Christmas Presence

"No holiday season is complete, at least for the courts,
without one or more First Amendment challenges to public holiday displays."

This was the wry observation in December 2004 by the United States Court of Appeals for the 2nd Circuit, called upon to decide a case pitting Andrea Skoros, a mother of two public school students, against the New York City Department of Education. Only three out of 127 pages of the decision are available on-line; a pdf error message prevents further reading, and the error has never been corrected. The Second Circuit web site seems to be particularly vulnerable to such errors. But the details hardly matter.

There is a reason that Christians have, for many decades, been uttering the slogan "Put Christ back in Christmas." Jesus Christ did not have a particularly prominent role in early American observance of the Christmas holiday. Our earliest models of piety in government, the Pilgrims and Puritans, forbade observance of a Christmas holiday. From 1659 to 1681, the law in Massachusetts Bay colony imposed a fine for observance of Christmas "by abstinence from labor, feasting, or any other way."

The Anglican church observed an Anglican mass for Christmas. Many Anglicans ONLY went to church for this special occasion, or perhaps also for Easter. Roman Catholics celebrated Christ Mass; that is where the name Christmas comes from. Accordingly, Baptists, Congregationalists and Presbyterians remained hostile to observance of the holiday, until well into the 19th century, long after the American Revolution. Methodists were all over the map, coming out of the Anglican church, but in America often converted directly from unbelief in emotional mass revivals during the Great Awakening. For strict Methodists, celebrating the Christ Mass was as sinful as playing cards or dancing the Virginia Reel.

Whatever Christmas is, it does not fall on any likely birth date for Jesus. Mary's baby boy may have been born in April or August (more likely times of year for shepherds to be watching their flocks by night in Palestine). The date of Christ Mass was timed by the fathers of the church, after becoming the official state church of the Roman Empire, to pre-empt the pagan Saturnalia. As missionaries moved north to convert the pale-skinned, blond-haired, blue-eyed barbarians of northern Europe, it also scooped up the midwinter festivals and co-opted the Yule logs.

Dutch families of the Reformed Church, and German Lutheran immigrants, brought to America their own traditional celebrations of Christmas, supplying America with "Sinter Klaas" and the Christmas tree. But no state recognized a Christmas holiday until 1836, roughly the 60th anniversary of American independence. Congress made no act recognizing the holiday until 1870. Sometime in the 1840s, a committee of New York businessmen got behind making the holiday a major annual event. Why? To boost sales of course. Our current orgy of gift giving, not to mention returns and exchanges, was not a thoughtless byproduct. It was the original motivation for the holiday as we know it.

Eventually, most churches caught the spirit of the great national civic celebration. If the stores rendered themselves profitable off of Christmas, the churches certainly found it appropriate to get in a word or two about Christ. Special services for the holy day, which were once explicitly rejected, became commonplace. In recent years, church choirs have even been known to come downtown singing spiritual carols in the midst of the secular holiday sponsored by the chamber of commerce. (They have a constitutional right to do that, as long as the celebration is held in the public square).

Many of our modern Christmas customs came from devout religious observance in one century or another. (Jesus was not born "amid the winter snows," but the English carol is a beautiful icon). As far as American observance is concerned, celebration that the Messiah is born, and God reconciled to a sinful world, is a late-breaking add-on to feasting, buying, and extended vacations. For that matter, Hannukkah was not such a big deal in traditional Jewish communities, until American Jewish immigrants sought for a way to join the American civic holiday season. These religious observances do add a certain significance to the whole exercise.

Why Did We Vote on This?

Wednesday Morning Quarterbacking about Marriage

I've got to hand it to Arizona. They had the common sense to say no. Wisconsin may be the first state to adopt a constitutional amendment concerning the definition of marriage, with less than 60% voting in favor. That distinction pales by comparison. We are seeing the first hopeful signs that sanity may yet return to this hysterical debate. Two older women passengers on the Milwaukee paratransit system gave the best spontaneous insights into the insidious amendment proposal:

"If God said it, we don't get to vote on it. So why are we voting on it?"

"This is too confusing. There has to be some purpose they're not telling us about."

One transparent purpose they didn't openly mention in Wisconsin failed to come true. The amendment was not the wedge for a Republican sweep of the elections. Voters split their tickets in all kinds of ways, with great sophistication. One congressional district even tipped to the Democrats. A fair number of people who voted "Yes" seem to have voted AS IF the referendum were a simple question: "Is marriage the union of one man and one woman?" That would have gotten about a 70% yes vote. It is not what the legislature presented to the people for ratification.

Still, it is odd that those who claim to know what God ordained wanted us to vote on it!. One might have expected those who claim marriage can mean anything we want it to mean to push for a vote. It is strange that so many pastors and churches thought it worthy of their attention. There has never been a time when any political body was so anxious to pass a constitutional amendment to provide that things are going to stay the way they are now. Nor has there been a time when opposition was so aroused on the ground that if the amendment is voted down, nothing will change. For its stated purpose, it would have been hard to write a more twisted and uncertain set of sentences. There would have been no harm in sending the whole thing back to the drawing board until the authors could get it right.

But the most dangerous thing about the rash of state constitutional amendments on this subject is that it takes the courts off the hook. Paranoia about "activist judges" inspires many to nail the absurd debate about marriage into an airtight coffin, without bothering to drive a stake through the heart of the controversy. Yes, the famous ruling by the Supreme Court of Massachusetts was ridiculous. But no court, no state attorney general, nobody from Liberty Counsel or American Center for Law and Justice, has come close to dissecting what the court's error really was. Instead of doing the hard work of clearing the air, everyone is looking for airtight compartments to seal off the real questions that remain unresolved.

It is a general and accepted practice in drafting legislation, and in legal reasoning, to begin by defining the terms of the controversy. There is no case on record where any judicial opinion began by defining the term "marriage." Advocates of expanding the definition have cleverly made the definition the end result of their argument, rather than addressing it at the beginning.

If any judge began by looking the word up in a standard Webster's dictionary, or in Black's Law Dictionary, every available definition would focus on male and female. On that basis, a court could examine with some clarity whether any individual man or woman has been denied equal protection of the laws. The answer would be, no. No male, and no female, has been denied equal access to the status of marriage. The fatuous claim that homosexuals are a "class" of persons who are "excluded" from a deliberately undefined status, vaguely referenced as "marriage," would fall flat on its face. Homosexuals are not a class at all. Marriage laws take no notice of such a condition – unlike skin color, race, nationality, religion, etc. Throughout history, thousands of "homosexuals" have been married in the traditional sense – to individuals of the opposite gender.

Some individuals simply do not desire to enter into the historically constituted partnership known as marriage. They desire to enter into other partnerships. So be it. Those partnerships are what they are. However loving, they are not marriage. And, as anyone looking at it from a Judeo-Christian tradition would recognize, they do not reunite the Adam. They do not bring together the two parts into which the image of God was divided. (Courts in the United States cannot make rulings about the image of God. It is outside their jurisdiction. Spiritual matters are protected by the First Amendment from the profane hand of the civil magistrate.)

This needs to be presented to the courts, stripped of the obfuscation wrapped around most arguments submitted so far. The courts need to clean up the controversy. It needs to be settled, not walled off behind hasty constitutional amendments. Good arguments and bad arguments need to be laid out, examined, publicly displayed, and thoroughly recognized for what they are. No short cuts. So far, the best arguments have not even been submitted to a court of competent jurisdiction.

Once we settle that marriage is marriage, and nothing else, there is no reason we cannot provide by law for individuals to make and register their own choices for hospital visitation rights, joint ownership of property, shared obligations for children. There is no reason for the government to take any notice of the motives. There is no reason the community as a whole must formally acknowledge or celebrate individual choices that deviate from the norm for the human race, any more than we need to persecute such deviations. It simply isn't a marriage.If the Metropolitan Baptist Church wants to celebrate such partnerships as a marriage, they have a right to do so. The Southern Baptist Convention is under no obligation to do likewise. That is called free exercise of religion.

Overcoming Disabilities With Discrimination

This is Part II of We Must Discriminate, dealing specifically with how we do a tremendous disservice to our fellow citizens with disabilities when we blindly refuse to discriminate, or rather, to design services with appropriate discrimination for those who have disabilities .

There has been something of a scandal in Wisconsin lately concerning extremely unsanitary and unwholesome housing conditions for people with cognitive disabilities. The title "Mental Health" is still somewhat used with regard to social services for this group of people, although the term "mental retardation" is out of fashion. This sort of scandal pops up now and then, here and there, throughout the country. After some horrified and horrifying headlines, everything goes back to normal (horrible) until the next round of publicity. That is what we get for turning over this vulnerable population to the tender mercies of the social work profession. (Social work has been an abomination ever since it became "gummint work.")

The root of the immediate expose in Wisconsin lies in a lawsuit filed many years ago, which established the legal and civil right of people with mental disabilities NOT to live in institutions. Its practical effect was to empty out the "asylums" which existed at the time. The lawsuit was filed by, and on behalf of, residents of large, centralized institutions who had most of their mental faculties, plenty of individual initiative, and were tired of living a tightly supervised existence that some social worker thought would be good for them. Of course other residents of those some institutions were totally unprepared for any kind of real world responsibility. They very badly needed an "asylum" in the best sense of the word. The lawsuit failed to discriminate between different types and degrees of cognitive disability, as did the the institutions which inspired the lawsuit. So do the collection of group homes and other "facilities" in which the supposed beneficiaries of the lawsuit now reside.

The truth is, some people have cognitive disabilities so severe that they don't have the initiative to take one step out of the door of their residence unless someone gives a gentle shove between the shoulders, and then would stand just outside the door until they starved or froze to death if someone didn't take them by the hand and lead them somewhere else. They are now scattered in relatively unsupervised little private facilities, where poorly paid individuals may or may not be taking good care of them.

Other people have such mild cognitive disabilities that they could cook and clean for themselves, decorate their own home, keep a garden, mow the lawn, but shouldn't be allowed to sign legal or financial contracts because some unscrupulous wheeler-dealer would take them for all they own. There are many shades in between. (Unfortunately, "concerned" relatives, social workers, and professional conservators are prone to take such vulnerable individuals for all they own anyway. If nothing else, the conservators' fees eat up most of the estate.)

The social work profession is awfully keen on the "rights" of people with no discernible brain function to "live normal lives." On the other hand, these eager busy-bodies are just as enthusiastic about bursting into the private homes of elderly people who are doing very well, living the way they want, making their own choices. Social workers are all too ready to make arrogant, peremptory judgments that such elderly couples, or individuals, need "protection" and must have a "conservator" who will sell off their homes and stuff them in an assisted living unit somewhere. (For their own good, of course.)

The truth is, we need to approach the whole subject of cognitive disability with a great deal of discrimination.

Our laws need to be tweaked a little more strongly toward leaving people alone, who have lived independently all their lives. If a legal adult remains capable of saying "this is my home, I'm doing just fine, get lost," that wish should be honored. There should be a very high burden of proof on anyone (blood relative or not, possessing an advanced social science degree or not, police officer or not) who wants to step in and "help." Help is something to be offered when it is ASKED for. Likewise, IF a court action is initiated at all, the presumption should be that anyone who can get up in court and say "I'm doing just fine on my own, get these nosy busybodies off my back" is capable of exercising independent judgment, until proven otherwise.

At the other end of the spectrum, individuals who cannot select food for themselves, cannot go to the bathroom by themselves, cannot read or write, and demonstrate a marked preference for sitting on the floor all day doing nothing, need to be in a stable environment where someone is being paid for an 8-hour shift to take care of them. They do not need to be living "in the community, just like the rest of us" because they are NOT just like the rest of us. They do not need to be in poorly supervised "group homes" where they can most easily be taken advantage of. They do not need to be stuffed onto buses every day to ride to day programs so they can share the joys of the daily commute experienced by suburban business executives. They need to be in bright, cheerful institutions where they don't have to deal with a lot of confusing changes in their routine, and where there can be frequent, efficient supervision of their care.

What about those in between? That is where we REALLY need to DISCRIMINATE. What one individual needs is very different from what another individual needs. Putting two individuals in the same program is doing a slight disservice to each. There may well be at least ten different categorical levels of disability needed to even come close to giving each person their due. But if we really care about people, as opposed to being enamoured of pet theories, we need all those different varieties and levels of programs, offering the many different options that are each appropriate for some of the individuals who have cognitive disabilities. There is no such thing as one size fits all. Therefore we must discriminate.

WE MUST DISCRIMINATE

dis•crim•i•nate
Etymology: Latin discriminatus, past participle of discriminare, from discrimin-, discrimen distinction, from discernere to distinguish between
1 a : to mark or perceive the distinguishing or peculiar features of b : discriminate hundreds of colors
2 : to distinguish by discerning or exposing differences; especially : to distinguish from another like object
intransitive verb
1 a : to make a distinction discriminate among historical sources> b : to use good judgment
2 : to make a difference in treatment or favor on a basis other than individual merit

dis•crim•i•na•tion
Function: noun
1 a : the act of discriminating b : the process by which two stimuli differing in some aspect are responded to differently
2 : the quality or power of finely distinguishing
3 a : the act, practice, or an instance of discriminating categorically rather than individually

The first and second definitions are not only good, but absolutely essential. We all do these things every day. We discriminate between food and poison. We discriminate between cars that run and lemons. We discriminate between what makes sense and what makes no sense at all.

Discrimination has a bad rap in North American English, because the word has been linked for so long to the word "racial." The problem with racial discrimination is NOT that discrimination is bad. The problem is, that race never has been and never can be a valid, rational, morally sound, basis for the exercise of discrimination. Many generations of sincere would-be scientists and philosophers, from Thomas Jefferson to Adolf Hitler, have tried to find differences of intelligence, morality, sociability, between human beings of different racial categories. They have all failed, because race is a distinction without a difference.

Jefferson speculated that Africans "excrete more through the pores and less through the kidneys," giving them a foul odor. Yes, Jefferson really wrote that. He was honest enough to say it was only speculation. But he was crude and ignorant enough to consider it. IF it had been TRUE, it would have been a perfectly reasonable basis to discriminate in access to bathroom and shower facilities, and hotel rooms. Not on the basis of race – different rooms and different bathtubs for those who excrete through the pores, and those who excrete through the kidneys, whatever their complexion.

We now know with absolute certainty that this quaint notion is FALSE! The falsehood of the premise is the reason it is unacceptable to discriminate by race in housing, public accommodations, and bathrooms. Jefferson himself must have known better. He found his late wife Martha's part-African half-sister (Sally Hemmings) a perfectly attractive surrogate, and mother for a majority of his children.

We know now that if a man or woman of any racial or ethnic background, or skin color, is worked all day in muddy fields under a hot semi-tropical sun, deprived of running water, bathtubs, soap and perfumes, they will most certainly develop a foul odor. But, there are times when we all discriminate between people who, having access to running water, soap, and bathtubs, choose to make use of them, and those who for some reason do not.

Early on in the Civil Rights movement, National Review wrote that it supported "the South," because at that time the magazine's editors affirmed that the "white race was the superior race. National Review is always the last to catch on to any new development in God's creation, perhaps because it is run by people who have some difficulty discriminating between themselves and the Almighty. At least the editors had the humility to modify the term "superior" with the phrase "at this time." On the other hand, they had the infernal arrogance to exclude from the category "the South" some 40% or more of the people who lived there.

Skin color expresses only one difference: variations in one or more of five different genes result in different sensitivities to sunlight. Some people start developing a very deep tan as soon as they pop out of their mother, while others have to pay $29.95 to strip in a little booth and expose themselves to ultraviolet light, to get a fraction of the same effect. Genetic studies show that there have been three different northward migrations which independently resulted in descendants of dark-skinned equatorial populations evolving somewhat lighter complexions. (The gene combination that makes Nigerians dark is not the same as the gene combination that makes the original Australians dark.) It is a complex balance of the relative dangers of sunstroke vs. vitamin D deficiency. It is not a basis to discriminate in any other matter whatsoever.

We do continue to discriminate in public bathroom facilities: not by race, but between men and women. Why? Because there genuinely IS a marked and obvious difference between the sexes. Even some of the facilities are different. Both men and women appreciate the privacy. We discriminate against those whose personal preference is to violate that privacy, sometimes even locking them up in jail. Possibly we need to discriminate further, in order to achieve completely equal opportunity. (Some women advocate the women's restrooms should have more toilets than men's, and, they may be right. At least, perhaps as many more toilets as men have urinals?

IF dark skin color were genetically associated with a variation of Tourette's Syndrome, then it would be entirely appropriate todiscriminate in hiring people with this gene combination for certain jobs and positions of responsibility. Most rap artists exude a belief that indeed to be black IS to lace one's speech with endless repetition of profanity. However, there are men with darker skin than most rap artists serving as extremely erudite and very conservative Anglican bishops, not to mention the authors of some of our best-loved hymns and gospel songs . So we must find some other basis than race to discriminate. (Let's be honest: the first men and women from Africa who learned the more profane words of the English language heard it first from overseers or fellow-servants born in England.)

It is perfectly legal to discriminate in hiring for retail sales jobs, by excluding people who cannot control the constant stream of profanity that is a symptom of, among other things, Tourette's Syndrome. It doesn't matter what color the applicant is. A federal appeals court ruled long since that a retail business is not obligated to "accommodate" this "disability" by subjecting its customers to such language, regardless of the fact that the applicant cannot control what they are saying.

Our laws also discriminate between adults and children in allocation of legal rights and responsibilities. Why? Because children ARE less developed, less capable, less able to make decisions for themselves. They are still LEARNING the basic minimums required to function as adults. Not all adults have learned these minimums, but at least they have some years of experience, and have grown physically about as far as they are going to. Adults are also legally responsible for their actions, and can be imprisoned if they do not refrain from actions that harm others. (We discriminate between people who have committed violent offenses, and people who have not, in the degree of liberty each is entitled to.)

In some areas of national life, we need to discriminate MORE than we do now. For example, the Americans with Disabilities Act, and all the laws that go with it, must discriminate between (not against, but between) people with physical disabilities and people with cognitive disabilities. Why? Because these are qualitatively different categories of disability. Most particularly, each has a markedly different impact on the INDEPENDENCE of those who suffer from them. A person who is quadraplegic may have a perfectly intact mind, capable of making ALL decisions about an individual's life – provided the individual is hooked up to necessary equipment so that it can make those decisions known, and act upon them. On the other hand, laws and regulations concerning care of individuals with cognitive disabilities concern all the things they must NOT be allowed to decide for themselves. Caretakers could be fired, or even prosecuted, for allowing them to run free.

In short, while our constitution properly guarantees equal protection of the laws, our laws do discriminate on the basis of real and genuine differences. We must re-learn to embrace REAL differences as an appropriate basis for discrimination, while avoiding the terribly destructive error of discriminating over irrelevant nonsense.

Mr. Lincoln's Party

Dubya Augustus, the GOP and the NAACP

As part of his recent speech to the National Association for the Advancement of Colored People (NAACP), President Bush remarked that he was sad his party has lost the support of African American voters. What he doesn't seem to have thought about is WHY it happened.

Nobody who ran into me would call me a "colored" man. I have a congenital melanin deficiency. I grew up in a small city way up north where there were literally no permanent residents within 100 miles who could be called "colored" or "black" or "Afro-American" or "Negro" or anything else along that line. I wasn't raised with any of the disadvantages American culture imposes upon people with dark skin.

My great-great-grandfather's family has been voting Republican ever since he came home to east Tennessee from the Civil War, with his discharge papers signed by Abraham Lincoln. (The Ku Klux Klan was constantly threatening to burn down his house for that. In those days, all the boys in the Klan were Democrats.)

For 70 years after the Civil War, if an African American managed to vote at all, they generally voted Republican for more or less the same reasons as my great-great-grandfather.

That began to change with the New Deal. President Roosevelt showed no great courage when it came to civil rights. The army remained segregated all the way through World War II. He wouldn't take a chance on supporting anti-lynching legislation. But, like a majority of "white" citizens, only more so, African Americans were hungy, unemployed and homeless, and the New Deal looked better than anything the Republican Party was offering.

Since rolling back the New Deal as far as possible was the dream of all those who gathered around Ronald Reagan, and later around George W. Bush, none of this offers great hope for bringing African American voters back to the GOP.

But there is more. Until at least 1960, a substantial minority of African Americans still voted for Republicans.

Rev. Martin Luther King, Sr., pastor of Ebenezer Baptist Church in Atlanta, originally planned to vote in 1960 for Richard M. Nixon. He said as much to anyone who valued his opinion or sought his advice, which was quite a lot of people. All that changed when his son, Rev. Martin Luther King, Jr., was locked up in a jail in Georgia. John F. Kennedy made a phone call to the King family, Richard M. Nixon did not.

That was a calculated decision by both campaigns. Kennedy, like Nixon, was closeted with his advisors, assessing how many votes to we gain if I do this, how many votes do we lose? Kennedy decided it was a better deal to call. Nixon did not. King, Sr. came out for Kennedy.

Kennedy was s-s-s-l-l-l-l-o-o-o-o-o-wwwwwww when it came to civil rights. He hobbled along behind the direct nonviolent action in the streets. He was less decisive than Eisenhower, who sent federal troops to Little Rock once it became clear that the city and state were defying the Supreme Court of the United States. (Let's keep this in perspective: Eisenhower personally expressed shock that "white" college students should have to sit in the same classroom with "colored" students, without at least a barrier of chicken wire between them. But he would not let the authority of the federal government be challenged).

Kennedy did eventually propose major civil rights laws. After he was assassinated, these laws were passed by congress. They were not the product of a Democratic majority outvoting a Republican majority. The strongest opposition came from a powerful minority of Democrats. A good deal of support came from Republicans. Without those Republican votes, the civil rights laws would not have passed. But here is where the Republican Party forfeited the allegiance of its remaining African American voters.

Republican strategists, Nixon foremost among them, saw a chance to grab the Democrats who opposed the civil rights laws. They didn't feel at home in the Democratic Party any more. They were welcomed into the Republican Party. It worked very well for the GOP. They got lots of votes. The Democratic "Solid South" became the Republican South. Southern veterans of the Union army, Republican voters all, like my great-great-grandfather, turned over in their graves. It would have been enough to make a union veteran vote for Democrats.

George W. Bush regrets that his party has lost the support of African American voters. As in many other things, George doesn't seem to have a clue why or how it happened. Perhaps he needs a history lesson. He won't get that from the entourage who invented him as a political candidate.

Common Sense in NY

No matter how much you love your car, you can't get a license to marry her

The Court of Appeals of New York has provided a small victory for common sense. In a modest ruling, the court found that "the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature." This case reveals the important distinction between "what I want" and "what my community owes me." Our constitutional system of government is long overdue for a similar distinction, between "my desires" and "my constitutional rights." There are differences.

The usual media headlines have trumpeted how this case works for or against various interested parties. There have been the predictable sound-bytes from the predictable collection of advocacy groups. But why should informed citizens allow our own thoughts to be molded by such interpretations? The entire decision of the court, including all concurring and dissenting opinons, is available on the web, New York Case No. 86 . If you care about the subject at all, read the decision for yourself.

In a very sensible concurring opinion, Judge Graffeo dismisses Equal Protection arguments. Among other reasons, "individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex."

Some might respond "isn't that like Henry Ford saying you can have any color you want, as long as your preference is black?" In a way, it is. But the point is, the legislature has not set out to discriminate against homosexuals, it has merely defined the nature of an institution that the state will recognize and regulate. Some people would prefer to enter into some other relations, for reasons of their own. This does not mean that the state has discriminated against them. These individuals would like to call what they share "marriage." This desire does not entitle them to a license from the state.

The plurality opinion (that one half of the justices could agree on) is a little disappointing. It relies heavily on procreation to provide a "rational basis" for the state to define marriage as the union of one man and one woman. By the nature of constitutional law, there must be some "rational basis" for a any law to discriminate between different classifications of people. For example, Equal Protection of the Laws does not require that three year olds have the same voting rights as 45 year olds. There is a "rational basis" to require that a citizen be 18 years old before they can vote.

The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.

True enough as far as it goes. However, many marriages do not result in children. Many men and women marry after their most likely child-bearing years are long past. This isn't exactly a resounding end to the debate. A second "rational basis" accepted by the court also relies on the aspect of marriage that provides a framework for child-rearing:

The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.

The court did not have to list every possible rational basis, in order to uphold the law. If there is any rational basis for the distinction made in a law, the law can be upheld. But these two are subject to challenge. Chief Judge Judith Kaye pointed out in her dissent

In holding that prison inmates have a fundamental right to marry – even though they cannot procreate – the Supreme Court has made it clear that procreation is not the sine qua non of marriage. "Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life . . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship."

Marriage is indeed about much more than producing children. People of many faiths who recognize marriage as the union of one man and one woman have also recognized that marriage is a very complex relationship, which cannot be reduced solely to a framework for procreation. James Watkins is very eloquent on this point.

In future cases, that observation will have to be addressed. No court seems to have considered a rather obvious and comprehensive fact: the distinction between men and women pre-dates every constitution in the United States of America, and indeed, every form of human goverment. Every person who has ever lived, married or unmarried, has been either a man, or a woman. There are unmistakable physical differences and identifying characteristics. When a baby is newborn, there is no doubt as to its sex.

On the other hand, there is no clear way of identifying who is "a homosexual." Every "homosexual" who has ever lived has also been either a man, or a woman, before they are anything else. In fact, homosexuality has no meaning in the absence of the identities "man" and "woman." Being "gay" is a matter of intangible feelings and preferences, which may or may not change in the course of a lifetime, for various reasons, also poorly understood. In fact, why should the state make a distinction between "heterosexuals" and "homosexuals" by offering marriage licenses to "homosexuals" – (whatever that may be)?

Further, the distinction between male and female is inextricably bound up, in its origins, with a specific process of mating. The most obvious physical differences have no other purpose. This process is more or less consistent for all life more complex than a sponge. The question is not, has the state discriminated against homosexuals? The question is, must the state even recognize the condition known as homosexuality in writing its marriage laws? NO. The state need not recognize the existence of homosexuality at all. Homosexuality is, in an objective mathematical and biological sense, a mere deviation from the norm for human life, one of considerably less interest to the state. In an understated way, the court's opinions acknowledged this:

The binary nature of marriage – its inclusion of one woman and one man – reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaintiffs suggest that the connection between procreation and marriage has become anachronistic because of scientific advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.

To put it more crudely, for a woman to have a child by turkey baster requires a male donor. A lesbian partner cannot provide the necessary package of chromosomes to form a fertile zygote. A humane observer cannot refrain from some empathy with Chief Judge Kaye's dissent. Essentially, she is simply presenting legal argument, a badly contrived one, for giving some very concerned human beings what they seek, in order to lead more fulfilling lives. As she wrote:

Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a State legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children–from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

Compassion calls for a ruling in their favor. Equal protection of the laws, however, does not. Judge Kaye insists that plaintiffs have been "deprived of a fundamental right," which is simply not true. They do not wish to exercise the right of "marriage" as that is licensed by the state. They want to expand the definition of marriage to include their own preferences. The legislature could do that. The courts have no constitutional basis to mandate it.

In fact, Judge Kaye tripped over her own argument, when she cited Lawrence v Texas 539 US 558 (2003). As she says, the Supreme Court in Lawrence rejected its own prior ruling in Bowers v Hardwick 478 US 186 (1986). The earlier decision erred by examining whether the constitution confers a "fundamental right upon homosexuals to engage in sodomy." Of course it doesn't. In Lawrence, the court ruled that the proper question is whether the constitution confers "the right to engage in private consensual sexual conduct." At least seven Supreme Court justices affirmed in deciding Lawrence that this question has no implication for gay marriage. The right to be left alone in one's private life does not equal the right to official recognition from the state for one's private choices. To ask whether the constitution confers a fundamental right upon homosexuals to receive a marriage license is as erroneous as the question posed in Bowers.

Kaye's best citation that the definition of marriage cannot be the union of one man and one woman is from a case against the Attorney General of Canada, under a totally different framework of laws. She also cites the Massachusetts Supreme Court decision mandating marriage licenses for same-sex couples in that state. Thereby, Judge Kaye works a tautology to disprove a tautology: to show that marriage is not the union of a man and a woman "because it just is", she cites the only decision by any state Supreme Court which says that marriage is not the union of one man and one woman (because it just isn't, in Massachusetts).

The plurality decision could have been more comprehensive and more coherent, but the court was properly restrained as to its role:

The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection Clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.

This decision offers hope for voters in states where constitutional amendments to define marriage are on the ballot. In states such as Wisconsin, we can well afford to vote no. There is every reason to expect that the Supreme Court of Wisconsin would show as much common sense as the Court of Appeals of New York. We don't need a constitutional amendment to affirm that the sky is blue, that the sun rises in the east, or that marriage is the union of one man and one woman.

Loving v. Virginia

"The spouse of one's choice"

What a name for a Supreme Court case. And it was all about marriage too. Advocates of "gay marriage" presented many losing arguments to New York's highest court this year. Several of them were rooted in the Supreme Court's 1967 decision of Loving v. Virgina, 388 U.S. 1 (1967). The state of Virginia may have coined the phrase "Virginia is for Lovers" in an attempt to live down the infamy of that case.

It began when a sheriff kicked in the door of Mr. and Mrs. Loving's home, found them in bed with a framed marriage license on the wall, and arrested them for being of two different skin colors. A concurring opinion from the New York Court of Appeals got one thing wrong: it said the case involved a "white" woman married to a "black" man. In fact, Mr. Loving was classified by the laws of Virginia as "white" and Mrs. Loving was classified as "colored." Either way, they were both subject to arrest for being married to each other.

The U.S. Supreme Court ruled Virginia's law against inter-racial marriage null and void because it violated a fundamental "right to marry the spouse of one's choice." At the time, everyone understood that was the right of any man to marry any woman he chose, if she agreed, and the right of any woman to marry any man she chose, if he agreed. That language is now being used to suggest that the right to "marry the spouse of one's choice" includes the right to marry a "spouse" of one's own gender. Dubious. As the New York court found:

While many U.S. Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage right as involving a union of one woman and one man (see e.g.Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma, 316 US 535 [1942]).

The NAACP Legal Defense and Educational Fund filed an amicus curiae brief to the New York Court of Appeals, accepting that "[a]lthough the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual's right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court's decision in Loving."

That was a shallow analysis. No doubt the NAACP has caught the one big happy family feeling, that every form of liberation from every restriction is one big cause. In truth, every form of discrimination is different, and must be analyzed on its own merits.

In the case of racial discrimination, there are no merits. The distinction is an empty one, which exists only in the human imagination. It has been specifically and explicitly rejected by multiple constitutional amendments. After 100 years or so, courts even began to enforce those amendments with some consistency. Congress even got around to passing laws to put some teeth into the enforcement. Racial discrimination is subject to what courts call "strict scrutiny." That, as the Supreme Court wrote in Loving, means that if racially discriminatory laws "are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate." Justice Stewart went further, stating his entire analysis of Loving in one sentence. "It is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

In the case of discrimination by sex, most of us prefer separate bathrooms, and in certain respects we don't even want them to be equal. It is arguable that women have less inclination toward some occupations than men, and more inclination toward others. This has been argued from both a feminist and anti-feminist perspective. All these arguments are far from proven. In any case, it is irrelevant to whether each individual, without regard to sex, should have equal access to prove themselves in any form of education or profession. Still, there are some women who prefer going to all-women schools, and some men who prefer to get their education without the presence of women. Separate sometimes is equal, or simply recognizes genuine differences.

Laws against inter-racial marriage are not legally equivalent to laws which define marriage as the union of a man and a woman. Mr. Loving was a man, whatever his skin color, and Mrs. Loving was a woman, whatever her skin color. The law struck down in Loving was rejected by the Supreme Court due to "the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." The court was very explicit that other forms of discrimination do not automatically get the same strict scrutiny.

Now here is where it gets sticky. The State of Virginia argued in 1967 that its law did not discriminate against any race, because both those designated by the state as "white" and those designated by the state as "colored" were equally prohibited from marrying anyone designated by the state as of a different race. Both individuals who entered into an interracial marriage were punished by the same prison sentence. The Supreme Court rejected that argument. Therefore, a certain logic suggests that if state's restrictions on marriage equally prohibit a woman from marrying another woman, or a man from marrying another man, then the Equal Protection Clause can still be violated by a law limiting marriage to heterosexuals.

In fact, no state marriage law discriminates against homosexuals. No state law even considers the existence of homosexuals as a class or an individual characteristic. The language of Virginia's invalid law defined in detail what is a "white" person, what is a "colored" person, what is an "Indian" – and made various exceptions for percentages of "white" and "Indian" blood. (Why? The state wanted to "honor" the descendants of John Rolfe and Pocahontas as "white.") The law in Virginia imposed criminal penalties for being married to a person of a different race. There is no counterpart in any marriage law defining what is a "heterosexual" and what is a "homosexual." There are no criminal penalties for being a homosexual married to a heterosexual, or being married to a person of the same sex. The only classes recognized by state marriage laws are "men" and "women." That is without question a rational distinction when it comes to marriage.

No state has banned homosexuals from the benefits of marriage, for such purposes as preventing "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," which were Virginia's stated defenses of its marriage law. It would be foolish to bar homosexuals from marriage for the purpose of preventing the birth of more homosexuals. Homosexual unions do not produce children of any preference. Same-sex couples who wish to adopt children have made a consistent point that the orientation of the parent does not influence the orientation of the child.

All that current marriage laws in most states do is to accept and adopt the definition of what marriage is, a definition which has been in effect for many centuries in Europe and North America, and in some parts of the world for thousands of years. Definition of terms is generally required in any law before anything else can be said. What same-sex couples object to is not that they have been discriminated against, but that marriage has been defined as something they don't want, and does not include something they do want. That is not unequal protection of the laws. If the right to marry "the spouse of one's choice" is understood to mean whatever one chooses, why stop at a person of any gender? Why not one's dog, or a sheep, or one's car? A lot of men have love affairs with their cars, why not issue marriage licenses? That is if they are not already married to a woman, or a man. Marriage to both a man and a car would be bigamy, wouldn't it?

Once the state chooses to license something called "marriage," and defines what the licensed activity is, the state may not discriminate among people who wish to enter into the covenant defined by law as a "marriage." If marriage IS the union of one man and one woman, then the state may not discriminate as to which man can marry which woman. Not based on race, not based on sexual orientation, not based on hair color, not based on nationality. The state has no constitutional obligation to license as a "marriage" anything that any given individual wants to call a "marriage." You can call it a marriage if you want to. You just can't get a license for it from the state.

Virtuous Battlefields

Who shall we send to Darfur?
To the inner city? To anywhere?

Mallard Fillmore has been flapping his duck bill about the "United Nations Sex for Food Program." This is a sarcastic reference to a real problem. Repeated reports suggest that soldiers detailed to United Nations peacekeeping operations either indulge in rape themselves, or condition receipt of food aid to starving refugees on young women providing sexual favors. Ditto for African Union forces detailed to Darfur.

Mallard Fillmore has some funny one liners, and plenty of boring monologues, but never really digs into, what shall we do about this? There is a growing list of things that most humane people agree or demand that "we" should do, or our nation should do, or our government should do, to alleviate obvious suffering in the world. Nobody who comes up with these admirable ideas seems to examine this vital question: Where will the people come from to carry out these noble purposes?

For example, the United Nations has no soldiers of its own. It has to borrow troops from member nations. It is doubtful that the United Nations, even if it had its own forces, could recruit and retain a force of gentle giants, capable of overcoming hardened military outfits with ease, while subsisting on a vegetarian diet, daily prayers, total abstinence from sex, and a rigorously virtuous attitude toward suffering civilians. Where are whole battalions of such people to be found in the world?

I'm not sure we would choose to send Taliban soldiers, or Islamic militants from Somalia – but these are military forces known for stamping out rampant rape and looting, maintaining strict discipline among their own soldiers. If we find the right people, will they volunteer for service in the Sahara Desert? So military operations in Darfur, or Congo, or anywhere, have to rely on the real soldiers and real armies that are available to be deployed.

In most armies in the world, soldiers tend to be young, single, male, and more or less profane in both language and off-duty habits. This statement cannot characterize every soldier, or any given individual soldier. Many soldiers throughout history have displayed a genuine concern for children, and respect for civilians. But when a large number of soldiers are sent into action, every commander and politican who sends them can, or should, count on a good deal of promiscuity to occur in some manner. During World War II, military police had to be detailed to maintain order in the long lines of soldiers waiting for service from available prostitutes. On the other hand, rape of civilians was one of the more common reasons for execution of American soldiers in Europe.

Soldiers, by the nature of their training, are violent. They are trained to kill, maim, destroy -- sometimes with the most virtuous and patriotic of motives, but that is what war is about. Many will come home to lead productive, virtuous lives, loved and honored by their families, friends, neighbors and coworkers. Others will come home to a lifetime of flashbacks and mental demons. The janjaweed militia is not being suppressed by an army recruited from veterans of the annual sales of UNICEF greeting cards. There is a disconnect between the people who formulate the idea, and the people called upon to implement it on the ground.

This same disconnect exists in civilian life and government. It can be found in child protective services (and many other areas of social welfare) and in endless disputes about police brutality. It is a natural human reflex to say that a child should be removed from a dangerous and destructive family environment. We seldom stop to ask: are child welfare bureaucracies able to provide a consistently better life for the children they take charge of? Often, the only places they have available to put children are much worse. Social workers do not take their entire caseload home with them, giving each their own room in the social worker's own spacious house. And, how many card carrying members of the ACLU have applied for careers as police officers? Most of us stand on the sidelines, leaving the hard work to others. Which others? Whoever is motivated to seek the job.

Why would anyone choose to go into police work? Like most occupations, there are no doubt a wide range of motives. Some are dedicated to an ideal of public service. Some want to keep their own neighborhood safe, and by extension all the neighborhoods of their city. Some find detective work intellectually interesting. Some decide its as good a job as they are likely to get, and the pension will be helpful. Some like to wear a uniform, carry a gun, and tell other people what to do. In some times and places, the opportunity for graft has been a significant attraction: Chicago in the 1950s for example.

When we, the people, through "our" government, give anyone legal sanction to carry a gun and "enforce the law," we should impose strict controls on their use of that authority. It is delegated authority. It is not theirs to use however they wish, and to employ whatever prejudices they may carry. They are physical representatives of the majesty of The Law. But, they are flesh and blood representatives. They are putting their own lives on the line to keep the rest of us safe. We are not each taking our own turn to protect our own communities. We are paying them to do it for us. A professional, trained, police force is necessary in a complex modern urban society. But when we complain about how our hired guns do their job, we have to ask: who else is available to do the job? Would I step forward to do the job better? Why not?

Similar criticisms could be raised concerning a host of programs, motivated by the highest ideals, and implemented with large amounts of government money. Paratransit for example. When advocates for the disabled secured passage of the Americans with Disabilities Act, a door to door transit service for those who cannot use the local mass transit system was included. Very nice. Nobody thought about where the hundreds, thousands, tens of thousands, of drivers were going to come from. Mostly, of course, they are people who need the job and can't find a better one. (Better, defined as, offering more money, better benefits, and less demanding or more stimulating work.)

It's actually not a bad job. It is not paid very well, but it pays well over the legal minimum wage. Drivers get to know their passengers, and vice versa, and develop a good deal of empathy, in the highest sense of the word. There are also those who do as little as possible, refrain from doing parts of the job that seem personally inconvenient at the moment, endangering themselves and/or their passengers. There is high turnover, both from employees voluntarily leaving and being fired. One thing for sure: massive numbers of dedicated advocates for the cause of Americans with Disabilities did not rush to apply for paratransit driving jobs! They all had more comfortable situations to remain in. The prevailing sentiment seems to have been "offer money, someone will do the job." When that is the attitude, you get who you get.

Schools are another good example. We can talk forever about "the schools should do this" or "the schools should do that." We can even talk about how much money we are going to give to "the schools." Schools don't do anything for students. Teachers do. If people with the qualities to be good teachers don't enter the profession of teaching, "the schools" aren't going to do jack. It is also true that if highly qualified teachers don't have a reasonably secure environment to teach in, and equipment to give their students hands-on experience, not much will be accomplished. But it starts with the teacher(s).

There are times and places in the world where people step out to do a job in massive numbers because they fervently believe in what they are doing, or because their backs are against the wall and they have no choice but to fight for survival. The Israeli armed forces in 1948 and 1967 provide examples of both motivations. To some extent, American service men and women in World War II do also. It did require a draft to secure the numbers of troops needed. But millions literally stepped out of civilian life to serve their country, and their world, providing a whole different experience than the "professional soldier" can ever find. The experience shaped an entire generation's subsequent civilian life as well.

From that perspective, perhaps what the UN should be doing is arming and training those in the refugee camps to go out and kill the janjaweed, and to prevail against them by force of arms. After all, who else in the world is truly motivated to take any real risks for that purpose? But, then we would be taking sides in a civil war. Experience teaches that there is no other way to intervene in a civil war. The standard wisdom on intevening in a civil war is (1) Don't. (2) If you do, pick a side. (3) Make sure your side wins.

Anyone motivated to reach out to the brutalized refugees of Darfur should first ask, "Am I ready to go?" Most comfortable western voices are ready to send "them" or "someone" or "our troops" or to provide logistical back-up to some unspecified regional forces. If you are not prepared to respond "Here am I," then the job will be done, if it is done at all, by whoever can be scraped up to do it. We should also recognize that the only way to end a civil war is to overwhelm and smother every combatant force in the area. It cannot be done be putting a "thin blue line" of UN helmets on the ground between opposing armed forces.

The Taliban's rise to power in Afghanistan began when they started hanging a few rapists. The recent success of Islamic militias in Mogadishu, Somalia, drew a good deal of support from Somali women, who were tired of being harrassed by what American government officials like to call "secular" forces. (They are "secular" in the same sense that American street gangs are "secular." Profane might have been a more accurate term. They are the same forces that brought down the marine helicopter immortalized in the movie "Black Hawk Down.") So it is true that if "we" leave a vacuum, others may step in to do the job – their own way. It is also true that if "we" step in, we may only make matters worse.

Maybe we should send Mallard Fillmore to do the job right. In the spirit of the "Kentucky colonels" and the old-style milita, Mallard could recruit, train, equip, pay for, and offer for service, a regiment to suppress the bad guys wherever in the world the UN has failed to do so. If they succeed, Mallard and the entire regiment will be heroes. If they fail, Doonesbury will never let them hear the end of it.

Polling for Faith

God doesn't have to run for election

According to a recent Gallup Poll, cited in Time magazine:
28% of Americans believe that the Bible is literally true, down from 38% in 1976.
19% of Americans view the Bible as an ancient book of fables, up from 13% in 1976.

Now, before this becomes a trend, "come let us reason together" on what it really means to be a Christian (or to believe in one God, or to trust the authority of the Torah, the Bible, the Qu'ran) in the United States of America.

I know, that sounds like "human reasoning." But God said it to Isaiah, so perhaps it is good enough for us too.

The questions in that poll were, of course, weighted. Most polling questions are. Most questions that superficial Christian political activists ask are equally weighted.

What does it mean "the Bible is literally true"? Let's try to break that down into some more meaningful questions.

Were the first five books of the Bible really revealed to Moses by Adonai Elohim, JHWH, the creator of all that is, seen and unseen?

I would answer yes.

Did that one and only God literally take a rib out of a man's body and use it as the foundation to create a woman?

I would answer no.

How can I answer the first question yes, and the second no?

I have plagued an Orthodox Jewish rabbi with questions about the original Hebrew meanings – the language in which Moses first wrote down what God told him. I could spend a thousand lifetimes asking such questions, and still not understand it all. I am informed that the word commonly translated "rib" is tzela, which means "side." According to the Talmud, the original adam was androgynous, being made in the image of God, and when the woman (isha) was removed from one side of the adam, the man (ish) is what was left, the other side. (She shall be called Isha, because she came from Ish). Thus, marriage reunites the complete image of God, if it is done right by both the man and woman entering wisely into a solemn covenant.

Just one example. I believe, as Galileo Galilei said, that the Holy Bible cannot err, when its proper meaning is understood. Ah, but understanding its proper meaning... a mere mortal human being should be very cautious about proclaiming that "I know what the proper meaning is." I pray that the Holy Spirit (for Jewish readers, think of it as a malach, or a sar, responsible to give some measure of enlightenment and understanding to Christians) will guide me to some understanding of the true meaning... but I do not proclaim to my brother or sister that I have achieved a perfect state of grace to know it all. We all fall short of the glory of God, do we not?

Is the Bible an ancient book of fables? Hmmm... nobody is at all certain that a man named Job actually lived, or experienced the horrible trials described in the book named after him. But, can there by any doubt that the book is in the Bible for good reason, intended by God? Whole chapters of that book are erroneous. How do I know? God said so (Job 42:7). Even very conservative ordained Christian ministers note that the story of the woman Jesus saved from stoning, when she was taken in adultery, may not have actually occured... but I am quite reassured that my pastor keeps a stone behind his desk inscribed "Let he among you who is without sin cast the first stone."

So let us not fall into the silly trap of measuring our faith, or the strength of religious faith in our society, our nation, our culture, according to the adjectives selected by polling companies. What "literally true" means for one person may mean something very different to another. The word "fables" also could have a very different weight to different listeners. A slight change of wording could produce very different percentages, without the slightest change in belief or unbelief.

I have no doubt that every word in the Bible is there for a divine purpose, or, if some scribe stuck in a few extra words here and there, that they are incidental. I would never write the book off as a mere collection of fables. But remember, fables is not a synonym for lies. Fables are stories which convey moral instruction. In this sense, there are many fables in the Bible.

The value, or the success, of Christian faith cannot be weighed either on the scales of polling organizations, or on the scales of polling done by secret ballot. The First Amendment to the Constitution of the United States of America was written by Christians. They were perfectly confident that the truth of their own beliefs could light up the world, without depending on endorsement by a mere human government. That is why the Constitution makes no mention of God. James Madison calmly asserted that the better part of respect for the holy name of Jesus would be NOT to insert it into a legislative enactment. In fact, they knew from bitter experience that endorsement by the profane hand of the civil magistrate degraded religion.

Fewer Americans answer "yes" to the question "Do you believe that the Bible is literally true?" More Americans answer "yes" to "Do you believe the Bible is an ancient book of fables?" Those are questions shaped by decades of shallow propaganda out of the mouths of televangelist anti-Christs. Pious propaganda has led us astray. Let us throw away those questions. While we are at it, let us throw the money-lenders out of the Temple – along with the pollsters. Let the question be, "Do the truths found only in the Bible speak to you, your spirituality, your life, and your hope for salvation?" I would guess that the answer from 85% of those asked would be a resounding "Yes." Of course not all those who say yes would be sincere. How do I know that? I accept the authority of Matthew 25:41-45.

Focus on Papilloma

Dr. Dobson has a good take on new vaccine

I'm never quite sure what to think about Dr. James Dobson. Every Focus on the Family Bulletin, that I find inserted in the church bulletin once a month or so, is full of compassion, wisdom and common sense. What's not to like about this guy? When it comes to raising children, there is no better companion to Dr. Benjamin Spock's Baby and Child Care than Dr. Dobson. But every time he opens his mouth on a national political issue, a candidate for president, a nominee for the Supreme Court, he comes across as neurotic, ruthless, obsessed, thoughtless, paranoid.

I doubt if direct quotes in the press are outright lies. They may be lacking some context. There is no doubt that Dobson endorsed George W. Bush for president, a classic anti-Christ if there ever was one. It seems that in matters of constitutional law, Dobson's specific ends justify any means. He seems willing to destroy broad liberties that ten generations have died for. Dr. Dobson has not recognized St. Thomas More's warning: when you have knocked down every law in the land chasing after the devil, and the devil turns on you, there will be no law standing to protect you from the devil you were chasing. He is much better at giving advice to parents than to politicians.

But Dobson often gets an undeserved bad rap. Take the recent spate of publicity on vaccines for the Human Papilloma Virus (HPV). From many press reports and a random selection of blogs, one gets the idea that Dr. Dobson wants millions of women to die of cervical cancer, so that fundamentalist Christian families can frighten their daughters into remaining virgin until marriage. The truth is, Focus on the Family has specifically endorsed the universal availability of these vaccines.

It is always best to read up on original sources before jumping to conclusions. The sticking point, over which reasonable citizens may disagree, as may reasonable faithful Christians, is routine or mandatory vaccination of 9 to 12 year old girls in school public health programs. Focus on the Family wants this decision made individually by parents, not en masse by public health authorities. Whatever the wisdom of that position, they have openly advised parents to tell their children "The shot is given to children at your age because it is most effective if it’s given at a young age and it will, most likely, protect you all of your adult life." Posted materials freely acknowledge that there are many good reasons to take early precautions, including the possibility of date rape, sexual assault, or of marrying someone already infected.

All of Focus on the Family's materials begin with a strong emphasis on abstinence from sexual activity until marriage. That is a good thing to emphasize. The existence of multiple sexually transmitted diseases is only one, relatively minor reason, why abstinence is a good idea. Has anyone stopped to think, lately, that if there were NO sexual activity outside of monogamous marriage, it would be literally impossible for any sexually transmitted disease to exist?

There is of course a flip side to that. As there have been sexually transmitted diseases throughout human history, obviously monogamous faithful marriage has never been a consistent practice of even a substantial majority of people in any century. More than half perhaps, but not most. There never were any "good old days." It is a good thing to be able to vaccinate against sexually transmitted diseases. Whether a vaccination is available or not, makes no difference in whether abstinence until marriage is the right way to live. Nor does it have much impact on how many people live up to that ideal.

Reading A Midwife's Diary brings home that around 1800, half of the women in deeply religious New England rural villages became pregnant before marriage. On the other hand, most of the pregnant couples (no woman becomes pregnant by herself) were married by the time of birth, or soon afterward. That happens far less often now. It is truly unfair to a child to conceive when there is no covenant in place to take full responsibility for raising him or her. Of course contraception might allow for unrestricted sexual experience, and not inflict life deprived of a stable family on any child. But contraception is not perfect.

Dr. Dobson insists it is God's plan that sex be experienced only within a monogamous marriage. If this is simply an arbitrary test of faith, then it doesn't mean much. If fear of painful disease is the only reason to obey, then vaccination against all STD's would render abstinence irrelevant. But there are positive reasons to keep sex within marriage. They are subtle, they are more difficult to explain to post-pubescent teens than "you're going to shrivel up and die, and then you'll burn in hell." But they are real.

C.S. Lewis explains, through the backhanded commentary of Screwtape, that "wherever a man lies with a woman, there, whether they like it or not, a transcendental relation is set up between them which must be eternally enjoyed or eternally endured." Man-child or woman-child, are you sure you want a piece of THIS infatuation to be part of you for the rest of your life, and a piece of you part of them? That is worth pondering, with or without STDs, with or without pregnancy. It is even worth pondering, whether or not there is a God who cares about the two individuals involved.

Finally, when God created man in his own image, "male and female created he them." It is one of the great mysteries how the image of an omnipotent deity, who by definition has no wife, nor husband, could be male and female. Putting a male and a female together is serious business, precisely because, done right, it puts the complete image of God back together. With or without vaccinations, it is not something to take lightly. We have animal instincts, we also have souls. Teach what is right, understand that none of us are perfect, vaccinate when we are able to develop a vaccine, let God judge the results. And don't be too hard on Dr. Dobson. He has some good things to say.

Cowards and Fools

Opposing the "Marriage Amendment" by stealth

Someone opposed to Wisconsin's proposed constitutional amendment to "define marriage" – someone with money to spend on billboards and other advertising – is displaying extreme cowardice and stupidity. Billboards and bus kiosks are being spread with signs saying "Don't mess with the constitution" and "Vote no on amendment." Which amendment is not specified. No ballot number, no subject. But the obvious reference is to an amendment proposed by the legislature, which would insert a definition of "marriage" into the state constitution.

I am in fact going to vote NO. There is nothing so stupid and arrogant as amending the constitution to declare that the sky is blue, or that the sun rises in the east and sets in the west, or that marriage is the union of one man and one woman. What is ordained of God cannot be added to, or subtracted from, by human constitutions. But this billboard reeks of manipulation. It proclaims to all the world that whoever paid for the advertising believes a majority of voters would vote for this amendment, if they knew what it is about. Therefore, an attempt is being made to defeat the amendment, by attacking the concept of amending the constitution.

Every now and then, a constitution needs to be amended. It was a great day when the 13th, 14th and 15th amendments were added to the federal constitution. The 16th amendment (income tax), was a good idea compared to the alternatives. Most of us now accept the wisdom of the 19th amendment, extending voting rights to the female half of the population. The 18th amendment (prohibition of alcohol) was a disaster. Fortunately, we were not stuck with it forever. Another amendment (the 21st) repealed it.

Amending a constitution is more difficult than passing a law. Rightly so. The constitution is the foundation of all civil law, and limits the powers of government to those expressly granted by the people. But "don't mess with the constitution" is not a reason to refuse an amendment. There should be a very good reason to amend any constitution. Urging citizens to vote NO requires a halfway decent, openly presented objection. There is no good reason to ratify this amendment. It should be voted down, openly and honestly, without stealth or deception.

Let's be honest. If voters are presented with the question "Is marriage the union of one man and one woman?" the overwhelming majority of us are going to vote YES. Even most Mormons would do so, and in the United States, probably most Muslims. The real question is "Do we want this particular language about marriage, thrown together by some legislators who apparently found nothing better to do, enshrined in our state constitution?"

NO. It is unnecessary. There is no significant chance that anyone will pass a law in this state to define marriage as anything but the union of one man and one woman. That is what the law says now, and always has. If a majority of voters someday comes to support some other definition, let that majority worry about it. Such a majority could easily reamend the constitution. Meantime, we can rest assured that no law, no judicial decision, in fact no amendment to the state constitution, could ever dictate to a church what sort of wedding can be performed in its sanctuary. That is removed from state OR federal power by the First Amendment to the federal constitution.

There is no reason to prohibit laws that would broadly allow individuals who are NOT married to own property in common, share joint checking accounts, and visit each other in the hospital. Whether that is an aging brother and sister moving into their late parents' home, or three families sharing an old mansion, or a couple of individuals of the same gender, is of no legitimate concern to the state. The specific language of this amendment would incidentally cut off all of the above. These are things that married couples share with each other. There are many other reasons individuals who do not share a marriage might want to share property or visitation rights. None of these other reasons constitute a marriage. Voting NO is the right thing to do, but let's have an open and honest debate about WHY.

No on this "marriage amendment"

We don't need our constitution to tell us that the sky is blue.

My home state, Wisconsin, has joined this year's round of referendums on amending state constitutions, to define marriage as the union of one man and one woman.

I believe that marriage is the union of one man and one woman. I know that there have been many human cultures which allow a man to marry more than one wife, and a few that allowed a woman to marry more than one husband. So what? From the inception of the United States of America, our culture, politics, laws, and predominant religions have firmly held to one husband and one wife. Even the Church of Jesus Christ of Latter Day Saints abandoned polygamy, when faced with the United States Seventh Cavalry entering Utah Territory.

As far as two individuals of the same gender seeking to marry, I can find holes in the reasoning of the Supreme Court of Massachusetts big enough to drive a Mack truck through. Seriously. I don't know why the attorney general of Massachusetts couldn't find them. There is no basis for the twisted logic that "equal protection of the laws" entitles an individual to marry whoever or whatever s/he chooses to marry.

To start with, equal protection of the laws, a very important principle enshrined in the Fourteenth Amendment, applies to individuals, not to demographic groups. It protects individuals from being treated differently because of what social or ethnic category they may be consigned to. No man has ever been denied a license to marry a woman, or vice versa, on the ground that "you are a homosexual."

That is why I will vote against the marriage amendment to my state's constitution.

Come on now, let's be serious. Do we really need a constitutional amendment to declare that the sky is blue???

Let's have a little faith in ourselves, in our communities, in our fellow-citizens. True, sometimes a constitution serves to restrain our legislators. As Mark Twain observed, "nobody's life, liberty or property are safe while the legislature is in session." But this amendment is being eagerly proposed by our legislators. What are they trying to do , tie their own hands?

Oh, maybe they are trying to restrain our state courts. We wouldn't want another decision so utterly unsound and frivolous as the nonsense that four justices on the Massachusetts Supreme Court came up with, would we? Three out of seven justices in Massachusetts dissented from that decision – hey, has anybody actually read that ruling? It is easily available on the internet.Look it up. Now in Massachusetts, they may need to amend their constitution to set the judges straight.

There is not one justice on the Wisconsin Supreme Court who has indicated the slightest intention of making such a decision. There is no sign at all that anything close to a majority of the court would even consider such a ruling. Last time anyone offered opinions, seven out of nine justices on the United States Supreme Court said that the federal constitution does NOT provide a guarantee for same-sex couples to marry.

One of the two justices who might possibly be considered to have maybe said something that might lead to such a conclusion, Sandra Day O'Connor, has since retired. Is anyone afraid that Justice Samuel Alito will be an advocate of a constitutional right for same-gender couples to marry?

So whatever is on the legislators' minds, it is not protecting the institution of marriage. What designs do they have on our life, liberty and property? I have no idea. I know that what they have asked the people to approve makes no sense.

We don't need a constitutional amendment to tell us that the sky is blue, nor to tell us that marriage is the union of one man and one woman. We also don't need a constitutional amendment to establish that, in this state, the sun rises in the east and sets in the west.

Marriage isn't a right, it is an institution. Some people choose to enter into it, some do not. Every person who chooses to enter into a marriage has a constitutional right to be treated, by the law and the state, in exactly the same manner as every other person who chooses to enter into a marriage. The definition of marriage can't be one thing for some people, and another thing for other people.

Nobody in our nation may be forced into a marriage (although many were in other human cultures in various centuries). Nobody has a constitutional right to redefine what marriage IS either. If "equal protection of the laws" means that I have a right to "marry" whatever I want to, that might start with a person of my own gender, but why not a right to marry my dog, my horse, a sheep, my sports car, or my computer?

We don't need a constitutional amendment. We need to have confidence that marriage, the union of one man and one woman, can be upheld with common sense and simple, rational insight – much less that it is established of God and can weather the storm of nonsense running through our court system.

The wording of this particular amendment would rule out simple, compassionate, common sense legal measures that, incidentally, would provide some consolation to people who do choose to enter into same-gender couples. They have no claim to demand that the rest of us honor or license their choices. But there is no reason they should not, by law, grant each other rights of hospital visitation, hold property in common, etc. James Watkins, a Holiness minister and gospel columnist residing in Indiana, has written eloquently on this subject.

The state doesn't have to take notice of why two or more individuals would want to make such provisions. Maybe an aging brother and sister are moving into their late parents' home together. Let individuals make their own personal arrangements. Leave marriage alone: it is what it is.

That is why I am going to vote NO on amending the Wisconsin constitution.

Genesis of Fishapods

Two discoveries of new links in the evolution of life have been announced recently. One is a fish whose fins have become somewhat more like the feet of most land animals. The other is a 4.2 million year old hominid that falls in between Ardipithecus and Australopithecus.

News coverage of both finds has unfortunately come with headlines like "Darwin would have loved it," and commentary on the "long-running debate with creationists." No doubt Darwin would have loved it. So what? The truth is the truth, whether Darwin would have loved it or not. Darwin was right about some things, wrong about others. Aren't we all?

If the "fishapod" has been accurately identified, and accurately dated, it represents a key link between animal life in the oceans and animal life that walks on land. It does not have legs, or feet. Where other fish have fins, it has something like a wrist and five digits encased in fin-like webbing. These are the beginnings of a "tetrapod hand" – the hand or paw that every four-legged land reptile or mammal walks on. The interlocking rib cage suggests that it had lungs. It was the kind of fish that could do well in warm, shallow, marshy waters. Unlike fish, it had a flexible neck, and eyes on the top of its head.

Notably, the discovery of this aquatic non-fish has demonstrated how biological theories change with new evidence. That silly "Darwin fish" that grew legs and walked onto the land is out. Seriously, everyone who thought it was good fun to put one on your car, just to get Christians riled up, can take it off now. That didn't happen. By the time anything walked on land, it wasn't a fish. It took a few million years of fishapods living in shallow seas before some oddball descendant actually had legs to walk on land with.

When it comes to science, nothing we think we know remains firmly entrenched. This fishapod has indeed filled in one of the missing transitional links in the chain of living organisms. And it has vindicated the plain language of Genesis, for those who have eyes to see, and a mind to understand what we read.

Genesis? Yes, take another look at Genesis 1: 20-21. First God said "Let the waters bring forth abundantly the moving creature that hath life." Then it says "God created great whales, and every living creature that moveth, which the waters brought forth abundantly." That word "great whales" is something of a mystery. The King James translation into English says "great whales." Some translations say sea serpents. Orthodox Jewish understanding is that it was a "great fish" of a type unknown at the present day. Maybe it was a fishapod.

The key point is, first God called upon the waters to bring forth life, then God "made" everything the waters brought forth.Whatever is turning up in the fossil record is simply giving us some details on the results. The "long-running debate" is a lot of hot air. Evolution is a hypothesis that can be tested. God is not. There is no experiment ever devised that can test for the presence or absence of God. The real question on the subject of divine creation is: How did Moses get such a sophisticated overview, more than 3000 years before a University of Chicago paleontologist dug the fishapod fossil out of a rock formation on Ellesmere Island?

By the way, don't forget that while this animal with five primitive digits did swim around in the primeval swamps some 375 million years ago, there were still plenty of fish in the oceans, lakes and rivers. There still are. The fish didn't all evolve into something else, some fish took off in a new direction. We're still not sure how. Genesis says "God made" the life that "the waters brought forth." When something new appears, it has a tendency to "be fruitful and multiply."

The new hominid found in Africa isn't even close to human. The difference in the timelines for humanity of "instant creationists" compared to the timelines of "evolutionary creationists" is only the difference between 6000 years or so and 200,000 years, or maybe as little as 50,000 years. Out of a possible 4 billion years, that is next to nothing.

Tne new find does close a sequence of 12 hominids over a period of 6 million years, through three phases of hominid development. Note that "hominid" does not mean the same thing as "human." Nor is it accurate to say, as many news reports do, that "Ardipithecus evolved into Australopithecus." Whatever may have happened, most Ardipithecus went right on having Ardipithecus babies, until all the Ardipithecus died out. Maybe a few of the Ardipithecus had oddball children who were the ancestors of the newly discovered fossil. Maybe a few of their descendants had oddball children who were the ancestors of Australopithecus.

All the hominids except for homo sapiens sapiens, aka Adam, are long since extinct. We might have some descent from a few of them. Our genes suggest a "genetic bottleneck" only 50,000 years ago. That means a very small number of individuals was isolated from all others of their kind, and became something new and different. That is how "evolution" generally works. Either a very few individuals are physically isolated, or almost all life is destroyed in a great catastrophe. The whole process follows a very Biblical pattern.

The last of the other hominids were no more than very distant cousins to our ten-thousand-greats-grandparents. It was only 50,000 years ago that actual humans appeared on the earth, with powers of speech, with minds to create art, with ability to develop new technologies... It seems that something new and different was breathed into their nostrils. But it is interesting that all the hominids developed in one small area of Africa. Somewhere east of Eden perhaps?

The physcial evidence is real, and it means what it says. Whatever God has been doing, it took a lot more time, as we experience time, than our pious ancestors could conceive of. Well, we can't expect humans to think on the grand scale of an omnipotent God. Our minds can only handle as much as we can handle. Let the facts speak for themselves. And let Genesis tell us what it all means.

Common Sense in South Dakota

The People Challenge the Politicians on Abortion

It appears that many South Dakota citizens disagree with the legislature's decision to impose criminal penalties for nearly all abortions in the state. Some are going to petition for a popular referendum to repeal the law. A most interesting approach. State Representative Elaine Roberts observed "The vast majority of South Dakotans are somewhere in the middle. They have mixed feelings about this issue and I personally don't believe that their views are represented in HB-1215."

The act of the South Dakota legislature is of course, null and void from its inception. Every legislator who voted for it knows that. A very routine judgement from a federal district court would suffice to confirm the obvious. The 7-2 decision by the Supreme Court of the United States in Roe v. Wade remains the supreme law of the land. That ruling is binding on every federal court of appeal, and every federal district court judge, no matter what their personal sentiments. It is also binding on the legislature and laws, and the courts, of the state of South Dakota. The new state law is, accordingly, utterly unenforceable.

But a referendum will accomplish something that no dry court ruling could do. Perhaps it is true that a majority of people in the state are neither "pro-abortion," nor supportive of the "pro-life" lobbyists – who want to restore draconian criminal penalties. In that case, the referendum will make this a battle of "the people vs. the lobbyists and politicians" rather than "activist judges vs. the popular will."

It is possible, even probable, that the legislators who passed this unenforceable law HOPE that it will make its way to the Supreme Court, where a new majority may overturn Roe. That is rather unlikely, but nothing will drown this remote possibility so well as a vote of the people to reject the new law. The legislature and governor of the State of South Dakota would then have nothing to appeal.

In the event of a legal challenge, judgment from a federal district court would be a foregone conclusion. A federal appeals court might well decline to even consider an appeal from the district court, since current constitutional law is so obvious and well defined. There is no controversy. There really is nothing to consider on appeal. That would serve as an extremely poor basis for the Supreme Court to take a direct appeal. Unless four or five justices are firmly committed to overturning the court's existing precedent, there would be no reason to grant a writ of certiorari.

Every measure of public opinion indicates that a majority of Americans take a sound, sensible, common-sense, conservative position on this whole endless controversy. The heavy hand of government, of criminal penalties and public prosecution, has no role in the intimate decisions of a pregnant woman during the first trimester. The state has only a very limited place in the second trimester. Abortion is not a desirable course of action, and few of us would recommend it unless there is a good reason. We differ on what might constitute a good reason. Many believe it to be a sin under any circumstances. But a firm majority of us would ultimately let each pregnant woman make her own decision.

Public opinion is not, of course, the measure of constitutional law. As Justice Antonin Scalia pointed out, in his eloquent concurring opinion in Apprendi v. New Jersey, the constitution means what it says, not what we think it ought to mean. Justice Scalia has also noted, correctly, that supreme court justices are appointed for life, precisely so they can follow the law, rather than bending to whatever happens to be the popular will at the moment. A constitutional limit on the powers of government does not appear when a popular majority approves, then disappear when a popular majority shifts the other way.

It may be that the constitution does not protect individual privacy from government intrusion. Most Americans have come to passionately expect that it does protect our personal lives from state interference, in many different ways. Justice Scalia has been firm in holding that the 4th amendment secures the home against government intrusion. Other justices, notably Oliver Wendell Holmes, Jr., and Louis Brandeis, have argued for an expansive right to be left alone. As long as such a right exists, legislators or popular majorities, in South Dakota or anywhere else, are powerless to intervene in the private decisions of individual citizens.

If the Supreme Court finds that there is no such constitutional protection after all, then states would be free to go anywhere they choose. The legislature of South Dakota would be free to adopt criminal penalties for abortion, and to have them enforced. The people of South Dakota would be free to overturn the legislature by referendum. There is a place for both constitutional protection and the popular will in our system of government. Right now it is an open question, who truly speaks for the people of South Dakota?

Unfortunately, a majority of the South Dakota legislature views abortion through the dark glass of a "war" that has to be "won." So, on a national level, do NARAL and Planned Parenthood. These two fanatical viewpoints, each more concerned with "winning the war" than with allowing women to make healthy choices, have fed on each other for at least 20 years. Both fail to recognize that our culture is moving toward greater reverence for life precisely because of Roe v. Wade.

It would be a very good thing if Americans who stand for the right to life of every unborn child would put all their money where their mouth is. Instead of endless and futile demand for criminal penalties, think what they could accomplish by reaching out to pregnant women who are not sure they can handle bearing and raising a child! Let every person who believes abortion is always wrong offer to take complete responsibility for any fetus brought to term by a mother who does not want, or feel able, to keep and raise the child.

Also, could the "pro choice" advocates please lower their profile a little? Roe v. Wade rested on the respecting the intimate private decisions of individual women and families, consulting their own choice of physician, not on a "right to abortion." Justice Harry Blackmun's private papers reveal that he specifically rejected the concept that there is a constitutional right to abortion. Highly publicized clinics dedicated to providing abortions offer an obvious lightning rod. Could we please let this whole issue fade back into a private decision, and respect whatever decision an individual woman may choose to make?