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We are nearing the end of the road for marriage exclusivists. Pretty soon, very likely this year, the Supreme Court of the United States is going to rule that the states cannot require a legal marriage to include one person of each gender, and cannot prevent or prohibit two individuals of the same gender from being legally married to one another, and treating each as the other's spouse in the eyes of the law.

Compared to other civil rights struggles in American history, the dominoes have fallen rather fast on this one. In my view, they've fallen because the courts, and the American people, have gradually come to realize that there really is no good reason not to allow two people to be each other's lawfully-wedded spouse because they are both men, or both women. Just because everyone has always thought of marriage as being between a bride and groom, husband and wife, mother and father, &c., doesn't mean it must always be that way, or can only be that way, and is certainly not a good enough reason to tell a pair of men or a pair of women that they may not enjoy the rights, duties, privileges and immunities of being each other's spouse.

Most of us here at Daily Kos understand this, and I've written about it many times. A couple of years ago I encountered someone over at HuffPo whose justifications for marriage exclusivity chilled me to the bone; so much so that I wrote about it twice.  I wrote about it again more recently, in a diary called A Common Thread Among Young-Earth Creationists, Gun Enthusiasts, Marriage Exclusivists, and the 1%:

The best, and worst, justification I ever heard or read for marriage exclusivity was grounded in the premise that straight couples' capacity to procreate offspring makes them "unique" and "special" and therefore worthy of special consideration, special reward, and special compensation from the state, in the form of exclusive access to marriage.


Ultimately, what he was saying was this: Marriage is a "special benefit" reserved for special people; if we extend that benefit to non-special people, the benefit itself will not change in any material way, but it will no longer be special. The law should make special people feel special. ... [E]quality threatens the pride of those who deem themselves "special" and "unique," and insufficiently "respected" for it.

As we get closer and closer to the endgame of marriage equality, exclusivists find themselves less and less able to justify exclusivity on its own merits; they've resorted to advocating for polygamy and incest because "equality" means, to them anyway, in a sort of passive-aggressive tantrum, "everyone gets what they want."

But every now and then that passive-aggressive tantrum flows over the top and reveals the core of their thinking, and where I once found it chilling, I now find it deeply, deeply saddening. I thought, at the time, that this person I encountered on HuffPo was an outlier, one who perhaps did not understand what he was saying or implying. But ever since then I've heard more and more this idea that opposite-sex unions are "unique" and "special," so much so that the state should "affirm" how "unique" and "special" they are by reserving civil marriage exclusively for them.

I read this comment, a reply to someone else (apparently a married gay man), yesterday:

The word "marriage" is important to preserve for heterosexuals because it communicates that which is unique and special about their unions, and helps to presrve the natural family of husband and wife, mother and father -- not about getting government goodie bags and making homosexual couples feel accepted within society. Heterosexual marriage IS marriage, and is fundamental to society in ways your union never can be. Redefining it will only destroy that which needs to be strengthened.
I have not edited this.

Even though I've heard this before, I still found it shocking to see it expressed so nakedly. Civil marriage is there to affirm that our unions are special, not to make those people feel accepted. I probably shouldn't have, but I jumped in with this brief reply:

How can over 90% of the population be "unique"?

You're saying the state should categorically deny civil rights to a minority, just to make the majority feel "special," and make sure the minority does not "feel" accepted"?

That is horrifying.

The person replied by claiming he was "not talking about 90% of the population," but rather the nature of their union. I made the point, as I did to lasnovios at HuffPo before, that people will not stop marrying or refuse to procreate if the state doesn't make them feel "special" by reserving marriage rights exclusively for them. "We don't oppress minorities," I said, "just to make ourselves feel 'special;' not in a free country, we don't." The rest of the conversation consisted essentially of this person denying that he made any such arguments, and repeating the standard exclusivist mantra of "gender matters," "every child needs a mother and father," "marriage is about procreation," etc. He truly could not grasp, understand, or recognize the legal or practical implications of anything he was saying.

This is the key:

[W]here did I imply that anyone's civil rights should be denied?!!


[T]he traditional understanding of marriage is rooted in the biological fact that it takes the bringing together of the two halves of humanity for the purpose of creating the next generation, something UNIQUE to this union, and attaching children to their MOTHER AND FATHER, then guess what: GENDER MATTERS! That is neither a form of discrimination nor a denial of liberty and justice toward any other union that falls outside of that purpose or capability.


This whole [same-sex marriage] movement is rooted in selfishness, denial, and intellectual dishonesty.

(emphasis added).

Exclusivists, like this one, accuse the rest of us of having a terrible blind spot, of "refusing to accept" that "gender matters" and that "marriage is about procreation" and and what have you. And perhaps that's true; we do refuse to accept that. And we refuse to accept it because we've yet to hear a good reason why we should accept it. "Accept it, because that's what marriage is, and that's the way it's always been." Not good enough. "Accept it, because their unions can never be equal to, or 'as fundamental to society,' as ours." Definitely not good enough. "Accept it, because our unions are unique and special, and that fact should be affirmed and reaffirmed by the state." Absolutely not good enough. Why should the state, through its laws, "affirm" the "unique" and "special" nature of your unions, when nothing about them will change and no one will be harmed if it doesn't? We don't accept that and will never accept that.

The comments above reveal what I think is the exclusivists' own terrible blind spot, which was also revealed in the Sixth Circuit's decision upholding that "definition of marriage" that exclusivists find so earth-shakingly important: The very real, concrete, actual harm that is visited on and suffered by same-sex couples and gay individuals because they cannot attain the legal status, rights, duties, benefits, privileges and immunities of being each other's "spouse." Exclusivists sincerely believe and vehemently insist that no one could be harmed in any way by exclusivity. In their minds, gay people want civil marriage because they are selfish, hypocritical and dishonest, not because they are being harmed in any way by not having it. It's not discrimination, it's not the denial of liberty without due process of law; it's society's just and proper refusal to give them a gift they don't deserve.

I'm not gay (not that there's anything wrong with that), and I'm not married, so I have no dog in this fight either way. But I can't read or write what i just wrote above this paragraph without feeling profoundly sad. Of course, if I formulated it this way to an exclusivist like my counterpart up there, he'd deny having made that argument, but read his own words for yourself. I just can't fathom how any human being who proclaims to be so deeply invested in the importance of things like love and family and posterity can care so little about the love, the families, the rights, and the pursuit of happiness, of his fellow man. Not only do these exclusivists reveal a startling lack of empathy and a disturbing vein of self-regard, but a deep, foul, ugly sickness of the soul, one that can't be explained or understood or reasoned with. It is, I'm sad to say, pure evil.

As blind spots go, I'll take the inability to accept some subjective, abstract, philosophical "truth" over the inability to accept that "special" treatment for a favored group inflicts harm on those who don't qualify.


I don't know which is more frustrating: (1) trying to explain baseball to the British; (2) trying to explain the law to non-lawyers; or (3) trying to explain the difference between [A] and [B] to someone who is desperately determined to believe that [A] and [B] are the same.

Ever since Lindsay Graham's galactically stupid question to Attorney General nominee Loretta Lynch on the subject of same-sex marriage and polygamy, I've been on several comment boards trying to explain to both "conservatives" and "liberals" why recognizing a right to marry someone of the same gender does not necessitate a right to marry more than one person at a time. I'm neither gay nor married so I really have no dog in this fight, and I have no feelings about polygamy one way or the other, but I enjoy debating these issues because it helps me understand my own position and it's not a bad way to hone my legal skills. The fact is that, legally and constitutionally, the right to marry someone of the same gender and the right to marry more than one person at a time are not equivalent.

"Liberals" who disagree with me on this usually just end up accusing me of "want[ing] to" deny or "being OK with" denying marriage rights to polygamists, siblings, &c. (Or I get the passive-aggressive "Well, then let's just ban [X] too" nonsense.) Because there is, of course, no difference whatsoever between knowing, understanding or acknowledging that a state can limit and has a rational basis for limiting the number of parties to a marriage or the consanguinity of the parties, and being personally "OK with" it or "want[ing]" the states to do it or to keep on doing it. No difference whatsoever. [snark; is that passive-agressive? :) ]

"Conservatives," on the other hand, are only pretending to empathize with polygamists and amorous siblings so they can accuse me, and all "liberals," of inconsistency and hypocrisy. I've had some exhausting conversations over the last few days with "conservatives" who try very, very, very hard not only to not understand the law, but to not understand the difference between apples and oranges. Apples and oranges are both food, therefore apples are oranges.

The common thread between the two is that everyone seems to try very hard to paper over the differences between things that are different, and split hairs between things that are the same, in order to get to their desired conclusion. Or, perhaps more accurately, emphasize and see only the differences where the similarities are important, and vice-versa. If you want and need to believe that apples are oranges, then to you they're both food, they're both fruit, they're both sweet, they both grow on trees, they both have seeds, they're both made into juice, &c., and that's all you really need to convince someone -- i.e. yourself -- that they're the same. And there are plenty of differences between them (type, color, flavor, texture, nutritional content, where they're grown, &c.) that you can point to if you're trying to convince someone/yourself that they're different.

Over the last few days, discussing this issue with both "liberals" and "conservatives,"  I've learned inter alia that:

- There's no difference between same-sex marriage and polygamy.
- There's no difference between liberty and equality.
- There's no difference between equality and equivalence.
- There's no difference between gender and numerosity.
- There's no difference between gender and consanguinity.
- There's no difference between gender and consent.
- There's no difference between characteristics and emotions.
- There's no difference between characteristics and desires.
- There's no difference between characteristics and legal statuses.
- There's no difference between definition and qualification.
- There's no difference between permitting something and requiring it.
- There's no difference between criminalizing bigamy and defining marriage.
- There's no difference between redefining marriage and changing or eliminating a qualification for marriage.
- There's no difference between the meaning of a term and the purpose/effect of what that term denotes.
- There's no difference between the right to marry one person and the right to marry more than one person.
- There's no difference between the right to marry a person of the same gender and the right to marry more than one person.
- There's no difference between the right to marry a person of the same gender and the right to marry one's sibling.
- There's no difference between a state's justification(s) for limiting marriage to two people and its justification(s) for dictating the gender of the parties.
- There's no difference between a state's justification(s) for dictating the gender of the parties to a marriage and its justification(s) for limiting the consanguinity of the parties.
- There's no difference between prohibiting a brother and sister from marrying one another and prohibiting women over 40 from marrying.
- There's no difference between a marriage with two parties and one with more than two parties.
- There's no difference between having one spouse and having more than one spouse.
- There's no difference between the administration of an estate with one claimant and the administration of one with multiple claimants.
- There's no difference between the intestate succession rights of one spouse and those of multiple spouses.
- There's no difference between a joint tax return for two people and one for more than two people.
- There's no difference between a tenancy-by-the-entirety in real property owned by two people and a tenancy-by-the-entirety in real property owned by more than two people.
- There's no difference between allowing one person to claim the marital testimonial privilege with respect to a criminal defendant and allowing more than one person to claim that privilege with respect to that defendant.

There is, however, a difference between a "traditional" marriage and a gay marriage. Those two things are different. Absolutely everything else anyone can think of that's even remotely related to this issue is exactly, precisely, entirely, and in all conceivable ways the same.

It's an age-old rhetorical technique to accuse people of inconsistency and hypocrisy by asserting that the outcome of [X] requires the same outcome in [Y], even though  [X] and [Y] are almost always distinguishable. Heck, that's what we lawyers do; if the precedent case came out the same way, explain to the judge why the instant case is the same, and if not, why it's different and should go the other way. Whether the differences or similarities are important depends on which side I'm being paid to advocate for. Non-lawyers do the same thing; start with the outcome you want, and adjust your understanding of precedent, and of what's important, accordingly. So all of that is understandable.

What bothers me is that for a lot of people, on "both" "sides," it seems to be more important to believe, judge and accuse whoever you're arguing with that they're being inconsistent, dishonest and/or hypocritical, than to actually understand the issue, to the point where the former becomes the only objective. We're more interested in judging people than in objectively understanding concepts, nuances, fine distinctions, &c. The goalposts move so often and so quickly in these conversations that it's often hard to keep up.

I guess we'll just have to see what happens after the SCOTUS rules on this. Somehow I don't see the upcoming decision on marriage having the effect of striking down limits on the number of parties to a marriage, or the number of spouses a person can have at once. But, I'm a lawyer; what do I know?


Which is the most frustrating?

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[Originally posted January 27, 2013.]

I have no idea what the significance is, if any, of the fact that all three of NASA's tragedies, which took the lives of 17 astronauts, occurred on the calendar within six dates of each other. I thought I'd take a moment this morning to reflect on each one, memorialize the crew, their mission, and the lessons learned.

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I like Bill but I find this a little baffling.

Starting at about 3:32 of the video above, he says this:

This may surprise you, but I am not a big fan of Rush Limbaugh. However, if you're one of the people with a website devoted to making him go away, you are part of the problem. And ironically, you're not even a proper liberal, because you don't get free speech. You're just a baby, because you can't stand to live in a world where you hear things that upset you.

I know it does sound rather childish to put it like this, but it seems to me that Bill is the one who doesn't "get free speech," if this is what he thinks it means. Simply put, free speech means that the state, i.e., the government, i.e., the law, has to tolerate whatever an individual citizen has to say (other than threats, perjury, &c.). It doesn't mean that individual citizens have to tolerate whatever any other individual citizen has to say. And it certainly doesn't mean that they have to [literally] buy it, or that they can't use their economic and political power -- not to mention their own free speech -- to push back and curtail intolerable speech.

What's perplexing about this is that one of Bill's all-time best quotes can be found here, at about 4:22:

Don't get so tolerant that you tolerate intolerance.
What Bill is saying in the first clip above is that we have to tolerate intolerance, and if we don't then we're not "proper liberal[s]."

I love your stuff, Bill, but please make up your mind. Must we tolerate intolerance or not?


The war drums are beating again.

First, Jeanine Pirro offered her expert advice on how to address the problem of radical Islam and terrorism: Just kill them all. Bomb them and keep bombing them until they're all dead, no matter how long it takes.

Then, Bill O'Reilly told us all that it's time for "responsible nations, not individuals, [to] confront and destroy the jihadists in a methodical worldwide campaign."

Laying aside the bloodlust for a moment, these statements, and the rest of what these two had to say about this issue, strike me as entirely consistent with the modern "conservative" approach to solving problems of all kinds, not just those that can be solved by simply bombing and killing people in other countries. Basically what Ms. Pirro and Mr. O'Reilly are saying is that, apart from simply putting Republicans in power, we should approach this (like any other) problem by crafting a solution that:

(a.) is exceedingly simple;

(b.) consists mostly of abstractions;

(c.) they don't personally have to participate in;

(d.) won't cost them any money;

(e.) doesn't require them to change their behavior;

(f.) won't put them at risk; and

(g.) won't personally inconvenience them in any real, material way.

If anyone can think of a "conservative" approach/solution to any social, economic, domestic- or foreign-policy problem that doesn't fit this description, please identify it in the comment thread.


Sun Jan 04, 2015 at 08:47 AM PST

Palin Blows a Gasket at PETA

by GrafZeppelin127

Just saw this at the New York Daily News. Apparently Mrs. Palin has taken to Facebook to, umm, respond to the criticism by PETA regarding the pictures she posted of her son Trig using a dog as a step-stool.

Dear PETA,

Chill. At least Trig didn’t eat the dog.

Hey, by the way, remember your “Woman of the Year”, Ellen DeGeneres? Did you get all wee-wee’d up when she posted this  sweet picture? [link] Hypocritical, much?"

And this:
The former Alaska governor [asked if PETA] went "crazy when your heroic Man-of-Your-Lifetime, Barack Obama, revealed he actually enjoyed eating dead dog meat?"

For the record, Obama never said he enjoyed eating the dog meat.

"Aren't you the same herd that opposes our commercial fishing jobs, claiming I encourage slaying and consuming wild, organic healthy protein sources called "Fish"? (I do.)," Palin said.


"Our pets ... are loved, spoiled and cared for more than some people care for their fellow man whose politics may not mesh with nonsensical liberally failed ways or don't fit your flighty standards," Palin said.

Good lord. What is wrong with this woman?

Bear in mind that I have no idea what the phrase "agree with the other side" is supposed to mean.

I find that the words "agree" and "disagree" are often misused and misunderstood in political discussions, especially in the context of claims-of-fairness vs. accusations-of-bias. As much as I'd love to have that conversation about language, that's really not what I'm here for today. Accordingly let's just stipulate for now that the phrase "agree with the other side" means, in general, to accept and express ideas, opinions, beliefs, positions, preferences, characterizations, criticisms, evaluations and/or judgments that come from or may be expected to come from, or that are or may be expected to be aligned with, favorable to, or accepted and expressed by, the cohort or any particular member of, representative of, or spokesperson for the cohort that is generally identified and/or affiliated with whichever major political party with which one does not generally identify and/or affiliate oneself.

Whew. Now that we've got that out of the way.....

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Driving home last night I heard Thom Hartmann interview Bryan Fischer about the Senate torture report, and had I not been sitting in unusually-slow-even-for-L.A. L.A. traffic I might have driven right off the road. Well, not really, of course, but the fact is I was just stunned, even though I probably shouldn't have been, by Mr. Fischer's tactics in responding (if you could call it that) to Thom's questions.

UPDATE: Here's the interview:

Two things struck me about Mr. Fischer's performance, apart from his horrifying "beliefs."

One was the constant, rote, mechanical, almost comical recitation and repetition of canned, well-rehearsed bumper-sticker talking points in response to practically any question Thom asked. This is obviously not a new or unusual technique...

...but I just thought Mr. Fischer sounded more like a See-'N'-Say than right-wingnuts usually do, and that's saying something, especially given the gravity of the topic. Even knowing who Mr. Fischer is and where he's coming from philosophically and intellectually I was still kind of surprised by how blatant and obvious this was, and how Fischer could keep doing it over and over again so many times without realizing (or, more likely, without really caring) that he was making a fool of himself.

"Enhanced interrogation techniques are not torture."

"Enhanced interrogation techniques are perfectly legal."

"Three of the last four attorneys general have said that this is perfectly legal."

"Waterboarding is not illegal."

"These techniques are legal. Christianity supports the rule of law."

"Enhanced interrogation techniques have produced information that has saved American lives."

I'm paraphrasing mostly, but you get the idea. It was one of the most robotic "interview" performances I've ever seen or heard. This was not an "interview" or a "conversation" in any sense of either word; Thom was just pulling the string and Mr. Fischer was just reciting any one of a handful of pre-programmed talking points. It was almost as if Mr. Fischer was under hypnosis, or trying to hypnotize Thom and his audience. It was eerie, creepy, and unsettling, even though I've seen and heard this done many times before.

The other thing that struck me was something else I've been noticing more and more, although it's also been going on for a long-time: the gratuitous name-dropping of random and/or high-profile Democrats who supposedly "agree" with or are otherwise complicit in or equivalent to whatever it is Republicans or others on their political color-war team are being criticized for or accused of doing, saying, thinking, believing, supporting or promoting, thereby supposedly negating, discrediting or disproving the accusation or criticism.

Mr. Fischer put it like this, paraphrasing: "Well, Nancy Pelosi and Jay Rockefeller reviewed this and were OK with it, so I stand with Nancy Pelosi and Jay Rockefeller against you, Thom." He also said something to the effect, "Well, Barack Obama's CIA director reviewed this and was OK with it, so I stand with Barack Obama's CIA director."

The name-dropping technique doesn't get as much coverage or notice as the See-'N'-Say technique, and it's also not new, but I'm going to do some more research on it and give it some more thought and write about it in more detail later because I think it's just as interesting, and just as effective in that it's just as grating in its audacity, just as obnoxious in its absurdity and, often, dishonesty, and just as ubiquitous among Republican politicians and right-wing pundits (and, I think, Democratic and liberal politicians and pundits as well). I'd be interested in any thoughts commenters may have about the name-dropping technique, including where it's been seen or heard, who tends to do it, what the thinking and motivation is behind it and how it affects the listener/reader.

I didn't even get into Mr. Fischer's "religious" or "Biblical" justifications for torture (or, "legal" enhanced interrogation techniques) here, let alone his refusal to answer Thom's questions about "Who would Jesus rectally feed?" (which I don't think is a fair question, necessarily, as worded), because I was struck more by the rhetorical techniques Mr. Fischer employed to avoid the substance of the issue than by anything substantive he had to say or that Thom asked him. Their respective positions on this issue are well-known and well-established, and were not likely to be substantially explored or expanded upon, let alone altered, by this "interview." Thom is a very good interviewer, by and large, I like the fact that he often has "conservative" guests on his show, and he always challenges them without disrespecting or insulting them or making blanket judgments about their character, but he doesn't always phrase his follow-up questions in the best way to maximize effectiveness.

Not that it mattered when up against this name-dropping See-'N'-Say.


Mon Dec 15, 2014 at 11:20 AM PST

Dick Cheney's Fatal Vision

by GrafZeppelin127

More than 20 years ago, for an undergraduate journalism course, I read a book called Fatal Vision, a "true-crime novel" by author Joe McGinniss. The book tells the story of a grisly triple-homicide that took place in the early morning hours of February 17, 1970, on the U.S. Army base at Fort Bragg, North Carolina. The pregnant wife and two small daughters of Captain Jeffrey R. MacDonald, a Green Beret doctor, were savagely murdered in their home; MacDonald himself suffered mostly superficial injuries but was treated for a collapsed lung, multiple stab wounds, and head contusions. He claimed that he and his family had been attacked by a group of Manson-like "drug-crazed hippies," that they had stabbed and beaten him unconscious, that when he came to he found his wife Colette and daughters Kimberley and Kristen slaughtered in their bedrooms, and tried to revive them before calling the military police.

The Army didn't believe his story; they thought, among other things, that the house appeared too neat in the aftermath to have been the scene of a violent struggle resulting in three gruesome deaths. Although a military investigation resulted in the charges being dropped, the case was eventually re-opened by the Justice Department and MacDonald was indicted in 1975, tried in 1979, and convicted of the murders of Colette, Kimberley and Kristen. He was briefly released on direct appeal, as the Fourth Circuit overturned his conviction on speedy-trial grounds, but the U.S. Supreme Court reversed, sending him back to prison where he remains to this day, steadfastly maintaining his innocence. All of his subsequent appeals have failed.

If it seems like I've glossed over a lot, it's because I have. The details of the MacDonald murder case are voluminous and endlessly fascinating, but as you'll see shortly I'm really not here to talk about that case. And I really, really don't want to get into a debate over whether MacDonald is guilty or innocent. I spent years studying and debating this case, back when there were still "newsgroups" instead of blogs and social media, and such debates can get just as hot and contentious as political arguments. People who have opinions about Jeffrey MacDonald have very strong opinions about Jeffrey MacDonald, and those opinions are just as susceptible, if not more so, to confirmation bias (and venomous accusations thereof). This, I think, is mainly due to the length and complexity of the case, the ambiguity of the forensic evidence, the nature of the crime itself and whatever emotional biases people have about the murders, about crime and punishment generally, about the criminal justice system generally, about authors and journalists generally, and so forth.  

The point I want to make is this:  I've always believed, right from the beginning, that if Jeffrey MacDonald is guilty he has done a very thorough job of convincing himself that he's innocent. Even if he is guilty he believes, absolutely sincerely and wholeheartedly and without a shred of doubt, that he is innocent and that his account of the murders is true. He is not lying when he professes his innocence -- whether he is in fact innocent or not.

What's fascinating about the MacDonald case is that Jeffrey is either one of the most persecuted, victimized men in American legal history, or one of the most frightening, horrible psychopaths of all time -- there's no in-between. The ambiguity of the objective facts only deepens the mystery. MacDonald may very well have been wrongfully convicted. But he also may very well be the true psychopath that Joe McGinniss, his late wife's family, and millions of readers, TV viewers and true-crime enthusiasts believe him to be and have made him out to be.

Dick Cheney is the same sort of psychopath.

We've all seen, heard, and/or read about his performance on Meet the Press yesterday. And we've all had strong opinions about Mr. Cheney for well over a decade now. Nothing he said on MTP should have been the least bit surprising to anyone on either side who has any idea who, and what, Dick Cheney is.

Just as a guilty Jeffrey MacDonald (if he is guilty) is incapable of believing, let alone accepting or admitting, that he murdered his family in 1970, Dick Cheney is incapable of believing that he or anyone under his direction did anything wrong or illegal after 9/11, least of all with regard to the treatment of detainees that was the subject of the recent Senate report. I don't think anyone expects Cheney or anyone else to come out and admit to violating international law by committing, ordering or enabling grotesque, sadistic, immoral acts. Cheney actually believes that he did no such things.

This is about more than just a subjective understanding of what constitutes torture and whether or not it is justifiable (viz., We are the Good People, They are the Bad People, so it is not torture if the Good People do it to the Bad People, because They deserve it, and because They did bad things to Us, but it is torture and it is wrong if anyone does it to the Good People, because We don't deserve it and We never did anything bad to Them to justify the bad things They did to Us). This is much deeper and more disturbing.

No one expects Jeffrey MacDonald to ever admit to having killed Colette, Kimberley and Kristen. No one expects Dick Cheney to ever admit to having had detainees tortured, or that torturing detainees was in any way wrong.

For Cheney, as with MacDonald, the alternative is unthinkable. MacDonald literally cannot believe that he slaughtered his family for no reason at all. A man cannot believe himself to be a monster. Jeffrey MacDonald can't believe that, and Dick Cheney can't believe that. Jeffrey MacDonald may not actually be a monster. Dick Cheney almost certainly is.


...Red Scouts.

I think I've picked my favorite "new" name for the Washington NFL franchise. I'm not sure it's 100% kosher, though, so I'll lay out the pros and cons and see what everyone thinks.

Why I like it:

– It's not, and has never been, a racial slur.
– It's not a major change from the current name, and so should not be too traumatic for the team's die-hard fans.
– The team would be able to keep its logo and excellent current uniform set, and continue to use its historical uniforms as throwbacks.
– It kind of sounds like “Redskins”; same number of syllables, most of the same consonant sounds, so again, not a major trauma for the fans.
– It starts with “R”, so things like the R-emblazoned sideline caps, and the Lombardi-era throwback helmets (if they’re ever allowed again), can still be used.
– The fight song, “Hail to the Redskins,” could continue to be sung with only a minor change to the lyric.
– “Scouts” is an Indian designation, like “Braves” and “Chiefs.”
– They can be called the “Scouts” for short, instead of the “‘Skins.”
– “Scouts” has been used in major pro sports before, albeit very briefly (the Kansas City Scouts in the NHL).
– It would be the first two-word nickname in the modern NFL, making it unique and noteworthy. (That's unless you count "Forty-Niners," which I don't.)

Why it may not be acceptable:

– The word “Red.” I’m not sure that retaining the word “Red” and using it as a modifier while also retaining the Indian motif and logo would completely excise the racist connotations of the current name, viz., they’d be the “Red-Skinned Scouts.” It might thus be considered a step in the right direction but an unacceptable “compromise.” (By comparison, when St. John’s University changed its sports nickname from “Redmen” to “Red Storm,” the new name did not retain the Indian motif at all. And, as it happens, I wasn’t even aware at the time that “Redmen” meant Indians.)
– It may be too close or too similar to “Chiefs.” And, I think, and I could be mistaken about this, chiefs outrank scouts in Indian hierarchy, so the team and fans might not like that especially when they play Kansas City.
– Some might consider two-word (modifier-noun) nicknames amateurish, appropriate for high school or college or other sports but not the NFL.
– It does not acknowledge or advance the argument/cause that Indian names, motifs and images are altogether inappropriate for sports franchises.

All in all, I think the pros outweigh the cons, although actual Indians and actual fans of the Washington team will certainly have a different view.

I would appreciate it, though, if everyone would read the second set of bullet points before racing to the comment thread to express your outrage that anyone would dare to suggest that anything other than the feelings of American Indians should ever be taken into consideration when discussing or attempting to resolve this issue. Thanks.


Would "Red Scouts" be acceptable as a new name for the Washington NFL team?

11%2 votes
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| 18 votes | Vote | Results


Throughout the many decades in which politicians, of both parties, tried to get something called "health-care reform" done, the primary goals of such efforts could essentially be summed up threefold:

1. Get uninsured people insured.

2. Bring costs down by, inter alia, reducing uninsured medical risk and managing insured risks more efficiently.

3. Protect consumers from the more egregious, abusive and harmful practices of medical insurers.

Whether and how the Affordable Care Act accomplishes, attempts to accomplish, or has a chance to accomplish, these goals is separate from the core principle that these were, and are, its goals from the outset. This is why health-care reform, in whatever form it took shape, has been and is needed: Too many people are uninsured, too many people can't afford even basic medical care or treatment, and insurance companies are gouging and abusing consumers in unacceptable ways. Irrespective of its success or its chances of success, that's what the ACA was enacted to address.

Any time a major change in the law occurs, whether via Congress or the Supreme Court, there are always going to be people who are better off than they were before, and people who would have been better off without it. The standard for judging the ACA appears to be that if anyone, anywhere, falls into the latter category, then the law is a failure and must be repealed, no matter how many fall into the former category or the nature of what "better off" actually means. But that's not what I'm here to discuss today.

There are plenty of people out there who have reported that "because of Obamacare," the fabulous, awesome, cheap, total-coverage insurance they had before is gone, and the only thing they can get now is a policy that covers practically nothing and costs a fortune. In other words, this law that explicitly requires insurers to cover more and charge less, has caused insurers to cover less and charge more. Or, I should say, has forced insurers to, reluctantly, cover less and charge more.

"Gee, Bob, I'd really love to offer you and your employees a group policy that covers every medical procedure under the sun with no deductible for $1 a year. But, because of Obamacare, all I can offer you is a policy that covers only aspirin and Band-Aids, with a $500,000 deductible, for $8,000 a month. Take it or leave it."

Maybe this is a realistic scenario, maybe it isn't.

The irony is not that a law specifically and deliberately designed to expand coverage and reduce cost has had the precise opposite effect, even if and to the extent that it has actually done so. The irony is that, far from putting the brakes on abusive and dishonest practices of medical insurers, it's had the effect instead of giving them a license to keep abusing their customers by blaming that abuse on the law itself, and on the President who asked Congress to assemble, draft and pass it.

I would venture a guess, and I could be wrong, that no single federal statute has ever been the subject of so much misinformation, mischaracterization and misdirection, not to mention vague, unfocused, irrational outright loathing. One time I responded to the question, "What is Obamacare?" (or "What is the Affordable Care Act?") with the simple answer, "It's a federal statute that regulates the medical insurance market." No matter what your opinion of it or your feelings about it, that's what it is. But I haven't run into very many people who even know that the Affordable Care Act is a federal statute, let alone a federal statute that regulates the medical insurance market. The other ideas about what it is, don't need repeating or description here.

But I'm getting away from the point again. "Obamacare" is just this thing, this thing that exists, that's out there, like the "beastie" in Golding's Lord of the Flies. No one knows what it is, no one can identify it, no one can describe it, no one has seen it, they just know it's out there and they just know it's a threat. And it's something insurers can use to take advantage of their propaganda-soaked customers who will believe anything they're told as long as it validates their belief in, fear and loathing of, the "beastie." If I'm an insurer, and I know I can raise your premiums or your deductible, reduce your coverage or deny your claim, and you'll blame the law and the President of the United States and everyone who voted for him, everyone and everything except me, and I know you won't do your research and shop around, or even consider whether what I'm telling you is true, why wouldn't I milk that for all it's worth? That's capitalism, right?

The reality is, there isn't a thing insurers are doing now that they weren't doing prior to 2010; raising rates, changing provider networks, canceling policies, denying claims, &c. The ACA was supposed to put a stop to some of it, cut down on some of it, reduce the impact of some of it and give consumers a better deal on some of it. Instead, it's given insurers carte blanche to not only keep doing it but double-down on it, because they know that the President, his party, his cohort and the law will be given the blame instead.

I don't think this makes the law a bad one or a failure, per se; I've never bought into the idea that any statute can or should be judged in such a binary way in the first place. (Is ERISA a success or a failure? Is TILA good or bad? Are you for or against the Lanham Act? Why are these questions not polled vis-a-vis these or any other statutes besides the ACA?) Again, I think the question of how and to what extent the ACA is accomplishing, or can accomplish, its primary goals is an open, mixed and complicated one. Binary judgment and conclusive blame are easier than open-ended inquiry and analysis.

There is, and has always been, merit to the idea that the fundamental flaw in the ACA is that it leaves medical insurance in the hands of the private insurance industry, and doesn't create a universal public insurer that many liberals want and have wanted for decades. Whether that was feasible or not is a separate debate I don't want to have here. Would the creation of a public insurer (or expansion of an existing one) as an alternative to private insurance have made it less plausible for insurers to blame the law and the President for their own abusive practices? Or would it have driven some consumers even deeper into the arms of private insurers, for similar reasons, with similar results?

I don't know if there's a legislative or administrative fix for those insurers who are milking their customers' hatred of the law and/or the President and getting away with it. The only solution, really, is for people to do their homework, shop around, not simply accept what their insurers are telling them, and understand that medical insurance like everything else is a stew with many chefs.

Somehow I don't see that happening any time soon.


It's a truism that we talk about here often, especially in the context of marriage equality, and the vacuous arguments made by exclusivists that the "will of the people" must be respected. Lay aside the fact that the "will of the people" becomes "tyranny of the majority" when the former conflicts with the complaining cohort's preferred outcome. The point is, and must be repeated, that in this country, in a free country, under our constitutional system, we do not put people's civil rights up to a vote. We do not allow a majority to decide which rights a minority shall or shall not have.

As I discussed in my previous diary, this whole business about the "definition of marriage" is a red herring used by exclusivists to gloss over and distract from the very real harm that exclusivity inflicts on gay people and couples. It absolves them of any need to consider that harm, let alone whether that harm must be justified or whether it actually is justified.

I still can't get over how unconscionable the Sixth Circuit's reasoning is in upholding marriage exclusivity, on the grounds that the states can "define marriage" however they like in accordance with the wishes of their respective electorates, without even taking into consideration whether the "definition" they come up with, and/or the act of coming up with that definition, causes anyone any harm. That the majority opinion could go on for 35 pages without paying anything more than lip service to the plight of those whose rights to liberty and the pursuit of happiness are being denied by this "definition" is staggering to me, not only in its implicit cruelty but in its obtuseness.

What the court basically did here was create a very clever -- and incredibly dangerous -- loophole for the truism that we don't vote on other people's rights. According to this court, the states in question weren't voting on other people's rights, they were voting on the definition of a word (or, if you want to be more generous, the definition of a civic/social institution). Since there was no reason, according to the court, to call their motives into question, or to not give them the benefit of the doubt, the decision to "define," the act of "defining," and the "definition" itself, were all reasonable. States, and their electorates, should be allowed to define words and define their respective social institutions however they see fit.

The obvious problem is that the court implicitly draws a distinction that doesn't exist. We can't vote on other people's rights, but we can vote on the "definition" of things. As if there is actually a difference between doing the latter and doing the former; as if doing the latter does not have the effect of doing the former. This court has announced that we can vote on other people's rights, as long as we recast what we're voting on as something benign and abstract, like the "definition of marriage."

The Supreme Court has already held that marriage is a fundamental right (which the Sixth Circuit basically sweeps under the carpet with a bit of linguistic legerdemain). Of course, neither the Constitution nor constitutional law defines precisely what "marriage" is. But nor does it define what "speech" is. What "religion" is. What "assembly" is. What "arms" are.

Could a state, by a vote of its citizens, "define" "speech" to mean "words spoken or written by straight people"? Or "by white people"?

Could a state, by a vote of its citizens, "define" "religion" as "Christianity"? Or as "any faith, sect or denomination other than Islam"?

Could a state, by a vote of its citizens, "define" "arms" as "rubber-band pea shooters"? Or as "muzzle-loaded single-fire rifle muskets of 18th-century design or manufacture"?

Unrealistic hypotheticals are seldom useful to advance a discussion or to illustrate a point, but in this case I think they are. The Sixth Circuit asked itself the appropriate and fairly-formulated question:

Does the Fourteenth Amendment to the United States Constitution prohibit a state from defining marriage as a relationship between one man and one woman?
...and answered that question in the negative by focusing on the words "defining marriage," instead of on what the Fourteenth Amendment actually prohibits, viz., the deprivation to any person of due process or equal protection. The court did not ask or examine whether the state's act of "defining marriage" thusly deprives anyone of due process or equal protection. It only asked if the Amendment prohibited the act of definition, and to a lesser extent, the definition itself.

Here's another way of looking at it. When I first heard the idea of same-sex marriage, my first reaction was to ask "Why not?" and come up with nothing. Numerous courts have, albeit not in so many words, done the same thing. What this court did instead was to ask "Why not?" in response to the question, "Can a state define 'marriage' however it wants?" and come up with nothing. The court truly could not fathom any reason why a state can't "define marriage as a relationship between a man and a woman."

As I and the dissenting justice, Martha Craig Daughtrey, pointed out, the court took the very real, concrete, actual harm being inflicted on gay couples by exclusivity, and turned it into a purely abstract discussion about defining words. My hope, and everyone else's I imagine, is that the SCOTUS will not adopt this obtuse reasoning. Whether it intended to or not, the Sixth Circuit has opened an ugly can of worms here, signaling to the states that they can start putting people's rights up to a vote, and all they have to do is tell people that what they're voting on is nothing more than the "definition" of a word.

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