Stop the HEIGHT!

Today, the Ninth Circuit decided that California’s Proposition 8 was unconstitutional. Twitter became abuzz with the news. After reading the decision, I understand the celebration but find that it will be short-lived.

This decision was extremely narrow. Narrow. It did not even touch the issue of whether gay marriage is a constitutional right. In its comparison with Romer v. Evans, the Ninth Circuit stated:

There is one further important similarity between this case and Romer.  Neither case requires that the voters have stripped the state’s gay and lesbian citizens of any federal constitutional right.  In Romer, Amendment 2 deprived gays and lesbians of statutory protections against discrimination; here, Proposition 8 deprived same-sex partners of the right to use the designation of ‘marriage.’  There is no necessity in either case that the privilege, benefit, or protection at issue to be a constitutional right.  We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.

Today’s decision ruled Proposition 8 unconstitutional under the 14th Amendment because it took away rights that were granted (by the California Supreme Court when it ruled that the statues banning gay marriage was unconstitutional under the California Constitution) on the basis of sexual orientation with no legitimate government interest.  It was the change in the law that was a denial of equal protection, not the denial of marriage to gays.  This implies that had there been no laws on the books allowing gay marriage, Proposition 8 may have been held to be constitutional. Or at least, the court would have had to decide whether gay marriage was a constitutional right.

What are the implications then?  Well, States in the unique situation where neither gay marriage or civil unions between gays and lesbians are recognized, they could conceivably pass laws that say marriage is between a man and woman, only, and be found constitutional.  Or, they may just stop even taking the small step of allowing civil unions.  And nothing in today’s Ninth Circuit decision will stop them, because the issue decided is tailored to the specific facts of Prop 8 and its history.  Nothing more.

Assuming for the moment that the Supreme Court would hear this case (though, unlikely as it is extremely narrow), this is not the case or the time to take it to the Supreme Court on the side of gay marriage proponents.  Let me elaborate.

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One Nation under Canada

I’ll be the first to admit, I did not watch the U.S. Open.  I’m still of the mind that golfers should run after the ball after hitting it, but I digress.  What I took away from the 2011 U.S. Open is the same as most people who heard about it second-hand: NBC omitted “Under God” in their video montage of patriotism and golf, then “apologized” for offending anyone.  This has sparked another national discussion about religion and government and how that all comes to a head in elementary school classrooms all over these United States.

I understand that NBC is a private company and it can choose to omit anything it wants.  The First Amendment allows NBC to go against the U.S. Code for this limited purpose.  However, I do not fault anyone for saying something about that omission, as I would be wholly offended if NBC decided to picture the Star Spangled Banner upside-down or fallen to the ground.  This is not about religion so much as respect and actual love of country.

Whether one likes it or not, religion – more specifically Christianity – was a keystone in the building of the United States.*  We learn from American History, Day 1, that the Puritans and pilgrims came to the New World to escape religious persecution and to practice their religion in peace.  By the American Revolution, the government of the colonies supported the Church and “official” state religions were still around until the mid-1800s. The religious overtones and under-currents of the United States are part of our history.  Not to be ignored or forgotten, but praised and revered.  If it were not for the courageous men and women who fought for their right to believe and practice as they pleased, we would not be having this discussion at all.  Think about it – if we lost the American Revolution, we would be essentially dealing with the Church of England, like, you know, Canada.   We are doing a disservice by not acknowledging that (1) this country was founded with religion in mind, and (2) most people here are still religious!

I am not saying anything that hasn’t been said before.  But riddle me this…

Nearly 23 million Americans watched the royal wedding of the Duke and Duchess of Cambridge on 11 networks, including NBC.  The ceremony included hymns, prayers, sermons, Bible readings, and (oh, look) more prayers.  I, certainly, felt like I was watching a church service – because it was.  Broadcasting this, obviously, was not a worry for NBC.

“But that’s different” says some hypothetical other person that is not merely a voice in my head to further this post, “That is another country; we’re not concerned about their religion.  Here in the U.S. of A, we have separation of church and state.”  To which, inevitably, I reply: “So, what you’re saying is context matters.”  It’s okay if religion happens in the context of happening somewhere else, just not here.  So NBC can muster enough tolerance to air a religious ceremony of a future monarch (whose power, as they say, stems from God!) of a country we broke away from on this very issue, but not enough to tolerate two words of codified U.S. law and purposefully editing it out.

My first reaction upon hearing about NBC’s omission wasn’t offense, more just an eye-roll.  What bothers me, in a there’s-something-stuck-between-my-teeth way, is the distancing away from our history and national identity, all because someone does not want to hear the word “God.”  Well, tough.  I rather hear all words of all religions in tongues in a cacophony of worship than to hear none at all, because it means that my inalienable rights are still in effect.  And so are yours.

* There are many, many, many, many books and analyses regarding the religious beliefs of the individual Founding Fathers.  Though influential, the beliefs of Thomas Jefferson and James Madison did not enact the Constitution – the legislatures of the States were in charge of that.

“Free Speech” – You Keep Using that Phrase

Dana Loesch brought Andrew Sullivan’s take on the Wonkette situation to my attention.   In his post, Sullivan said:

I feel as queasy about this flexing of Palinite muscle as I do about the original, disgusting, asinine story. In some ways, I see a legitimate come-uppance for a tacky site that published a simply inexcusable piece of mean-spirited dreck using a child who cannot defend himself, treating him as if he were subhuman, which he most definitely isn’t. But I also recoil from mob action like this, for the impact it has on fearless free speech and the chilling effect it will have on an already cowed and defensive MSM when covering the truly tough stuff about Palin. (emphasis added)

Sullivan uses “free speech” and “chilling effect” — like it applies in this situation.

Everyone is aware that the First Amendment of the United States Constitution protects free speech from government intervention.  That’s all it does.  It tells the government to keep its nose out of our speech, except for limited contexts.   When the government says, “We don’t like this kind of speech,” it causes a chilling effect; essentially, people are less likely to engage in the government-disapproved speech because they don’t want the government breathing down their necks.  Again, this is where the First Amendment comes in to prevent the government preferences from effecting our speech.

When it comes to non-government “chilling effects” — that’s another story.  Private individuals/entities can shut down speech without much question.  If you violate the Terms & Conditions of Twitter, Twitter has every right to ban you.  If you lodge a protest inside a McDonalds, the manager can kick you out without violating any laws since you’re the one trespassing.

And when people speak out against a disgusting blog post which characterizes a child with Downs syndrome as subhuman, the blogger is lucky that his backside wasn’t thoroughly kicked to China.  Damn right the reaction was a chilling effect, because we should not tolerate that kind of speech in our society.  It lacks human decency and dignity; we can be better than THAT. **

Case law on free speech champion the “marketplace of ideas” — the government is not to stop speech, it is to allow undesirable speech to be drowned out by more speech.  Let the market decide.  When a business fails to provide a good service, it goes out of business.  When someone says something completely moronic and meritless, they are stymied by the reaction.

Yes, Andrew Sullivan — speech by private individuals can be chilled by other private individuals and it’s OK!

** This Wonkette blog post has been deleted by the editor of the site.  What it spurred, however, has led to great conversations with and writings by those who I am honored to call friends.  Check out Kellie Jane’s Open Letter to the blog’s author (with the author’s reply) and Kurt Schlichter’s “what-we-are-all-thinking” post.

Do As I Say, Not as I Do

It is always easier to give advice or mandates for others than to actually do it.  I am guilty of such and I am sure that many of us are.  But, when I do it, it does not hit as hard as, say, when the President does it.

President Obama’s energy plan includes encouraging Americans to buy more fuel-efficient (e.g. hybrid) vehicles.  That’s great and all, disregarding the price of such cars and replacement parts.  But it’s the way the President presents this plan that gets to me.  For example, how he reacts to an audience member at this town meeting (  He laughs it off and replies with how this guy with 10 kids should get a hybrid SUV (again, disregarding the price tag).

But that’s not what really bothers me.

It was the President’s recent Los Angeles trip that got me to actually write this post.  President Obama was in town to go to three fundraising events. (Anyone else find it annoying that our taxes are going to fundraising events?  But I digress.)

How is this for fuel-efficiency:  President Obama flew to Los Angeles from San Francisco. Okay, not bad — we all fly.  But then you factor in the planes used to transport the President’s motorcade, the press plane, and any other plane that the advance team uses, and well, it’s a bit more complicated than your everyday Southwest flight from San Francisco to LAX.

Next, you have the helicopter that flew the President from LAX to West Los Angeles – about 12 miles, give or take.  But then you also have the other helicopters that fly with Marine One in its shell-game operation.  Plus, the news helicopters, the police helicopters, and the helicopters that scouted the President’s routes about a week before.  So, more fuel (and tax dollars).

From West Los Angeles, the President double-backed south to Culver City, this time in his motorcade … of 45 vehicles.  For security, I am also going to factor in all the local police vehicles for extra patrols and the closing of roads, etc.  And I tell you, most of those vehicles, totally  not hybrid anything.

Finally, we come to the gas that just burned in all those cars of people stuck in traffic on the West Side.  Granted, this trip wasn’t as horrible as the President’s last trip in terms of gridlock.  With gas at an average of $4.20/gallon in Los Angeles, I doubt people were happy about the extra commute time (or maybe they didn’t commute at all to avoid it completely; for those not on salary, well that’s just money lost instead of carbon emissions).

As a conservative, yes I am annoyed.  Because all of that above was for fundraising.

Yes, all of that was necessary for the President to do (keep) his job (for the DNC).  But it’s also necessary for a lot of people to keep their fuel “inefficient” cars to do their jobs and take care of their families.  So, my response to the President (and all those in his defense), get a hybrid plane.  Or a teleporter, it’s more fuel-efficient.

Cosmetic Application of the First Amendment (or “I Cast a Spell on You”)

This past week has been an eye-opener for me when it comes to protecting the rights under the two religion clauses of the First Amendment.  You know the two I’m talking about: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Establishment Clause and the Free Exercise Clause — gotta love ’em.  How people use these clauses? Well, that’s another matter.

Bill Maher aired an eleven-year-old clip of Christine O’Donnell, the GOP candidate for a Senate seat in Delaware, in which O’Donnell said she dabbled in witchcraft. Apparently this was part of a blackmail scheme to have the candidate appear on Maher’s show.

The Free Exercise Clause of the First Amendment protects everyone’s right to practice their chosen religion.  Understanding this basic concept, I do not disrespect or judge the religions and beliefs of others.  In fact, realizing that I was protected by this clause, I looked into many religions to find what worked for me outside of Christianity.  This includes witchcraft, Buddhism, Taoism, and atheism.  My relationship with God, now, is stronger because of my ability to choose my beliefs. So, again, I don’t understand why O’Donnell’s “dabbling” is an issue.  What’s her position on health care reform? What will she do in the Senate, if elected?  Heck, why do I care about the Delaware Senate seat?

But apparently witchcraft is a “big” issue, at least from what I’ve observed these last few days.

When you search the term “witchcraft” on CBS News, the first page of results is filled with Christine O’Donnell. When you search for “Wellesley Middle School”, “field trip mosque”, or “Islamic Society of Boston Cultural Center”, you get stories about the mosque controversy in New York.  Better yet, when you search “Christine O’Donnell witchcraft” on Google, you get more results than “Massachussetts field trip mosque”.

You’re probably asking yourself right now, “Why do you care about a field trip?  Heck, why would I care?”  Because that field trip was the worst violation of the First Amendment I’ve seen in a long time.

What happened: a group of public school kids take a field trip to a mosque, as part of a lesson about world religions; several boys on the trip participated in prayer.  No one stopped it.  (Where was the teacher?!)  This happened in May.  The superintendent of the school district apologized in September, AFTER video of the service was made public.

This is why I feel most arguments I’ve heard about “separation of church and state” and free exercise of religion are cosmetic; people are “fighting” for it wrong.  What happened on that field trip is the very thing that the First Amendment is designed to prevent, isn’t it?  Isn’t that the argument for separation of church and state?

Where is the outcry over this field trip?  Where is the ACLU?  Where are all the people who argued that “under God” should be taken out of the Pledge of Allegiance?  Where is the President?  Oh right, he’s off editing the Declaration of Independence.

Teacher-led prayer is no longer allowed in the classroom.  A “moment of prayer” law is unconstitutional because it establishes religion.  A non-denomination, non-religion specific prayer can no longer start a high school graduation ceremony.  But kids kneeling and praying during a school-sponsored field trip, that’s okay.

The beauty of the First Amendment is that it reinforces the idea that humans are endowed with free will and choice.  So, I ask those who want to fight to protect the First Amendment to think about what you’re really fighting for: is it the right or for your own beliefs?

Follow-Up: The First Amendment at Live Oak High School

Yesterday, I posted a lesson on the First Amendment.  It seems that the Mexican American students and their supporters took the advice of adding speech on top of more speech to heart.  On Thursday, 200 students walked out of the classrooms of Live Oak High School and marched to the school district headquarters.

All I can say is: Go you!

Aren’t you happy that the First Amendment (kinda*) allows you to do that?!

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One thing bugs me about the news article and what it reported about the motives about the marchers:

“The students say they want people to know they’re proud of their heritage and they believe wearing red, white and blue on Cinco de Mayo is disrespectful.”

I get how wearing red, white, and blue could be construed as disrespectful.  But, the school district cannot force people to change just because it’s disrespectful.  If that was true, I’d petition the school districts to ban Spandex from being worn. (Spandex-wearers are disrespecting my vision!  But I digress.)

I applaud you for how you’re trying to get respect, though.  You’re marching, you’re using the First Amendment for good.  You get many props for that.  There’s honor in the way you chose to get your message out.  My only message to you would be: allow others to do the same.

* What’s with the “kinda”?  Again, Tinker allows school officials to limit free speech if that speech disrupts school operations.  Walking out of the classroom (and essentially skipping class) is a major disruption – more so than a “fight”.  The school officials could punish these kids for their walk-out without violating the First Amendment.  Furthermore, each of those students could be detained by a police officer for skipping school, since they are breaking the compulsory education laws of California.  But, given the state of things surrounding this entire controversy, I doubt any of these students will be punished.

Really think about that.  Now, compare that to the shirts.   Regardless of what you may think about wearing the American flag on Cinco de Mayo, what happened to the Live Oak Five was just wrong.

Companion Lesson: Religion & the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]”

It’s First Amendment Day. Not only because of the fall-out from the Live Oak Five, but because today is the “National Day of Prayer”.   All we need now is government censoring of the press …

The National Day of Prayer is established by statute:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals. 36 U.S.C. § 199.

In my opinion, this statute does not pass the Lemon Establishment Clause test (Prong 1: “The statute must have a secular legislative purpose”).  This is not to say that the government is establishing a religion.  At most, this statute assumes there is an underlying belief in “God” (or other supernatural deity) who people “turn to in prayer”.

From my perspective of the world, belief in God does not equal a religion.  Yes, belief in God is a fundamental belief in many religions, but it’s not religion in and of itself.  (If it were, why haven’t the world’s religions merged already?)  I can believe that God exists and has brothers and sisters that are in charge of their own universes.  Is that belief a religion?  Religion, to me, is more than that.

But I understand that there are those in the world who do equate the acknowledgment that God exists as being religious, thus, the government should have nothing to say on the matter.

It’s been a constant struggle between two sets of people:  those advocating for complete separation of church and state and those who don’t mind religion being mentioned, as long as one religion isn’t favored over the other.  From the cases I’ve read regarding the Establishment Clause, it really is a toss-up on who wins on a certain issue.

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Lesson: The First Amendment

On May 5, 2010, five students were asked to either change their attire or go home.  These students had the audacity to wear the American flag on Cinco de Mayo.

On any other day at Live Oak High School in Morgan Hill, Daniel Galli and his four friends would not even be noticed for wearing T-shirts with the American flag. But Cinco de Mayo is not any typical day especially on a campus with a large Mexican American student population.

Galli says he and his friends were sitting at a table during brunch break when the vice principal asked two of the boys to remove American flag bandannas that they wearing on their heads and for the others to turn their American flag T-shirts inside out. When they refused, the boys were ordered to go to the principal’s office.

“They said we could wear it on any other day,” Daniel Galli said, “but today is sensitive to Mexican-Americans because it’s supposed to be their holiday so we were not allowed to wear it today.”

The vice principal said the image of the America flag could be incendiary; some students were offended.  On any other day, it would be incendiary.  On any other day, students would not be offended.  On any other day, the five teens would have failed to garner attention.  But, the actions of the vice principal catapulted these students into the national spotlight.  Now it’s the First Amendment versus Respect of Other Cultures.

“Students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” | Tinker v. Des Moines

The Tinker case is akin to what happened to the Live Oak Five.  Instead of American flags, the students wore black armbands in protest to the Viet Nam War.  Not knowing the motivation behind the students’ decisions to wear the American flag on Cinco de Mayo, it is still safe to say that wearing the flag, in general, is speech meant to impart patriotism.

Going by Tinker, school officials must reasonably foresee that the speech would  cause a “substantial disruption” or “material interference” with school activities or would “invade the rights of others” before censoring.   This is why the vice principal said the American flag shirts were incendiary.  The vice principal only wanted to avoid a fight.  The vice principal only wanted to protect those students who were offended.

Obviously, the vice principal is failing at teaching children the basic lessons of living in the United States.  Here’s the lesson: there is no right to be not offended.  We cannot protect children from everything that may hurt their feelings.  That is not the way the world works.  Teach children that they will be offended, then teach children how to deal with it.  Teach children that instead of literally fighting the offense, they should add more speech on top of it – drown it out.  That’s the beauty of free speech.

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Challenges to Basic Assumptions Revisited

All I know about secular humanism and the Zinn Education Project, I’ve read in blogs.  Thus, not knowing much about the content of ZEP or other works/statements/anything made by Howard Zinn, I have no opinion as to the accuracy of the blogs.  If you’re interested, then I would suggest researching more into it.  My interest in this topic was sparked by a Twitter conversation I had between a few intelligent people, spurred by Ben Shapiro’s blog entitled, “Religious Fanaticism and Illegal Indoctrination of Your Children.”  It mentioned the Establishment Clause and the Lemon test, so obviously, I was instantly drawn in by the promise of discussing Constitutional law.

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Political Correctness: The Doctrine that Cried Racism

You ever find yourself stumped as to what word to use when describing someone? Is it African American or black? Is it Oriental or Asian or Asian American?  Can I call this person short or is it ‘vertically challenged’ now?

In situations like these, you find yourself between a rock and a hard place – you don’t want to offend (and you certainly don’t want to get your ass kicked for pissing off the wrong person) but you can’t accurately describe someone without using racial or gendered modifiers.  You can’t tell that joke you that made you laugh because it’s not “PC”.*  You can’t speak your mind because you’re straight-jacketed by this social contract.

I dislike “political correctness” because it reaffirms the assumption that if it is racial then it is racist.  If it is gendered, it is sexist.  It doesn’t matter that someone is just using an adjective to describe a characteristic; the mere acknowledgment of the characteristic, the pointing out of “difference”, is racism/sexism/homophobia/whatever-ism.

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For certain crimes, there is an element called mens rea which looks into the state of mind of the actor.  Was the act intentional or negligent?  Was it planned and malicious or was it just an accident?  Mens rea is important as it can decide whether someone is convicted of first degree murder or involuntary manslaughter.

I mention mens rea because it provides the best analogy of how I approach racism.  It helps me distinguish between a fight worth fighting from one that is merely cosmetic.  I look at a situation and ask myself, essentially, “Is this something I should be concerned about?”

Take for example last month’s uproar about Senator Harry Reid’s comment that Obama has “no Negro dialect, unless he wanted to have one.” After reading a few articles about it, I brushed it off as negligent (well, actually stupid).  I did not see a malicious intent in Reid’s comment.  I didn’t read it as Reid purposely being racist against blacks or then-candidate Obama.  I realize there is an interpretation of the comment that leads to the conclusion that Reid implicitly believes that the “Negro dialect” is uncouth and would hinder a Presidential candidate from winning the Presidency.  But hey – I believe it’s true that not all manners of speech are treated equal.  I do not expect a candidate that only speaks in Hawaiian pidgin to win many votes.   But I digress.  I didn’t see a racial intent behind Reid’s words, I just saw him saying “Obama appeals to all audiences”, much like news anchors.

The problem with political correctness is that it treats this kind of negligent statement the same as fire-hosing Civil Rights protesters.  The former makes me face-palm at the inanity, the latter makes me want to actually do something to change it.  Doling out the death penalty for a two-buck crime just takes away from actual progress.  Keep your cosmetic hang-ups to yourself, I rather work towards a real solution, kthxbai.

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