Gay Marriage Legalized in Maryland and Thoughts on the Path to Legalization

Mentioning the issue in my last post reminded me that I haven’t put out an update on this issue in a while.  This one will be a bit longer than normal.  I considered breaking it into two posts, but didn't.

Continuing a string of gay rights victories, Maryland recently legalized gay marriage.  It is the eighth state to do so (Connecticut, Massachusetts, New York, New Hampshire, Vermont, Iowa, Washington state, and Washington DC already allow it).  As a side note, New Hampshire also recently defeated a bill in its legislature to overturn its gay marriage law, so that’s another win. 

Like Washington state, there is an effort in Maryland to put gay marriage up for popular referendum in the fall.  In addition, Maine is expected to have gay marriage on the ballot in the fall.  Minnesota and North Carolina are still expected to have gay marriage bans on the ballot in the fall, as well.  California remains a hotbed due to the recent overturn of Proposition 8, as does the federal level (DOMA).

To this point, I’ve been content to leave aside the question of what is the most appropriate avenue for getting gay marriage legalized.  I want to look at that here.  There are court rulings, the legislative process, and popular referendum at the state level, along with DOMA, the legislative process, and potentially the Supreme Court on the federal level.  I’ve never looked into the possibility of a popular referendum on the federal level, but I suppose it is possible in theory. 

Here’s the reality.  In the United States, the rights of the minority are not subject to the will of the majority.  It is one of the most fundamental underpinnings of the Constitution.  We see it repeatedly throughout the document, like the 14^th Amendment as I’ve laid out before.  This very basic tenet of America is the reason popular referendum, be it on the state or federal level, is simply not an appropriate way to address the matter.

So, with popular referendum out, we are left with the legal or legislative process.  They are simultaneously somewhat parallel, yet related, paths to the same end.  The courts could (and should) keep overturning gay marriage bans and upholding gay marriage legalization based on the Constitution, but they are limited by the cases brought before them.  The legislature, on the other hand, can write and pass a bill at any time (assuming the will is there, of course).  Both are appropriate paths to legalizing gay marriage.

We’re also left with the question of whether state-level or national-level action is appropriate.  This is kind of tricky.  On one hand, we have the states’ rights question, which I’ll address below.  On the other hand, even if we break away from the 14^th Amendment or legal rights issue, we see two additional layers. 

First, it’s my view that individual freedom is the ultimate deciding factor.  Basically, it’s the, “My rights end at your face,” line of thought.  I would pose the question to opponents how their rights are infringed upon by allowing gay marriage (it’s very obvious the rights of gay people have been infringed upon by being denied the right to marry).  This is actually a very significant question and I see no valid answer provided religious organizations are not forced against their will to marry gay people.  So, the rights of gay people are being restricted and ending that infringement would not impact everyone else.  This is an important underpinning to the gay marriage argument, and with that, we can move on to the next step.

The Constitution is the supreme law of the land and was written with the intent not to limit the rights of the individual, but to limit the power of the government to limit individual freedom.  Simply put, if the local and state governments are unwilling to take the appropriate action to ensure the rights of the individual, then the federal government is obligated to intervene to that end.  The inverse also applies, meaning that the state and local governments must also take appropriate action to ensure individual rights should the federal government attempt to violate them.  In other words, the rights of the individual trump the rights of the government on all levels.  The Civil Rights movement is a great historical example of the concept.  This can get very philosophical very quickly and we can branch off into a lot of other questions, but I want to stay on topic here and move onto the next facet of the federal versus state action discussion.

Second, as I’ve written before, a marriage license issued by one state must be recognized by all other states per federal law.  This is often framed in terms of age.  Suppose State A’s legal age for marriage is 16 and State B’s is 18.  If a pair of 16-year olds get married in A and go to B before turning 18, B still must recognize their marriage.  The same logic applies to marriage licenses for gay couples.  Alabama, for example, acts illegally when they refuse to recognize the legitimacy of marriage licenses issued to gay couples by another state (to my knowledge, Alabama is the only state to do this).  Interstate issues like that often ultimately require federal-level arbitration. 

The bottom line here is that, between the 14^th Amendment and interstate issues, federal-level resolution will ultimately be necessary to at least some degree unless all 50 states legalize gay marriage on their own.  I think DOMA would have to be overturned somehow (legislative process or Supreme Court ruling) because, as I’ve detailed before, a large number of states defer to DOMA.  Additionally, federal action that either explicitly disallows state-level bans on gay marriage and/or legalizes gay marriage throughout the USA may be necessary.

What about a Constitutional amendment?  It would be pointless because it would be entirely redundant to the 14^th Amendment.  We’ve seen this before.  Feminists were agitating for a similar amendment for women a few decades ago.  Back then, the amendment ultimately failed to gain traction due to the redundancy logic.  A similar amendment for gay marriage would fail in the same way for the same reason.

Note the absence of the executive branch.  Though it can serve as a bully pulpit, I don’t view executive action, either by a governor or a president, as a viable or legal path to legalization.  The executive branch lacks the power to do this unilaterally, though this hasn’t stopped them from trying (and often succeeding) to stretch/abuse their power in many other areas (also known as the imperial presidency).  Indeed, the executive branch on either level can be completely locked out from the process.  Legislatures can often overturn an executive veto with a 2/3 majority in both houses, the judicial branch is largely independent of the executive branch, and popular referendum doesn’t involve the executive branch at all.  The executive branch also has no place in the amendment process of the Constitution.

All that said, I’m a pragmatist on the matter and I want to see it legalized as widely as possible as quickly as possible.  The state legislative process is probably the best way to go on the offensive (as long of a grind as it is to get through 40+ more states), whereas the state legal process can be used more for both offense and defense (bearing in mind the limitations imposed by what cases face the courts). 

Given the 0 for 31 record gay marriage supporters have in state popular referendum, I have a different take there.  Principle and strategic disadvantage make popular referendum a bad place to be.  Obviously, playing defense there to counter bans is vital, but it’s not the place to play offense.  Victories here are still essential, especially on defense.  Going on offense in Maine is risky only in the sense that the odds of success aren’t favorable based on history, but there is nothing to lose besides resources and there is everything to gain because another state would legalize gay marriage and the momentum of a first popular referendum win would be very powerful.

A Look at the ESP Spectrums - Social

I started this series a while back and haven’t come back to it until now. In hindsight, I should have much sooner. I’m going to start this look at the social spectrum by copying exactly from my first post in this series. From my previous column:

“Let’s start with the social in Figure 1.

Note the barbell approach I’ve taken. In this context, pure freedom is the equilibrium. In theory, I suppose we could say pure freedom is anarchy, but for this column, we’re going to assume a government is in place. As we move to the left of the center, we see a secular government begin to encroach on the pure freedom, leading ultimately to a totalitarian secular government. Likewise, as we move right of center, we see a theocratic, religious-based government encroach on pure freedom.

The point is, as we move further left or right, freedom falls under attack. I deliberately structured the color scheme to show that the attacker of freedom is irrelevant.”

The symbolism in color selection (freedom is light and oppression is dark) is intentional.

There were two out-of-scope points. First, is the US semi-freedom secular or theocratic? I contend secular. Second is my belief that the USA is the global champion of freedom, given that we have entities far to our left (China, Russia, North Korea, etc.) and far to our right (Iran).

You wouldn’t believe how much heat I take from the conservatives for saying secular over theocratic. I think it’s a slam-dunk argument, honestly. The beginning of the 1st amendment of our Constitution reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The conventional line of thought is for a wall of separation between church and state.

I often hear that the USA is a Christian nation founded on Christian values. I disagree. Not only is that inconsistent with the Constitution (nowhere in there are we described as a Christian nation, even if many of the Founding Fathers were of the faith themselves), but Section 11 of the Treaty of Tripoli explicitly said the USA is not a Christian nation. It reads, “As the government of the United States of America is not in any sense founded on the Christian Religion.” Now, this issue has its fair share of controversy because it’s still questionable whether Article 11 was present in the Arabic version of the treaty (I think it was), but it is generally accepted that Article 11 was in the version of the treaty voted upon by Congress and signed by President John Adams.

As for the second point, that the USA is the global champion of freedom, I get just as much heat from the liberals for thinking that “imperialist America” (their words, not mine) is a worldwide beacon for freedom. Simply put, their view is inaccurate, both from an absolute and a relative perspective. It’s not even a matter of opinion. It’s a matter of historical fact.

First is the absolute perspective. They argue, “Well, Tim, the early USA wasn’t so free of a place for anyone who wasn’t a white male.” They’re right. But that was also well over 200 years ago. Things are very different today. The big injustices like slavery, Jim Crow, and voter disenfranchisement (women and minorities) have all been done away with on the national level. The biggest area of struggle I see today is full equal legal rights for gays (including marriage) and the Obama administration has done more to advance gay rights than any president before. Sure, there are still less widespread injustices, but this is leadership in human rights and social progress.

Now, from the relative perspective, let’s compare the USA to some other countries. Historically, the USA has been a global frontrunner in spreading freedom. Compare the USA to Russia (USSR and present), China, and North Korea on the far left. Compare the USA to Iran on the far right. Which country of those listed has the greatest level of personal freedom? The clear answer is the USA. Engaging in political dissent in any of those countries besides the USA gets you imprisoned, tortured, exiled, and/or killed. I’ve heard countless stories of how bad life was behind the Iron Curtain (here’s a great series).

The bottom line is I see the USA as a semi-free secular entity and the global champion of freedom.

Links: http://www.investors.com/NewsAndAnalysis/SpecialReport.aspx?id=512665

Another Gay Rights Victory

The gay rights movement is on a roll. First, the Obama administration repealed DADT. Now, the Obama administration will no longer defend Section 3 of the Defense of Marriage Act (DOMA) in court. DOMA was passed in 1996 (yes, right around the time we got the DADT policy). Section 3 is the portion of the law that defines marriage as being between one man and one woman. It was ruled unconstitutional by a Federal district court in July 2010, and this week, the Obama administration announced they would no longer defend the law.

I’ve posted previously about gay rights and I won’t go through my full position (gay marriage bans run astray of the 14^th amendment). Suffice it to say that I think gay people should enjoy full equal legal rights including legal marriage, though I don’t think a church should have to marry gay couples if it doesn’t want to (I differentiate between legal and religious marriage). I agree with the Obama administration’s conclusions about the unconstitutional nature of DOMA Section 3. This is a monumental victory for the gay rights movement. It’s not over yet, though.

The Obama administration deserves some praise for getting this one right. Hehe…combine the gay rights victories (DADT and DOMA) with my recent thumbs-up to Obama for endorsing the death of the GE alternate engine for the F35, and I’ve probably praised Obama more in the past 2+ months than I have in the past 2+ years. You might even think Obama’s converted me. :-p In all seriousness, I’m fiercely critical of the Obama administration’s missteps, but that cuts both ways because I’ll also gladly give the credit when they get it right. I think the best part of Obama's legacy will be the progress made on gay rights during his presidency.

I’m also interested in the political considerations. From Obama’s perspective, this is a win-win. I think he’s wanted this to happen, so it’s a personal win for him. It’s also a political win because he can energize his base by saying, “Not only did we repeal DADT, like I promised during the 2008 election, but we’re killing DOMA. I did what I promised and then some.” It will also diffuse some criticism Obama’s received from the gay rights movement for what’s essentially political double-speak (or hypocrisy). Up until now, Obama has argued that DOMA Section 3 was unconstitutional, yet his administration has continued to defend it. That’s no longer a valid criticism, and should help galvanize his left-wing base for the 2012 election. Personally, I think he’ll have to do more to energize the left-wing base if the 2010 election was any indication. This is also probably why he’s digging in so aggressively with regards to the, “Assault on unions,” (his words) that’s going on in Wisconsin. Combine this effort to invigorate the base with his attempts to look like he’s coming to the center on economic matters in hopes of picking up some independent and marginally-attached voters, and I think it’s very obvious that Obama’s ramping up the reelection efforts.

So how will the GOP respond? Honestly, I think (and hope) they’ll pretty much let this one go without turning it into a brawl. It’d be wise for them to do so. Sure, you’ll probably see some social conservatives come out and decry Obama’s decision as an assault on American family values and/or they’ll have a bout of the judicial hypocrisy I recently discussed. However, I expect this will be fairly minimal because the political risks would be too great for the GOP to take an aggressive stand against Obama’s actions here.

I think the Tea Party influence will temper the GOP response and keep the social conservatives in check. The Tea Party’s main focus seems to be economic/fiscal policy. Though some of them are social conservatives themselves, my impression is they view social issues (gay rights, abortion, the environment, etc.) as secondary to economic/fiscal policy. There’s also a significant libertarian element to the Tea Party, an element that wants limited government that butts out of an individual’s everyday life and generally allows people to live their lives. Combine the primary/secondary focus dynamic with the libertarian dynamic, and I suspect they’ll largely sit this one out.

That said, just as the democrats have done repeatedly in the past, the GOP has also previously blown my mind (several times) by doing some very stupid things that I couldn’t have seen coming without a working crystal ball. So, we’ll see what happens.

Extension:

I thought more about this, and something else dawned on me. I think the democrats realized that the gay rights movement was gaining too much momentum and they could no longer count on the gay vote as solid democrat votes. There is a small movement within the GOP called the Log Cabin Republicans who advocate for gay rights that's been gaining momentum within conservative circles. I think the democrats feared they were losing their grip on the gay vote and have reacted to firm it up.

China and America in 2011

President Obama is hosting China’s president, Hu Jintao, this week in Washington DC. We have a complicated relationship with China. There are a lot of sticky issues including:

-Intellectual property. The Chinese want our technology and will do anything to get it. They’ll steal it outright, displaying little regard for intellectual property law. For example, Microsoft’s CEO, Steve Ballmer, estimates that only 10% of Windows software packages in China were purchased legally. If they don’t steal it outright, they’ll get it through joint ventures with American companies. General Electric announced one this week with AVIC (Aviation Industry Corporation of China), granting AVIC access to GE’s avionics technology. General Motors did a similar deal with SAIC Motor Corporation. As a last resort (for now), China could buy whatever they can’t get through theft or joint venture. Intellectual property is a central theme in the next two issues on my list.

-Military build-up. China is aggressively expanding their military and recently has shown signs of catching up to our military technology. China unveiled its J-20 fighter, designed to challenge our F-22 Raptor. It’s not there yet. We’re making it easier for them to catch up because, in addition to the IP issues I mentioned above, we’re not pushing military technological advancement as aggressively as we should. This technological advancement is allowing the Chinese to become bolder in foreign policy and assert themselves more in their East Asia sphere of influence.

-Economic expansion. Chinese acquisition of American technology doesn’t just allow them to catch up to us militarily, but also economically. American technology plus government backing helps them compete against us. If they don’t have to spend billions in research and development and they don’t have to pay their workers as much as we do, they’ll naturally be able to undercut us on price. As with military technology, China’s not quite there yet, but they’re gaining.

-Rare earth metals. These are used heavily throughout industry. China cut its export quotas by 35% last month. Even though China has only 37% of the world’s proven reserves, it provides 97% of the world’s supply. It claims this reduction is due to higher domestic use, but it could also be China flexing its political muscle. Our lack of domestic development, despite having ample domestic resources, leaves us vulnerable to cost surges and/or supply shortfalls.

-Currency and trade. Both China and the US accuse the other of currency manipulation, and both are right, in my opinion. The Chinese peg of the yuan to the dollar is keeping the yuan (aka renminbi) lower than it likely naturally should be. This is a mixed blessing for America. The negative for us is it makes Chinese imports cheaper, thereby giving them a competitive edge against our products. The positive for us is because Chinese imports are cheaper, it saves our consumers money (Wal-Mart deserves much credit here, too). Thus, if we push too aggressively for yuan appreciation, it may actually hurt us more than help us. Likewise, the USA has been practicing a weak dollar policy to strengthen our own exporting power, but also to inflate our way out of debt.

-Human rights. Issues like free speech and religion, censorship, and China’s one-child policy come to mind. The US and China view human rights differently, and both must recognize this. We see it more as a civil and legal issue whereas China sees it more as an economic issue. The US values individual freedom over harmony while China values harmony over individual freedom.

The bottom line is the whole world has to decide how to cope with China’s expansion. A balance must be struck between allowing for Chinese expansion and ensuring our economic and military well-being. I’d like to see it thrive as a peaceful, mutually-beneficial relationship. But, we can’t just concede our spot as the top global economic and military superpower, either. I hope history doesn’t repeat itself. Two scenarios worry me.

The first scenario is a Germany scenario, leading to war. I’ve long believed that throughout 20th century, the rest of Europe was unable to cope with Germany’s economic and military expansion, thereby leading to two world wars and a carved-up Germany.

The second scenario is a Russia scenario, leading to a Cold War. Following World War 2, the US and Russia were the two remaining superpowers as the rest of the world was decimated or not yet developed. We never fought each other directly, just by proxy.

I’ll discuss these parallels I see another time.

Book Review – "New Deal or Raw Deal" by Burton Folsom Jr.

I just finished Burton Folsom Jr.’s “New Deal or Raw Deal? How FDR’s Economic Legacy Has Damaged America.” This book centers on Franklin Roosevelt’s New Deal to combat the Great Depression. The overwhelming majority of historians and literature on the New Deal paints it very favorably and often hails FDR as among the greatest presidents of all time. Folsom offers a compelling contrarian take and effectively shows that not only has the New Deal proven to be a disaster for the USA, but also that FDR should be viewed as one of the worst presidents ever. It’s a highly worthwhile read and is written in a very easy-to-follow manner. And it’s only 270 pages.

The general theme is a critical attack of FDR’s New Deal policies to demonstrate that not only were they bad economics, but many of them were also politics at its worst. The New Deal didn’t just fail to cure the Great Depression. It actually made things worse.

Folsom starts by discussing FDR’s background and rise to power. He then discusses briefly the Roaring 20’s, the time before the Great Depression, and the causes of the Great Depression. The popular view is that the excesses and uneven distribution of wealth of the Roaring 20’s along with underconsumption soon after caused the Great Depression, but Folsom (and I) disagree, citing instead the massive war debts incurred by Europe during World War 1, the Smoot-Hawley tariff, and the Federal Reserve constricting money supply.

From there, business was about to pick up (as in FDR’s New Deal, not actually business activity – that came to a screeching halt). Folsom discussed the National Industrial Recovery Act (NIRA was eventually shortened to NRA). This overthrew America’s traditional free market system and instead had industry collaborating with government to regulate everything from hours to wages to prices. It was unanimously ruled unconstitutional in a couple years, but the damage was already done.

Next was the Agriculture Adjustment Act (AAA). It’s like a farming NRA, but with subsidies for farmers not to produce and some other details. Then, we find the Works Progress Administration (WPA) that had federal spending balloon for local and state projects. Folsom detailed some other policies, such as the Air Mail Act that put the Army in charge of air mail, Federal Emergency Relief Administration (FERA) blunders, and the Tennessee Valley Authority (TVA).

Folsom breaks from his assault to give FDR some credit for doing some good stuff, or at least not catastrophically bad stuff, in his discussion of financial actions, such as intervening in gold, silver, stocks, bonds, tariffs, and banks. But, Folsom’s back on the warpath in the next chapter, attacking minimum wage laws, social security, and labor relations.

Next, Folsom discusses tax policy (income, excise, and corporate) and the Internal Revenue Service (IRS). He shows the damage FDR’s tax increases caused to the economy and how FDR used the IRS against his political enemies. Folsom then shows how FDR used political patronage and deceit to secure votes, acting in his best interest versus the nation’s. FDR even tried to take control of the Supreme Court and purge “disloyal” democrats from the party.

He closes by discussing the long-lasting damage FDR did to the office of the presidency and the nation, what he probably should have done to combat the Great Depression (tax cuts and a business-friendly environment), how the Great Depression finally ended (Folsom credits World War 2 for ending the Great Depression and Truman’s post-war leadership for putting America back onto the path to prosperity once again), and why it matters today.

People need to see this contrarian (and largely correct, in my opinion) view of the New Deal. Present-day conservatives and liberals should read this book, but for different reasons. Conservatives should read it so that they can back their attacks on liberal policies with historical proof that they failed miserably. Liberals should read it so they can see where past ideas went astray, subsequently improve them, and defend them better.

The parallels between then and now are frightening. I am reminded of the quote by Howard Simons below.

“Those who forget history are condemned to repeat it. Alas, those who study history and inflict it upon others are condemned to repeat it, too, and suffer the additional burden of understanding the gruesome parallels unfolding in their lives.”

Such is my agony. I hope you’ll share my pain, as insane and masochistic as that might sound. And, on that note, Happy New Year.

A Look at the Economic, Social, and Political (ESP) Spectrums Part 1: An Introduction

When examining current events and such, we should look through three lenses, namely the economic, social, and political (ESP). This allows us to gain a greater understanding. Failing to look through all three can lead to an incomplete comprehension of an issue. In this article, I’d like to look at all three and how America fits in. This is an overview article and I intend to explore each in greater detail at a later date.

Let’s start with the social in Figure 1.

Note the barbell approach I’ve taken. In this context, pure freedom is the equilibrium. In theory, I suppose we could say pure freedom is anarchy, but for this column, we’re going to assume a government is in place. As we move to the left of the center, we see a secular government begin to encroach on the pure freedom, leading ultimately to a totalitarian secular government. Likewise, as we move right of center, we see a theocratic, religious-based government encroach on pure freedom.

The point is, as we move further left or right, freedom falls under attack. I deliberately structured the color scheme to show that the attacker of freedom is irrelevant. In this spectrum, I would put the USA in the semi-freedom realm. Whether we are secular or theocratic is outside the scope of this column. Also outside the scope of this column is my belief that the USA is the global champion of freedom, given that we have entities far to the left of us (China, Russia, North Korea, etc.) and far to the right of us (like Iran).

We now move onto the global political spectrum shown in Figure 2.

Again, we assume a government exists, thus no anarchy. The overlap between Figures 1 and 2 is not a coincidence. Our political structures are directly correlated to freedom and the social spectrum.

To narrow it down to what we see in the United States, we have Figure 3, which is the republic portion of Figure 2. Technically, the United States is a republic, not a democracy. The difference is mainly in the voting structure. In a democracy, all eligible voters vote on all matters, but in a republic, eligible voters elect representatives to vote on their behalf on most matters (save the occasional referendum). Both structures allow for a single executive branch to be elected. One can easily see how a true democracy is impractical. In Figure 3, we see darker red/blue as we get further away from the purple center (because red and blue make purple).

I’m not going to go into excruciating detail here. On the left, we would typically expect to see various classes of liberals like democrats, socialists, progressives, and communists. On the right, we would typically expect to see various classes of conservatives like republicans, libertarians, and social conservatives.

We don’t typically see a global economic spectrum, but I’d contend it looks like Figure 4.


Note the lack of partition and higher concentration of more solid colors in Figure 4 versus Figure 3. Also, note the absence of anything to the right of socialism shown in Figure 2. The reason is that these (republic, democracy, monarchy, theocracy, and fundamentalist) are generally considered more to be social and political structures than economic structures, and as such, these structures can, in theory, appear throughout the economic spectrum. So, we have free-market capitalist, socialist, and communist economic structures.

But Figure 4 is flawed. It creates a perception that if one is not a full-on free-market capitalist, one is a socialist or even a communist. This is why I’d like to change the economic spectrum in Figure 4 to look more like Figure 5.


As you can see, there is much less solid color and two new categories have emerged, namely capitalist and neutral. This distinction is necessary because it creates a new category, the capitalist, for people who believe the economy should mostly be left to its own devices, yet sometimes requires the government to act as a referee or a guide. Such people are often and unfairly demonized by free-market capitalists, socialists, and communists alike.

This was meant as an introductory look at the three spectrums. I plan to explore each in greater detail in future columns.