California

Everybody’s got their knickers in a twist over the California Supreme Court’s recent ruling that Prop 22 (a popular initiative to enact a statutory ban on same-sex marriages) was unconstitutional under the California State Constitution’s guarantee of equal protection. The court declined to reconsider, and also declined to issue a stay of its order directing state officials to stop denying marriage licenses to otherwise eligible same-sex couples. Apparently, same-sex couples started getting married a few days ago.

My position on gay marriage is that equal protection does not, in this case, justify expanding the welfare state, because all (or very nearly all, more on that below) the legitimate features of marriage are already available to same-sex couples as a function of private contract.

Both sides of the gay marriage debate have been irked by one thing or another in this mess. Pro gay marriage activists were upset when, in 2007, the California legislature passed legislation (AB 43) to overturn Prop 22, but Gov. Schwarzenegger vetoed it, saying he wanted to wait for a court ruling. Turns out, this was the right thing for him to do, because Prop 22 could not be repealed by an act of the legislature. The California State Constitution provides that statutes enacted by popular initiative can only be repealed by another popular initiative. Neither the legislature nor the Governor had the power to enact AB 43, so Schwarzenegger was quite right to defer the question to the court.

Californians have another popular initiative set for the November ballot to enact a constitutional ban. (Prop 22 was a statute, not a constitutional provision.) This would override the California Supreme Court’s decision and allow state officials to refuse to grant marriage licenses to same-sex couples.

In the meanwhile, California’s liberal welfare-state benefits will be greatly expanded. If I were one of those people who had nothing better to do, I’d find it quite interesting to calculate up the actual cost to the California taxpayers in additional state entitlements.

Of course, the California same-sex marriages conducted between now and November are still not the same thing as straight marriages.

Federal

Because, of course, the biggest marriage-related welfare benefits come from the Federal government, which has the DOMA, which bans Federal recognition of same-sex marriages. So just because you’re gay and married in California (or Massachusetts) doesn’t mean you get the same stuff straight couples do.

But in an interesting twist, the Bush Administration (specifically the Office of Legal Counsel, who represent the Executive in legal matters) has taken a legal position recognizing (sort of) a civil partnership performed in Vermont for some Social Security purposes.

In a recent opinion letter, the Office of Legal Counsel determines that a child of a same-sex partnership formed under Vermont law may receive the non-biological parent’s Social Security Child’s Insurance Benefits, even when the parent-child relationship between the non-biological parent and the child was created by the civil union, not by adoption.

See, Child’s Insurance Benefits are paid regardless of the marital status of the parent. They are granted based on the child’s ability to inherit under state law. Vermont allows children of same-sex unions to inherit from both the biological parent (if any) and the non-biological parent. Once state law creates that relationship, it becomes a legal relationship independent of the one between the parents. So the Federal government ends up recognizing the parent-child relationship created under Vermont’s civil union law.

What this means now is that a married gay person’s Social Security benefits can go to his spouse’s child, but not to his spouse.

Of course, Social Security should go away. It is forced wealth redistribution. But it sure is interesting how these things work.

One Last Thing

My opposition to legislation specifically authorizing gay marriage is based on the fact that it is unnecessary - all the legitimate features of marriage can already be accomplished through private contract, and the illegitimate features of marriage aren’t something I’m willing to tolerate in the name of equal protection. However, I’ve been thinking about it, and I may have found one legitimate feature of marriage that cannot be achieved except through state-sanctioned marriage: the spousal evidentiary privilege. That’s the rule that says that no one may be compelled to testify against his spouse in court. I hope to write more about this after I’ve learned a bit more about it.

Posted by Qwertz at 9:45pm on 19 Jun | No Comments

I was in court all day today and so I did not find out that the Supreme Court had ruled in Boumediene v. Bush today. [Note: PDF link.]

The Court explicitly held that MCA § 7 (the jurisdiction-stripping amendment) was within Congress’ power to enact as a matter of Article III (but not within Congress’ power to enact as a matter of the Suspension Clause).

I’ve said all along that this question, which the Court calls “a threshold matter” was more significant in the long run and from a separation-of-powers standpoint than any ruling on the much more popular and eagerly reported habeas issue.

I haven’t read the whole 134-page opinion yet (or even just the section on the jurisdiction-stripping question), but when I do, I will happily give you my analysis. Whether you want it or not!

Posted by Qwertz at 1:23am on 13 Jun | No Comments

Selling Foie gras is no longer illegal in Chicago.

Funny how I had to go to BBC to get that news.

Posted by Qwertz at 5:32pm on 16 May | 1 Comment

I’m going to get a lot of disappointed visitors for this one.

Three citizens of the Greek island of Lesbos (also spelt Lesvos) are suing a Greek organization named “Homosexual and Lesbian Community of Greece” over the use of the word “Lesbian” in the organization’s name. The islanders claim that their geographical demonym (”Lesbian”) has been unjustly co-opted by the organization to their detriment. They want the Greek government to prohibit the organization from using the term “Lesbian” in its name.

There is international precedent for the islanders’ claim. Terms like champagne, chianti, and Roquefort are restricted by laws in various countries to products originating from specific geographic areas. Apparently the islanders are arguing that the same principles should apply to people from specific geographic areas as well.

Lambrou[, one of the plaintiff islanders,] said the word lesbian has only been linked with gay women in the past few decades. “But we have been Lesbians for thousands of years[.]”

Of course, Lambrou is wrong on both counts - “Lesbian” referring to female homosexuality is attested from 1890, and referring specifically to homosexual females from 1925 - much longer than a “few decades.” And “Lesbian” referring to the islanders of Lesbos is attested (in English) from 1601 - nowhere near “thousands of years.”

The suit asserts that the confusion arises in English, not in Greek. There are different Greek words for “person from Lesbos” and “homosexual female” in Greek. Incidentally, neither are “lesbian,” or even pronounced like it. In Greek, a man from Lesbos is Λέσβιος (pronounced lesvios) and a woman from Lesbos is Λέσβια (pronounced lesvia). The Greek word for a homosexual female is ομοφυλόφιλη (omophilophili) or λεσβιάδα (lesviada).

(In modern Greek, β (beta) is a voiced labiodental fricative, like the English letter v.)

Linguistics aside, the suit is silly and whiny. I don’t know Greek law, but under any sane legal system, Plaintiffs would lose.

I’m sure there are other demonyms out there that have developed meanings other than a reference to the people of a specific place, but the only other example I can think of right now is spartan, meaning something or someone characterized by simplicity, frugality, courage, or brevity of speech, through a similar etymological pathway as lesbian. What other demonyms have developed non-demonymous meanings? Post any you can think of in the comments.

Posted by Qwertz at 6:39pm on 30 Apr | 4 Comments

Illinois State Representative Monique Davis said some nasty things to atheist activist and Green Party candidate for State Representative for the 53rd District of Illinois Rob Sherman during an Illinois State Government Administration Committee hearing, to which the latter had been called to testify on the propriety of the Governor’s proposed plan to give $1M of the taxpayers’ money to the Pilgrim Baptist Church for restoration and preservation.

Partial transcript, borrowed from Eugene Volokh:

…

Davis: … What you have to spew and spread is extremely dangerous, it’s dangerous–

Sherman: What’s dangerous, ma’am?

Davis: It’s dangerous to the progression of this state. And it’s dangerous for our children to even know that your philosophy exists! Now you will go to court to fight kids to have the opportunity to be quiet for a minute. But damn if you’ll go to [court] to fight for them to keep guns out of their hands. I am fed up! Get out of that seat!

Sherman: Thank you for sharing your perspective with me, and I’m sure that if this matter does go to court—

Davis: You have no right to be here! We believe in something. You believe in destroying! You believe in destroying what this state was built upon.

…

I for one have no problem with one person telling another that such and so a philosophy is dangerous. I do it all the time. But Davis is a government official, presiding over a government hearing, telling a witness that he may no longer testify because she has deemed, without due process, that nothing he might have to say should be permitted.

Sherman is a Green Party candidate, so I’m sure there are parts of his philosophy (including fundamental metaphysical and epistemological premises) which can rightly be considered “dangerous.” His campaign platform is a blend of libertarianism and environmental fascism typical of his party. Atheism is very surely a “dangerous” philosophy if one is a Christian, and I’m sure Davis feels very threatened by it. But neither her subjective opinion, nor the incorrectness of that opinion, is the real cause for distress here.

The problem here is that a government official, in her official capacity, tried to eject a witness from an official legislative hearing without due process or probable cause. As you can hear from the clip, Sherman did not leave the stand and continued his testimony. Nonetheless, Davis is a prime example of what happens when religious politicians fail to respect the rule of law.

Update: Not so much an update as an addendum. At common law, atheists were disqualified from testifying in court because the oath (to God, on the Bible) to tell the truth would have no meaning for them and would therefore fail to put them in meaningful fear of the consequences of untruthfulness on the stand. Such disqualification is no longer constitutional, and the Federal Rules of Evidence, enacted by Congress and used in all Federal courts and many State courts by adoption, expressly disallow disqualification of witnesses on religious grounds. Nonetheless, many State constitutions still contain inoperative clauses disqualifying atheists from giving evidence in court. Of course, none of this is relevant, as this incident occurred in a legislative hearing, which is not the same as a trial in court, but I thought someone might find it interesting.

Posted by Qwertz at 7:58pm on 7 Apr | 1 Comment