Roe vs Wade

The debate for and against the legality of abortion has been around as long as I have, i.e., for a very long time. Quoting from Justice Alito’s leaked draft of a possible court decision: “For the first 185 years after the adoption of the Constitu­tion, each State was permitted to address this issue in ac­cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.” “Alito draft annotated”

Should the Supreme Court rescind Roe vs Wade, it would not make abortions illegal or necessarily restrict when they would be allowed. The current standard is that an abortion is permissible before the fetus becomes viable (likely to live if delivered). What rescinding Roe vs Wade would do is return the determination of the rules on abortion to the elected representatives in each state.  I have always been “pro-choice”, but I also believe that policy in a democracy should be determined by voters and their representative. I am comfortable with either a state-by-state determination or a federal determination, but I would like to see the status quo preserved. By that I do not mean that Roe vs Wade should be upheld, as it is simply an incorrect interpretation of the Constitution as Alito correctly claims: “even abortion supporters have found it hard to defend Roe’s reasoning.”

As Alito has also explained: “The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders char­acterize the abortion right as similar to the rights recog­nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different.”  The Fourteenth Amendment provided for the protection of equal rights for all people. What any two straight, white people can do, black and/or gay people have the right to do as well, such as marry.

The almost hysterical reaction to the possibility of overturning Roe vs Wade is unwarranted. It will not make abortions illegal. As Alito stated: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Brett Michael Kavanaugh

The mash up between Christine Blasey Ford and Brett Kavanaugh has produced very strong opinions for and against the claims of each. Our views on the veracity of each are based on our emotional assessments of the testimony of each. Unless the FBI interviews contain new facts, there is no evidence to confirm Prof. Ford’s claim that Kavanaugh sexually assaulted her nor evidence to confirm his claim that he didn’t. This is the horrible fact for acts, or alleged acts, with no witnesses (Ford claims Mark Judge witnessed the events she describes but he denies it).

This is the sad situation of “She said—he said” for which there seems no easy remedy. Actual rape generally produces evidence (semen) if promptly reported. But we have come to understand why many women do not promptly report their assaults. Memories and evidence fade with time. The sworn statements of Prof. Ford and Judge Kavanaugh have holes and inconsistencies and you will believe the one you choose, for whatever reasons, to believe. Prof. Ford can’t remember where or when her assault occurred or how as a 15 year old girl she got there or returned home. Her fear of flying didn’t prevent her from doing a lot of it, etc. Judge Kavanaugh’s choirboy depiction of his youth doesn’t square with the police report of a bar brawl he started in college and testimony of roommates and classmates of his hot temper when drunk, etc.

“Democrats, the left, and various other anti-Kavanaugh persons can thank attorney Michael Avenatti for this outcome, at least in part.

“The spotlight-stealing lawyer, who also represented Stormy Daniels, is responsible for drawing the media’s attention to Julie Swetnick, an alleged victim of Kavanaugh who told an inconsistent and unpersuasive story. Swetnick’s wild accusation provided cover for fence-sitting senators to overlook the more plausible allegation leveled by psychology professor Christine Blasey Ford, and to declare that Kavanaugh was being subjected to false smears.” “Brett Kavanaugh-Michael Avenatti Collins”

The sad consequences for the reputations of Ford and Kavanaugh, tragic as they are, are compounded by the despicable behavior of both the Republican and Democrat parties. The refusal of the Republican controlled Senate to confirm President Obama’s Supreme Court nominee, Merrick Garland, was a shocking breach of protocol. “Even before Obama had named Garland, and in fact only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected [eight months] later that year.” “What-happened-with-merrick-garland-in-2016”-NPR

The Democrats have behaved as badly: “Sen. Bob Casey and Senate Minority Leader Chuck Schumer also announced that they opposed Trump’s pick without knowing whom the president had selected.” “Democrats-race-to-oppose-trumps-scotus-nominee-even-before-name-announced” Senator Feinstein’s withholding of Prof. Ford’s letter accusing Kavanaugh until the last minute was either stupid or malicious.

Sadly we didn’t have much of the debate we should have had about Kavanaugh’s judicial qualifications and judicial philosophy. He is clearly highly qualified as was Judge Garland who as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit headed the same court on which Kavanaugh has sat for the last 12 years. His job, he says, is to fairly interpret and enforce the law, not make it. Is he an originalist or texturalist and what do those mean?

Since 9/11 and The Patriot Act we have lived in a semi surveillance state that violates our constitutional rights to privacy and due process. As an official in the W Bush White House, Kavanaugh helped write the Patriot Act and later as a Federal judge he ruled to uphold parts of it that many of us consider unconstitutional:

“In a ruling in the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled that ‘the Government’s metadata collection program is entirely consistent with the Fourth Amendment.’ He also later stated ‘that critical national security need outweighs the impact on privacy occasioned by this program.’ Again, a rather odd conclusion for a staunch ‘constitutionalist’ to support.” https://fee.org/articles/the-constitutional-reasons-to-oppose-kavanaugh-for-the-supreme-court/?utm_campaign=FEE%20Weekly&utm_source=hs_email&utm_medium=email&utm_content=66477479&_hsenc=p2ANqtz–ZykcA0d1RgLgdKULIW6mqsBca_Mo6JDsC32-QU_CuMj4Tjcd7zNZA3lLuA0j1VucrH83ejT1Zrte2fKpGKnJS7qGN6w&_hsmi=66477479

But in most areas of protecting constitutionally protected rights or constitutionally mandated restraints on government, Judge Kavanaugh has been on the side of strict constitutionalism. While constitutional scholars are divided over just what a proper adherence to the constitution in the twenty first century should means, there is almost universal agreement that former justice Antonin Scalia helped sharpen the debate around that question.

The left wing historian and activist Howard Zinn puts the issue of judicial philosophy of SC judges in perspective in the following article. https://progressive.org/op-eds/howard-zinn-despair-supreme-court/

I assumed that he was writing about Judge Kavanaugh. After reading it I was surprise to realize that it had been written thirteen years ago. Mr. Zinn died in 2010.

Britt Kavanaugh’s scrutiny by the Senate has been ugly and painful. The Senate’s abandonment of traditional procedures, with their checks and balances, first by the Democrats and now by the Republicans is shortsighted and regrettable. The lack of deference to the President when consenting to his or her choices for her government is recent and regrettable. But most regrettable of all is the divisive lack of commitment to service to the nation as a whole rather than narrow partisan interests by our congressional representatives and our tweeting President.

The Wedding Cake

Americans harbor many conflicting views on many subjects. Our right to freely express them is guaranteed in the American Constitution’s First Amendment. It is precisely this right that has enabled the LGBT community to convince an ever-growing number of our fellow citizens that they should be entitled to the same protections under the law as anyone else.

Public discussion of conflicting opinions in a spirit of civility and mutual respect is an important aspect of developing consensus as well as tolerance for other beliefs and ways of living. While we are required by the Civil Rights Act of 1964 to set aside our personal opinions and tastes when we open for business to serve the public (the non discriminatory public accommodations requirement), our personal views are much more likely to be meaningfully changed by persuasion than by legal requirements. “There-will-be-no-winners-in-the-supreme-courts-wedding-cake-case/2017/12/04/”

In 2012, Charlie Craig and David Mullins, a same-sex couple, walked into Masterpiece Cakeshop in Lakewood Colorado to order a cake for a celebration of their wedding. Jack C. Phillips, the owner and cake designer of the shop, refused to bake it on the grounds that he opposed same-sex marriage. In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, now before the Supreme Court, Colorado’s Civil Rights Commission maintains that Mr. Phillips has violated the state’s public-accommodations law, which forbids discrimination against LGBT customers. The case pits the Constitution’s First Amendment protection of the right to free speech against the right of everyone, including gay and lesbian Americans, to the equal protection of the law on non discriminatory public accommodation. The Supreme Court must now decide how to balance these two rights.

Phillips argued that making him create a cake that celebrates a same-sex wedding would violate his First Amendment rights to free speech and free exercise of religion, by forcing him to express a message, and celebrate an event, that runs against his beliefs.  Messrs. Craig and Mullins argued that the cake shop had discriminated against them.  How can the rights and needs of each best be satisfied in our society of diverse beliefs?

There were many other cake shops happy to bake the desired cake. Why would Messrs. Craig and Mullins want to give their business to an unwilling baker? What goal was served by challenging the baker’s refusal in court? Did they think that a judge could force the baker to change his views about same sex marriage? Really? Public attitudes toward LGBTs have improved dramatically in recent years including attitudes toward same-sex marriage because of persuasion, not because of legal coercion. In fact, in 1996 legal coercion was used to prevent same-sex marriage with passage of the Defense of Marriage Act (DOMA). The Supreme Court fortunately overturned it in June 2015 in the case of Obergefell v. Hodges. What ever the Supreme Court decides, the LGBT community looses from this case. George Will: “A-cake-is-food-not-speech-but-why-bully-the-baker”/2017/12/01/

Everyone should worry about the threat of state-compelled speech, says gay marriage supporter Andrew Sullivan:  “It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they’re taking is particularly dangerous for a tiny and historically despised minority. The blithe unconcern for the First Amendment in the war on ‘hate speech,’ for example, ignores the fact that, for centuries, the First Amendment was the only defense the gay minority ever had — and now, with the first taste of power, we are restricting the rights of others in this respect? Ugh. Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” New York Magazine December 8, 2017.

The LGBT community should look first to improved understanding and then to tolerance of diversity. The courts are the last place to search for a workable balance between free speech and conscience and equal treatment of everyone under the law.

Public Bathrooms

A few years ago the public bathroom scandal concerned the ignorance of male architects in incorrectly designing toilet capacities for the different requirements of men versus women. Clear evidence could be witnessed during intermission at the Kennedy Center in the form of much longer lines outside the Ladies’ rooms than the Men’s rooms. This was a real problem and thus a real scandal.

Now we have a totally fictitious scandal of transgender men and women using public bathrooms appropriate to their sexual identity rather than their sex recorded in their birth certificate. All these years of transgender women using the Ladies’ Room went unnoticed, but you can believe there would be (will be?) a ruckus if they had used the Men’s Room. This is politics of the worst type pure and simple by religious fanatics and Trump-like exploiters of latent bigotry (though to Trumps credit he also labeled this problem a phony, non issue).

The highly respected economist, Dierdre McCloskey—born Don, shared some of her experiences with me in correspondence:

“Before I “passed” (surgery, working at it) I was frightened to go into a ladies’ room, but I could hardly go into a men’s room in a dress.  You can imagine how dangerous that would be!  I was allowed to put Female on my driver’s license in tolerant Iowa in 1995.  But you are right that it is unwise in such matters if nothing much is going wrong to stir things up.  I’ll bet now that Iowa has rules from the state.  Then it was left to Iowans’ ample common sense.  My passport F was tougher—I wept to the woman at the New Hampshire passport office, and she relented and sent my passport the day before I was boarding a flight to go to Holland to teach for a year, in January 1996.  So the State Department unofficially was cool.  A year later I tried to get Harvard to change my degree from Harvard College class of ’64 to the women’s college, Radcliffe.  The male dean I spoke to thought not.  I whined, “But the State Department had no problem giving me an F passport.”  With a smile in his voice he replies, “But Harvard is older than the State Department!”

“There’s more on all this in my memoir of my transition, Crossing: A Memoir (1999 University of Chicago Press).

“The bathroom “issue” is entirely phony.  It has never been a problem.  Anyway, if men wanted to sneak in (they don’t), they could always have done so, with or without North Carolina’s law.  How is it to be enforced?  DNA testing by the TSA at every bathroom door?  Anyway, your house has a unisex bathroom, I presume, and in Europe they are not entirely uncommon—after all, the stalls have doors.  Etc, etc.  On both sides it is just a club to beat up the other side in the silly Cultural Wars, and to make people hate and disdain each other.  Adam Smith would not have approved.”

In fact my friend’s Washington restaurant, Café Asia, has one large unisex bathroom—a long row of washbasins and mirrors opposite individual, locked toilet stalls. No one seemed upset. “Nobody in this entire debate has produced a single documented instance of a trans person initiating any kind of violence or sexual harassment in a bathroom.” Elishe Wittes, a Washington DC high school student https://www.washingtonpost.com/opinions/one-bathroom-for-all-install-gender-free-single-user-restrooms/2016/05/13/0d15664c-1907-11e6-924d-838753295f9a_story.html

So the whole issue is phony. But it does raise once again the question of how best to promote the broadening of the civil liberties of all Americans and our history reflects broad, if sometimes uneven, progress. From the abolition of slavery the achievement of full equal protection of the law for all (abolition of: Jim Crow laws, the ban on interracial marriage, separate but equal, ban on same sex marriage) has been a slow process of broadening and deepening public understanding and acceptance to the dignity and rights of all law abiding people. Crucial Supreme Court rulings that have confirmed such rights came only after they were broadly supported by most (but not all) of the public. So the real battlefield for enlightened, (classically) liberal values is one on one, and in the churches, synagogues, Mosques, classrooms, and clubs in which people talk to each other in search for better lives. Once those who wish to deprive such protections to some group (blacks, Jews, gays, transgender, etc.) fall into a discredited minority, they rather quickly fall (relatively) quiet once the Supreme Court has ruled. Man’s insular, self-protective nature, and attachment to the familiar, eventually gives way through education to the higher values and enrichment of modern civilization. This will surely happen again. Though the Trump backlash may slow the process.