The Dish

Libel laws may not apply to bloggers.

Couldn’t agree more with Jonah Goldberg’s thoughtful column on NRO today. I guess I should say so clearly: I have no problem with one state deciding not to recognize the legal marriages of another. The genius of federalism, after all, is that it allows for a compromise where some states, like Massachusetts, Vermont or New Jersey, can have equal marriage rights and other states, such as Alabama, Arkansas or Colorado, can retain the heterosexual privilege. What better way to figure out exactly what same-sex marriage means? My own preference is to avoid a divisive, emotional and deeply polarizing show-down over national marriage rights in favor of a gradual federalist development. The only issue here is what the federal government should do. If DOMA turns out to be unconstitutional, why can’t the feds simply recognize any marriages that are valid in a single state, as long as the spouses are residents of the state? Bottom line, Jonah: If that’s the compromise, count me in. But the religious right won’t compromise. If they had already, they wouldn’t be in such a precarious position.

His financial prowess is impressive – but then we knew that. Maybe he’ll begin to mellow a little in public debate, which would be a real advance for his campaign, and stop winging the facts in public. The reason he’s doing well though, I think, is partly the awfully insipid nature of his competition (can anyone imagine John Kerry as president?) and partly his willingness to be at least occasionally a full-throated partisan. That may hurt him later but it’s giving him electricity now among the base. If I were him, I’d make fiscal responsibility my main platform – as long as it contains some serious proposals for real spending restraint. This is Bush’s weak point: the damage he has done and continues to do to this country’s fiscal health. Bush’s answer to this – that deficits don’t matter – doesn’t persuade any but a handful of true believers. Right now, his prescription drug benefit will add more untold billions of debt to the next generation. At some point, when the deficit reaches the stratosphere, this issue will come back to haunt the White House. And fiscal responsibility combined with social liberalism is a great way to appeal to the center. Dean could even, I think, benefit from being ahead of the curve on equal marriage rights. If Dean can get over his unelectable foreign policy – a massive if, of course – he could be a real player.

FRIST’S THEOLOGY: Since when was marriage a “sacrament” among Presbyterians? A blogger fisks Frist.

Jacob Levy has an excellent post on the impact of Lawrence Vs. Texas as a political matter. He doesn’t buy the backlash “this is another Roe” argument:

Sodomy in 2003 will not attract moderates to social conservatism. The number of people who feel deep moral horror or revulsion at its legality is much, much smaller than the number who feel that way about abortion. The “ain’t nobody else’s business” argument is much, much stronger in the case of sodomy than in the case of abortion (which, according to its opponents, violates the harm principle). Republican and conservative elites will try to play the judicial overreach card; but they will not be able to play anything analogous to the “we’ve got to save little babies!” card. Even John “buggery, buggery, buggery” Derbyshire is unwilling to actually defend sodomy laws as a good idea. With all due respect to my former professor Robert P. George, who co-wrote a brief trying to convince the Supreme Court of the merits of the Texas statute, that argument’s just not a political winner.

That’s why, of course, they will now shift to marriage rights. The critical point here is that public debate is in flux on this. We’ve seen considerable change in public attitudes toward homosexuality in the last couple of decades – change that is now percolating upwards to SCOTUS and elsewhere. On themarriage question alone, support for equalmarriage rights keeps growing – and is now at 39 percent in the latest CNN/USA Today poll (up from 27 percent in 1996). The social right has therefore one option: to shut down the debate now – before the numbers move even more swiftly against them. They want to designate gays as a class of people constitutionally denied equality for ever. They want the term gay relationship to be anathema to what it means to be an American – before the public dialogue shifts any further. So they will soon launch their nuke against gay men and women trying to form stable relationships: a constitutional amendment to keep gays permanently outside the possibility of equal citizenship.

A RUSH AGAINST UNDERSTANDING: And, yes, this is tampering with the Constitution. What SCOTUS just did was apply settled principles in Constitutional law to a class of persons previously vulnerable to majority whim and privacy violation. That’s called applying the constitution, not tampering with it or changing its text. The difference with the past can be seen in the difference between Sandra Day O’Connor’s argument and Antonin Scalia’s. O’Connor sees gay people as fully-fledged people, with lives and loves and needs like everyone else. Scalia sees them as people who for some bizarre reason do immoral things with their body parts. O’Connor sees that homosexuality is what people are. Scalia thinks that homosexuality is what some people do. Once you accept O’Connor’s premise, Lawrence is not tampering with the Constitution, it’s applying it, given what we now know about sexual orientation. If you accept Scalia’s premise, you can see why he thinks the door is now open to raping children and marrying German Shepherds. The reason I support O’Connor, at a very basic level, is that I know she’s right. I know as well as I know anything, that being gay is an integral part of someone’s being, not some facile choice but a complex and profound human identity – equal in all its facets to the heterosexual human identity. So for me, the issue is clear: the equal dignity of citizens and human beings. That’s why I feel so strongly about this – as do so many others.

Earlier today, I linked to British stories that report how a parliamentary committee looks set to exonerate Blair from interpolating a piece of evidence into the intellgience reports about Saddam’s WMD capacity. Slate’s Fred Kaplan also argues that the discrepancy between what we believed Saddam possessed and what we have so far found is best explained by the usual vagaries of intelligence assessments, not unlike the “missile gap” of 1960. And Gene Volokh also does some homework on the now famous Cheney quote of Saddam having reconstituted “nuclear weapons.” Volokh convincingly (to me) shows how at worst this was a function of Cheney’s mis-speaking, not lying:

Rumsfeld’s and Cheney’s critics … are literally correct when they quote Cheney as saying Saddam had nuclear weapons, [but] they don’t even hint to their readers that instead of “recklessly exaggerat[ing],” Cheney quite likely simply misspoke – and that rather than trying to mislead people into thinking that Saddam had nuclear weapons, Cheney repeatedly suggested the contrary several times in the very interview that they’re quoting. One source that I’ve seen – a Dana Milbank Washington Post piece – at least acknowledged this possibility, by saying that “aides later said Cheney was referring to Saddam Hussein’s nuclear programs, not weapons.” Even there, it would have been helpful to readers if the writer had also indicated that the full transcript supports the aides’ claims. But the other sources that I mentioned above (the Kristof New York Times article, the Slate “Whopper” piece, and the Conason Salon piece) don’t even do as much as the Post did.

The American public have gotten this one right again. And the far Left, still desperate to undermine this administration and retroactively discredit the war of Iraqi liberation, is merely digging a bigger and bigger hole for itself.

It’s odd, isn’t it, that in Supreme Court debates, we always hear an enormous amount about various judges’ “philosophy,” their paper-trail, their alleged politics, and so on. Much of this is helpful enough and sometimes relevant. But surely something else matters as well, and that is the correct temperament to be a judge. It should match the temperament of an umpire – not a pitcher or catcher or any other role. What troubles me about Antonin Scalia is not so much the substance of his views (although I share very few of them) but the angry, sarcastic, bitter tone of his judgments. David Broder had a similar take last week. Part of what it takes to be a judge, in my mind, is a certain indifference to passionate advocacy, a sense of moderation, and prudence. If someone cares as passionately as Scalia does about the moral issues in what he has called the “culture war,” and if he isn’t even interested in moderating these passions in his judicial rulings, then it strikes me that he is not acting as a justice should act: with dignity, care, distance, and respect for alternative arguments. It’s the tone that’s off. It can be amusing, bracing, shocking, interesting; but it certainly isn’t a judicial tone. Ditto the arguments about the far right nominee, Bill Pryor, a man whose political language about abortion is so inflamed he has had to say to the Senate that he will simply lay it all aside if he is called to rule on the matter. No one can believe in this kind of psychological compartmentalization; and no one should trust anyone who promises it. The truth is: anyone whose views are that inflamed shouldn’t be anywhere near a federal bench. A talk-show host or blogger, maybe. A politician surely. But not a judge.

BLAIR VERSUS THE BBC: The BBC is now in a full scale war with the British government. The Beeb, having launched a Rainesian campaign to prevent Saddam’s demise, has subsequently been engaged in a furious attack on the post-war management of Iraq and the alleged WMD “lies” the Blair government told to make the case for war in the first place. Finally, the Blair government is fighting back – and the charges against it are turning out to be as flimsy as those now being made against the Bush administration. A parliamentary investigation looks set to clear the Blair government of deliberately “sexing up” its dossier about Saddam’s WMD capability, leaving the left-leaning Beeb seriously isolated. The Guardian has more dope. But it’s somewhat remarkable to see the BBC this embattled and this politicized – with its executives in a public pissing match with the pols who appoint them. In a similar vein, Israel’s government has now cut off all links with the BBC and will not cooperate with its journalism, as a protest against what Israel has justly called “demonization.” In the last couple of years, the BBC has essentially thrown away the reservoir of trust it once enjoyed with the British public in order to become a left-liberal – and insistently anti-Israel – advocacy group. A Raines-like epiphany may be ahead.

Of course it was dismaying to hear Senate Majority Leader Bill Frist casually declare he favors writing permanent discrimination against gays and lesbians into the U.S. Constitution. Tampering with the Constitution as a way to prevent states deciding, as they always have, what constitutes a legal marriage would be an assault on federalism, an assault on gay citizens, and the equation of the meaning of the United States with active discrimination against minorities. But what was remarkable was Frist’s reasoning:

I very much feel that marriage is a sacrament, and that sacrament should extend and can extend to that legal entity of a union between – what is traditionally in our Western values has been defined – as between a man and a woman. So I would support the amendment.

That, of course, is a non-sequitur. You could believe all those things and still think that individual states should decide for themselves on legal civil marriage and that this issue should be dealt with slowly and with democratic deliberation, rather than in one single, polarizing campaign for an amendment. But leave that aside for a moment. I think Frist is also implying that only churches grant true marriage and that the state subsequently merely ratifies or acknowledges that sacred institution. Huh? Cannot atheists have civil marriage and view it as a simple human contract and a mark of citizenship – with no religious connotations whatsoever? Does Frist even acknowledge the full civic rights of non-believers at all, I wonder? The fact that the good doctor cannot apparently see a deep distinction between a religious marriage and a civil one shows, I guess, how close to theocracy today’s Republicans have become.

QUOTE FOR THE DAY: “[Bush’s] fiscal record is appalling – spending is out of control. The fiscal record of the Bush administration makes Clinton look downright responsible.” – Edward H. Crane, president of the Cato Institute, in today’s New York Times. If I were Howard Dean, I would combine my populist rhetoric with a laser-beam message about Bush’s fiscal recklessness: a left-right two-fer. Fiscal conservatives like me are going to be looking in 2004 for someone – anyone – who can control government spending. We know Bush is hopeless and cares not a whit about this country’s future fiscal health. What we need to know is that some Democrat won’t be so bad.

A few emailers have lamented that Clarence Thomas used the somewhat condescending term “uncommonly silly” to refer to a law that invaded privacy and ruined people’s lives. Perhaps there’s another explanation. The phrase “uncommonly silly” was used by Justices Stewart and Black in their dissent to the Griswold decision on contraception (paragraph 105):

Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

So that reference appeared to fly well over the heads of most of the media, me included.

ANTI-SEMITISM WATCH: Here’s an email sent by a British pathologist, turning down an Israeli PhD student for a place at Oxford University:

“Thank you for contacting me, but I don’t think this would work. I have a huge problem with the way that the Israelis take the moral high ground from their appalling treatment in the Holocaust, and then inflict gross human rights abuses on the Palestinians because they [the Palestinians] wish to live in their own country. I am sure that you are perfectly nice at a personal level, but no way would I take on somebody who had served in the Israeli army. As you may be aware, I am not the only UK scientist with these views but I’m sure you will find another lab if you look around.”

Charming, huh?

SUPPORTING IRAN: Pejman links to a moving open letter from one Iranian exile to the democrats at home.

It’s a killer ap.

BLAIR ON THE LEFT: Tina Brown reports on what really went on in the British government as war approached. Blair put his finger on the disingenuousness of some anti-war critics: “‘What amazes me is how happy people are for Saddam to stay,’ he ruminates to his team. ‘They ask why we don’t get rid of Mugabe, why not the Burmese lot. Yes, let’s get rid of them all. I don’t because I can’t, but when you can, you should.'” Don’t call their bluff, Tony. It will only get them madder.

“As a proud member of the VRWC, my only initial interest in Governor Dean was his strong political resemblance to George McGovern, who lost 49 states to the “evil” Richard Nixon in 1972. After seeing several interviews with the man, however, I am convinced that he is less like McGovern and more like Barry Goldwater. Dean’s positions on the issues are not entirely taken from the Old Left playbook. He believes that gun laws should be left to the states to decide, he recognizes the need for dramatic health reform that doesn’t involve transitioning to some Euro-style socialist state, and he is ahead of the game on recognizing civil unions, something that is inevitable in the long run despite the resistance of the paleocons.

The thing that dooms Dean’s political future, though, is the way he so carefully cancels out all of his interesting ideas with old, tired, worn-out leftist nonsense. His promise to raise taxes alone will destroy his candidacy in the general election. Combine that with his refusal to prosecute the war on terror and the Republicans may end up with the first 50 state victory ever.”- more feedback on the Letters Page.

THE UNIFIED THURMOND STORY: From the Onion.