today: 

Whatever the new administration does, we’re in for months, perhaps even a year, of economic hell. After that, things should get better, as President Obama’s stimulus plan — O.K., I’m told that the politically correct term is now “economic recovery plan” — begins to gain traction. Late next year the economy should begin to stabilize, and I’m fairly optimistic about 2010.

So my question for the Gheist is simply this: why?  What is the basis of the optimism?  Now, to begin with I do not want to stand in solidarity with such negativists as Jim Kunstler, the Clusterf**k Man (linked on this very page), who just never gives the American economy or its valiant people a break.  He's convinced that the generation currently in charge of the United States is simply incapable of any kind of rejuvenation, that we lack a real work ethic, that we're addicted to the Cosmic Free Lunch School of Economics, that we'd rather borrow than earn, that we haven't really done anything to ameliorate our situation or improve our modes of living (such as building a real railroad system or investing in sustainable farms) in generations, that we...okay, look.  Kunstler may not be totally wrong.  I note that yesterday Joe Biden, on "This Week," told cute little Georgie Stephanopolous (who does such an unconvincing job of playing a hard-hitting interrogator) that the economy could "tank" or "collapse" if we don't take drastic action, and that we just can't worry about deficits at this point.

I can see that it will do no good to worry about deficits.  It seems to me we're way past that point; indeed, we have crossed over into a new fiscal frontier, one where the Treasury Department is itself buying U.S. Treasuries to finance bailouts.  Now, perhaps I lack the sophistication of a Nobel Prize-winning economist, but isn't that more or less identical to covering a bad check at your bank by writing a check on the same account and depositing it?

"Legitimacy Dwindles."  That's the title on Clusterf**k's column today.  ("Dwindle" is one of only three common English words that begin with "dw," the other two being "dwarf" and "dwell."  See, Itz?  I read the emails, and Happy Festival of Lights.)  To lay my cards on the table, I really, really hope Krugman is right and Kunstler is wrong, and it's because, really, I think they're both partly spot on.  America is unique, which is why, so far, we've been allowed by the world at large to pretend we have the money which Biden talked about spending.  We don't actually have the money - not at all, not even close.  The problem is that the country which must use this unique resource, fake money, in order to revive the world's economies is the United States, and we are that collection of deadbeats, goof-offs, greed-heads, spoiled in-crowd kids sitting at the same table in the cafeteria, the one reserved for those who insist dining daily on the Cosmic Free Lunch.

Obama & Warren

Somewhat more than a year ago my cousin, oft-published writer, musician, philosopher, wit and alumnus of the same demented Fundie denomination that so scrambled my early cognitive development, had the idea that we should attend a "reunion" of the 17th Street congregation of this very church.  The 17th Street in question is on the western edge of the Mission District, not far east of Eureka Valley, and just a few blocks away from the heart of the Castro District, all of these locations in San Francisco.  Trusting my older cousin's judgment, and not wanting him to go through such an experience alone, I tagged along.  The congregation that used to meet at 17th Street now meets out at Lake Merced, along Brotherhood Way, in a soulless building, a giant A-frame, with an accompanying, depressing multi-purpose building. It was a foggy, cold day, which is to say: a day in San Francisco. The reunion started out with a Continental breakfast, a long table laden with the usual victuals typical of the denomination's Southern roots: ham, potato salad, fried chicken, strawberry cream pie.  Looking at this array, my cousin said, sotto voce, "What Continent?"  I told you he was a witty guy.

One of the "highlights" of the reunion was a visit to the old 17th Street building, which I remembered dimly from my 1950's youth.  The truth is, unlike my cousin, I never attended this church with any regularity.  I was down the Peninsula, but on occasion my mother would bring her sons up north for a special event, like the Sunday Pat Boone preached there.  What I remembered about the church was the semi-circular auditorium, with its great skylight in the ceiling, the balcony and the cold San Francisco wind forever blowing into the building.  

The building had changed hands.  It was now under the control of the Cornerstone Church, another Fundamentalist church which was to the Fundie church of my youth as National Socialism is to the politics of Nelson Rockefeller.  Our guide was a young fellow with a goatee and righteous attitude who displayed (subtle but nevertheless ill-disguised) contempt at the old congregants on the tour, at the pathetic size of the former 17th Street congregation (maybe 200 souls on a big Sunday), at the old-fashioned look of the joint when they first moved in, at how generally out of it those old alumnae now marooned out at Lake Merced really were.  The skylight had been removed and replaced with a hi-tech lighting array, which was much more conducive to the rock bands featured in the liturgy.  The guitars, drum sets, amps and mikes were all set up on the "stage" (what we might have called the dais back in the old days), in preparation for Sunday's gigs (the reunion was on a Saturday). On Sunday, our guide told us, they really packed 'em in, five or six separate shifts over the course of the morning, all SRO.  They recruited congregants from all over the Bay Area, but he was careful to tell us, turning to face West and pointing toward the Castro with both hands, that they did not recruit from the "gay community."  "We don't kowtow to the gays," he said proudly.  Because I am, in my own way, as much of a smart aleck as my cousin I couldn't stop myself from wondering in a stage whisper, "Who would Jesus kowtow to?"

As I've aged, I realize I've lost touch with a lot of things as they've developed, metastasized, degenerated, whatever you want to call these decadent changes in American society. One of those developments is the huge growth in the size and corporate structure of these Fundie religions, now mostly called Evangelical, I guess.  This thing at 17th Street was not the Old Time Religion of my youth.  If you look at Pastor Rick's website at Saddlebackfamily.com, you'll be astounded at the slick, corporate, PR-driven, New Age look of the place.  It's kind of Dr. Phil meets Elmer Gantry hitched to the Recovery Movement.  Twelve-Step flowing seamlessly into career advancement flowing into Group Identification flowing into complete and utter madness.  This Purpose Driven Life stuff that Warren is selling is snake oil and bullshit.  It has all the trappings of a cult, different from Jim Jones & the People's Temple in the sense that the Kool-Aid they're all drinking is the ambrosia of Warren's megalomania.  The Supreme Leader (the goateed and omentum-paunchy Pastor Rick), with his array of "degrees" from various undistinguished religious "colleges," the enmeshment in all kinds of "ministries," meetings, Singles Groups, Couples Groups, Campuses, onward ad absurdum ad nauseum--like all cults, it's all about a quality of total immersion in a group under the charismatic sway of a Personality of dubious provenance and highly-questionable motivations.

And of course: gays need not apply. The website specifically declares that gays cannot become members.  Never mind this latter-day qualifying and excuse-making about whether Pastor Rick is a homophobe.  You bet your sweet ass he is.  I'm a straight man myself, but I do bear in mind the old adage that it's best to defend the rights of the oppressed in order to ensure the rights of all. Otherwise, when the forces of dark intolerance come for you, there will be no one to champion your rights.  Warren is running the same kind of shop as that creep on 17th Street; it's just that Rick has gone very, very big-time with it. Rick Warren, son of a Baptist preacher in a congregation no doubt very much like the church of my youth, saw that in modern America, slick & corporate packaging sell.  Give the suckers what they want.  Give them quick and easy answers to life's eternal dilemmas (like EST once did), give them high-tech, give them one-stop shopping for all their Recovery Needs.  And give them Hate, some things and some people to be against.  Give all these desperate, yearning people the sense there are people they are better than.  Oldest demagogue's trick in the book.

And Barack fell for it.  He put a guy like that at the top of the playbill.  Sign of the times, I guess.  Well, the guy carries some clout, he's got Visibility, he's Hot, at least for a little while, and in this day and age, that's all that really matters.