Now that Proposition 8 has been struck down, will gay marriage become the law of the land?

That's the central question of my Scripps Howard column with Ben Boychuk this week. My take:

Whether the Supreme Court strikes down gay-marriage bans may depend entirely on the attitudes and disposition of Justice Anthony Kennedy, who tends to be the swing vote on controversial issues. Reading his 2003 opinion in Lawrence v. Texas -- the ruling that struck down laws making homosexual sex a crime -- it's difficult to see how state bans on gay marriage will survive.

It is true that Kennedy, in his 2003 ruling, was careful to state that decriminalizing such sexual practices did not require formal government recognition of gay relationships. But the logic of that ruling is compelling in the context of gay marriage.

The logic was this: To use the law to set apart homosexual conduct "demeans the lives of homosexual persons," and thus is at odds with the guarantees of liberty provided by the U.S. Constitution.

Kennedy was right then, and he would be right now to say the same thing about gay-marriage bans.

Such a ruling would invariably bring cries of "judicial activism" from the right, but it's entirely appropriate for the courts to get involved. Since at least the late 1960s, the right to marry has been considered a "fundamental right" under the U.S. Constitution --and nobody seriously contests that. Fundamental rights, it should be noted, cannot and should not be contravened by legislative action or statewide referendums. They simply exist.

Walker correctly realized this in his ruling. Gay couples, he wrote, "do not seek recognition of a new right. To characterize (their) objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

If the Supreme Court follows its own precedent, it will agree. And that will be a good thing.

Ben obviously has a different take on things, about which I can say little more than what I have. I do have to take issue, though, with one of his remarks:

Marshalling one-sided testimony from social scientists led Walker to conclude: "Gender no longer forms an essential part of marriage," "parents' genders are irrelevant to children's developmental outcomes" and, incredibly, "the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage."

Here's where it must be noted that if the testimony in the case seems "one-sided," it's because the Proposition 8 proponents who argued the case at trial barely bothered to put on a case. They called just two witnesses, one of whom -- David Blankenhorn -- wasn't a researcher, exactly, but a pundit. (From Prop 8 on Trial: "He has never written a peer-reviewed article on the effects of same-sex marriage nor, by his own admission, studied any of the legal cases in which the United States Supreme Court has declared marriage a fundamental right.") I think it's fair to say that Ben is just about as qualified as Blankenhorn to make the pro-Prop 8 case -- and Ben, despite being widely read and a great writer, isn't qualified at all to testify as an expert witness.

Qualifiactions aside, though, he wasn't exactly a stellar witness for his side:

Under cross-examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study that showed children reared by gay couples fared worse than those raised by heterosexual parents.

Blankenhorn also conceded that same-sex marriage would probably "improve the well-being of gay and lesbian households and their children."

Further down our column, Ben complains that Judge Walker "simply asserts" that voters based their decisions based on moral disapproval. But the pro-Prop 8 attorneys basically tried to assert their way to legal victory in this case. That's not the fault of Walker, nor is it the fault of gay marriage advocates. And it's hard to avoid the conclusion that the pro-Prop 8 lawyers barely put on a case defending the Constitutionality of a gay marriage ban because, well, they didn't have much of a case to make.

The Cordoba House mosque, Ground Zero, and all you religious people trying to run my life

That's the topic of my Scripps Howard column with Ben Boychuk this week. Since you already got most of my take in blog form last week, let me do something different and focus on Ben's take.

An excerpt:

Now let's contrast Washington with Feisal Abdul Rauf, the imam behind the Cordoba House project who wrote a fascinating book in 2004 called "What's Right with Islam Is What's Right with America." In it, Rauf casually argues that the U.S. Constitution and the core principles of Islamic law (sharia) are not in conflict at all and, indeed, the "American political structure is sharia-compliant."

"Islamic law and American democratic principles have many things in common," Rauf wrote, stressing that sharia's support for "political justice" and "economic justice ... for the weak and impoverished" "sounds suspiciously like the Declaration of Independence."

To the casual reader, maybe. Fact is, sharia doesn't recognize the separation of church and state, has a medieval understanding of equal rights and sanctions treating Christians and Jews as second-class citizens who must pay a tax to receive Muslim protection. In other words, to "demean themselves as good citizens" in a "sharia-compliant" America is something very different from what George Washington would have understood.

I'll sum up, at the risk of oversimplifying: Muslims -- at least the Muslims involved in Cordoba House -- think that society should be run according to Islamic precepts. And my response is: Of course they do!

To my liberal, agnostic eyes, though, that doesn't appear all that different from, well, any other religious group -- or, admittedly, that different from secularists who'd like to get through the political day without having to argue against somebody else's faith. There are very few people who think that society shouldn't be run according to their particular view of the universe.

Let's take the Southern Baptists. Here are some excerpts from a resolution "on political engagement" members of the convention approved in 2008:

WHEREAS, Christians acting as the salt of the earth and the light of the world (Matthew 5:13-16) have a responsibility to engage their culture, including participating in the political process; and

WHEREAS, Candidates for political office seek the endorsement of Christians for their candidacies; and

WHEREAS, Christians exercising their rights as responsible citizens may choose to endorse candidates for political office as part of the exercise of their engagement of culture; and

WHEREAS, Christians should seek to apply their spiritual and moral values to the political process rather than politicize the church;

(snip)


now, therefore, be it

RESOLVED, That we urge Christians to engage the culture through discipleship within the churches and through participation in the democratic public policy and political process in order to help fulfill the kingdom mandate taught in the Bible and expressed in the Baptist Faith and Message “to bring industry, government, and society as a whole under the sway of the principles of righteousness, truth, and brotherly love,” while always protecting freedom of conscience; and be it further

RESOLVED, That we encourage our churches regularly to teach and preach biblical truth on moral issues and to urge their members to vote according to their beliefs, convictions, and values; and be it further

RESOLVED, That we call on candidates for political office to endorse the Judeo-Christian beliefs, convictions, and values upon which society should rest.

Now, see, I find that last part alarming -- the Constitution pretty clearly states there should be "no religious test" for public office, but the Southern Baptist Convention believes candidates should have to pass the test anyway. They may not be at odds with the letter of the law, but it's certainly against the spirit. And the Southern Baptist Convention does this all the time, letting officials know they don't want gay people to serve in the military or have marriage rights or even have the right to hold a job! Baptists aren't just stating personal preferences: They're stating that American society should be run along Southern Baptist lines.

But let's not pick on merely the examples I find objectionable. Let's take a look at a rather more liberal church, one whose beliefs are somewhat closer to my own: The Episcopal Church of America. Here's a list of legislation passed by church leaders at their 2009 convention -- there's a condemnation of "first strike" military action, a condemnation of the invasion of Iraq and America's "sin committed in Iraq," and even a call to end the U.S. embargo in Cuba. Episcopalians, in other words, want the United States to run its foreign policy along lines acceptable to a branch of the Church of England!

How crazy is that?

Well, it's both kinda crazy and not-so-crazy. It is -- again from my agnostic eyes -- a little weird that we let our speculations about the possibility of a divine entity who may or may not exist guide how we organize our society. But in my warmer, wiser moments, I realize that politics are an expression of values -- and that an invidual's values are shaped by their religion, or shape the religion itself.

On the other hand: America's about as secular as it ever has been in its history. And it's still pretty religious. Somehow, we've survived pretty well without becoming a theocracy and without banning Bibles from public streets. So maybe it's ok if I recognize that the tensions exist, but that they haven't overwhelmed our system. Southern Baptists surely have an influence on our governance, but they don't out-and-out run things. What's more, Southern Baptists have attempted to influence and shape American governance in a decidedly conservative way -- and yet there's never been any serious effort, that I know of, to deny them their First Amendment rights of worship. Why would we treat Muslims differently?

Most of us in this country are Christians and Americans and find ways to meld those two identities without threatening the good order of society -- and in lots of cases, society even benefits. And so it is, I believe, with the vast majority of American Muslims.

What's interesting to me, finally, is that my friend Ben and many other conservatives are so opposed to the possible rise of sharia law to dominate and shape America -- nevermind that Islam's numbers are too few to ever really permit that to happen, nevermind there's already a few mosques in New York -- that they seemingly don't have any real confidence in Amerca's ability to shape Islam right back. You know who actually has that confidence? The people behind the Cordoba House proposal in New York.

With the flexibility permitted by America’s religious freedom and openness, American Muslims can catalyze innovations in the global process of ijtihad (Islamic legal interpretation)just as American Jews and Christians birthed new developments in their faiths. They represent the diversity championed by both their own religious history and the heritage of the country in which they reside, positioning them uniquely to reach out to other Muslims and Americans and thus help close the gap in understanding.

Well, yeah. But if we throw up our hands in fear when somebody wants to build a mosque -- or if, worse, we act contrary to our own laws and values and decide not to let the mosque be built -- well, then, we may well blow that opportunity.

Ben closed his portion of the column with these words: "Let us give bigotry no sanction -- and be ever watchful of those who would exploit American openness and freedom to do just that." I couldn't agree more. And I'd add a second statement: "Let us give bigotry no sanction -- and be ever watchful of those who would end American openness and freedom to do just that." And that's the problem posed by those who would refuse the construction of a mosque near Ground Zero. Right now, it's a greater threat than any posed by a hypothetical imposition of sharia law on American citizens.

Yes to birthright citizenship

That's the topic of my Scripps Howard column with Ben Boychuk. My take:

What does the 14th Amendment really mean with regard to "birthright citizenship?" Tough to say. Even the men who wrote and passed the amendment in 1868 weren't in full agreement on that point.

The amendment says that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" are citizens." But the legislative debate over that language was fierce - some senators argued it surely didn't mean that children of American Indians or gypsies or Chinese would be granted the same citizenship as white people.

Other senators - notably John Conness of California - believed otherwise.

"The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens," Conness said.

The debate continues today. But birthright citizenship - a long American tradition - should continue.

Why? For one thing, it's a matter of simple humanity. Denying citizenship to a child born here would inevitably mean that millions of young people - after having lived here their entire lives, and thus American to the bone - would someday be deported to "home" countries and cultures alien to them. They would be paying a penalty for their parents' crimes. That's just cruel.

What's more, ending birthright citizenship could prove burdensome to all Americans. Other than your birth certificate-assuming you were born here-what proof do you possess that you're an American citizen? Until now, that is all that's been needed. The potential for bureaucratic mischief is enormous.

The people who want to end birthright citizenship would be in the business of telling many Americans they aren't really Americans after all. That would be ugly, divisive and unnecessary. There are better ways to address the issue of illegal immigration.

What I didn't say (for space reasons) is that for more than a century, Americans have lived under the common understanding that -- generally speaking -- to be born here is to be a citizen here. Anti-immigration crusaders who want to challenge that understanding of the 14th Amendment, it seems, are trying to remake American custom without remaking the American law it springs from. (There's no movement afoot, really, to amend the amendment -- only to reinterpret it.) Given continuing complaints from conservatives about "judicial activism," this seems a wee hypocritical.

In any case, the column brought me this e-mail from a Florida reader:

Since the squabble over Passports for the Iroquois LACROSSE TEAM. Would they be a separate nation, the Iroquois Nation and NOT US citizens (by birth) since they consider themselves NOT under the jurisdiction of the United States?

It would seem that since they feel they are not under the jurisdiction of the US according to treaty, they must APPLY for US citizenship.

Without going into details of the Iroquois passport dispute, I'll just note that the 14th Amendment was actually constructed to exclude American Indians from automatic citizenship -- if you delve into the debate that took place at the time, it's apparent that the arguments then against birthright citizenship in the 14th Amendment were explicitly racist -- but that the Indian Citizenship Act of 1924 means that American Indians do have that citizenship. If they want it.

In any case, I can imagine that the Iroquois and other native tribes might also be against a policy that lets the children and further descendants of European immigrants claim citizenship here. I can't say I'd blame them.

Do unemployment benefits "spoil" Americans for real work?

That's the topic of this week's column with Ben Boychuk for Scripps Howard News Service -- inspired by Sharron Angle's comments in Nevada. My take:

Let's forget political philosophy for a moment and focus only on math: At the moment, there is exactly one open job in America for every five people trying to find work. Even if every available spot were filled, 80 percent of the unemployed -- millions of Americans -- would still be unemployed. That's not because they're spoiled or lazy or intentionally unproductive. They're just unlucky.

Today's critics of unemployment insurance suggest the system takes money from productive citizens and gives it to the unproductive.

Perhaps. But those "productive" citizens should understand that they're not just throwing money down a rat hole -- they're buying civilization.

Look back at the origins of unemployment insurance. The Great Depression hit America in 1929, and unemployment rates soared far beyond the current crisis. In 1932, a "Bonus Army" of 17,000 unemployed World War I veterans marched on Washington D.C. -- and were dispersed with deadly force. Capitalism and the American system stood at the brink.

The Social Security Act of 1935 -- which created our modern unemployment insurance system -- helped change that. Workers and their families suddenly had breathing room when work disappeared. They were able to pay their mortgages, buy food and keep participating in the economy. That made them less inclined to act desperately -- and the "trickle up" effect helped keep other merchants in business.

Capitalism survived and thrived.

Our 21st-century economy isn't quite as dire, but the lessons from that era are still true. And it's reprehensible that Republicans like Sharron Angle treat hard-luck Americans like they're parasites.

Full disclosure: I've been collecting unemployment benefits while seeking a full-time job. I've also found part-time work and freelance writing gigs to supplement that income. So I certainly don't feel spoiled or lazy. I have, however, learned the value of a strong safety net.

I wasn't thrilled to disclose my job status in the column -- the thing gets printed around the nation and even, on occasion, internationally -- but I felt duty-bound to share that I have a personal stake in this debate. I assure you, though, that my opinions would've been the same either way.

What's more important? Cutting the deficit or spurring job growth?

That's the question for this week's Scripps Howard column. I take a slightly fatalistic approach:

Actually, the debate is already over. Americans may be worried about their jobs, but it's possible they're even crankier about the growing national debt. Politicians in Washington D.C. are responding accordingly, with President Obama even calling on most federal agencies to reduce their budgets by 5 percent. With a bipartisan deficit commission now on the job, those cuts may just be the beginning.

Perhaps that's as it should be: The bill for decades of deficit spending – in good times and bad, under both Republican and Democratic presidents – was going to come due sooner or later. It appears now may be the time. But Americans should understand one thing about the belt- tightening: It's gonna hurt.

Federal spending doesn't just prop up unpopular programs, after all: Right now, it's helping keep teachers and police officers on the job while states and cities deal with their own budget problems. Austerity will threaten such efforts. There is even talk the deficit commission will recommend big changes – and, perhaps, big cuts – to Social Security benefits. Americans won't like that one bit, but it's a logical result of efforts to bring spending under control.

The problem, as economist Paul Krugman explains, is that cutting spending during a recession is costly and ineffective. "Costly, because it depresses the economy further," he writes. "Ineffective, because by depressing the economy, fiscal contraction now reduces tax receipts."

So: Job growth or deficit reduction? Austerity now might give us very little of either. But it will still hurt a lot.

Does your Miranda "right to remain silent" still exist?

That's the question for this week's Scripps Howard debate between Ben Boychuk and me, asked in the wake of the Supreme Court ruling this week that criminal suspects must speak up to claim their Fifth Amendment right against self-incrimination. My take:

The Supreme Court's ruling boils down to this: Police get to assume you don't want your Constitutional rights. The Miranda warning -- the one you've heard cops say on TV a million times -- is now essentially meaningless.

"Today's decision turns Miranda upside down," Justice Sotomayor wrote in her dissent. "Suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."

Imagine if the government treated our other Constitutional protections this way. Federal agents would be free to shut down church services unless prayer was preceded by a pastor's public statement that churchgoers were exercising their First Amendment rights. Newspapers and bloggers would have to print the First Amendment on their front page to stave off a crackdown against criticizing the president. Gun owners would have to sign documents affirming their Second Amendment rights, or the government would be free to seize their firearms.

Sounds ridiculous, even un-American, right? So why should the Fifth Amendment right against self-incrimination be treated differently? Why should the government get to assume that you don't want your rights? Yes, there is a public interest in investigating and prosecuting crimes. But the Founders knew that interest could be abused, which is why they limited the government's police powers in the Constitution. Police don't like that, of course, but they're not supposed to. They're supposed to obey the rules anyway.

Constitutional rights are something that all American citizens are supposed to have. We're not supposed to have to jump through hoops in order to keep them; the government is supposed to jump through hoops in order to take them away. The Supreme Court, ironically led by "small government" conservatives, has now ruled otherwise. The Tea Partiers who routinely decry government tyranny might want to take notice.