A Truly Gay Fairy Tale

Reuters is reporting on reason number one-million for school choice. A teacher in Massachusetts shared a very gay fairy tale with seven-year-old students.

The crown prince rejects a bevy of beautiful princesses, rebuffing each suitor until falling in love with a prince. The two marry, sealing the union with a kiss, and live happily ever after.

That fairy tale about gay marriage has sparked a civil rights debate in Massachusetts, the only U.S. state where gays and lesbians can legally wed, after a teacher read the story to a classroom of seven year olds without warning parents first.

A parents' rights group said on Monday it may sue the public school in the affluent suburb of Lexington, about 12 miles west of Boston, where a teacher used the book "King & King" in a lesson about different types of weddings.

"It's just so heinous and objectionable that they would do this," said Brian Camenker, president of the Parents Rights Coalition, a conservative Massachusetts-based advocacy group.

Camenker said he believes the school, Joseph Estabrook Elementary, broke a 1996 Massachusetts law requiring schools to notify parents of sex-education lessons. "There is no question in my mind that the law is being abused here," he said.

"I wouldn't be surprised if in the next couple of weeks there was some kind of (legal) action taken," he said.

Lexington Superintendent of Schools Paul Ash said the school was under no legal obligation to inform parents the book would be read to the classroom of about 20 children.

"This district is committed to teaching children about the world they live in. Seven-year-olds see gay people. They see them in the schools. They see them with their kids," he said.

"I see this as a civil rights issue. People who are gay have a right to be treated equally," he said.

(Posted by Trask)

Civil Damages for Adultery III

Minette Marrin has some excellent commentary in the Sunday Times on the pending decision of the House of Lords over whether to affirm a court ruling that awarded damages for adultery. 

Marriage is, most importantly, a social contract, the most important social contract there is in a civil society. I think it should be seen as a contract. No one should be allowed to break it with impunity. The odd thing is that people often do break up their marriages with impunity, without any sense of one party being more to blame than the other.

That sort of perverse moral equivalence seems to be a tendency of the time. There are always two sides to a story; one side is just as responsible as the other; it’s impossible to judge — those are the things people nearly always say when their friends separate. Fifty-fifty is the outward and visible sign in the law courts of this attitude. The number of divorces where the family wealth is split equally between husband and wife has been growing. The figure more than doubled between 2004 and 2005, when it applied to 63% of cases, according to a survey published by Grant Thornton, the chartered accountants.

That may be right in some cases, but it is clearly wrong in others. If a wife gets bored with her perfectly reasonable husband and runs away with her well-toned personal trainer, it is wrong that she should be able to take the family home, children, maintenance and pension rights with her, totalling at least 50% of what the poor man has. Similarly if a husband abandons his perfectly reasonable wife and family for the office vamp, his spouse ought not to be the one that suffers more, financially; he should. If marriage is not a love affair, falling in love with someone else is not a good enough reason to end it without impunity. Nor is being bored.

This all might sound harsh. Of course I understand that life is complex, especially married life. All the same I have come across many cases of clear injustice when someone is not only abandoned, but impoverished, in someone else’s unreliable pursuit of happiness.

So I felt, I admit, a sneaking pleasure in a headline last week that said adulterers may pay the price for their marriage break-up. Why not, I thought. Bring back blame. Since marriage is a contract, blame can usually best be expressed contractually, ie, financially.

By that I don’t mean adulterers should necessarily be named, shamed and blamed. . . . What I am against is divorce. People who break up their marriages simply because one person has fallen in love with someone else should usually accept the greater share of blame.

For other postings on this topic, see Civil Damages for Adultery II and UK May Allow Civil Damages for Adultery.

(Posted by Trask)

History Demonstrates that Republicans Are Likely to Hold the House and Senate

Jay Cost has some excellent commentary at Real Clear Politics on the mid-term elections. 

[O]f these 7 times the House has switched, the Senate has also switched. Not only does the Senate switch more frequently, it always switches with the House. A switch in the Senate, therefore, seems to be a necessary, but insufficient, condition for a switch in the House. Conversely, a switch in the House is a sufficient, but not necessary, condition for a switch in the Senate. In other words, when the House has switched, the Senate has always followed; however, when the Senate has switched, the House has not necessarily followed. Thus, historically speaking, two scenarios are possible: the Senate alone changes or both the House and the Senate change.
. . .
Of course, one might respond, this argument could just as easily predict that both the House and the Senate will flip this year. The error that pundits are making, according to this line, is not with the House but with the Senate. Both are vulnerable. I do not find this compelling. One of the reasons pundits are so prone to write off the Senate is that they know more about the individual elections (this, by the way, is in keeping with senators' reduced incumbency advantage – individual senators are better known). They have a better sense of the electoral landscape, and therefore can appreciate that a net of six is prohibitively difficult. However, pundits know less of the specifics of House contests; thus, the House seems more promising. They cannot name the seats the GOP would have to lose to lose the House. If they could, they would find themselves naming many members most think are secure. A switch of the House still seems plausible, in other words, only because details are lacking.

History indicates that when the House switches, the Senate switches, too. Our knowledge of congressional elections implies that this is not coincidence. Accordingly, we can conclude that the safety of the GOP Senate strongly implies the safety of the GOP House. Further, we can issue a challenge to pundits who think the Democrats will take the House. They have an additional burden of proof: they must either indicate that the Senate will switch or why 2006 will be the first exception to a 92-year rule.

(Posted by Trask)

Mayor of Amsterdam Urges Other Countries to Approve Gay Marriage

According to BBC News, the mayor of Amsterdam is urging other countries to model the Netherlands. 

The mayor of Amsterdam has written to his counterparts in eight other European capitals, calling on them to uphold gay rights.

In his letter, Job Cohen warns that intolerance against homosexuals is on the increase.

The Netherlands introduced gay marriage five years ago, and Mr Cohen is urging other countries to do the same.

. . .

He calls on mayors to "adhere to the universal declaration of human rights, and to do everything in your political power to open up marriage for same-sex couples and safeguard the right of public demonstrations in your city," Agence France-Presse news agency reports.

In February, Portuguese officials turned down an application by a lesbian couple to get married.

Official statistics show that 8,000 same-sex marriages have taken place in the Netherlands since they became legal, AFP said.

According to the Population Reference Bureau, the fertility rate in Denmark is currently 14% below the replacement rate of 2.1 children per woman. Maybe, it would be better to model the marriage laws and social norms of countries in the world that are actually able to repopulate themselves.

Casey as Precedent: Upholding South Dakota’s Abortion Ban (An Agape Paper)

Ever since the decision in Roe v. Wade, legislatures in both the federal and state government have been enacting laws in order to either reduce abortions or eliminate the practice entirely. Part of the reason is the knowledge that the Supreme Court’s abortion jurisprudence is on questionable constitutional foundations. Another reason is that along with abortions questionable constitutional foundations, the right that Roe recognized has had a history of "see-saw … decisions expanding and contracting reproductive rights." For instance, in 1988 Pennsylvania passed a statute that put regulations on abortion, some of which were in open defiance of the Supreme Court’s 1986 decision in Thornburgh v. American College of Obstetricians & Gynecologists. Thornburgh held in part that informational requirements were facially unconstitutional as they were "poorly disguised elements of discouragement for the abortion decision." Yet, in 1988, Pennsylvania’s law specified that a woman must give her informed consent prior to the abortion procedure and that she be provided with certain information at least 24 hours before the abortion is performed. The Supreme Court eventually upheld much of Pennsylvania’s law, including the informational requirements that they had just held unconstitutional a few years before in Thornburgh. It is not surprising then that Roe’s constitutional and jurisprudential shortcomings invite legislatures to pass laws which might seem a lost cause in terms of vote counting.

When the Supreme Court heard the challenge to the 1988 Pennsylvania statute in Planned Parenthood of Southeastern Pennsylvania v. Casey, the first paragraph of the Plurality opinion recognized the phenomenon of the never ending challenges to its abortion jurisprudence. Justices O’Conner, Kennedy, and Souter noted that in the previous decade, the United States had asked the court to overrule Roe five times. The opening sentences of the opinion states "Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages … that definition of liberty is still questioned." The plurality viewed this particular case as one which contained a "dimension that the resolution of the normal case does not carry …. The dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." The Casey Court therefore recognized Roe’s oscillating standards, and attempted to resolve the doubt in order to protect the liberty interest discovered in Roe by calling all sides of the controversy to accept a common mandate rooted in the constitution. History shows the Casey decision did nothing of the sort, and the legal and political battles about the pregnant woman’s ability to end the life of the unborn child continue.

The latest example illustrating the result of the "jurisprudence of doubt" comes in the form of a South Dakota law that bans all abortion except to save the life of the mother. The law states that:

Any person who administers to any pregnant female or who prescribes or procures for any pregnant female any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female, is guilty of a Class 6 felony. S.D. Codified Laws § 22-17-5.1  (2006).

South Dakota’s law is very similar to the Texas law which was found unconstitutional in Roe. Like South Dakota’s law, Texas law exempted from the law "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." The Roe Court noted that similar statutes were in existence in a majority of the other States at that time. Why would South Dakota pass such a law and what can they expect will come from it?

This article will first explore the rationale that motivated South Dakota to pass a statute in what seems to be in stark opposition to prior Supreme Court precedent. The next section will provide an in depth analysis of the Casey decision in order to determine what, if any, circumstances would have to exist in order to persuade a Supreme Court Justice who previously upheld Roe’s abortion right to find South Dakota’s ban constitutional. The next section applies Casey’s holding to today’s epistemic environment and determines whether "the Court of an earlier day (read Roe and Casey), as its own declarations disclosed, had not been able to perceive" the factual underpinnings or understanding of those facts as we can today.