The Separation of Church and State

The First Amendment to the Constitution of the United States states that:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

“The Supreme Court on Tuesday struck down a Maine tuition program that does not allow public funds to go to religious schools,…

“The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing for the majority and the court’s three liberals in dissent.”

“’There is nothing neutral about Maine’s program,” he wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.’

“Justice Sonia Sotomayor, one of the dissenters, answered, ‘This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.’”  “Supreme court-Maine-religious schools”

Where public funds are provided to support the education of our children, they should not discriminate on the basis of religious beliefs. That is what the separation of church and state means to me. I don’t understand Justice Sotomayor’s position. Public funding of all schools except religious one is religious discrimination pure and simple. It is the State interfering in religious choices.

In my opinion, the relevant government authority choosing to support the education of children should provide the parents of each child with a tuition voucher that can be used at any certified school (including home schooling). As an aside, while I defend the right of parents to school their own children at home, I think it is a mistake to do so as the school experience is more than what is in the text books. Quite clearly, banning the use of such vouchers at Catholic, Hebrew or other religious schools would be discriminatory and should not be allowed (as the Court ruled).

I also support a Universal Basic Income. “Our social safety net” Disallowing its use to send your kids to a religious school would violate fundamental principles of equal treatment and religious freedom that we hopefully all believe in.

If we can keep it

From the founding of the American republic, we have had different views on policies to improve our “more perfect union.” That we have lived and flourished together is the result of several important features of American society that we should never take for granted.

The first is a constitution that establishes a limited government that provides maximum scope for each of us to live our individual lives as we see fit. The potential frictions from our different views are thus minimized.

But the individual freedom structure of our government and its accompanying laws are not enough to explain our relative success. Civil society can only flourish within that structure if our values are virtuous and our cultural norms support tolerance and cooperation. Such norms derive from tradition but evolve with experience of what works. This was the insight of Fusionism—the need for both freedom (limited government and free markets) and good values. “Popularizer [William F] Buckley and politician [Ronald] Reagan took the productive tension between freedom and heritage and translated it into political action under the term “fusionism.” “Conservative nationalist or fusionist manque”

“As far as viewing individual freedom as the supreme principle, Mr. Fusionism Frank Meyer explained in his “Western Civilization,” that freedom did rank first politically, as what he called the ‘criterion principle, the guide.’ But ‘the application of principle to circumstances demands a prudential art’ derived from ‘the intricate fibers of tradition and civilization, carried in the minds of men from generation to generation…. The compelling, if secondary, claims of other principles, though not decisive to judgment in the political sphere in the way that freedom is, do nevertheless bear upon every concrete political problem.’ So, practical action requires balancing freedom and beliefs.” 

Culture informs how we use our freedom. Our personal survival and flourishing (self-interest) naturally have priority. But our cultural and moral values help inform our behavior toward ourselves and toward our neighbors that best serve our flourishing and happiness. Our personal welfare also depends on how we treat others.  In the fusionist spirit, two of the critical elements of successful societies are trust in the institutions that govern them and respect for those with whom they disagree.

Political debate in America today is too often merely finger pointing and damning the other side as disingenuous—treating them as enemies rather than partners in brainstorming sessions to find the best solution to opposing views. The pros and cons of proposals and an understanding of the sincere needs and concerns of the other side and the development of compromises and consensus are not possible in such an environment. Our defense of free speech is critical but of limited value if we are just shouting at each other and forget that listening is an important part of a productive conversation.

More deeply disturbing and dangerous is the widespread loss of confidence in our institutions. How best to protect ourselves and our families and our community from Covid-19, for example, should not be a political issue. We should be able to rely on the best advice coming from our public health agencies as they gather and evaluate the evidence. But these institutions bent to political pressures and lost public confidence. “Should you get vaccinated for covid-19”   “The unnecessary fight over covid-19”

More disturbing still is former President Donald Trump’s persistent lies to his supporters that he actually won the 2020 election, thus undermining trust in our elections. That Trump makes such claims is less surprising than that so many of his supporter believe it despite the almost total failure of any evidence presented in court (thus under oath) to establish voter fraud or miscounting, and the rejection of such claims by Trump’s campaign manager, Bill Stepien, and  Trump’s appointed Attorney General, William Barr, who called the claims “BS.” There is no way anyone really seeking the truth can still believe Trump’s claim of a stolen election. But a lot of people still seem to.

Unfortunately, it gets worse. We all listened to Trump’s failed effort to persuade George Secretary of State Brad Raffensperger to find 11,780 more votes for him. “Trump-Raffensperger call transcript on Georgia vote”   When such efforts were exhausted, Trump explored ways to overturn the election results in Congress with the help of “legal” advice from John Eastman and Rudy Giuliani. The final desperate plan was to convince Vice President Mike Pence to reject the Electoral College vote and declare Trump President. The scheme was illegal. The Vice President’s legal adviser, Greg Jacob, explained the illegal nature of the plan to its author, John Eastman, and to the Vice President as did Judge Michael Luttig. VP Pence refused Trump’s pressure to overturn the election, for which we must all be very grateful.

In response to Pence’s refusal to violate the law, “Trump tweeted that Pence ‘didn’t have the courage to do what should have been done,’ prompting rioters Trump had sent to the Capital to “chant ‘hang Mike Pence’ and erect mock gallows.  Committee Vice Chair Liz Cheney has described testimony from Trump aides saying he responded by saying Pence ‘deserves it.’” “How did Trump respond when mob chanted hang Mike Pence?”

The mob that attacked the Capital on Jan 6, 2021 was sent by Donald Trump. “Five people died during the attack or in the immediate aftermath.”  “January 6 attack on capitol-guide to what we now know”  “A grand jury has accused Proud Boys leader Enrique Tarrio and four associates with seditious conspiracy tied to the Jan. 6 attack on the Capitol.” “Proud Boys leader charged with seditious conspiracy related to Jan 6”   “Stewart Rhodes, the founder and leader of the far-right Oath Keepers militia group, and 10 other members or associates have been charged with seditious conspiracy in the violent attack on the U.S. Capitol.”  “Stewart Rhodes arrested-Oath Keepers-Jan 6 insurrection” Two of them have pleaded guilty so far.

Trump’s behavior on Jan 6, such as his long delay in taking any action, remains somewhat cloudy because some of the key Republicans involved that day have refused the subpoenas to testify before the Jan 6 Commission:

“Those gaps are largely the result of the refusal of key Trump allies to participate in the investigation, a list that includes his former chief of staff Mark Meadows as well as his most prominent defenders on Capitol Hill: GOP Reps. Kevin McCarthy (Calif.), Jim Jordan (Ohio), Scott Perry (Pa.), Andy Biggs (Ariz.) and Mo Brooks (Ala.), all of whom have rejected congressional subpoenas to appear before the panel” “Jan 6 committee is telling a story but plenty of gaps remain”

This is an outrage. It is disrespectful to those of us, hopefully all Americans, who want and deserve to know the full truth of what happened that day (and before).

What if Trump is allowed to run again in 2024 and claims that he has won even if he hasn’t?  Will our institutions and public trust in them withstand the better trained and better prepared Trump insurgents next time. Judge Luttig issued a strong “warning to a country whose democracy, he said, is on ‘a knife’s edge.’”

 “Ignoring Jan 6 hearings Michael Luttig explains why you shouldn’t”   “Read Luttig statement”

Trump seems to be preparing for such an event.  “Speaking during a Faith and Freedom event in Nashville, Tenn., Trump said [of] the defendants charged in the Capitol riot… if I become president, someday if I decide to do it, I will be looking at them very, very seriously for pardons. Very, very seriously….” “Trump-says-he-would-look-very-very-seriously-at-pardons-for-jan-6-defendants-if-reelected”

I hope that he won’t be allowed to run:  “The criminal case against Donald Trump”

End the war in Ukraine

With regard to Russia’s war in Ukraine, are you in the “peace camp” or the “Justice camp”? Do you want a peace agreement to end the war or do you want to punish Russia for the terrible things it has done no matter how long it takes?  “The Economist on Ukraine” It is rarely wise to take strategic decisions when enraged by someone’s behavior. It is currently hard not to want to flatten Russia for its illegal and brutal war with Ukraine (the Justice camp) but it would not be in our or the world’s interest to do so (Peace camp).  “The Russian war in Ukraine”

Everyone will suffer from continuing the war even without escalation. The world will suffer serious food shortages, oil and gas shortages, disruption and reorganization of the global trading system, and Ukraine and its economy will be in ruins.  And no one should forget that Russia is a nuclear power, in fact it has the largest nuclear arsenal in the world.

Ukraine President Zelensky said that he is willing to keep Ukraine neutral and out of NATO (but in the EU). He also demanded that Russia withdraw to the territories it occupied on February 23, 2022, which included the Crimea and parts of the largely Russian speaking Donbas. In a face-to-face interview with the managing editor of the Economist magazine on March 27 and as quoted in my blog above, Zelensky stated that: “Victory is being able to save as many lives as possible…because without this nothing would make sense. Our land is important, yes, but ultimately, it’s just territory.”

But on April 17, “President Volodymyr Zelensky told CNN that Ukraine is not willing to give up territory in the eastern part of the country to end the war with Russia.”   “Zelensky Russia war tapper interview-cnn-tv”  

Speaking at the Davos World Economic Forum last week, Henry Kissinger stated that “it’s time to think about a diplomatic settlement to end the war, and that settlement will have to include territorial concessions to Russia. ‘Ideally, the dividing line should be a return to the status quo ante,’ referring to the pre-war lines in which Russia controlled the Crimean Peninsula and approximately a third of territory in the Donbas. ‘Pursuing the war beyond that point would not be about the freedom of Ukraine, but a new war against Russia itself.’” “Does Henry Kissinger have a point?”

It is politically very difficult for either Ukraine or Russia to give up territory they hold or aspire to.  Edward Luttwak, a strategist and author of “The Logic of War and Peace” among many other books, has proposed a solution to this political dilemma, which like all political compromises should be acceptable to both sides without being fully satisfactory to either.  He proposes to settle the territorial issues via an internationally supervised referendum for determining the fate of each Oblast:

“That leaves the disposition of the Donetsk and Luhansk oblasts, substantial territories that Zelensky does not have the authority to give up, and without which Putin cannot leave the table where he has gambled and lost so much. While Putin cannot be given the two regions he demanded before starting the war, he can be provided with something that he can portray as a victory: plebiscites in both regions where properly certified residents, including returning refugees, would be allowed to vote on whether their oblast should remain Ukrainian or join Russia.

“Upon acceptance of the plebiscites in principle, a cease-fire would come into immediate effect, with Russia’s respect of their terms guaranteed by the ease of reimposing sanctions just lifted.”  “How the Ukraine war must end”  Allowing the residents of each region to determine their own affiliation can hardly be objectionable to the rest of us.

The Justice Camp and the military industry that cheers it on should yield to the Peace Camp in the interest of all of us.  “Ukraine’s and Russia’s war”

Social Media and Fake News

People’s political, cultural, and religious views can be partitioned by differing attitudes and preferences. One of these is whether a person looks first to the government or to themselves to solve their problems. Any society requires both, but where do you look first?

An important debate is currently raging over what to do about misinformation and fake news spread on social media. I have shared my views earlier that the rules for what can be posted and shared on a social media platform should be largely up to Facebook, Twitter, etc. “Social media and false information”  But what would we like them to do to solve this problem?

The right to state and promote any point of view should be defended at all costs. But what about lies, deliberately invented or foolishly believed and propagated? The government (ours or anyone else’s) is the last place to empower to determine what is true or not. I am also not thrilled at the idea of Facebook, etc., making such determinations. “What to do with social media?”  As one of those who look first to myself and my neighbors for help with problems, in this short note I want to put the spotlight on what can and should be done to better enable each of us individually to evaluate the accuracy of the information we read and especially information we might chose to pass on.

I spotlight (no more than that here) three areas. The first is education. Schools should provide our children with the critical thinking tools to evaluate the accuracy of the information we are reading or hearing. I don’t think that the importance of this can be over emphasized.

The second area is the importance of news reporting standards and related institutions that promote those standards and the importance of choosing information sources that we can trust. Jonathan Rauch has a very useful discussion of these points in The Constitution of Knowledge: a defense of truth“The sources of trust”

The third area is what social media itself does. It can best help our individual assessments of truth by supplementing posts with information on their source and perhaps with warnings of possible inaccuracy with links to other sources.  It is better for business for social media platforms to detect and block trolls and robo accounts and they should certainly be encouraged to do so. But they should not block former Presidents of the U.S. from saying what they want despite a well documented history of lying. They should and do have the right to do so, though in our traditional commitment to free speech, they should not do so. The government might require platforms to disclose their algorithms for how they direct traffic in order to benefit from public discussion of such internal rules. Taking down posts should be a rare last resort.

In short, we need better training in how to evaluate information however we encounter it. And the social media platforms should be as transparent about what is posted there and what is done with it as possible.

With that we more or less get what we deserve.

Ukraine’s and Russia’s War

Russia’s attack on Ukraine is horrifying, unjustified and illegal. We can’t help admiring the courage of the Ukrainian people in attempting to defend their country nor being enraged at Russia’s brutality.

In a recent article in Foreign Affairs, Alexander Vindman argued that: “America Must Embrace the Goal of Ukrainian Victory  It’s Time to Move Past Washington’s Cautious Approach” “Will America embrace Ukraine victory goal?”  Vindman, best known to us as Lieutenant Colonel Vindman, was born in Ukraine. It is understandable, but not excusable, that Vindman puts Ukraine’s interests above those of the United States.

As a naturalized American, Vindman proved his patriotism by testifying on October 29, 2019, before the U.S. House of Representatives’ impeachment inquiry against Donald Trump, for whom he worked as a member of the White House’s National Security Council. But when determining our role in Ukraine’s war with Russia, we should give primacy to America’s best interests in both the short and long term.

Historian and military expert Edward Luttwak tweeted recently that “Friends complain that my suggested war aim of restoring the Feb 23, 2022, status quo ante is too modest; some want the expulsion of all Russian forces from all parts of Ukraine incl Crimea, with others emphasizing the need to drive Putin from office. But both mean much more war…”  “Luttwak on war in Ukraine”

It is hard not to sympathize with the desire to punish Russia for what Putin has done and is doing—i.e., to demand justice. Many aspects of the world are not to our liking or of our making, even here at home. But we must deal rationally with the world that exists in the hopes of moving it bit by bit toward a better place.

In today’s Washington Post Brendan Rittenhouse Green and Catlin Talmadge wrote an oped titled: “The U.S. is expanding its goals in Ukraine. That’s dangerous. Comments by political and military leaders suggest the goal is no longer to drive Russia to the negotiating table but to seek a total defeat of Russian forces. That increases the odds of catastrophe.”

 “Talk of total victory aligns well with another recently floated objective: an extended bloodletting of the Russian army. Defense Secretary Lloyd Austin asserted on April 25 that the United States wants ‘to see Russia weakened to the degree that it can’t do the kinds of things that it has done in invading Ukraine.’ Yet crippling Russia’s military or expelling Russia from Ukraine are significantly more dangerous aims than preventing the further loss of Ukrainian territory or, through limited offensive operations, gaining some of it back. Unfortunately, if Russian President Vladimir Putin begins to think that his back is against the wall, he may lash out by directly confronting NATO, intensifying the conventional war in the east, or even using nuclear weapons.” “Ukraine war expansion risks nuclear”

Mr. Vindman wants us to make Russia a permanent enemy. That is never a good objective. Over the last half year both Presidents Zelenskyy and Putin have offered peace conditions that represented reasonable starting points for serious negotiations. Why haven’t we pressed them both to the negotiating table?

Vindman stated that: “A Ukrainian victory against Russia will be defined, first and foremost, by the Ukrainians themselves.” But then he also says that the US should give Ukraine more and better weapons. I am not sure that he sees the disconnect here. We should not push Putin into feeling he must escalate or lose. We should exert maximum pressure to bring this war to an end that is acceptable to both Ukrainian and Russian people and in a way that opens the door to a more peaceful Russia in the future. “Ukraine-France playing good cop with Putin”

Aside from the strong emotional desire to punish Russia for what it is doing, several of the usual suspects are dangerously prolonging this war. Billions of dollars are pouring into our defense industries, which, as always, have a profit incentive to keep things going. Though we are confronted with horrifying pictures of mangled buildings and bodies, they are “over there” somewhere. For most Americans the assumed horrors of war are academic, while in fact they are all too real for those involved. The huge cost of war in lives lost, human suffering, and economic and property damage are rarely given the weight they deserve as we cheer on the brave Ukrainians fighting to the last Ukrainian. Those very well-meaning Americans thanking our soldiers for their service rarely have any idea what we have asked of them to go and fight in other people’s wars.

So our emotions cry out to smash and punish the Russians. But how it ends will have a large impact on conditions in the world ten or twenty years from now. Our standard of living and the degree of security and cooperation in the world—particularly with Russia—will depend on when and how this war ends. We need to temper our emotions and engage our minds.

Our wars in Afghanistan and Iraq, for example, looked quite different at the end than they did as we undertook them. Ukraine is ranked only slightly less corrupt than Russia. “Transparency International” It is much more difficult doing business there than in Russia (Ease of doing business ranking lists New Zealand at the top, Russia 29 and Ukraine 64). “World Bank Ease of Doing Business index”  Thus it is a small wonder that John Hudson wrote in today’s Washington Post that: “Flood of weapons to Ukraine raises fear of arms smuggling Vague U.S. assurances spark concern about lost military equipment in Ukraine, a longtime hub of arms trafficking.” “Ukraine weapons trafficking”

It is too late to point fingers and ask why we did not press Ukraine and Russia to the bargaining table six months ago or four months ago. It is in our self-interest and the interest of Europe and the world to do so now.

Roe v. Wade Part II

My previous blog on Roe v. Wade argued that the laws on abortion should reflect the democratic will of the public. “Roe vs Wade” I have personally always been pro-choice but also believed that that case needed to be made democratically. Before joining the Supreme Court judge Ginsburg stated that: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” “Scholarship Law, UNC.edu” She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. “Ruth Bader Ginsburg-Roe vs Wade”

Conservative columnist George F. Will wrote that rather than end the debate about abortion with Roe: “Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy . . . .   Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.” “George Will on Roe”

I also argued, quoting Justice Alito, that revoking Roe would not endanger the Obergefell v. Hodges decision, which legalized same-sex marriages, the Loving v. Virginia decision, which legalized interracial marriages, the Griswold v. Connecticut decision, which ban restrictions on contraception, and several other cases. These decisions were also based (in part) on the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution.  I argued that my right to marry a man was protected by the Equal Protection Clause of the Fourteenth Amendment. A lawyer friend, Jack Nadler, has raised some interesting challenges to this assertion and clarified for us non-lawyers the fuller meaning of applying the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.

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Jack Nadler is a Retired Partner in the Washington DC office of Squire Patton Boggs.  While at Squire, Jack served as outside counsel for SAGE (formerly Services and Advocacy for Gay Elders), which represents the interest of LGBT older adults.  Jack led the team that drafted the extensive friend of the court (amicus) brief that SAGE filed in Obergefell v. Hodges, the case in which the Supreme Court struck down State restrictions on same-sex marriage.  Jack previously taught law at American University’s Washington College of Law in Washington, DC and the China University of Political Science and Law in Beijing, and served as a Law Clerk to the Hon. Joel M. Flaum on the United State Court of Appeals for the Seventh Circuit in Chicago.  He is a graduate of Columbia Law School, the Columbia University School of International and Public Affairs, and Vassar College. 

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A Response:  Why Overruling Roe v. Wade Threatens Marriage Equality

Jack Nadler  

I disagree with my friend Warren’s contention that a decision to overrule Roe v. Wade, based on the rationale in Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, would not threaten the right of same-sex couples to marry.  In particular, I do not agree that, even if the Court adopts the reasoning in the draft opinion, the courts would be likely to continue to uphold marriage equality under the Fourteenth Amendment’s Equal Protection Clause.

The rights of same-sex couples to marry, recognized by the Supreme Court in Obergefell, just like the right to abortion recognized in Roe, is grounded on the Due Process Clause, which provides that no State may “deprive any person of life, liberty, or property, without due process of law.”  Specifically, the right of same-sex couples to marry is based on the doctrine of substantive Due Process, which provides that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain “fundamental rights” that individuals possess, regardless of what procedures the State uses.

Justice Alito’s draft opinion in Dobbs is a direct repudiation of the doctrine of substantive Due Process.  The express rationale for overruling Roe is that the Constitution only protects rights that are expressly granted in its text or that are “deeply rooted in our nation’s history and tradition.” Because the Constitution does not expressly grant women the right to have an abortion, and because, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the draft opinion concludes that the Constitution does not provide this right.

The same rationale is fully applicable to Obergefell, which held that the Due Process Clause precludes the States from depriving same-sex couples of their fundamental right to marry.  Indeed, in his dissenting opinion in Obergefell, Justice Alito applied the exact same standard and concluded that, because “[t]he Constitution says nothing about a right to same-sex marriage,” and because “it is beyond dispute that the right to same-sex marriage is not among those rights . . . deeply rooted in this Nation’s history and traditions,” the Court erred when it found that the Due Process Clause grants same-sex couples the right to marry. 

Warren’s reliance of Justice Alito’s assertion that the Court’s decision to over-rule Roe does not affect “any other right that this Court has held fall within the Fourteenth Amendment’s protection of ‘liberty’” – including the right of same-sex couples to marry – is misplaced.  The binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The reality is that Obergefell rests on the same substantive Due Process foundation as Roe.  The Court cannot demolish that foundation in the abortion context while simultaneously preserving it in all other contexts.  The Constitution either does – or does not – allow the Court to identify judicially enforceable rights beyond those expressly enumerated in the text or “deeply rooted in our nation’s history and tradition.”

I also disagree with Warren’s contention that overruling Roe and thereby “return[ing] the determination of the rules of abortion to the elected representatives in each state” is desirable because “policy in a democracy should be determined by voters and their representatives.”  This is precisely the argument that the marriage equality opponents made in Obergefell.  Indeed, in his dissenting opinion, Justice Alito contended that “[a]ny change on a question so fundamental [as the definition of marriage] should be made by the people through their elected officials.”  The Court rejected this argument, observing  that, “[w]hile the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”  Had the Court left the question of whether same-sex couples should be allowed to marry to the States, then even now the right of same-sex couples to marry likely would still be denied in many States.

The impact on marriage equality of the Court’s decision to overrule Roe must be seen in the larger judicial context.  At the same time the Court is contracting the scope of the Fourteenth Amendment’s restriction on governmental infringement on personal liberty, it is also expanding the scope of the First Amendment protections for the free exercise of religion.  A clash is inevitable.  Indeed, in a 2020 concurring opinion, Justice Alito joined Justice Thomas in declaring that Obergefell has had “ruinous consequences for religious liberty.” 

In order to address the perceived threat to freedom of religion, several of the Justices appear to believe that in any conflict between a religious person’s right to free exercise of religion and a same-sex couple’s right to marry, the “express” free exercise right must trump any “judge made” liberty right.  This could have significant adverse consequences for same-sex couples.  For example, a business owner could refuse to provide the same spousal health insurance coverage to a gay employee’s spouse that the company provides to its straight employees’ spouses on the ground that covering the gay employee’s spouse would violate the owner’s religious conviction that marriage is between one man and one woman.  If the Court adopts this “hierarchy of rights” approach, then the State in which the company is located would be constitutionally powerless to apply its non-discrimination law to make the employer provide coverage.

I agree with Warren that same-sex marriage supporters should not be “hysterical” about the Court’s decision to overrule Roe.  But I do think we should be very concerned about the potential of this decision, over time, to erode the LGBT community’s hard-won victories that have secured judicial protection of our fundamental rights, including the right to marry.

Discussion

The Equal Protection Clause

Warren:  As a legal layman, I always thought that my right to marriage equality rested on the Equal Protection Clause of the Fourteenth Amendment.   Didn’t Obergefell hold that the restrictions on same-sex marriage violated both the Due Process and the Equal Protection Clause?

Jack:  Ever since the Court struck down State prohibitions of private consensual same-sex sexual relations in Lawrence v. Texas, it has relied on substantive Due Process, rather than the Equal Protection Clause.  To be sure, there is a brief section in the Obergefell opinion that essentially says that there is a “synergy” between the Equal Protection and Due Process Clauses because the denial of marriage equality is a denial of the “fundamental right to marry” protected by the Due Process Clause and a denial of a fundamental right to a specific group also violates the Equal Protection Clause.  As the Court somewhat delphicly explained:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other.  In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”

However, as I noted earlier, the binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The dissenters in Obergefell correctly observed that the Court had utterly failed to conduct an Equal Protection analysis, and, in any case, this finding was not necessary to resolve the case.  Indeed, Chief Justice Roberts stated that the Court’s opinion had “fail[ed] to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.”  Justice Thomas similarly observed that the Court had “clearly use[d] equal protection only to shore up its substantive due process analysis.” 

The bottom line is that, if you take the substantive Due Process analysis out of Obergefell, the Equal Protection Clause analysis does not provide an adequate independent basis on which to strike down State restrictions on marriage equality.  Consequently, if the Court eliminates substantive Due Process, the passing reference to Equal Protection in Obergefell would not be enough to support the result in that case.

Warren: Even if the Court in Obergefell did not adequately rely on the Equal Protection Clause as the basis for striking down restrictions on same-sex marriage, could the Court rely on that Clause in any subsequent challenge to marriage equality?   Do you think it is worth doing so?

Jack: Unfortunately, if the Court demolishes substantive Due Process, the Equal Protection Clause is unlikely to be able to fill the gap.  Under modern constitutional jurisprudence, when presented with the claim that a statute violates the Equal Protection Clause by impermissibly treating two groups differently, the Court conducts its analysis in different ways depending on which group is being treated differently.

Historically, the Court was very reluctant to find that a distinction between groups made by the legislature violated the Equal Protection Clause.  So, the Court applied what came to be known as “rational basis” scrutiny.  Under this highly deferential standard, regardless of the legislature’s actual intent, the Court upheld a statute if there was any possible basis on which the legislature rationally could have made the distinction.  Not surprisingly, applying this standard, the Court virtually never found a legislative distinction between groups violated the Equal Protection Clause.

The civil rights movement changed things.  Instead of analyzing race-based statutory distinctions under the rational basis standard, the Court ruled that such distinctions were subject to “strict scrutiny.”  This meant that a race-based statutory distinction would be found to violate the Equal Protection Clause unless the legislature actually intended for the distinction to serve a “compelling purpose” and the means it chose were “narrowly tailored” to achieve the stated purpose.  Very few race-based distinctions can be found constitutional under this standard.

Things got still more complicated with the rise of the women’s movement, when the Court had to decide whether to use rational basis or strict scrutiny to assess whether gender-based statutory distinctions violated the Equal Protection Clause.  The Court decided that challenges to such distinctions should receive “intermediate” scrutiny.  Basically, such distinctions need to serve an “important” purpose and the means used must be “substantially related” to achieving the stated purpose. 

The Court has never determined what level of scrutiny to apply in cases involving statutes that make distinctions based on sexual orientation.  In his dissenting opinion in Obergefell, however, Justice Alito briefly considered the Equal Protection argument, effectively applying the rational basis standard.  He concluded that the States had provided a sufficient justification for distinguishing between same-sex and opposite-sex couples because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do:  procreate. . . . States formalize and promote marriage    . . . to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”  Therefore, in his view, because same-sex couples cannot procreate, excluding them from marriage does not violate the Equal Protection Clause.

In order to use the Equal Protection Clause as a basis on which to uphold marriage equality, it would be necessary to convince the Court that distinctions based on sexual orientation should receive some degree of heightened scrutiny.  In light of the history of legal discrimination against gays and lesbians, heightened scrutiny clearly is appropriate.  But given that there are some objective differences between homosexuals and heterosexuals – especially the fact that our sexual unions cannot lead to procreation – some statutory distinctions conceivably could be legitimate, so strict scrutiny may not be warranted.   Moreover, the level of de jure discrimination suffered by gays and lesbians, while significant, is probably closer to the level suffered by women than by African Americans, making it hard to justify strict scrutiny.  Therefore, the most appropriate solution would be for the Court to apply intermediate scrutiny to sexual-orientation-based distinctions.  That said, as a practical matter, given its current make-up, there is no chance that the Supreme Court would add statutory distinctions based on sexual orientation to the short list of categories that receive heightened scrutiny.  A court that is prepared to shrink the reach of the Due Process Clause, is highly unlikely to expand the scope of the Equal Protection Clause.

Interstate recognition of same-sex marriage

Warren:  If marriage equality is overturned and returns to a state-by-state determination, the question arises what would happen if a same-sex couple legally married in Maryland and then moved to a state in which such marriages were not allowed? 

Jack:  We most likely would return to the situation that existed before Obergefell, when a lawful Maryland same-sex marriage would not have been recognized in the vast majority of States where same-sex marriage was not legal. This would lead to some horrific situations.  Here, based on actual experiences before Obergefell, are a couple of examples.

First, the ability of married  same-sex couples to travel would be limited.  Imagine that our lawfully married couple decided to go on vacation in Florida, which did not allow same-sex marriage.  During the vacation, one of the spouses is hospitalized with a life-threatening injury or illness and is unable to make medical decisions for himself.   If the hospitalized spouse had been married to a woman, the wife – as next of kin – would have the legal right to visit her spouse in the hospital and, if necessary, make life or death medical decisions for him.  However, because the hospitalized spouse is married to another man, Florida would not consider his husband to be next of kin.  As a result, he would not have the right to visit his critically ill spouse in the hospital.  Even worse, the right to make life-or-death medical decision for the incapacitated spouse would go to the person that Florida recognized as next-of-kin – who may be a parent, sibling, nephew, or child from a prior heterosexual marriage, even if that person disapproves of the spouses’ relationship.  That person could even requested the hospital to bar the spouse from visiting.

Second, getting a divorce would be a nightmare.  Let’s say that our married friends decide to retire to Florida.  However, after a few years of fun in the sun, the couple agrees to get divorced.  But, because Florida doesn’t recognize their marriage, Florida won’t grant them a divorce; the State cannot dissolve a union that it does not recognize exists.  Unfortunately, the couple can’t make a quick trip back to Maryland to get a divorce decree because they are no longer residents.  So, unless they are prepared to take up residence in a State that recognizes same-sex marriage, they’re stuck with each other.

Warren:  How could this be possible?  Wouldn’t the Constitution’s Full Faith and Credit Clause require Florida to recognize a marriage lawfully performed out of state?

Jack:  The answer, regrettably, is no.   The Constitution’s Full Faith and Credit Clause, Art IV Sec 1, provides that every State must give “full faith and credit . . . to the public acts, records, and judicial proceedings of every other State.” The Clause also gives Congress power to “prescribe    . . . the effects” of such State acts.  However, notwithstanding this Clause, the courts have long held that a State need not recognize an out-of-state marriage, lawful where entered into, that contravenes the State’s public policy – such as a polygamous marriage or a marriage involving a child or first cousins. 

Prior to Obergefell, a few States that did not yet have marriage equality recognized lawful out-of-state same-sex marriages.  However,  the vast majority did not.  Indeed, a large number of States adopted constitutional amendments expressly barring recognition of such marriages.  Moreover, when it enacted the infamous Defense of Marriage Act (DOMA), Congress, purporting to use its power under the second sentence in the Full Faith and Credit Clause, expressly provided that States did not need to recognize same-sex marriages lawfully entered into in other States. 

DOMA’s non-recognition provision was not challenged in the Supreme Court’s Windsor case and survived the Court’s decision to strike down the portion of the law that provided that the Federal Government would not recognize same-sex marriages even if they were lawfully entered into in a State that had marriage equality. One of the two questions that the Supreme Court subsequently agreed to consider in Obergefell was whether the Full Faith and Credit Clause required States that did not permit same-sex marriage to recognize lawful out-of-state same-sex marriages.  Because the Obergefell Court ruled that State had to allow same-sex couples to marry, it did not resolve the out-of-state-recognition question.  Thus, if Obergefell is reversed, a State could again decline to recognize same-sex marriages lawfully entered into in another State.

Conclusion

Warren:  It seems to me that if Obergefell is challenged on the basis that no explicit right to same-sex marriage can be found in the Constitution to which the Due Process Clause could be applied, a stronger case for applying the Equal Protection Clause could be made. If that failed, we would have to live with state-by-state determination of marriage equality and Congress could stipulate that the Full Faith and Credit provisions of the Constitution would obligate states that do not permit same-sex marriage to recognize such marriages legally obtained in other states. Public understanding of and sentiment toward LGBT people has evolved and progressed considerably from the earlier times in which restrictive and discriminatory legislation such as DOMA were first adopted. Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Jack:  Warren believes that times have changed and that, even if Obergefell were overruled, many States would choose to retain marriage equality.  He also believes that, pursuant to its express authority under the Full Faith and Credit Clause, Congress would adopt legislation requiring that every State recognize same-sex marriages lawfully performed in another State.  I am far less sanguine. 

Despite all the progress made, 27 States have not yet enacted statutes that expressly bar discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation.  I do not want to count on these States to take affirmative action to preserve the right of same-sex couples to marry.  I am particularly concerned about the many States that, prior to Obergefell, had amended their constitutions to limit marriage to “one man and one woman.”  If Obergefell is overruled, these State constitutional prohibitions on same-sex marriage presumably would immediately come back into in effect.  In that case, same-sex marriage would be barred in those States until such time, if ever, as the State completed the often-arduous process of amending its constitution to remove the restriction. 

As for Congress, the prospect that 60 Senators would support legislation to restrict the historic right of a State to decline to recognize out-of-state marriages that contravene its public policy seems remote.

Warren:  As of the middle of last year 83% of Americans supported marriage equality. Support among Republicans has risen from 40% in 2016 to 55% in June 2021. “Support for same-sex marriage in the United States by political party” Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Even with regard to abortion, the most recent Pew survey finds that 61% of Americans support the legalization of abortion in all or most cases. “Majority favor legal abortion”  While support is stronger among Democrats, 38% of Republicans support it and almost half of Republicans under thirty do. “Senate Majority Leader Charles Schumer (D-N.Y.) late last week teed up a vote on the Women’s Health Protection Act, which would essentially codify Roe into law. The vote is expected to take place midweek. There is little drama surrounding the vote, as it will fail….” “The Hill”  Why it seems destined to fail is a mystery to me, but then life is full of mysteries.

The good and evil in us all

Listening to political dialog in the U.S. has become very painful and disheartening because there is no dialog. The Republicans and Democrats simply hurdle nasty insults at each other. They are enemies rather than fellow citizens with different views. Serious policy issues and challenges do not receive the serious debate they need. The atmosphere is ugly.

Russia’s unjustified and increasingly barbaric attacks on Ukraine is another example of the worst in mankind.  Following four weeks of Russian attacks on Mariupol, Bucha, and other cities the destruction of lives and property is clearly visible. While it may take a while to sort out the truth of who did what, “President Biden on Monday joined the chorus of world leaders who have said reports of mass killings in the Kyiv suburb of Bucha constituted a ‘war crime,’ vowing to hold Russian President Vladimir Putin ‘accountable’ for the apparent atrocities in Ukraine.” “Bucha Biden sanctions Russia Ukraine”  However, it is natural, and appropriate, that we honor the bravery of Ukrainians defending their homeland and despise the savagery of the Russians invading it.

These understandable reactions do not excuse our damaging loss of our ability to differentiate among people, judging each other individually. Removing Russian performers from western stages may seem a childish reaction–OK it is a childish reaction–but it reveals a dangerous predisposition of caveman behavior. What are we to make of the removal of compositions of Pyotr Ilyich Tchaikovsky from current orchestral programs? He has been dead for more than a hundred years. Or as tweeted by Edward Luttwak: “The U of Milano cancels Dostoevsky course; Poland cancels Mussorgsky, Shostakovich & Stravinsky…. Actual thought is needed.”

Not all Russians living in Russia disapprove of their country’s war in Ukraine (hearing only official Russian propaganda) but many do according to those now leaving Russia in fear or disgust. We are told that many of the young Russian soldiers sent into Ukraine didn’t know why they were there and are not happy fighting their Ukrainian cousins.

Seeing such behavior has been very disheartening.

But man left the caves with admirable instincts as well. Helping their fellow man in need contributed to their own survival as well. The incredible welcome of 4 million Ukrainians in Europe in one month is breathtakingly heartwarming. Though I am embarrassed that the admission of Afghan and other war refugees has not been as easy or welcoming. My friend Tom Palmer continues to help fleeing Ukrainians relocate to Poland as do many others. A recent J Street webinar interview of Naomi Steinberg from the Hebrew Immigrant Aid Society about their work assisting Ukrainian immigrants was equally heartwarming. She noted that in earlier days HIAS helped Jews flying from persecution. Today, she said: “We are helping refugees, not because theyare Jewish but because we are Jewish.”

The fear and loathing of “others” and the desire to help those in need are both impulses that helped cavemen survive. But we no longer live in caves and our survival and flourishing requires that we tame the first instinct and encourage the second one.

Ukraine: How should we help?

It is impossible not to admire the bravery of the people of Ukraine as they fight for their independence and freedom. Without help, Russian troops are almost certain to capture Kyiv and other key cities. The EU and many other countries have pulled together as never before to impose serious sanctions and provide military and humanitarian supplies. See: “Sanctions”  Putin’s failure to prepare the Russian people for a military attack on their fellow Russians and cousins in Ukraine is provoking protests in Russia against this war.  But these may not be enough to save Ukraine and it is tempting to think we should provide boots on the ground to insure a Russian defeat. President Biden is right to believe that this would be a grave mistake.

Military interventions always look more compelling at the start, while going through the front door. Sure, our army can squash whoever. Years later, as we leave or are pushed out the back door (Vietnam, Afghanistan, Iraq, Libya, etc.), they are revealed as foolish endeavors from the beginning. While Vietnam has prospered after our withdrawal and Iraq’s development is promising, they might well have reached these achievements sooner if we had stayed out. Why is this so? Why can’t we just take over countries under attack and make them better?

Generally, the countries we attack are engaged in civil wars (Vietnam, Afghanistan, Libya). Even Russia’s attack on Ukraine has elements of a civil war. We almost never understand the nuances of such battles nor have sufficient military and diplomatic officials who speak their languages and know their histories as they rotate in for two years then out. We can never be sure which side or sides we should support.

Putting aside that we don’t really have the resources to fully police the world, we have rarely achieved our objectives in the wars we have undertaken since WWII even if those objectives seemed reasonable at the outset. Iraq is an example where we did not have a good reason (or any reason at all except feeding our military industrial complex) to begin with. Part of the reason is that we have never invested in the training needed to be successful imperialists. We are bad at running other countries. You can read some of my firsthand experiences with just how bad we were at running Iraq in my book: “My travels to Baghdad”

If we send in the American Army to defend Ukraine against Russia, even if no escalation in fighting results (which is by no means certain), we will be forced to remain there for X number of years to keep the peace. Which factions would we support or favor? Why do we imagine that it would be different than our experiences in Afghanistan or Iraq? While it is emotionally hard not to walk through that front door with our troops, we must remember what the back door feels like, not to mention the X years in between. President Biden is right not to do so. “Reflections from the netherworld”

Most Americans are good hearted and want to help those in need. However, I am hard pressed to think of a time when we successfully did so with our Army.

Sanctions

About 5 days ago, on February 24, Russia illegally and without provocation and cause attacked the sovereign country of Ukraine. It is in everyone’s interest (with the exception of the military industrial complex) to end the fighting and establish a sustainable peace as quickly as possible. I explored options in my blog Saturday.  “Ukraine-Russia-NATO”  

Sanctions are being piled on as the main counter weapon of choice around the globe, along with supplying Ukraine with military equipment. But which sanctions of what activities (use of SWIFT, banning access of Russian airlines, banning any travel across Russian borders, banning trade in military products, banning all trade, etc.) should be imposed? If all or almost all countries joined together to shut down all trade, travel, and financial flows between Russia and the rest of the world until Russia ends this war and fully withdraws it troops, the impact on Russia (and hopefully to a lesser extent the rest of the world) would be devastating. While it is hard to predict whether the Russian people would primarily blame the U.S. and the West or Putin’s government for the hardships imposed—it is unlikely that Russia would withstand such isolation for long. Russia seems well on its way to such isolation.

While sanctions have historically not been a very effective tool for changing a country’s behavior, such total isolation, if it can be achieved, would almost certainly be more effective than the more limited sanctions normally imposed. “A new history of sanctions has unsettling lessons for today”  Putin will have to back down or escalate. Putin would indeed be boxed into a very difficult position and there is no knowing how he might react. It is hard to imagine Russian military escalation beyond Ukraine’s borders, but it is possible, especially in the ambiguous ways often favored by Moscow (e.g., cyber-attacks). If Putin is squeezed too hard, the risk of nuclear war could no longer be ignored. This is a dangerous period.  “Just short of nuclear–the latest financial sanctions will cripple Russia’s economy” Such comprehensive sanctions should be largely removed as soon as Russian troops are withdrawn from Ukraine territory.

But while it is foolish (i.e., contrary to American interests) to keep Russia as an enemy in the long run, and it was foolish to have made it one in the first place, the Kremlin should pay a price for its attack on Ukraine.

Sanctions impose a cost on their target but also on those imposing the sanctions. If, for example, Russia is denied access to western products, the sellers are also denied the sales. Moreover, for many if not most economic sanctions, the people of the sanctioned country tend to suffer more than the government that is the real target. For post conflict sanctions, thought should be given to the most effective ways to sanction Putin and his friends specifically with minimal damage to the Russian economy. The borders and trade should be reopened to all but a small list of Kremlin officials including Putin. Putin’s properties and other assets abroad should be frozen or confiscated to contribute to Russian reparations for damage now being inflicted on Ukraine. “Russia’s military attack on Ukraine will have consequences for Putin”

Yesterday (2/27.22 6:37 PM), Edward Luttwak tweeted: “Putin’s agreement to talks with Zelensky’s reps is an abject surrender: by now the Russians should have been in control in Kiev and across the Ukraine with Zelensky dead or exiled. Frantic to divert attention, Putin has placed Russia’s nuclear forces on high alert. Meaning: zero”

Let’s hope that he is correct.

Every action should be carefully measured against is costs and benefits both short term and long term. Another protracted cold war would be a costly mistake for everyone. All measures should ultimately contribute to peaceful and secure relations between all countries.  Greenwald–War propaganda about Ukraine

Ukraine–Russia–NATO

Russia has surprised most of us with an all-out attack on Ukraine. What should the U.S., NATO, and Ukraine do now? Each possible answer implies different possible consequences. We would be wise to understand them as well as possible. We should try to evaluate the probable long-term effects as well as the immediate ones.

The fact of the matter is that that we made serious errors since the disbanding of the Soviet Union (the expansion of NATO, establishing Aegis Ashore missiles in Romania and Poland, etc.) that began on Christmas 1991. The effect was that Russia walked away from NATO rather than becoming a member. While all of this is very regrettable, it is nonetheless history. We are where we are now because this history has inevitably influenced the present and thereafter the future of Russian relations with the rest of the world.

While Ukrainian resistance appears stronger than Putin expected, Russia may well take control of parts of Kyiv and other western Ukrainian cities within days or weeks. However, following earlier examples of Russian incursions and given the inadequate size of its forces, it is likely to quickly withdraw after flexing its now stronger muscles in negotiating an agreement with the U.S., NATO and Ukraine.

According to Edward Luttwak tweeting on the afternoon of Feb 24 “Air strikes can reach any target but Russian troops are much too few to achieve a coup de main, the single act that both starts and ends a war. Yes, they control airfields & some city centers. Beyond them individual soldiers & volunteers will start killing Russian soldiers w/o end. They had a missile strike plan viz Ukraine air force, very weak in any case. Russian troops too few to control the country beyond airfields, central Kiev, Odessa, etc., nothing for hostile W Ukraine. Ukrainian soldiers & volunteers will fire & kill Russians. Final result: the end of Putin.”

President Biden has wisely stated that the U.S. will not send troops into Ukraine, which is not a NATO member. While he has rightly condemned Russia’s illegal attack, and together with our European allies has significantly increased economic sanctions on Russian banks, businesses, and officials, though still with significant carveouts, he has correctly, in my judgement, concluded that the cost to our already overstretched budget to fight a war over Ukraine is not in America’s interests.  We care about many people and things in the world for which it is not justified to spend our financial and human resources rather than focusing them initially on our own domestic needs. Some among us may want to rule the world but we can’t afford it either financially or morally. Our military industrial complex, which profits from wars, probably disagrees.

Luttwak claims that “close[ing] the road and rail connections between Germany and Russia… would be the most powerful of all sanctions.” This could be done unilaterally by Poland or the Polish people. “Polish peace demonstrators [could] stop the unceasing traffic of trucks delivering Western European exports to Russia.  German cars, Dutch vegetables, French luxury exports.  That very powerful sanction does not require NATO or EU approval, just some people who care. ‘No bypass’”

More generally, sanctions have historically not been a very effective tool. “A new history of sanctions has unsettling lessons for today” Trade is win win. Both sides benefit. Thus, blocking trade is loss loss. Both sides suffer. Moreover, it is very difficult to design sanctions that hurt the target government more than its people. “Econ 101-How to help Afghans”

Ukraine is more important and relevant to European security than to ours (though one may argue that if Ukraine falls and the democracy in Europe suffers and crumbles, this affects the United States in the long run as well). In addition to financial and military aid to Ukraine, one or more European countries could, outside of the NATO context, send their troops to help defend the existing government of Ukraine.

It is very unlikely that Putin would escalate the fighting further, though it is not clear how rational Putin is these days and Russia has nuclear weapons. He was close to crazy to have launched the war now underway in Ukraine. Such European military intervention would likely save the Zelensky government and the negotiated peace (which should have been negotiated a month or two ago on the basis of Putin’s eight demands last December) would still need to mutually satisfy the interests of Russia, Europe and Ukraine.

If Ukraine receives no military help, it might still hold off the Russian army from toppling the Zelensky government. Russia might then be forced to be satisfied to hold the eastern, Russian dominated piece of the pie. The final settlement might take a bit longer in this case, but it might contain similar provisions. As Luttwak has argued above, a full Russian victory is unlikely and is expected not to last for long and would be a huge drain on Russian resources. Russia will surely pay a very high price for (presumably) gaining a government subservient to Moscow.

The longer run (five to ten or more years) consequence of one or another of the above scenarios is, of course, hard to predict but it should be taken into account. If the Zelensky government survives largely on the basis of its own efforts, it might be hoped that Zelensky’s far from complete efforts to clean up and reform his government will continue and be strengthened. A Russian victory (replacing Zelensky–dead or alive–with a Moscow puppet) would surely perpetuate and strengthen the corruption Ukraine has suffered for decades. Putin’s original eight demands would still have to be resolved and agreed in a mutually acceptable way. Doing so in January, of course, would have saved everyone a lot of lives and treasure, but discussions of these issues were hard to find in the American press.  

How this war is settled will also have consequences for American, EU, and Russian assessments of each other’s strengths and interests and thus how to deal with one another in the future. Will Russia revert to an enemy in which we keep our defense industry happy with another cold war or will we undo the NATO inflicted damage of the last twenty years that turned a potential friend to a costly enemy? China has decided to stay out of the fray neither supporting the US-Europe alliance nor the Russians which is a wise decision on their part.

The initial reactions in Russia have not favored Putin. The Russian population was not prepared to shift from seeing Ukraine as part of the family to an enemy that its sons and daughters were dying to overturn. A Russian defeat or even stalemate “victory” could be the end of Putin.  I am predisposed to believe in happy endings, which is perhaps why no one pays me for my forecasts.

We must never lose sight of the fact that Russia is more than Putin, Ukraine is more than Zelensky, and NATO is more than Secretary General Jens Stoltenberg. If I had said Biden (or Trump) you would have understood instantly. And among the population are many factions. The U.S. seems rarely to take such domestic realities into account when it decides to march into and take over countries.

In an email February 26, Chas Freeman said: “Regrettably, the place of Ukraine in Europe, which might have been decided through negotiations between Moscow and Washington in consultation with Kyiv, will now be decided through interactions by Russian dictation to Ukrainians without reference to either the United States or NATO.  Russia’s coercive diplomacy failed to elicit an offer to address its longstanding, oft-expressed concerns about the possibility that Ukraine might become part of an American sphere of influence on its border under circumstances in which the United States has officially designated Russia as an adversary.  So, Moscow made good on its ultimatum, and used force.  As it did so, it moved the goalposts.  Now Russia appears to seek the subordination of Ukraine to its domination rather than simply its denial to the United States. This is a tragedy that might have been avoided.  Now we are left to hope for a resurrection of diplomacy when there is no clear path to it.”

On February 25, Pavel K Baev stated that: “Now we know that Putin’s obsession with Ukraine — which constitutes a threat to his regime not because of hypothetic NATO missiles, but because of its choice for democracy and closer ties with Europe — prevailed over common political sense and strategic risk assessments.” “Implications of Russia’s invasion of Ukraine–Brookings Brief”

But the almost last word should go to Edward Luttwak who tweeted on Feb 26: “Having invaded with too few troops to pull off a fait accompli, with many Russian troops killed because of incautious tactics that presumed no real resistance, Putin has also closed the door to talks with Pres Zelensky: ‘I will not talk with drug addicts and neo-Nazis’. Sanctions.   Not too late to send large numbers of small arms and point & shoot anti-tank weapons to Ukraine via Poland or Slovakia. There are warehouses full of both (+ their ammo) across NATO because of the drastic reduction in force-levels. Ukrainians are resisting bravely and deserve help”

And the final word goes to Thomas Pickering (former US Ambassador to the Russian Federation and other places): “The end result must be respectful, fair, and balanced for the people of Russia and for all other parties. It will take wisdom, time, sacrifice, and persistence. To get there, the U.S. must lead, help to finance, and participate extensively in an international coalition — through the United Nations if possible, outside it if necessary — and listen to all like-minded states.” “Implications of Russia’s invasion of Ukraine–Brookings Brief”