Month: November 2014

After yesterday’s circuit split, Dale Carpenter’s hunch is that SCOTUS will rule on marriage in June 2015:

Petitions filed now don’t guarantee a decision during the current Term, of course. Ultimately, the Supreme Court’s decisionmaking schedule is in its own control. The Justices could receive petitions now and hold them over until next Term. Considering Justice Ginsburg’s view as expressed in September at the University of Minnesota Law School that a circuit split on same-sex marriage would create “urgency” on the issue, I don’t expect the Justices would do that.

To the extent that same-sex marriage advocates believe there are already five votes at the Supreme Court for same-sex marriage (a view shared by astute Court-watchers on both sides, including NRO’s Ed Whelan), any delay only raises the risk that there will be an unfavorable change in the Court’s composition. In light of Tuesday’s election result in the Senate, there can be no certainty that a favorable Justice would be replaced by an equally favorable one in the next couple of years. The seat could remain vacant, meaning a 4-4 split at the Court (which would affirm the adverse lower court ruling) and perhaps mean a re-argument after 2016 when the Court returned to full strength. Nobody can know what the 2016 election holds. Why risk it?

I’m not a constitutional lawyer, but I found the ruling a rather eloquent defense of judicial minimalism that ducked a lot of the core issues raised by the Supreme Court’s more recent rulings on the matter. It felt more like an essay in the Claremont Review than a tight constitutional argument. But a legal reader argues that it should not be under-estimated:

Jeffrey Sutton wrote the majority opinion.  He is by far the most-risen of the conservative “rising stars” in the judiciary, and if a Republican wins the White House in 2016, he WILL be the next Supreme Court justice.  His opinion is all about the limited role of the federal judiciary and is one of the most eloquent examples of what judicial conservatives think the opposite of “judicial activism” looks like.  I have a hard time envisioning the 5 conservatives on the Supreme Court reading Sutton’s opinion and not saying “Damn!, he’s right.”

I’ll qualify this by admitting that I am a pessimist by nature, but I am convinced that this Supreme Court will soon grant cert on one or more of these cases and will (in a 5-4 decision, of course) uphold the constitutionality of gay marriage bans before July 2015, and will do so in an opinion that looks a lot like Sutton’s.

Ilya Somin nonetheless points out some weak spots in Judge Sutton’s argument:

Sutton believes that the entire question of heightened scrutiny was foreclosed by the Supreme Court’s one line opinion in Baker v. Nelson (1972), which dismissed a same-sex marriage case on the grounds that it failed to present a “substantial federal question.”

Sutton argues at length that Baker is still good law, despite multiple Supreme Court decisions since then, which seem to cut against it. But Sutton completely ignores the fact that Baker was decided before the Supreme Court first ruled that gender classifications are subject to heightened intermediate scrutiny, which did not occur until Craig v. Borenin 1976. If Sutton wishes to rely so heavily on Baker’s cursory non-analysis of the same-sex marriage issue, he at least needs to explain why Baker was not superseded by the Craig, and by the many other Supreme Court decisions applying heightened scrutiny to gender classifications since then (including in cases where the discrimination in question was not motivated by animus or hostility to either men or women, as such).

Jay Michaelson likewise reads through Sutton’s ruling. His bottom line:

Ultimately, the jurisprudential tour de force that is the Sixth Circuit’s opinion is full of sound and fury, but it signifies less than it appears. It is a valiant, encyclopedic attempt of a star jurist to give voice(s) to an embattled philosophical position. You’ve got to admire the effort. But in a few years, it will likely be a footnote.

Judge Martha Craig Daughtrey, who was on the panel with Sutton, issued a strongly-worded dissent. Zack Ford highlights her key argument:

While Daughtrey’s opinion challenged many of the majority’s arguments, she made an overall point that encapsulates what’s lacking — and harmful — about the most modern arguments against marriage equality.

“In the main, the majority treats both the issues and the litigants here as mere abstractions,” she wrote. “Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win ‘the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”

That’s the biggest divide between the two sides on same-sex marriage: is it an issue, or is it about people?

(Photo: Suzanne Marelius, (R) and Kelli Frame, (L) hold hands as they wait in line at the Salt Lake County Recorders Office to get a marriage license on October 6, 2014 in Salt Lake City, Utah. By George Frey/Getty Images

Gallup finds that support for legalization has ticked down:

Gallup’s attempt to explain the decline:

Last year’s finding of 58% in favor was recorded as Colorado was preparing to become the first state to implement a law decriminalizing the use of small amounts of marijuana for recreational use. Although the law passed in November 2012, it did not go into effect until January 2014. Americans may have warmed some to proponents’ arguments in 2013 in the ongoing discussion around the Colorado law.

More recently, Colorado has been in the news over the sale of marijuana-infused edibles—everything from brownies to gummy bears—and the risk they pose to children, possibly sparking public concern. Also, a year ago, proponents in California were poised to launch a ballot initiative for 2014 to legalize marijuana in the Golden State, adding to the sense of momentum for legalization, but later decided to wait until 2016 for fear of losing at the polls, as they did in 2010. The relative lack of attention to new legalization initiatives throughout 2014 may have caused public support to subside.

This strikes me as plausible. It’s highly predictable that when a reform actually seems as if it will happen – as opposed to seeming like a great and new idea – there’s a natural “hey, wait a minute” reaction. Support for marriage equality dipped 5 percent in the Gallup poll in the wake of the first state to legalize it – Massachusetts – from 2004 – 2005. There was another dip in 2011, following another burst of progress. These things are not linear; a completely reasonable conservatism creeps in from time to time; what matters is if that conservatism marshals an actual argument that sticks; and, of course, the overall long-term direction and demographics of support.

What you also see here in the cannabis debate is exactly what we saw in California on marriage equality – a moment when a reform seems imminent and when the opponents pay their final card.

That card is usually children, and the potential harm to them if society changes. That’s what led to Prop 8’s success at the polls in 2008. But so far, we’ve seen no such failure in the cannabis initiatives so far.

Sullum’s two cents:

Gallup adds that “as long as support hovers around the 50% mark, it will be difficult for proponents to promote legalization beyond the more Democratic and liberal-oriented states.” I’m not sure about that, since 55 percent of Colorado voters approved legalization in 2012, when Gallup put national support at 50 percent, and 52 percent of Alaskans went for legalization on Tuesday. Colorado and Alaska are purple and red, respectively, so I don’t think they qualify as “the more Democratic and liberal-oriented states,” although both have libertarian streaks.

I actually think that weed unites red and blue America in ways both sides are reluctant to admit. But never mind. No one knows what you do in the polling booth.

The right wing news story that I molested my little sister isn’t just LOL- it’s really fucking upsetting and disgusting.

— Lena Dunham (@lenadunham) November 1, 2014

And by the way, if you were a little kid and never looked at another little kid’s vagina, well, congrats to you.

— Lena Dunham (@lenadunham) November 1, 2014

Certain excerpts of Lena Dunham’s book have led some to accuse her of having abused her sister when they were both children. Dunham denies this and may even sue. Dreher insists that the same story coming from someone without Dunham’s upscale background would be received differently:

I have known at least two friends over the years who were sexually abused by older siblings. In both cases, the abuse had profound and lasting consequences on their psyches. What Lena Dunham describes doing to her little sister is sick and disgusting. But her little sister Grace, all growed up and having embraced a lesbian identity, doesn’t necessarily agree with the critics. She tweets that critics are dedicated to maintaining “heteronormativity,” and that, “As a queer person: i’m committed to people narrating their own experiences, determining for themselves what has and has not been harmful.”

Now, imagine if Grace Dunham’s older brother had confessed to having done these things. Would he have any defenders? Imagine if the woman confessing to this abuse were not from a liberal Manhattan family, and had not been dubbed by some media outlets as the “voice of her generation,” but was instead a burger-flipper living in a trailer park, having confessed this on a blog. How would you feel about it then? What if an NFL player had written the same kind of thing in his memoir? Or a Catholic priest?

Jia Tolentino shows how such criticism of Dunham’s privilege has caught on among pundits on the left as well:

Childhood bodily play is peculiar and near-universal and complicated, with a thousand valid valences on the long spectrum from normative to predatory. To me, these stories are mostly early and wonderful examples of the body as a zone of curiosity free from the burden of adulthood and sex, but of course, in a few cases, they are darker: reminders that children don’t have a lot of agency, or remembrances of unplumbed abuse.

To some people, Dunham’s story looks very much the latter way. It was the conservative media outlet TruthRevolt that incited this discussion by posting the Not That Kind of Girl passage with Dunham’s age originally (and disingenuously) quoted as 17, under the headline “Lena Dunham Describes Sexually Abusing Her Little Sister.” Dunham responded to this “right wing news story” quickly and sharply. The conversation picked up as writers who are on the other side of the political spectrum—who I respect greatly, and are normally a gulf of ideology away from TruthRevolt or Return of Kings—voiced their fervent agreement. Feminist writer Mikki Kendall wrote, “The gap between the attitudes that let R. Kelly prosper & the ones who excuse Dunham is incredibly thin. Nonexistent to be honest.” Lachrista Greco, founder of Guerrilla Feminism, added, “It’s NOT NORMAL. It’s NOT OKAY.”

This is indeed where the sex police want to take us – and there are increasing numbers of those people on the new feminist left. Rich Juzwiak raises an eyebrow at such criticism:

Most of the analysis of Dunham’s account of her childhood behavior has been coming from amateurs, mostly with axes to grind. I thought, then, it might be useful to add an expert opinion into this stew of non-professional opinions about whether the incidents Dunham describes—examining her sister’s vagina, plying her sister with candy, and slipping her hand into her own “underwear to figure some stuff out” while lying next to her sister—constituted abuse.

I asked Sam Rubenstein, a psychotherapist who specializes in childhood abuse, for his take on whether what Dunham describes would be considered abuse in a clinical setting.

The short answer is: no.

Cecilia Chen, Dan Zook, and Dan Tuttle discuss how to reduce food waste:

The solution to feeding a growing population is not simply to produce more food, but also to save, preserve, or recycle the food already produced. Cutting current food wastage in half, for example, would yield enough food to feed one billion people—half of the additional population expected by 2050. …

Food loss, which accounts for 90 percent of unconsumed food in developing countries, refers to the decrease in edible food mass during production, postharvest processing, and distribution. The primary drivers of food loss are a lack of skills training for actors within the supply chain in handling, packaging, and storing food; insufficient on-farm storage technologies or postharvest storage facilities; and farmers’ poor market access, which leads to spoilage before products can be sold.

Food waste, on the other hand, refers to food that is fit for human consumption but is discarded by retailers or consumers. In developed countries, high aesthetic standards, stringent food company contracts, large portion sizes, and promotion-driven sales often lead to the overproduction of food, much of which is discarded. Food discarded by the consumer—the last actor in the supply chain—wastes the resources used in every previous step in the chain.

(Photo by Flickr user GloomyCorp: “A misshapen green tomato is menaced by its ripe, perfectly-proportioned brethren.”)