I’ve lost track

I’ve lost track of how many states have gained more freedom over the past year. Idaho is one of the latest:

A federal judge who struck down Idaho’s ban on gay marriage as unconstitutional denied a bid by the conservative state’s governor on Wednesday for a stay of the decision while Idaho pursues an appeal of the case.

The governor, Republican C.L. “Butch” Otter, called the ruling “regrettable” and vowed to petition a higher court to keep the state’s gay marriage prohibition intact until the case has run its course through the judicial system.

U.S. Magistrate Judge Candy Dale overturned Idaho’s ban on same-sex matrimony on Tuesday, saying it relegated gay and lesbian couples to second-class status in violation of constitutional guarantees of equal protection under the law.

Her decision was the latest in a recent flurry of opinions by federal judges striking down restrictions on same-sex marriage in states across the country – from Utah to Virginia.

It’s only a matter of time.

Should polygamy be legal?

A judge in Utah recently ruled Utah’s anti-polygamy laws unconstitutional:

Advocacy groups for polygamy and individual liberties on Saturday hailed a federal judge’s ruling that key parts of Utah’s polygamy laws are unconstitutional, saying it will remove the threat of arrest for those families.

U.S. District Judge Clark Waddoups said in the decision handed down Friday that a provision in Utah law forbidding cohabitation with another person violated the First Amendment right of freedom of religion.

The ruling was a victory for Kody Brown and his four wives who star in the hit TLC reality show ‘‘Sister Wives’’ and other fundamentalist Mormons who believe polygamy brings exaltation in heaven.

This ruling doesn’t legalize polygamy, but if upheld it would decriminalize it. I have no doubt that is the correct ruling, whether due to religious freedom or individual liberty. In either case, I see no reason why any government can tell people with whom they can and cannot live. (Utah didn’t even stop at that rights violation: the state went so far as to say people couldn’t claim to be married to multiple people.) However, the question of legalization is a different one.

It’s hard to see a reason why one should care about the lifestyle choice of consenting adults. I don’t. It doesn’t affect anyone else in any way whatsoever. However, that doesn’t mean the government should necessarily go about endorsing contractual agreements that bestow various rights, privileges, and tax conditions.

The fundamental question concerning the legalization of same-sex marriage is one of equality: the government can’t invent/endorse a practice that it limits on the basis of an inherent human condition like race or sexual orientation – at least not since the 14th Amendment. That’s exactly what it has been doing (and in many states is still doing) by barring same-sex couples from marrying. With polygamy, however, that is not what’s happening. The basis for barring polygamous marriages is rooted, right or wrong, entirely in a moral stance which passes judgement on the preferences, not orientation, of individuals. Polygamous marriages and same-sex marriages are apples and oranges.

None of this – to this point – is to say one way or another whether or not I’m in favor of legalizing polygamous marriages. Up until now I’ve only discussed what it is. So with that said, let me state: I don’t think it should be legal. I have two primary reasons for my position.

First, I believe one of the most important rights bestowed upon couples who get married is one of spousal privilege where a spouse cannot be compelled to testify against another spouse in a court. Aside from the fact that any right which prevents the government from gaining any evidence against a person for any reason is a fundamentally good thing for freedom, spousal privilege is necessary to fostering healthy relationships. Allowing the government to force a spouse to turn on another spouse can only serve to prevent married couples from free discussion, thus weakening their marriages. This right is to marriages as the ecclesiastical privilege is to religious freedom. Just as forcing clergy to divulge information told to them by penitents would weaken a person’s ability to freely practice his religion, forcing a spouse to divulge information gained via marriage would weaken a couple’s marital bonds. Now, the reason I bring this up is that there is absolutely no circumstance in which I believe this right should be destroyed, yet that is exactly what would be necessary if polygamy was legalized. If any number of individuals could marry, there is nothing stopping a criminal enterprise from conducting a mass marriage, thus gaining spousal privilege for any number of thugs. This would be great for their freedom, but it would be very bad for everyone else’s safety. (In a weeks-old discussion from Facebook someone made the point that if just one person wanted a divorce, it would become necessary for all the other spouses to divulge all financial information, which no crime organization would want. I was asked if I really thought such people would expose themselves that way. The answer, of course, is yes. First, it’s a risk, to say the least, to divorce one’s self from a crime organization, whether in a symbolic sense or in this fictional legal world. Second, crime organizations aren’t exactly known for their well reconciled check books.)

Second, it’s hard to fathom how the tax code would cope with this change in law. A fundamental overhaul would be necessary, which could be done I suppose, but no doubt people would take advantage of it for the sake of saving a few bucks, no matter how careful the changes were. I know I would. This isn’t an insurmountable objection to polygamy (hence why it’s my second, not my first, point), but it’s definitely a huge issue.

At any rate, criminalizing polygamy is just making up a crime. And being against polygamy on moral grounds is some pretty weak sauce. However, simply due to a single, fundamental right bestowed upon married couples, I can’t possibly support legalized polygamous marriages. I imagine there are actually a host of rights to be considered here, but I see no need to go beyond just the one given its importance. We can’t get rid of it – that weakens marriage and individual freedom – and we can’t grant it to everyone – the exploitation would be insane – and we can’t grant it to one group of married couples while denying it to another – that’s no different from what we’re seeing now with the non-legalization of same-sex marriage. The only solution is to keep legal marriage defined to two individuals.

Free speech is more important than a feel good story

I recently saw a post somewhere on Reddit about a 1958 incident in North Carolina:

On the night of January 13, 1958, crosses were burned on the front lawns of two Lumbee Indian families in Robeson County, N.C. Nobody had to ask who was responsible. The Ku Klux Klan had risen again in North Carolina, its ranks swelling after the 1954 Supreme Court decision in Brown v. Board of Education calling for the desegregation of public schools. While the Court instructed schools to proceed with “all deliberate speed,” the Klan fought — often in the form of anonymous nighttime attacks — to slow the process of integration…

Not content to leave it at this, the Klan planned a rally in Robeson County to be held just a few days later….

The rally was scheduled for the night of January 18, 1958, in a field near Maxton, N.C. The stated purpose of the gathering was, in the words of Catfish Cole, “to put the Indians in their place, to end race mixing.” The time and location of the rally was not kept secret, and word spread quickly among the local Lumbee population.

Reports vary about the number of people gathered on that cold night, but there were thought to have been around a hundred Klan members. They brought a large banner emblazoned with “KKK” and a portable generator, which powered a public address system and a single bare light bulb. When the meeting began, the arc of the dim light didn’t spread far enough for the Klansmen to see that they were surrounded by as many as a thousand Lumbees. Several young tribe members, some of whom were armed, closed on the Klan meeting and tried to take down the light bulb. The groups fought, and a shotgun blast shattered the light. In the sudden darkness, the Lumbees descended upon the field, yelling and firing guns into the air, scattering the overmatched Klansmen. Some left under police protection while others, including [Klan leader] Catfish Cole, simply took to the woods.

Of course, it’s no surprise that Reddit ate this up. Why, those racists deserved what they got. After decades and decades of intimidation, not to mention recent illegal acts like cross burnings, no rational person can sympathize with their meeting being broken up. But this isn’t about sympathy. This is about Constitutional rights. The KKK had a right to gather and talk about their racist stupidity all they wanted. It was never the place of the Lumbee Indians to stop the meeting, attacking people and destroying property. They were cowards.

This is where I have to pause to make a note: this isn’t about defending the KKK or showing any support for its positions. This is about free speech: if you aren’t willing to stand up for the free speech rights of every group – even and especially the ones you dislike – then you simply do not support free speech. I hope you enjoy your association with fascism.

Fast forward to today and we have another instance of racists and, largely, Native Americans coming face-to-face:

Having apparently learned its lesson from its predecessors, the modern [neo-Nazi movement] decided to avoid large cities (where anybody might show up with a full tank of gas and half a pack of cigarettes) and take over the small town of Leith, North Dakota…

Leith lay on the outskirts of Bismarck, North Dakota, evidently chosen for the name’s unsinkable record in Nazi history. Until recently, the town of Leith had a population of 24; and it probably would have forever had [the neo-Nazis] not started buying up property there, intending to install it as a foothold for America’s new Nazi movement…

[But one Nazi leader] and all of his Nazi followers may not get the peaceful Aryan paradise they’re looking for — because about 300 protesters showed up to make life a little less peaceful.

Those protesters included about 200 Native Americans from nearby reservations, who played a pivotal role in organizing the protest. The crowd chanted things like:

“Creepy Nazis, Ku Kluzers, get the Hell out of here!”

All these protestors are to be admired and praised. Instead of acting like the cowards of the Lumbee tribe, they stood up, face-to-face with Nazi scum, and fought the protected speech of the neo-Nazis with their own protected speech. That’s how it’s done.

What I find so frustrating about all this, though, is the political correctness pervading the whole discussion. The entire reason I’m writing about isn’t because of the people who side with the Lumbee tribe. I’m writing because of the people who automatically think it’s racist or otherwise wrong to defend the free speech rights of the KKK. It should be obvious to any thinking person that that is not the case, and here is a perfect knock-down of some real bullshit: If anyone thinks it’s racist motivations that lead one to condemn the Lumbee tribe, then they are left with an incoherent hole in their argument when we see a lack of condemnation of the Native Americans who protested the neo-Nazis in North Dakota.

Anonymous speech is free speech

I don’t remember who said it to me a little while ago, but I heard it argued that anonymous speech somehow, magically, mystically, without regard to common sense or the 1st Amendment, is not protected speech. Of course, it is and SCOTUS cases have confirmed as much. That brings me to this:

An anonymous poster, using the name “Artemis of the wildland” has been attempting to shame some Portland, Ore., residents who use food stamps…

A few weeks ago, similar flyers identified people receiving disability benefits, describing them as “a threat to the Republic.” Police investigators say that message could be considered hate speech.

This is unbelievably offensive. Not the douche threatening to ‘out’ welfare recipients. That’s just run of the mill stupidity. What’s offensive is that some anti-free speech crusader(s) called the (pretend*) Portland police who, in a continuing effort to harm free speech, actually investigated the matter. To make matters worse, they apparently believe that hate speech isn’t also free speech.

It’s pretty unimportant that some d-bag threatened to say who receives a particular type of income. Unless this person obtained the information illegally – and it isn’t even certain he or she has any real information – then there is absolutely nothing to investigate. What is important is that this protected, anonymous speech is being threatened by the government acting on behalf of a few butt-hurt citizens. Fuck them.

*Portland, Oregon is the hipster version of the original Portland in Maine – which, incidentally, is what the pretend West Coast Portland was named after. But I digress.

Congratulations, Minnesota and Rhode Island

Equality is happening in two more states right now and no one is worse off for it. No one:

Dozens of Minnesota gay couples made last-minute preparations Wednesday for midnight marriages, determined to exchange vows at the earliest possible moment under a new state law legalizing same-sex marriage…

“It feels historic. It’s an honor to be a part of it,” said Tim Roberts, the Stearns County court administrator, who planned to perform a 12:01 a.m. wedding at the courthouse in St. Cloud.

Rhode Island was joining Minnesota on Thursday in becoming the 12th and 13th U.S. states to allow gay marriage, along with the District of Columbia. The national gay rights group Freedom to Marry estimates that about 30 percent of the U.S. population now lives in places where gay marriage is legal. The first gay weddings in Rhode Island were planned for later Thursday morning.

Don’t worry, bigots. You’ll be okay. Your parents and grandparents were fine when interracial marriage became legal. You can make it through this.

Black people should move out of the south

In light of the recent and awful decision by the Supreme Court to strike down an essential component of the 1965 Voting Rights Act, racially callous southern states have begun to de facto target black and other minority voters:

The GOP majority in North Carolina is moving to pass a series of laws in response to a recent Supreme Court ruling striking down part of the 1965 Voting Rights Act, sparking outrage from civil rights activists.

The Los Angeles Times reported Tuesday that North Carolina Republicans plan to adopt stricter voter identification laws. The report also said the GOP is pushing to end the state’s early voting laws, Sunday voting and same-day voter registration.

This is more about getting votes than about disenfranchising black people for the NC GOP, but it would be a mistake to ignore the volumes this speaks of their mindset. They may not have an overt desire to harm the voting rights of black people, but they are entirely unaware of the ramifications of their actions; they’re looking at the short term wins they can get (which, incidentally, they will then use to change abortion laws, failing to do anything about the economy – ever), completely glossing over what this will mean for a group of people both now and far into the future, simply because of the color of their skin.

On the decision itself:

The Supreme Court ruled a week ago that states no longer can be judged by voting discrimination that went on decades ago.

In a 5-4 ruling, the justices said the Voting Rights Act’s requirement that mainly Southern states undergo special scrutiny before changing their voting laws is based on a 40-year-old formula that is no longer relevant to changing racial circumstances.

“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past,” Chief Justice John G. Roberts Jr. wrote for the majority, which was composed of the court’s conservative-leaning justices.

I wasn’t aware 5 ‘justices’ believing a law to not make sense also made said law unconstitutional. Color me surprised (but don’t use black – I like to vote).

It’s worth noting that the rationale behind the majority’s vote is that the constitution is a living, breathing document that changes with the times and must take present day conditions into consideration. This is wildly in contract to Political Figure Antonin Scalia’s entire judicial/political philosophy. (I presume Lapdog Thomas holds the same position. No need to double check, really.)

I’ll miss you, Fifth Amendment

In the Supreme Court’s continued efforts to destroy the Bill of Rights, the Fifth Amendment just took a big hit:

Here are the facts from Salinas v Texas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions.

Political Figure Scalia and Lap Dog Thomas went further and said Salinas didn’t have any right to silence whatsoever because he hadn’t be arrested or detained by police.

This is all very disturbing. As Ken of Popehat tells us, a prosecutor cannot mention a defendant’s decision to remain silent. If we allowed the authorities to get away with such garbage – and we do now – then the right to remain silent wouldn’t, in fact, be a right. It would simply become this thing people try to do in order to protect themselves, but without any success. “I don’t know, fellow jurors, the police said the guy got shifty and uncomfortable when they questioned him. Then he clammed up! Sounds guilty to me.”

(Know why that last part isn’t a good analogy? Because it just fucking happened.)

I had more to say on this matter, but my time is currently limited. I leave you with this excellent piece of advice: