Positive Liberty

As of this post, I am leaving the blogosphere for what will probably be several weeks.

During this time I will be translating a long 18th-century French manuscript on a relatively short deadline. The pay is certainly worth it, but between this job and my dissertation, I will have no time to make blog posts, to read them, or to participate in comment threads.

While some historians seem to resent the translations they must do for their work, I have always found translating to be a moment of fun even in my dullest projects. I would love to find work as a translator, and depending on how this project turns out, I may just go for it.

In any case, I will certainly return to blogging, but I can’t say whether it will be next week or a month and a half from now; neither the manuscript nor the exact deadline has arrived yet. In any event, drop me an e-mail if you want to be notified when I return.

The Washington Post condemns Maryland Governor Robert Ehrlich for vetoing the Medical Decision Making Act:

The bill, passed by the General Assembly this year, is the kind of gay rights measure that even opponents of gay marriage ought to welcome — a recognition that unmarried couples exist, love one another and make key decisions during illness and death. Mr. Ehrlich had expressed sympathy with the bill’s purpose. Yet the politics that surround gay rights are fierce, and Mr. Ehrlich’s conservative base opposes the bill aggressively. Earlier last week, Mr. Ehrlich’s aides were talking about problems with the bill. By Friday, he had caved and vetoed it, saying it would “open the door to undermine the sanctity of traditional marriage.”

The bill would allow unmarried couples — same-sex and straight — to register with the state health department as life partners. It would guarantee registered partners basic rights when one is ill, dying or dead. They would have the ability to visit one another in hospitals, to make medical decisions when the other is unable to do so (and has not separately designated a decision maker), to authorize autopsies and to make funeral arrangements. In emergency situations, the bill would also ensure visitation rights to unregistered life partners…

Mr. Ehrlich made clear that his primary objection was that the bill created a formal status for same-sex life partnerships. “It is the predicate to domestic partnerships, which is the predicate to gay marriage,” Ehrlich said, while also suggesting that he would push legislation of his own to address the problem. “I’m going to protect marriage… It’s not debatable.”

And so marriage shall be “protected”–from the menace of gay people visiting their sick partners in the hospital. You can bet that if this veto stands, even more gays and lesbians will be denied medical and visitation rights, despite filling out paperwork designed to secure them. The veto sends a message, and Maryland’s overzealous hospital administrators will be certain to hear it.

Congratulations to the Post, at least, for noticing this and for making the right call.

If a planned California ballot initiative passes, you won’t have to worry about gays and lesbians degrading your marriages any further:

In addition to denying marriage licenses, the proposed amendment would take away many marriage-like privileges currently extended to same-sex couples registered as domestic partners. In addition, state and local governments would no longer be allowed to extend health benefits to domestic partners of gay or lesbian workers.

Many of these initiatives were set up by democratically elected officials–but no matter. The terrible pain and suffering you straight people have felt as you watched gays and lesbians try to ensure some small measure of stability in their lives… will be gone!

Remember, marriage is special, so it’s within your rights to do all of this to us. Gays and lesbians will even be severed from their loved ones in their time of need, which I am sure will make you smile. Here’s Equality California’s take on the amendment:

As drafted, the constitutional amendment would deny health insurance, hospital visitation, inheritance and medical leave rights to thousands of diverse California families. The amendment would also deny lesbians and gay men the right to be legally recognized parents to their children and would leave tens of thousands of children in California with no legally responsible parent.

I sure hope you’re happy. Here is the text of the initiative, from a site promoting it:

Section 1: Title

This amendment shall be known and cited as the Voters’ Right to Protect Marriage Initiative.

Section 2: Declaration of Findings and Purposes

The People of California have a compelling responsibility to protect the essence of marriage by ensuring that the civil institution of marriage between one man and one woman is not abolished or diminished. The People find and declare it is in a child’s best interest to have a mother and a father, and that marriage rights for one man and one woman should be protected for the well-being of children and families.

Section 3: Marriage Protection

Section 1.1 of Article 1 of the Constitution is added to read:

SEC. 1.1. a) Only marriage between one man and one woman is valid or recognized in California, whether contracted in this state or elsewhere.

b) Neither the Legislature nor any court, government institution, government agency, local government, or government official shall abolish the civil institution of marriage between one man and one woman, or diminish the civil institution of marriage between one man and one woman by bestowing statutory rights or incidents of marriage on unmarried persons, or by requiring private entities to offer or provide rights or incidents of marriage to unmarried persons. Any public act, record, or judicial proceeding, from within this state or another jurisdiction, that violates this section is void and unenforceable.

Chillingly, the site elaborates that, “Domestic partners may continue to register their relationships with the government, but cannot be awarded marriage rights of a husband and wife.”

Why on earth would anyone register their relationship with the government if they knew in advance that they could not receive any benefit at all?

What good could such a registry possibly do?

Maryland Governor Robert Ehrlich will veto legislation that would have let same-sex couples register for the right to make medical decisions, to visit in hospitals and nursing homes, and to plan funerals. It is unclear right now whether the veto can be overridden.

The decision affects me personally. I am in a committed seven-year relationship that my nearest biological relatives do not recognize. They may very well prevent my husband Scott from visiting me if I were incapacitated and would almost certainly reject his advice on end-of-life decisions.

It is absurd that my parents should be the ones to make medical decisions for me. I am not a child–yet the law treats me as an infant if I am incapacitated, and it would deny me the most important emotional support that I could have in times of need. The following is a true story:

Lisa Polyak and her partner, Gita Deane, have been in a committed, loving relationship for 24 years, and have 2 daughters. Lisa and Gita experienced shame and separation at a time when they should have had no other focus than the new life they were about to bring into the world. They were in the labor and delivery ward at Union Memorial Hospital in Baltimore, and Gita was pregnant with their 2nd child. Gita’s labor contractions became too intense and Gita asked for an epidural. The couple had gone to considerable effort to inform the labor nurses, the obstetrician and attending staff that they were together as partners and wanted to be treated that way for the duration of their hospital stay. They filed a Birth Plan, brought along copies of Power of Attorney, and did all the planning they thought was necessary. When the the anesthesiologist arrived to administer the epidural and prepared to thread the catheter into Gita’s spine, Lisa was sitting with her–holding her hand and rubbing her back as the labor pains peaked and receded. The anesthesiologist forced Lisa to leave upon finding out she was not “family.” Lisa left the room in the interest of expediting the procedure.

The most charitable thing I can say is that I do hope heterosexuals are getting some benefit from all of this, because gays and lesbians are clearly suffering. Equality Maryland documents some even more egregious cases of real-life refusal here. Many of them happened despite the individuals having taken legal steps like executing a will or a power of attorney, steps that we are told make marriage rights unnecessary or redundant. How any of this helps strengthen the heterosexual family is beyond me. Do episodes like these really give comfort or reassurance to faltering heterosexual relationships? I simply can’t believe it.

Early in the French Revolution, Jean-Paul Marat learned that the press had been liberalized. Immediately he went to the authorities and asked permission to print a newspaper.

They replied that he needed no permission; freedom of the press belonged to all citizens alike. But Marat insisted. Hoping to be rid of him, the municipality issued an impromptu statement of approval.

Marat placed a notice of their act in each issue of his radical journal L’Ami du peuple. Soon his writings became so incendiary that the government revoked its approval and attempted to shut down his press. Marat went into hiding.

Does the rise of crystal meth in the gay community mean that gays are less worthy of marriage? Do we as a community have to get our act together before we can hope for acceptance? Have we “not done enough” to win the hearts and minds of straight people?

I despise questions like these. They have no good answers and only invite the worst sort of collectivism.

This piece by Mary Eberstadt in First Things is one example of what I mean. She writes:

…even as the celebrations of gay rights roar on, reality glowers in the corner like an unwanted guest. For the argument that homosexuality is “virtually normal”–the argument, that is, on which the gay rights and gay marriage activists have so far won–is a hypothesis that is not only wrong on theological grounds but also as a matter of established fact. By “fact” I mean by the most secular sources imaginable: social science, medical science, psychological studies, and more–including sources overtly friendly to the normalization of gay rights.

None of that evidence, of course, will surprise those who actually minister to homosexual persons from a traditionalist perspective. But this same evidence is almost entirely unknown, because culturally verboten, throughout the secular world, and particularly among our secular elites; it is as studiously ignored in our own time as, say, evidence about family breakdown was in the early 1960s.

She goes on to mention addiction, depression, dropout rates, and suicide, concluding,

Sooner or later, someone is going to ask why, if being gay is cause for celebration, gay boys and men continue to kill themselves at significantly higher rates than do heterosexuals. Sooner or later, someone is going to wonder why, despite society’s open arms, virtually every study of gay mental health shows higher rates of depression, alcoholism, sexual addiction, sexually transmitted diseases, and the rest.

Facts like these are “culturally verboten,” you know, and our “secular elites” never hear of them. It’s not like they appear in The New Yorker or anything. And we conservatives are boldly unmasking the hidden problems of the homosexual community: It turns out that a widely reviled group of people, commonly discriminated against by law and custom… sometimes has a few psychological problems. So it must be their fault.

It must be their fault, and all their talk about greater social acceptance must not be trusted. They’re hiding something from the rest of us, and we should go on showing our disapproval of them. We must never be fooled by a group of people who ask us for respect or decency; the brave and honest thing to do is to look closely at them and expose whatever faults they have. And we should continue to discriminate against them until they are happy about it.

Aaron McGruder’s Boondocks almost outs a gay rapper. Hilarious.

Armistead Maupin did something like this in his Tales From the City series, where he all-but-outed a famous movie star: The closeted actor made a longish cameo appearance without Maupin ever once revealing his name. In some circles it’s still funny–and still a powerful message.

One year after same-sex civil marriage came to Massachusetts, Andrew Sullivan is celebrating:

The next generation will grow up - gay and straight - fully aware of the existence of marriage as an option for gay couples, even if that option is in another state or another country. That will deeply and subtly change social expectations for gay men and women; it will alter sex and dating; it will counter some of the homophobia and low self-esteem that strangles some gay youth. It will tell the next generation of homosexuals: you have a future. That future is one of love and commitment and social integration. It is not assured. But it is conceivable.

So seize the moment. One thing that amazes me about some gay people at this time is a recourse to fear, a sense that somehow we are doomed, that the religious right will crush us, that we have asked too much and will face the consequences. This is far too negative. Any look at the broader perspective has to concede that the reason homophobia is resurgent in some quarters right now is that we have come so far so fast. The religious right is frightened by our success, not gloating over our failure. The key thing now is to keep our nerve, to celebrate our relationships, to consolidate our gains in one state, Massachusetts, and patiently work, state by state, for equality to prevail.

So yes, let’s raise a glass. I’m tempted to note that my own legal marriage, celebrated in Canada, is now almost two years old. Young and healthy, Scott and I look forward to telling the grandkids about the times we’re living in right now: Not only were we there, not only did we see it happen, but we made it happen. We even have pictures to prove it.

But I’ve also spent a lot of time lately discussing with opponents of same-sex marriage. I think it is a good idea to listen to our opponents’ fears and to treat them with respect. This is not not because their fears are always legitimate, but because even if they are not, we will do well to understand their position. We may even learn something substantive about marriage, family life, and children. After all, these folks have been at it for a lot longer than we have.

One thread has been particularly instructive. Based on this and on several other discussions, it seems one of the first things that we advocates of same-sex marriage should learn is that many of our opponents do not find our demands to be sincere. When they look the argument for same-sex marriage, they don’t see an argument. They see a front for something else.

They believe that heterosexual marriage really is under threat, and that we really are attacking it. They find that those who agitate for same-sex marriage are either 1) secretly out to destroy heterosexual marriage or 2) dupes of those who are. And these people mean it, in case you haven’t noticed. They’re serious, and we’d best start taking them seriously too. As one anti-SSM commenter wrote,

to make the field level for gay people, we have to lower the standards for everyone — is that it?

Now of course there is a certain homophobia here. To my mind there is no reason why homosexual and heterosexual relationships placed in the same institution will drag only the heterosexual ones down. Given how many heterosexual marriages end in divorce, one would think that the greater problem lies with how successful marriages must share the same institution with so many failed ones.

It’s easy to point out that straights have botched the institution of marriage completely unaided, and that whatever harm has been done cannot possibly be ascribed to us. We might even recall the words of one man, never married, who advised some caution about attending to the mote in a neighbor’s eye. And, spitefully, we might note that most straight people aren’t even waiting until marriage to have sex anymore–tradition be damned. (And why should they? To wait for the blessing of God may be noble and principled, but to wait for the blessing of a bureaucrat is both unsexy and un-American.)

But all the same, for some reason the blame has come to us, and we who support same-sex marriage need to do a better job of answering the fears of the straight community. The above-quoted comment touched off the following response from another reader:

Believe it or not… people all over the country are protecting the foundational & beleaguered institution of marriage against would be imitators…

Before SSM proponents can convince people that their agenda is worthwhile they need to persuade people that protecting traditional marriage is unnecessary.

Now, this presents many difficulties, not the least of which is that we cannot prove a negative. What puts us in this unfortunate position at all, though, is that so many have been sold on the idea that same-sex marriage can only advance as traditional marriage retreats. This was Maggie Gallagher’s warning from a year ago, on the eve of same-sex marriage in Massachusetts:

Cultures, communities, religions, sects and societies that lose the marriage idea die out. They are replaced by cultures, communities, sects and societies that prioritize, celebrate and embrace the idea of bringing men and women together to make the future happen. That’s what marriage means.

The problem here is that same-sex marriage isn’t really in competition with opposite-sex marriage, except perhaps for the tiny minority of bisexuals. If you are straight and oppose same-sex marriage, ask yourself: Would you really be tempted to partner with a member of the same sex–but only if you could marry him? Would you personally be less inclined to marry a woman–merely because men can marry one another? Would you be so put off that you’d forsake procreation with your wife? And this just because you once had to stand behind a homosexual at city hall?

Now, I am well aware that there may be unintended, unknown consequences to same-sex marriage, and that proceeding too quickly may do a harm that we cannot see. This is exactly why the United States has a federal system, which makes certain that unintended consequences usually arrive slowly and with plenty of time for correction. Our federal system means that we can forthrightly go about challenging those things that seem wrong to us–with far less fear that we ourselves will commit a disastrous mistake. If this means waiting longer for justice, then fine. It’s the price we pay for avoiding a great many unseen evils, and it means that the fear of unintended consequences should not stop anyone from working peacefully toward their own idea of justice.

Lest there be any further fears, our message to straights should be that by sheer numbers, opposite-sex marriage will always be dominant. And that’s perfectly fine with those of us on the same-sex side. We like marriage so much that we’ve imported it to places where it had never been found before. In doing so, we have seen marriage revitalize and transform the gay community.

Even where legal marriage doesn’t yet exist, more and more of us are performing rites to affirm our commitment. It’s given us a way to declare ourselves to friends, family, and the members of our faith communities. Even without the rubber stamp of the state, the movement for same-sex marriage has brought greater understanding and affirmation for same-sex relationships. The dignity of standing before others and declaring a lifelong love turns out to be important after all. More than anything else, the transformation that marriage has wrought upon gays and lesbians should be a sign of the institution’s latent strength, not its present-day difficulties.

In other words: Relax. It’s been a heck of a year, just not in the way you expected.

Sorry for no new material this weekend or Monday. I have been busy pursuing job opportunities as well as working on my interminable dissertation. I should have a fairly long post this evening. Meanwhile, here’s my daily dose of outrage.

In lieu of a post today, I recommend you visit the Thirteenth Carnival of the Godless, hosted by the weblog Scottish Nous. There you will find posts by atheists, skeptics, freethinkers, and infidels of every shape and size. I don’t have a submission this time around, but a number very intelligent people do, as do several bloggers I have not yet had the chance to read. Ecrasez l’infâme.

A U.S. District Court judge has overturned Nebraska’s constitutional amendment that denies state recognition to same-sex marriages, civil unions, domestic partnerships, and “other similar same-sex relationships.” [Citizens for Equal Protection, Inc. v. Bruning, full text in pdf]

You’d think I would be delighted, but I am not. The decision is one of the strangest hodgepodges of legal theory I have ever seen, resting on the bill of attainder clause, the equal protection clause, the First Amendment’s right to petition for redress of grievances (!), and the unenumerated right to intimate association. Eugene Volokh dissects the decision here, finding all but one of the grounds to be mistaken or even absurd.

I’m not an expert, but I quite often know when legal chicanery is afoot, and the whole decision has a rotten smell to it. It is as though every conceivable bad argument were marshaled to overturn the amendment, in one grand concert that aimed directly at arousing the religious right. And then there comes one decent rationale for the action–alas, not carried to its fullest conclusion–but that still more than suffices to throw out the Nebraska amendment.

Now, I can only imagine that the judge does not take very much of what he has written seriously. I mean, did the nation not just get a massive seminar on the bill of attainder clause in the Schiavo trial? Didn’t we all learn that the clause applies only to criminal prosecutions? Likewise, as Prof. Volokh observes, the constitutional prohibition of any action whatsoever would violate the First Amendment’s right to petition if the reasoning in this case were followed. It is as though the case were purposefully set up for sabotage. What reason exists for all of this meandering?

The one reason for overturning the amendment that seems plausible and even compelling to me is the argument from the Fourteenth Amendment’s equal protection clause, which in present-day practice requires the use of the so-called “rational basis” test when a piece of legislation not touching on a suspect category like race or gender is challenged. In other words, is the nonrecognition of same-sex marriage, civil union, domestic partnership, and all similar situations rationally related to a legitimate government purpose?

The same-sex marriage debate so far has fallen almost wholly on establishing the question of rational relation; most in the debate seem to take the purpose of protecting heterosexual marriage as a fully legitimate aim of government. Some say that a rational relation exists to this purpose, while others deny it. Helpful commentary comes from Joshua Claybourn at In the Agora, as well as in the comments to his post, where I have participated actively.

Now, I do not believe that a relation can be found to the end of protecting or encouraging heterosexual marriage, which is clearly how this particular amendment was promoted among the electorate. Suppose, for instance, we wished to encourage marriage among people who were right-handed. Assuming that this is a legitimate goal, would prohibiting marriage among people who were left-handed be rationally related? Certainly not.

To hold that a prohibition of homosexual marriage will encourage its heterosexual counterpart seems to rest on one of two arguments. The first requires us to recall that even before this amendment, Nebraska did not allow same-sex marriages. The argument then runs that an additional prohibition will drive homosexuals to take up heterosexual marriage, and perhaps heterosexuality itself, even when they did not take it up before: Where the nonexistence of gay marriage did not suffice to make gay people straight, the new constitutional amendment, making gay marriage doubly nonexistent, will surely do the trick.

Here I thought conservatives were supposed to mistrust the power of government.

Whether these new Nebraska marriages will be happy, whether they will be loving, or even whether they are the type of thing the state should be supporting, is all quite beside the point. What matters is getting more bodies into the institution of heterosexual marriage at all costs. And a change in the type of prohibition that is applied to a nonexistent institution bears rational relationship to that end.

If you find this argument implausible, there is always another option, one best described by Jim Henley in a brilliant post from last month:

easing couple-formation among Class A is supposed to make couple-formation less attractive to Class B….[But] Class B so reviles Class A that they will, at the margin, want less to do with any institution Class A has contaminated. Social conservatives on their best behavior are at pains to avoid this one.

The first argument is ridiculous; the second is morally repugnant. Still, some do endorse it, fearing that homosexuals will “degrade” heterosexual marriage if both are forced to use the same institutions to secure the protections generally given to marriage.

In other words, I have yet to see a rational relation of any sort at all to the goal of promoting heterosexual marriage. Josh Claybourn has suggested that the legitimate government aim being sought here was not the promotion of heterosexual marriage, but the prohibition of homosexual marriage, which the amendment obviously does quite effectively. But this begs the question, as becomes clear when we imagine analogous legislation ad libitum: The prohibition of buying or selling cabbage bears a rational relation to the aim of prohibiting the cabbage trade. The outlawing of interracial marriage bears a rational relation to the aim of prohibiting interracial marriage. And so forth. The question, as Josh recognizes, is now whether the aim in question is legitimate.

Enough of Promotions and Inhibitions. I do not find that the promotion or the inhibition of marriage among any segment of the population–or among all of the population in general–is a legitimate government purpose. It is frankly illegitimate for a government to tell anyone how to conduct his intimate life. It is illegitimate to encourage or discourage people from performing certain religious rituals. It is illegitimate to prevent me from disposing of my finances as I see fit, provided that I commit no fraud. It is illegitimate to extend a type of contract–that is, a civil marriage–only to one class of citizens, while not to another. The nudging, the prodding, the cajoling, all of it is illegitimate.

My neighbor’s decision to get married or to remain single neither picks my pocket, nor breaks my leg, nor interferes with any of my rights under the Constitution. If there is no such interference, then where is the government’s legitimate aim?

(Incidentally, whether or not the government recognizes certain contractual provisions between two citizens ought to be entirely separate from the question of religious marriage. And even when the decision to get married is taken in its religious context, the government’s only business in this realm is to ensure the free exercise of religion, for all religions, including those that celebrate same-sex marriages. Distinguishing two classes of religions, those that approve same-sex marriages and those that do not, seems to violate the First Amendment at least in some vague sense, though I admit that I know comparatively little in this area.)

In the final analysis, I’d argue that the Nebraska amendment fails the rational basis test for want of a legitimate government aim. As a libertarian, I am well aware that I recognize far fewer “legitimate” government aims than most. I would in all likelihood make a terrible district court judge, even if I did go to law school, because I’m not willing to play games like the ones I see in this decision, wherein a tiny kernel of reasoning is–mysteriously–wrapped in a mass of confused and troubling illogic.

But let’s be frank about all of this. The real goal of the voters here was never to encourage heterosexual marriage. Nor was it even to discourage homosexual marriage. The real purpose behind this amendment was to prevent dykes and faggots from being treated as though they were actually human beings. Now we can dream up all sorts of potential reasons that might justify the amendment, and, through some wondrous instinct toward self-preservation, the law itself even requires us to do so when it happens to fail. But we know the real reason behind the amendment, and it should be abundantly clear to everyone. At times it was even clear to Judge Bataillon, as when he cited Romer v Evans, a case that struck down an anti-gay Colorado amendment after finding behind it no greater rationale than “animus.” Laws like these are not merely illegitimate, in the sense of lacking a genuine aim. They are downright oppressive.

To the end of dehumanizing a segment of the public, this amendment bears a direct and compelling relation, and perhaps we had best be honest about it. The most agreeable outcome now, if not the most proper one, would be if the superior court overturned the decision, and enacted the will of the people, warts and all. It would prevent the conservatives from howling. It would forestall the obnoxious and hateful “Defense” of Marriage Amendment at the federal level. And, in my wildest dreams, a really good reversal would even cite the precedents that obtained prior to Loving vs. Virginia, which the wise people of Nebraska have apparently revived. Judicial restraint demands that we accord them their wishes, and this is to say nothing of the principle that as one sows, so shall he reap.

Taking off my libertarian cap for a moment, but only for a moment, something very interesting seems to be happening in mainstream jurisprudence. In this decision, as in Romer, the courts have shown a reluctance either to declare homosexuals a suspect class, subject to higher levels of constitutional scrutiny, or to declare that, under the essentially empty standard of rational basis review, discriminatory laws against homosexuals quite often pass muster. The result is that rational basis review is growing in strength and scope, and that, weirdly, prohibitions against anti-gay discrimination are being enshrined by reasonings that are in theory even stronger than those against race or sex discrimination. [On further consideration, this difficulty with the rational basis test–it’s weak when government power expands, but strong when the rights of homosexuals are threatened–may also explain why so many other rationales went into the decision.] Even I have a hard time agreeing with the rational basis test as it’s being used here, under the present regime of constitutional interpretation. And this means it’s high time to put my libertarian cap back on.

Update: The more I think about the decision, the stranger it seems. It should be stressed that the ruling nowhere provided for same-sex marriage in Nebraska, and in fact it quite explicitly disavowed doing so. Instead, decision concerned itself primarily with the level of access that the state of Nebraska provides to various legal remedies for an identifiable group of people.

The court is right to find something invidious here, though it seems to do both too much and too little: It does not peg homosexuals as a suspect class according to standard civil rights jurisprudence. But it does identify all those who might want to participate in a marriage-like arrangement–same-sex marriage, civil union, domestic partnership, living will, power of attorney and so forth–as a class of some sort. The class is perhaps (not sure on this) created by the amendment itself, and it could include gays, bisexuals, and even heterosexuals.

The bill of attainder line of argument is shot through with this sort of thinking, as for a law to be considered a bill of attainder, it must specify an individual or an easily identifiable class for punishment. But here the class is not easily identifiable: Many homosexuals would not want to enter a marriage or a civil union, while conceivably, many heterosexuals would want the protections a domestic partnership or a living will would provide. The class in question is only identifiable retrospectively, and thus it cannot be distinguished–in the legal sense–from the class, say, of people who lease their homes, or people who incorporate businesses, or people who own stock, all of whom are subject to regulations that are not bills of attainder.

How’s that for a precedent? If the equal protection reasoning stands on appeal, it could make for some very big changes down the road (to say nothing of the bill of attainder reasoning, which from where I sit seems to turn the entire legal system upside down). If a state constitutional provision may be struck down because it “denies access to the political process,” as stated in the ruling, then it is difficult to think of a constitutional provision that would not be struck down: Aggrieved minorities of all sorts could claim that state constitutions deny them of, well, anything. This affronts both the rule of law and the distributed knowledge-seeking system of federalism.

I also remain puzzled why an issue of religious discrimination was not raised in the case: Some religions recognize same-sex marriages, while others do not. Isn’t it discrimination to identify one class of marriages, identifiable by religious denomination, as valid, while another class is not necessarily valid? This argument might not stand, though, because of the precedents about polygamy. Taken as a whole, polygamous and same-sex marriage make a pretty strong case for why the government ought not to be encouraging or discouraging intimate relationships of any type at all.

Other bloggers discussing the decision include Law Dork, Kip Esquire, Right Side of the Rainbow, and David Schraub, who has a lengthy analysis of his own. Here is a highlight:

The most glaring is that it is fatally vague. The second clause reads as follows: “The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.” “Similar”? What the hell does that mean? The phrase could justify anything.

Many find cohabitation a state “similar” yet inferior to marriage, for instance, and it is surprising that the vagueness of the amendment’s second section wasn’t used as a justification for severing it from the first.

As with much I have written, this post began as a comment on something I read at In The Agora. Soon it became a creature of its own. Paul Musgrave writes,

So what’s wrong with performance-enhancing drugs anyway? Only the strictest moralist or some subsets of the religious object to the use of one performance-enhancing substance, caffeine, which some authors have seen as the drug which created the modern world. And alcohol, the well-known mind-altering substance, is available on practically every street corner. If drugs are okay in the workplace and the bar, then why shouldn’t athletes and students be allowed to boost their own performances through chemicals?

More of Paul’s thoughts can be found here, where he argues that there is nothing wrong in principle with taking drugs to enhance one’s brain power.

One common objection is that performance-enhancing drugs deprive us of the character-enhancing benefits of hard work and discipline. I disagree.

While I firmly believe in the virtues of good hard work, I have a difficult time condemning mind-enhancing drugs, or even steroids, as the moral danger that many claim them to be, at least not in situations of market competition. On the contrary, technological advances that allow for more marginal productivity and exchange are the very engine of capitalism. Merely because these advances are sometimes ingested does not change their fundamental character.

As Paul notes, we live surrounded by inventions that make “hard work” a whole lot easier. Do we complain that cars rob us of the work ethic, because we no longer have to walk or ride horses to our jobs? Do we curse the dishwasher and the central heating system because they let us stay warm and tidy with a minimum of work? Are computers a temptation? Then what about paper, which has robbed us of the salutary work that went into making parchment and vellum? Where exactly do we draw the line?

I take steroids every day for asthma. The result? I can run faster, work harder, feel more alert, and never have to struggle with my lungs to get more air. Does this mean I’m doing something immoral? Does it become immoral only when I start being able to play baseball well?

At some point, we have to say that while hard work is wonderful, so is technology, which allows us to use our labor on making new artworks, writing stimulating literature, inventing life-saving medicines, and so forth–rather than endlessly scraping the parchment of tradition, hoping thereby to build our characters.

Work is essential to the modern concept of well-being, as is innovation–and so too is marginal exchange for the useful goods made by others. If I can produce something that benefits me, great. But if I can produce and sell something that benefits others, too, then everyone wins. To buy a drug and use it as a way of increasing your personal productivity is nothing less–and nothing more–than an act of marginal exchange: The buyer trades his excess, comparatively unuseful dollars for pills that have a higher utility to him, but less marginal utility to the manufacturer. This utility allows the buyer to do more work, just like buying a computer or a bulldozer might do in only a slightly different situation. In such a way our resources are allocated–and expanded–to maximum efficiency.

Interestingly, neither computers nor any other performance enhancers will do much of anything unless there is some actual performance to enhance. Will the enhanced person achieve more than someone who did not have such tools? He should, and he will, provided only that he works at it, for the market rewards the wise allocation of labor and capital.

Our lingering fear of marginal exchange, of the unfair magic it seems to work on its participants, has held back human progress in more areas than I can even begin to count, from trade protectionism and price controls all the way to the development of new drugs like these. Are your performances enhanced? Good, I say. More power to you. It’s that much more that you might trade with me, and I like to have a lot of choices. Who doesn’t?

There is one situation, however, where performance-enhancing drugs make things a bit more complicated: Within an academic program, the goal is not quite to produce and exchange as much surplus value as you can. Instead the goal is to develop one’s mind, a furiously difficult thing to measure. So far as I can tell, education may be done either with or without the use of mind-altering chemicals (though I personally would never have gotten through grad school without caffeine, and alcohol certainly didn’t hurt either).

Here’s a science-fiction scenario: As mind-enhancing drugs improve, grading academic assignments by weighing them against one another may one day become appreciably more difficult, just as steroids have already compromised athletic records. While I view the latter as less of a problem than most, the arrival of a drug that significantly enhances personal intelligence would make everyday classroom life a lot more complicated.

As an instructor, I would want my students to take it, because I like being able to multiply the power of my labor. Yet I would also respect the decision of a student not to take the drug, even while I might disagree about the wisdom of the choice. Grading a mixed class fairly, though, would be difficult to impossible. In other words, while I would love to have drugs that increase intelligence, I’m also glad that they aren’t here quite yet. Ironically, I have a lot of thinking to do before they arrive.

For all the havoc it would create in the universities, our sci-fi mind-enhancer may yet be a blessing in disguise. Though many instructors don’t like to admit it, college grades are already a threatened institution, withering under the twin assaults of massive grade inflation and massive online cheating. We might even be better off without grades at all, and if finding a drug that makes us all more intelligent means that we must give up certain letters that perhaps never sufficiently measured intelligence anyway, I think we might stand to profit in the exchange.

No one at Southern Methodist University knew–for sure–who The Phantom Professor was. The professor’s blog, like those of many untenured academics, was anonymous and the university was never named.

Sure, readers learned that the Phantom Professor’s college had a lot of wealthy students, many of whom dressed alike, and many of whom weren’t particularly good writers. But that doesn’t really narrow it down. And the Phantom’s university was one where many adjuncts, like the author of the blog, felt invisible and ignored–not exactly an unusual quality…

Read the whole thing at Inside Higher Ed, via Cliopatria. The professor in question was fired, probably for writing gossippy though still-kinda-anonymous posts like this one, this one, and this one.

While I often write on academic issues here, I do think her postings crossed the line. I would never, never write about the personal problems of a student or a colleague, be it anonymously or not. I don’t see what good it does. And any academic, even any student, could easily come up with a few dozen stories just like the ones she posted.

Now, if you want to make a critique of the academic system, that’s quite another matter. Why not give that critique a little more force–and credibility–by dropping the gossip and signing your name? I’ve done it before, and I will likely do it again as the job hunting season draws near.

If you feel you can’t sign your name, then you need to ask yourself two difficult questions: Is my complaint justified? And if so, do I really want to work at a place that would fire me for making a justified complaint?

Life is a banquet, and most poor bastards are starving to death. — Auntie Mame

This is the peachtree that grows in our front yard in Glen Burnie, Maryland:

Last week it started to bud:

Most everyone in the United States can walk into a grocery and buy peaches for something like $2.99 a pound, but until you have tasted the genuine article, you don’t know what you’re missing. Grocery peaches are mushy, mealy, flavorless lumps, so dull that I actually find them nauseating–a void where a peach should be. They are fake peaches; the growers have ruined everything good about the fruit in their quest to deliver the cheapest possible product.

Real peaches are so much better that I am even willing to grow an entire peach tree, to water it, to fertilize it, to prune it, and even to kill off the ants that live at its base. See where the trunk is crooked? That’s where Hurricane Isabel ruined a branch. Mercifully, the rest of the tree survived. After years of labor, it’s just starting to come into its own.

I am even looking forward to real peach Bellinis this summer, made with Maryland’s own Boordy sparkling wine:

The Drink
2 large peaches, cut into chunks
1/2 cup sugar
2 teaspoons fresh lemon juice
1 bottle Champagne or sparkling wine

Garnish
1 large peach, cut into 6 slices
6 mint sprigs

Combine peach chunks, sugar and lemon juice in a bowl. Allow to rest 30 minutes. Place mixture in a saucepan and bring to a boil, stirring until sugar has dissolved. Reduce heat to low; cover and cook 15 minutes. Remove from heat and allow to cool. Pour through a strainer, pressing solids to extract flavor and juices. Chill. Discard any solids.

Place about 1 tablespoon peach syrup in each flute and fill with Champagne. Garnish with a peach slice and mint sprig.

Here is a note to the produce growers of America: I would gladly pay ten or even fifteen dollars a pound at times if I could only expect your peaches to be as sweet and flavorful as the ones I grow at home. I would pay much more for apples, melons, berries, and indeed for all my produce, if only I knew it would taste the way it should. There is a hidden market out here for quality, and you’re not tapping into it.

High-end products would obviously cost a lot more to produce, but like I said, I’m willing to pay. As things stand, I’m not buying any of your peaches. Few fruits are so easily ruined, and peaches aren’t even worth gambling on anymore.

Would I really pay fifteen dollars a pound to get good peaches? You bet. I imagine myself never having to compost another pound of godawful mushy blobs, never having to disguise them with spices in mediocre pies, never having to augment–horrors–augment my Bellinis with peach schnapps, which somehow manages to taste more like a peach than most actual peaches. Produce growers of America, these nasty, inedible peaches are really only good for one thing, and that’s as fertilizer for the tomatoes out back… Come to think of it, we really have to talk about your tomatoes, too.

So far as I can tell, fake peaches find their chief use as decoration in the grocery store. They look nice. They always look nice. That’s what they’re there for. It leads me to wonder whether my real gripe is with the groceries–or with the people who shop in them.

I’ve watched other people shop perhaps more than is good for me, and it often seems like the typical American subsists on little more than toaster pastries, TV dinners, ice cream, and carbonated soft drinks. On their way to the freezer aisles, consumers like these steal a glance at the beautiful but mostly fake fruit in the produce section. It’s nice to think healthy thoughts, once in a while. Then they make the same shopping choice they’ve been making their whole adult lives: shrink-wrapped plastic food, seven nights a week, washed down with a liquid form of the same.

Some of them don’t even vary their frozen dinner choices: The day before I photographed my peaches, I noticed a woman buying a whole cartload of one single type of TV dinner. I can only assume she was eating exactly the same thing, day in and day out, for an entire shopping cycle or possibly longer. And it’s not the first time I’ve seen it.

It isn’t as though food were that much of a financial burden to the average shopper. Today’s Americans typically spend only ten percent of their gross per capita income on food. By contrast, the peasants of 17th- and 18th-century France spent the overwhelming majority of their incomes on it. Often the relative proportions were exactly reversed; many of these unfortunates spent 90% of what they made just in putting meals on the table, a number that is nearly unthinkable even among the poorest Americans.

The peasant diet consisted almost wholly of cheap, low-quality bread made from whatever grains were available. In famine, chestnuts, grass, and even sawdust might get pressed into service as an ersatz flour. And when the price of bread rose by more than ten percent relative to wages–a common occurrence–all those peasants spending 90% of their income on bread would simply starve. They had no choice.

We, who never worry about having enough to eat, have forgotten how to dine. We could so easily turn our food into the adventure of a lifetime, growing our own peaches, brewing our own beer, even buying scary exotic fruit that we’ve never heard of before. Yet so many of us return again to our horrid, soulless plastic food. So many of us tolerate our fake peaches, fake TV dinners, and even faker soft drinks.

Why? And will consumers ever learn that while quantity is wonderful–it sure beats starving–there is also something to be said for quality? Organics are great, and many of them do taste better on the whole, but I’m not talking about organic gardening. I’m talking about good-tasting food, and I honestly don’t care too much if farmers reach for the occasional pesticide or synthetic fertilizer to get there. We Americans have the money to demand better-tasting food, and if we can pay for aisle after aisle of yuck, couldn’t we pay for a small plate of wonderful?

I strongly suspect that while we food connoisseurs are an underserved market, we might also be a dying breed. “Who has time to cook anymore?” so many people ask themselves. To me, it’s like asking “Who has time to listen to music?” Pleasure makes time for itself, and maybe in time more consumers will rediscover the lost pleasure of cooking and eating foods that actually taste good. But for now, I’m going to keep growing my peaches, and tomatoes, and melons, and raspberries, and basil, and lemongrass, and…

Randy Barnett replies to my post on legitimacy in government, though I am not certain that he has answered my objections. To clarify, I do not believe that legitimacy rests on the fulfillment of a subjective perception of the citizens’ rights.

I do find, though, that competing definitions of rights are a near certainty in the modern world. These definitions might all lay claim to being the one true definition–and without a means of sorting out their claims, we will not be able to assess the legitimacy of a government using the argument set forth in the first section of Restoring the Lost Constitution.

As it happens, the remainder of the book shows that Barnett and I substantially agree on what rights an individual should have. To assert that these rights are objective takes a further step that is not provided, but that seems necessary in the context of the argument about government legitimacy.