Category Archives: Law and Politics

#213: Political Fragmentation

This is mark Joseph “young” blog entry #213, on the subject of Political Fragmentation.

I have long been writing about political division, fragmentation, and polarization.  Quite a few years back I explained how our United States of America coalition government is created by people coming together into coalition-based parties, groups who do not agree entirely with each other but who agree to support each others’ important policies, and why the Republican dilemma (or the Democratic dilemma) is not solved by focusing on a single issue.  I’ve also written about the polarization developing as both parties are being more and more dominated by their extremists, and moderates no longer have a home anywhere.

Now I find a survey from the Pew Research Center which shows just how fragmented we are.  Well, I think that might be an exaggeration; I think we are probably more fragmented than the survey shows, but I’ll get to that.

You might want to begin by taking the quiz, a set of A/B choices (if memory serves, seventeen) on everything from immigration to taxation to social services by which they will place you in one of nine groups they have identified.  It will also, separately, place you on a rough scale from liberal to conservative.  I took it, and not surprisingly landed right of center (that is, the conservative direction) in the middle third.  However, the results apparently do not give us a bell curve.  As the attached image shows, the extreme groups, both conservative and liberal, are not only the largest within the general public, they are even more so the most active in politics.

I admit to not yet having read the full fourteen-page Pew Research Center article on its survey; I got through the first page and left the remainder for a time when I had more time.  You might find it easier, although less informative, to read the briefer article in the Detroit Free Press, although that is less about the groups and more about the fragmentation, the fact that were we to have the much-suggested second civil war most of us would be very uncertain on which side we should be fighting.  We just don’t have enough agreement on any specific issues.

That is perhaps why I think we are more fragmented than the survey analysis really shows.  My quiz results placed me in the category denoted “Country First Conservatives”, the smallest group on the chart but one which includes people ranging from barely left of center to fairly far to the right who have agreement on some issues.  What strikes me about this is I disagreed with the majority of people in this group on all questions of foreign policy (there were three) and government performance (there were two), and I would think those would be the defining issues of the group.  That is, were we to create a conservative party called “Country First”, we would expect that foreign policy would be at the top of its platform–but I would not support that platform, because I disagree with that policy.  That doesn’t mean that the analysis placing me in the moderately conservative group is wrong; it means that even these groups are more fragmented than the simplified results the survey demonstrates.

What it clearly does demonstrate is that “liberal” and “conservative” is not a simple scale but a generalization of scales on multiple issues, that both sides of the divide are built of people who really don’t agree on any one issue but work together toward similar goals, and that the people who are most active in politics, the large minorities on the extremes, seem very much unaware of the majority of more moderate people in the middle.

It also suggests that a moderate candidate on either side could probably defeat an extremist candidate on the other, simply because the people in the middle from both parties are more likely to identify with someone near the middle.

On the other hand there’s something to what Doc Brown said (paraphrasing):  when you can hold an entire television studio in the palm of your hand, it’s no wonder your President has to be an actor.  At least sometimes, style beats substance.

#211: New Jersey 2017 Ballot Questions

This is mark Joseph “young” blog entry #211, on the subject of New Jersey 2017 Ballot Questions.

New Jersey tends to be blase about our off-year elections–no President, no United States Senators, no United States Congressman, why bother going to the polls?  Yet as we noted this year the election is not insignificant.  Every State elected office is on the block, from our Governor and Lieutenant Governor to all forty of our State Senators to all eighty of our State Assemblymen.  Additionally, there are two ballot questions put forward, asking the voters to approve spending more money.

That’s certainly more than we can cover.  We have already examined the gubernatorial race, and promised to return to look at the ballot questions.  There are two:

  1. The Bonds for Public Libraries Measure;
  2. The Revenue from Environmental Damage Lawsuits Dedicated to Environmental Projects Amendment.

The Bonds for Public Libraries Measure has tremendous support; more than half the members of the State Assembly are listed as sponsors of the bill.  It passed both houses overwhelmingly, and was signed by Governor Christie.  However, the few objectors have some good points.

Approval of the question would allow the state to issue bonds in the total amount of one hundred twenty-five million dollars, the proceeds to be used as matching funds for projects within the state to build, equip, or expand public libraries.  Those grants would have to be matched by like amounts from local governments and/or private donations.  Despite the increasing use of the internet for many of those resources for which once libraries were the primary providers, the library system continues to be important and to update itself to modern needs.  It thus makes sense to continue to support our libraries.

On the other hand, New Jersey is already in the top five states for per capita expenditures on libraries; we have one of the best library systems in the country.  The words “issue bonds” really mean “borrow money at interest”, and would be committing the state to repay one hundred twenty-five million dollars plus interest over the years ahead.  It is worth asking whether there would be sufficient return on the investment.  That is, would we be getting our money’s worth?

I am inclined to think not, but I rarely use the libraries and do not have a card.  I also think that our county library is well funded and well equipped, and while I can imagine (but do not know) that there are urban areas in the state with underfunded libraries, the matching funds clause will make it at least challenging for these areas to take advantage of the benefits.  If we had the money, it might be money well spent, but to borrow money for that which is not a problem is looking to make a bad fiscal crisis worse.  It’s like the family that can’t keep up with the mortgage taking out a second mortgage to pay for a vacation.  We don’t really need this, and we probably can’t afford it.

The Revenue from Environmental Damage Lawsuits Dedicated to Environmental Projects Amendment is about creating a “lockbox” for certain state income.

If you remember the ballot questions last year, you may recall that the issue with the fuel tax question involved whether to “dedicate” that income to transportation matters.  That question of dedicating specific funds for specific purposes arises again in this question, and with a more solid basis.

New Jersey has held the lead in industrial waste and toxic waste sites over the decades.  Periodically the State sues offenders, and either in awards or settlements often collects millions of dollars.  Cases related to the pollution of the Passaic River brought three hundred fifty-five million dollars from defendants.

The State is in one sense like any other plaintiff.  If you’re injured in an automobile accident and win a substantial settlement in a lawsuit, we might think that this is going toward your long-term medical bills–but if you want to spend some of it on a new car, or a Jacuzzi®, or a vacation, it’s your money.  You might in the long term wish you’d saved it for medical care, but no one is going to force you to do that.

In the same way, once the State has won a lawsuit or obtained a settlement from one, it can do whatever it wants with the money.  We might think that the money from the Passaic River lawsuits would go to clean the Passaic River, or at least to meet other environmental needs in the area.  Some of it of course would pay the legal fees for the suit, but ultimately the reason for the money is the damage done to the environment, and so the money should repair that damage.  However, just like you, the State is not so constrained.  Of that three hundred fifty-five million dollars from the Passaic River damages, Governor Christie applied two hundred eighty-eight million to the general funds to balance the budget.  A substantial number of Democrats in the state legislature believe that that should not be allowed, although the Democratically-controled legislature did approve his budgets.

Approval of this question would pass a constitutional amendment which would restrict the use of such monies to environmental purposes.  It would allow up to ten percent of such income to be spent on related government agencies such as the Department of Environmental Protection, and would allow the legal costs of prosecuting such cases to come out of the funds, but the bulk of it would have to be spent on the environment, reclaiming damaged areas and protecting others.  Many think the amendment makes sense.

On the other hand, had such a restriction already been in place, we would have been looking at a two hundred eighty-eight million dollar budget shortfall.  That means either the State would have had to raise two hundred eighty-eight million more dollars through taxes or it would have had to cut a like amount in services, or some combination of the two.  The big ticket items in the New Jersey budget are education (about thirty percent) and Medicaid (almost twenty-five percent).  There is not a lot of fat in the budget to cut.

Further, while there is merit to the notion that money collected as legal damages for harm to the environment ought to go to environmental care and repair, there is also a significant question concerning the consequences of sequestering that money.  Damage to the environment almost always means secondary damage as well–damage to public health, damage to infrastructure, economic damage.  If my accident prevented me from finishing college, the damages I won in the law suit will, among other things, cover the fact that I was unable to finish college.  The damages from these environmental lawsuits ought to be available to pay for the injury inflicted to the State beyond the first level of harm, covering these other losses.  Sequestering the money in a “lock box” prevents the state from using it to meet needs that might well be consequential to the damage.

Desite the merit in the idea, I think it ultimately a bad choice.

Those are the questions on New Jersey’s ballot this year.

#210: New Jersey 2017 Gubernatorial Election

This is mark Joseph “young” blog entry #210, on the subject of New Jersey 2017 Gubernatorial Election.

New Jersey tends to be blase about our off-year elections–no President, no United States Senators, no United States Congressman, why bother going to the polls?  Yet this year the election is not insignificant.  Every elected State office is on the block, from our Governor and Lieutenant Governer to all forty of our State Senators to all eighty of our State Assemblymen.  Additionally, there are two ballot questions put forward, asking the voters to approve spending more money.

That’s certainly more than we can cover.  We’re going to limit our attentions to the state-wide issues–that is, the gubernatorial ticket and the Public Questions.  We begin with the governor’s race, and follow-up with the Public Questions in a future post.

New Jersey’s governor serves for four years, and can serve up to two consecutive terms.  Current Governor Chris Christie, considered by political pundits the most moderate Republican governor in office, is coming to the end of his second and thus is ineligible to run again.

His Lieutenant Governor, Kim Guadagno, heads the Republican ticket.

Guadagno has not been a rubber stamp for Christie.  She opposed the recent gasoline tax bill, which Christie supported, because she saw political maneuvering around it to increase state spending beyond what the bill promised to raise.  Among the leading campaign promises, she has a plan to at least cap if not reduce property taxes, by tying a ceiling on the education share of property taxes to household income and making up the difference in education costs from a state fund.  She also has plans to fix the state’s pension and health benefits programs, and talks of improving conditions for veterans.

Her running mate is Cuban-born Woodcliff Lake Mayor Carlos Rendo.

Rendo’s family fled Cuba, and he grew up in Union City, graduating from Emerson High School, with degrees from Rutgers University and Temple University.  His 2015 mayoral election is his earliest reported involvement in politics, but his degrees are in political science and government, and law.

Observers are expecting a strong victory for the Democratic slate, giving that party control of what they call the “trifecta”, both legislative houses and the executive.  The Democratic nominee is Phil Murphy.

Murphy’s political background includes being National Finance Chair of the Democratic National Committee and serving as Ambassador to Germany.  Otherwise most of his experience is in economics, primarily at investment banking firm Goldman Sachs.  His platform focuses on trying to bring innovation back to New Jersey–leader in invention from the time of Edison to the end of AT&T’s Bell Labs–and so improve the economy.  He speaks of increasing funding for education, but does not suggest whence this money will be obtained.

His running mate is New Jersey Assemblywoman, former Assembly Speaker, and one-time United States Senate candidate Sheila Oliver.

Oliver is strongly liberal, but has not been a popular candidate outside her district.

There are five other gubernatorial candidates in the state race.

The Libertarian party is supporting Peter Rohrman, with running mate Karese Laguerre.  Neither have any experience running for or serving in elective office; they put forward the standard Libertarian platform of less government.

The Green party offers Pastor Seth Kaper-Dale, a Reformed minister who has been involved in social causes.  His running mate Lisa Durden is a political commentator, formerly a professor at Essex Community College terminated after making public statements supporting a decision by a local chapter of Black Lives Matter to hold an event open only to African-Americans.  Neither has any experience in elected office.

Veteran Marine Matt Riccardi is the gubernatorial nominee for the Constitution Party; they did not register a running mate for the lieutenant position.  His ticket is focused on reducing taxes across the board and increasing jobs in the state.  Riccardi is new to the political process.

Former Long Hill Mayor Gina Genovese is running on the Lower Property Taxes ticket; she is also cited in the press as the LGBT candidate.  Her running mate, Derel Stroud, has been a state Democratic party political organizer since 2009.

The We the People party has placed as official candidates on the ballot the ticket of Vincent Ross and April Johnson.  Both candidates are unknown in the political and online worlds at this point.

Those are the candidates, in brief.  Much can be learned about them online once you know their names.  The Democrats are thought to have a strong lead, but the Republicans do have a chance, particularly in an off-year election when younger Democratic voters are less likely to go to the polls.

So plan to vote Tuesday if you have given thought to the future of New Jersey and the directions the candidates would take us.

Watch for an upcoming article on the public questions.

#207: The Gender Identity Trap

This is mark Joseph “young” blog entry #207, on the subject of The Gender Identity Trap.

What if it were really true,
Most girls like pink, most boys like blue?
Just what would color mean to you?

We live in a world filled with gender expectations.  Call them stereotypes if you like, but it goes deeper than that.  We have persuaded ourselves that girls, and women, have a certain inherent character that causes them to be interested in specific kinds of things, and that boys, and men, are similarly innately interested in a different set of things.

We can explore these with what we might call common sense wisdom and observation.  Boys tend to be athletic, and competitive.  We want to prove ourselves the strongest, fastest, toughest.  We communicate with our fists, and the emotions we are willing to show are all what might be called “hard” emotions–anger, jealousy, pride.  Girls, meanwhile, tend to be nurturing, interested in exploring relationships, in caring for those younger or weaker than themselves.  They are articulate creatures, talking even when no one listens, and they display the “soft” emotions–sympathy, affection, sadness.


I don’t want to argue against the scientific work that has been done in this area.  Sociobiologist E. O. Wilson and his ilk make a potent argument for an evolutionary basis for gender differences, that women favor those qualities that enable them to manage child care and foraging while the men are better suited to hunting.  One does not need to be a religious person to believe that we are male and female, and that these are different.  However, I raise two objections to this concept.

The first can be stated as that generalizations are always false (including this one).  There are many men who have never been interested in sports, who have never been physically competitive or athletic, who have abandoned physical violence as a means of conflict resolution, and who are willing to let their softer emotions show and who are nurturing and caring.  There are similarly many women who are athletic and competitive, sometimes violent, sometimes violently angry.  When we identify traits as specifically masculine or specifically feminine, we are making a generalization, drawing conclusions from what we might call the “center of the bell curve”–most men have this trait, more or less, although some have it to an extreme while others seem to be lacking it entirely.  You will find men who are not at all “manly” in the stereotypical sense, and women who similarly break the mold that defines the feminine.

The second objection, though, is that these cannot truly be used to define what it is to be male or female, a man or a woman, and for a very simple reason:  we do not really know which ones are innate, or to what degree, versus which ones are learned, and to what degree.  Some little girls easily learn to play with guns and toy soldiers, while others put the guns aside and treat the soldiers like children in a schoolroom or nursery.  Some boys have no trouble playing with dolls or appreciating cute figurines, while others are ready to turn even Precious Moments figurines into combat-ready mechas.  When we have a quality that is generally true of a group, we always find that it is not universally true of the group, and even among those for whom it is true, it is true to varying degrees.  No quality is universally true of any group, unless it is itself a mandatory definitional quality of that group.  Not all those of African descent have dark skin–there are negro albinos born in some families.

We opened this with a question of color preferences–pink or blue.  Through most of the twentieth century, blue was the color for boys and pink for girls.  We might think that inherent in gender identity, as it was so common and still is generally thought to be the preference.  However, in the late nineteenth century it was quite opposite.  Blue was considered a pacifistic color, appropriate for girls, while pink was aggressive, the right color for the nursery of a male infant to encourage his masculine aggressiveness.  The matter of the right color for girls or boys proves to be entirely cultural.  We only think it innate, because it is our culture, and we are immersed in it.

Herein lies the problem of gender identity.  We have become persuaded that it is possible, first, for someone who is really, personality-wise, one gender to be born in a body exhibiting the opposite sex.  However, our conception of what constitutes the appropriate personality for a gender is constructed entirely of generalizations and cultural notions.  A boy who does not like sports is not internally a girl, any more than a girl who does like them must be internally a boy.  Whether boys play with dolls or girls with guns is in part innate, but it is also culturally learned to some degree, and a child who exhibits culturally opposite gender preferences in play is not the opposite gender, but a unique individual with unusual interests.

When people come to believe that they are the wrong sex on the outside for their gender on the inside, it is because they have been persecuted into thinking that if they really were a person of the sex they appear to be then they would have different preferences, different abilities, different qualities than they do.  We are taught, incorrectly, to think that the generalities are the definition, and that those who do not fit into the cultural expectations are aberrant.

So be aberrant.  Buck the expectations.  Be yourself, and embrace who you are as a whole person, inside and out.  I am a man.  That I raise my children and do the cooking and a certain amount of the housework and sewing and such, and that I disdain sports and physical competition, does not make me less a man or more a woman; it makes me a unique individual.  The girl who is an Olympic track star, who is competitive at the highest level of athleticism, is not therefore less a girl, less a woman; she is a unique individual, a woman with qualities that are less common in women.  Be who you are, inside and out, and don’t let anyone persuade you that anything about you was made wrong.  No one is the wrong sex on the outside for their gender on the inside, except those who foolishly let popular culture dictate who they should be instead of simply being who they are.

#203: Electoral College End Run

This is mark Joseph “young” blog entry #203, on the subject of Electoral College End Run.

A bad idea which we mentioned in passing some years ago is apparently gaining ground, thanks in large part to Hillary Clinton’s failed 2016 Presidential bid.

The idea, which we mentioned in Why We Have an Electoral College (in the page Coalition Government), is to nullify the original Constitutional intent, that the President be selected by the States as States, by having states pass a law assigning their electors to vote for whichever candidate wins the majority of the national popular vote.  Even some Democrats recognize that the current popularity of this idea is because the losing party are sore losers, and the fact that Hillary Clinton has added her voice to the chorus only underscores that sense–but as the map provided by the idea’s promoters shows, in green, eleven states have already passed the necessary legislation.

(In fairness to Hillary, sort of, she spoke out for the elimination of the Electoral College the last time the Democrats lost the Presidency in a close race.)

That legislation is designed to prevent states from being obligated until there is what they consider a consensus, that is, the legislation passed by each state specifically states that it becomes effective when, and only when, similar legislation is passed by states representing enough Electoral College votes to constitute a majority of the College, 270 votes, that is, one half of the 538 electors plus one.  At that point, whoever receives the majority of the national popular vote would, by dint of this legislation, receive at least two-hundred seventy votes and win the election.

There is a flaw in the reasoning.  Let us suppose that the total is not reached by 2020, and thus it does not impact the 2020 election; but it might be reached in 2021.  However, 2020 is a census year, and the primary reason the Constitution mandates that we have a census every ten years is to adjust the representation of each State in the House of Representatives.  Following the 2010 census New Jersey lost a seat, and there is every likelihood that some States will lose and others gain seats before 2024.  That matters because the number of electoral votes each state gets is determined by the sum of its Representatives plus its Senators, and it might well be that in 2021 the states having passed the law provide sufficient votes to cause it to be enacted, but by 2024 there would not be quite as many.  This might be unlikely, but it is not impossible–New Jersey, which has passed the law and has been shrinking proportionately, might lose another seat, and Texas and Florida, which have showed no interest in passing the law, have been growing and might gain another seat or two each.

However, that is not really the significant point here.

Some years ago a young liberal actress got in serious public relations trouble when she suggested carpet bombing all the conservative states in the central United States because they were impeding the progress that the liberals dominating the coastal states were pushing.  That is an extreme example, but the fact is that several of the big states are coastal states, and tend to be liberal–California, New York, Pennsylvania.  That means on some level we’re talking about the big states trying to take over.

California is an important example.  It tends to be liberal, but is short-changed in the Electoral College because it is short-changed in the House of Representatives:  there is a cap on the number of Representatives any state can have, and California’s population would give it quite a few more seats were it not for the cap.  Let’s face it, though:  California is a large piece of real estate with several very large population centers within it.  It could plausibly dictate law and policy for the entire country just by flexing its popular vote.

That, though, is exactly why the Constitution is designed the way it is.  When the big kids tell the little kids what to do, we call it bullying, and we look for ways to punish and control it.  The Electoral College is designed to try to keep the big states from bullying the little states.

The proposed law disenfranchises the little states.  In doing so it disenfranchises the voters in those states.  There is good reason for the states to vote for the President chosen by the majority of their own citizens, and not the majority of the citizens of every other State in the Union.

We would ask our New Jersey legislators, and those of the ten other states which have already passed such legislation, to repeal it.  It is bad law.  It is also, as one author already cited has observed, probably unconstitutional–it is an effort to end run the Constitutionally-mandated process.

If not, voters in New Jersey and elsewhere should prepare to file suit against the legislature.  The law disenfranchises the voters of this state, taking from us our constitutional right to choose the candidate of our own choice, not that of the rest of the country.

#200: Confederates

This is mark Joseph “young” blog entry #200, on the subject of Confederates.

General Robert E. Lee–perhaps the most recognized name on the Confederate side of the American Civil War–never owned a slave.  He did marry into the Custis family, descendents of Martha Washington and heirs of the estates of George Washington, some of which had slaves, but he was not an owner.

I mention this because there is a great deal of misunderstanding about the Civil War and about the Confederacy in particular.  To hear the scuttlebutt, all Confederates were bigoted racists and all northerners enlightened equalitarians.  Neither of those claims is true, nor is it true that the war was about slavery–slavery was a bit more than incidental, but ultimately a side issue.  Yet today people are fighting over flags and statues that were part of that history, trying to remove them and in the process erase an important part of our history that is relevant today to matters that have nothing to do with race or bigotry.

Between the ratification of the United States Constitution and the initiation of the Civil War there was a lingering unanswered question concerning the exact nature of this “more perfect union” the document was intended to create.  To citizens in every State, the State was a State–New Jersey had the same status as Denmark, Pennsylvania as France–and these individual independent countries had joined a treaty organization, something like NATO or the United Nations or the European Economic Community.  We came to each other’s aid for the common defense, agreed not to place tarriffs against imports and exports between each other, and met together to create laws on which we generally agreed that would bind all of us and were necessary to promote trade and interaction between us.

Yet lingering in the background of all this was what we might call the Federalist question.  Federalists like James Madison saw the central government as having ultimate authority over the state governments, that whatever was stated as Federal law was binding on all the member states.  Democrats like Thomas Jefferson saw the individual states as the ultimate authorities, lending their authority to the Federal government for the better functioning of the whole.  The Constitution did not decide that issue; had it done so, it would not have been ratified.

Abraham Lincoln, a Republican, believed in the Federalist vision of a united nation, a single country governed from a central authority.  He also happened to believe that slavery was wrong, but it was an incidental which he strongly downplayed during the campaign, promising that he would seek no law regarding slavery during his first term of office.  The majorities in northern states wanted the country more united.  The north was becoming highly industrial, building transportation networks, turning into a tightly knit unit in which business was done between Boston and Chicago more easily than ever before, and a unified legal system was to the benefit of such a system.  The south was still an agrarian society, separated by muddy roads and driven economically by the field production of cotton and other cash crops.  To northerners, Massachusetts was becoming a piece in a larger puzzle of tight-knit countries more and more connected to each other.  To southerners, Alabama was an independent country that signed a mutual defense and trade treaty with a bunch of other distant countries.

The fear southerners had of Lincoln was not really that he would end slavery–he had little chance and no intention of doing that any time soon.  It was that he would move the union more toward the central government model preferred by the north and strip the powers of the individual member countries in the process.  We see the same kinds of conflicts in Europe as they begin to adopt unified currency and banking regulations.  So when this icon of unification was elected, states that wanted to maintain autonomy seceded, and the remaining states decided that was not something they could do under the terms of the treaty, leading to a war to decide whether the Federal Government or the State Government had ultimate authority.

Of course, the elephant in the room was the one difference that had been a conflict between north and south for generations, that the southern economy was built on a slavery model and many northerners found this immoral–not that they believed blacks were any more human than the southerners believed, but that they were more on the order of animal rights activists trying to protect an exploited creature.  Because of the ongoing balance of slave and free states in the Senate, there was no real chance of meaningful legislation on that subject–but a tightening of the concept of Federalism would mean that unified laws would gradually come into being, and that was a threat.

So the question over which we fought the Civil War for five long bloody years was whether a member State of these United States had the authority to ignore Federal Law if it wished to enforce its own policies instead.  Then it was an entirely theoretical matter, as there were no Federal laws to enforce against the rebelling states, but the answer to the question turned out to be no, once you are a member of this union you are bound by Federal law, which trumps State law when they conflict.

So what the Confederates were defending, although they could not have known it, was the right of California to ignore Federal Immigration Law; and the right of Colorado to ignore Federal Drug Law.  The answer we were given then is no, Federal Law is enforceable within the member States, and the States cannot contradict it with their own laws.

So it seems to me that at least some people who are calling for the removal of Confederate markers and Confederate history actually favor that for which those Confederate soldiers fought and died–the right of states to pass laws and enforce policies contrary to those of the Federal government.

It had nothing, really, to do with slavery or bigotry.  It had to do with questions we are still facing today.  Instead of tearing down reminders of history for wrong reasons and ignorance of their significance, let’s try to gain from them the lessons of the past for the future.

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#197: Launching the mark Joseph “young” Forums

This is mark Joseph “young” blog entry #197, on the subject of Launching the mark Joseph “young” Forums.

Once upon a time, what now seems a long, long time ago in a galaxy far, far away, there were forums at Gaming Outpost.

Well, there were forums almost everywhere, but the ones at Gaming Outpost were significant, big deal forums in the gaming world for a while, and then not so much but still important to me and to many of those who read my work and played Multiverser.  They were probably then the most reliable way to reach me, and there were plenty of discussions, not to mention quite a few games played, on those forums.

Then they crashed, and all of that was lost.

I can’t promise that this won’t happen to these new forums, but we’re going to make an effort, with the help of our Patreon and supporters, to keep them up and running, and to pay attention to what is posted here.

I arranged the forums in alphabetical order; I was going to arrange them in reverse alphabetical order, because I have always hated being the last in line for everything, but as I installed them the software put the next one on top, and although I could see how to resequence them, I realized that that would put Bible and Theology on the bottom, and while I’m not a stickler for silly formalities I could see that some people would object to that, more so than anyone would object to any other forum being at the bottom.  It is probably appropriate that it is on top.  The forum categories correspond roughly to the web log main topics, with a few tweaks and additions.

I long wished for a place to discuss time travel and time travel movies, and that’s there now.  I don’t expect most of the discussions will wind up here, but perhaps at least some will, and that will make it worthwhile.  I’ve also made a home for discussions of the Christian Gamers Guild Faith and Gaming series, and for the upcoming (this December) Faith in Play and RPG-ology series there.  There are music and ministry sections, space for logic problems discussions, law and politics pages, space for games, and a place to discuss my books, if anyone is interested in any of those topics.

I have also added a Multiverser game play forum.  I have in the past been overwhelmed by the number of players who wanted to play, even with my rule that I would only post one time per day to any game thread and expected players to observe the same courtesy (except for obvious correction posts).  Please do not presume that because you want to play Multiverser you can just start a thread and I’ll pick up your game.  I will give first priority to people who have played the game with me before, whether live or online, picking up where we were; I will also open the door on an individual basis to people who have wanted to play for a long time but for various reasons have not been able to do so (such as Andrew in South Africa).  Beyond that, well, talk to me and I’ll see what kind of time I have–after all, I have no idea how many of my previous players will return, or how much work it’s going to be to get back up to speed on their long-interrupted games.

My thanks to Kyler and Nikolaj, who have already helped me track down some of the bugs and fix them.  I’m told that if you are not registered, the link on the top left corner of the page will work, but the one on the top right corner will not–unfortunately, I can neither see either link while logged into the site, nor find how to fix a lot of those problems.  But I am working on it, and there is a forum specifically for contacting me about problems, and a link to my Facebook page if you can’t even get as far as that.

I look forward to seeing you.

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#196: A Church and State Playground

This is mark Joseph “young” blog entry #196, on the subject of A Church and State Playground.

Back in the winter we noted, in web log post #158:  Show Me Religious Freedom, that the United States Supreme Court was going to decide a case concerning whether a church-affiliated school could be denied participation in a public welfare program simply because it was sponsored by a religious institution.  That decision has been reached, in Trinity Lutheran Church of Columbia, Inc. v. Carol S. Comer, Director, Missouri Department of Natural Resources, 582 U.S. ___ (2017), and the majority opinion is very like what we previously suggested, but there are three concurring opinions that quibble on the details and one dissent that is scathing, fairly well reasoned, and as long as the other four opinions combined.

Chief Justice Roberts delivered the opinion of the court, joined in full by Justices Kennedy, Alito, and Kagan; Justices Thomas and Gorsuch also joined the opinion, with the exclusion of “footnote 3”, and each of them filed a concurring opinion, and joined in supporting each other’s concurring opinion.  Justice Breyer filed an opinion concurring in the judgement.  It is Justice Sotamayer who wrote the lengthy dissent, in which Justice Ginsburg joined.

To recount briefly, Missouri runs a program which provides funding to resurface playgrounds with recycled tires.  There is a tax on new tire purchases which funds the collection and recycling of discarded tires, converting these into a “pour-in-place” durable soft surface which reduces injuries on playgrounds.  The application process for determining eligibility to receive such a “grant” examines many factors including the economic circumstances of the area, the public use of the playground, and more.  On a list of forty-four applicants, the school ranked fifth, but did not receive one of the fourteen grants because it was affiliated with a religious institution, and the department had a policy of refusing to provide money to any religiously-affiliated institution, consistent with the Missouri State Constitution Article I, Section 7, which we quoted in the previous article.  This led to a court battle over whether the State, by refusing to permit a religiously-affiliated school from participating in a program that provided aid for non-religious programs, had violated the Free Exercise Clause of the First Amendment, by making eligibility for a public assistance program dependent on renouncing a religious belief or association.

All five opinions discuss the balance between the Free Exercise Clause, that the government cannot interfere with someone’s beliefs, and the Establishment Clause, that the government cannot support one set of beliefs over another.  Neither clause is exactly absolute.  For example, it is agreed that the Establishment Clause does not mean that the publicly-funded fire department can’t put out a burning church or synagogue, or that the police won’t investigate a theft of church property.  The Free Exercise Clause has also been tested, and laws have been overturned which prevented ordained ministers from serving in elected public office, on the grounds that such laws forced a person to choose between his religious beliefs expressed in his vocation and his right as a citizen to run for office.

A lot of the discussion on both sides concerned the previous case Locke v. Davey, 540 U. S. 712 (2004).  In Locke, the State of Washington ran a post-secondary education scholarship program based on outstanding scholastic achievement, but with a specific clause stating that the scholarship money could not be used for ministerial training.  The student claimed that the program was a violation of the Free Exercise Clause, but the Court held that under the Establishent Clause the State could refuse to fund ministerial training, particularly given that the program did not exclude schools which offered such courses or the courses themselves, only a degree program of that nature.  They have always maintained that there was some space between the two clauses, in which States were not compelled by either to act in a particular way; the question was whether in this case the state was forced to act one way or the other, or was free to act as it chose.

The majority felt that this case was more like McDaniel v. Paty, 435 U. S. 618 (1978), in which ordained ministers were barred from seeking election to public office, and the Court held that this amounted to denying a citizen a fundamental right available to all citizens (running for public office) based solely on religious belief.  The playground was not part of a religious training program, but a part of ordinary educational aid made available broadly to the community, and the church had been excluded from the program solely because it was a church, having a religious purpose in its existence.  The denial of the right to participate in the program was a violation of the Free Exercise Clause, because it required the church to choose between abandoning its religious faith and participating in a common government welfare program designed for the protection of children.  A significant part of the decision can summarized in the Court’s words

…denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.”

Under such “strict scrutiny” the policy failed.

To some degree, the concurring opinions have to do with footnote 3, which reads

This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.

Justice Thomas expressed the view that Locke failed to apply strict scrutiny to the facts in that case, and ought to be overturned–but that that was not a question before the court at this time.  However, he thought footnote 3 too limiting, and deferred to Justice Gorsuch’ concurring opinion for that.

Justice Gorsuch says that the Court makes an indefensible distinction between religious status and religious use, and so distinguishes Locke from the present case.  He makes the point thus, comparing the two cases:

Is it a religious group that built the playground?  Or did a group build the playground so it might be used to advance a religious mission?….was it a student who wanted a vocational degree in religion?  or was it a religious student who wanted the necessary education for his chosen vocation?

The only justification for the decision in Locke, in Gorsuch’ view, is the “long tradition against the use of public funds for training of the clergy”.  As to footnote 3, he feared it would be misconstrued as saying that the principles on which this decision was based do not apply outside very narrow fact sets, which he thought was incorrect.

Justice Breyer put the emphasis on the fact that the program involved was intended “to secure or to improve the health and safety of children” and was in that sense not different from other public welfare programs such as police and fire protection.  He did not want to extend the decision too far, but thought in this case it was a clear violation of the Free Exercise Clause, and that for programs akin to this the fact that the applicant was a religious school should not exclude it.

Interestingly, none of these opinions declared that the Missouri Constitution’s Article I section 7 was unconstitutional; the majority opinion merely stated that as interpreted by the Missouri Supreme Court it ran afoul of the Free Exercise Clause, and so would have to be understood differently in the future.

Justice Sotamayer’s dissent is long, involved, and pointed.

Her most cogent point is that the church identifies the school as part of its ministry, intended to build the foundations of Christian faith in its students, whether children of church members or others from the community.  We have established that States can refuse to pay scholarships for ministerial training.  It is reasonable to conclude that the State can refuse to pay for Bibles, Korans, Torahs, as well as vestments, chalices, sacramental elements.  Arguably the doors, windows, roofs, and walls of church buildings are part of the ministry.  We would not use government money to pay for such acoutrements, because they are in a sense part of the ministry.

Yet it is clear that this is not so.

In the wake of Hurricane Sandy, it was established the Federal Flood Insurance and Disaster Relief could be used to rebuild damaged churches, as long as it was distributed even-handedly–that is, not favoring any particular religion.  So government money can be used for repairing physical plant of religious buildings.

Further, the National School Lunch Act provides discounted and free lunches to students in private and parochial schools without regard for the religious nature of the school, because lunch is neutral and it would be discriminatory against the religious choices of these families to exclude them from an otherwise neutral benefit because they are attending a religious private school.

So on the one hand we ask ourselves whether the playground is part of the ministry of the church, and in a sense it is, but in the same sense that the lunchroom is part of the ministry of the church.  Indeed, from the perspective of the Christian faith, every congregant is an extension of the ministry of the church, and yet we know that people cannot be excluded from government assistance programs simply because they are members of a faith which regards all of its members as ministers.  The government cannot avoid giving money to church ministries, as the church understands them, because whenever money is given to people who belong to the church, it is aiding the ministry of the church.

And on the other hand, we ask ourselves to what degree the support of the playground is supporting the religious mission of the church.  In many states it is a requirement that schools include a physical education program, and although Trinity’s school is essentially preschool the playground may be necessary to their certification–that is, if all schools must have some kind of playground for physical activity, then the playground is clearly meeting a secular, a non-religious, requirement.  Stating that it is a part of the ministry of the church certainly calls the matter into question, but seen in perspective, the answer should be obvious, that state money given to religious institutions for secular purposes such as meals and playgrounds are not a violation of the Establishment Clause, and might well be required, as the majority observes, under the Free Exercise clause.

None of this touches the deeper problem, that the language in the Missouri State Constitution is Blaine Amendment language, which as we observed was inserted for essentially religious (anti-Catholic) purposes.  However, since no party addressed this, that issue remains for the future.

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#194: Slanting in Favor of Free Speech

This is mark Joseph “young” blog entry #194, on the subject of Slanting in Favor of Free Speech.

In January we looked at a trademark case that had much to do with freedom of speech and offensive language, in web log post #156:  A New Slant on Offensive Trademarks, in which Simon Shiao Tam named his all-Asian rock band “The Slants”, saying he wanted to use the normally derogatory word to reclaim some pride for his people.  The Patent and Trademark office, relying on the same law against offensive trademarks under which the Redskins sports franchise was stripped of its protection, refused the application, and it was ultimately appealed to the United States Supreme Court.  The Court has delivered its opinion in Matal v. Tam, 582 U.S. ___ (2017), and it has implications for freedom of expression.

The Slants performing April 16th at The Flying Dog Brewery, hosted by the 1st Amendment Society

On a related subject, freedom of speech was also behind Packingham v. North Carolina, 582 U.S. ___ (2017), which struck down a North Carolina law barring anyone on the state’s sex offenders list from accessing Internet social networking sites.  We’ll look at that after Tam.

There was really nothing at all surprising about the Tam opinion, unless it is that once again eight members of the court were in agreement.  Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas and Breyer.  Justice Kennedy wrote a concurring opinion, joined by Justices Ginsberg, Sotomayer, and Kagan, and Justice Thomas also wrote a concurring opinion.  All of them agreed on the essentials:  the so-called “disparagement clause” in U.S. trademark law which permits the denial of trademarks for anything that might be offensive to specific groups or persons is an unconstitutional infringement on free speech.

As Justice Alito puts it (slip opinion at 22), “Giving offense is a viewpoint,” then (slip opinion at 22-23) quoting from Street v. New York, 394 U.S. 576, 592 (1969), “…the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”  Justice Holmes and Ray Bradbury would be pleased.

It’s good news, too, for the Redskins football franchise:  this was the rule that got them stripped of trademark protection, and so their ongoing legal battle is probably about to be rapidly resolved.  I don’t know if we’ll see a run on offensive trademarks in the near future–after all, as some in this discussion have observed, offending potential customers is not a good way to sell them your product.  On the other hand, the way is open for people to denigrate a lot of groups.  (The decision does not impact the prohibition against using the name of a living person without that person’s permission.)

So, how does the Packingham case fit?

In 2002 petitioner Packingham, then twenty-one years old, had sex with a thirteen-year-old girl, and pleaded guilty to “taking indecent liberties with a child”, a crime that qualifies under North Carolina law as “an offense against a minor” requiring registration as a sex offender.  The status can last three decades or longer.

In 2008, the state passed a law making it a felony for anyone registered as a sex offender in the state “to access a commercial social networking Web site where the sex offender knows that the site permits children to become members or to create or maintain personal Web pages.”

It strikes me that this is a second punishment.  That is, at the time Packingham was convicted and sentenced, and required to register, there was no law regarding the use of the Internet.  Six years later this restriction was added to his sentence, without so much as a hearing to determine whether it was necessary.  That, though, was not the issue before the court, although Justice Kennedy recognizes the problem in passing.  It is also not stated that Packingham was informed of the new restriction, but that was not before the court either.

In 2010, eight years after his conviction, Packingham expressed his thanks to Jesus for an event in his life, the dismissal of traffic ticket without a hearing, posting this excitement on Facebook.  A Durham police officer managed to connect the Facebook post to the dismissed ticket, and obtaining a search warrant established that Packingham had violated the law.  He was convicted, despite making a motion that the law was a violation of his First Amendment right to free speech.  There was no allegation that his Internet communications were in any way suspect or criminal other than that this law forbad him from making them at all.

The conviction flip-flopped its way through the state courts, overturned by the Court of Appeals of North Carolina, reinstated by the North Carolina Supreme Court, not without dissent.  The United States Supreme Court reversed the conviction and struck down the law.

Again we have an effectively unanimous judgement:  Justice Kennedy wrote the opinion of the court, joined by Justices Ginsberg, Breyer, Sotamayor, and Kagan, while Justice Alito wrote a concurring opinion joined by Chief Justice Roberts and Justice Thomas.  Justice Gorsuch did not participate in the decision, not having been present for oral arguments.

Justice Kennedy’s core point was that the Internet generally, and social media sites in particular, had become the new medium for many kinds of protected speech–obtaining news, expressing political opinions, communicating with others.  It had in essence become the public parks and town squares of old, the place where people gather to interact.  To refuse someone access to the Web would be to curtail their ability to communicate in the modern age.  That is clearly a limitation on freedom of speech, and as such must face scrutiny–the level of scrutiny in which there must be a demonstrable compelling government interest addressed in the least invasive way possible.  The protection of children from sexual predators is so strong a government interest that it might be possible to restrict the freedoms of potential recidivists, but the North Carolina law goes too far.

The concurring opinion agrees that the North Carolina law goes too far, but objects to the court’s identification of social networking sites as having the importance suggested.  Rather, Alito would suggest that it might be possible to prevent sex offenders from accessing many sites where predators might easily prey on children, but the definition of such sites would have to be refined–tellingly, Alito notes that Amazon, The Washington Post, and WebMD all qualify as “social networking sites” under the definition in the statute, and that perhaps the majority of web sites now do, as they provide ways for visitors to communicate with each other through comments on articles, and frequently to create a member profile.  (The other two requirements in the statute are that they provide some sort of revenue stream to their owners and do not exist primarily to facilitate sales between users (e.g., E-Bay, Craig’s List).)

In any case, it appears that the Supreme Court has decided that your Facebook, Twitter, and LinkedIn accounts (they are specifically mentioned) are important protected media for the exercise of your free speech.  That means something.

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#190: Praise for a Ginsberg Equal Protection Opinion

This is mark Joseph “young” blog entry #190, on the subject of Praise for a Ginsberg Equal Protection Opinion.

To read the conservative press, you would think that Justice Ruth Bader Ginsberg, in writing the majority opinion in Sessions v. Morales-Santana 582 U.S. ____ (2017), had turned her back on women’s rights and struck a blow for men.  Yet even from that reporting I could see that Ginsberg was simply staying true to her principles of equal protection (we had discussed her commitment to this previously in web log post #63:  Equal Protection When Boy Meets Girl).  Still, from the sound of it, I thought she ought to be commended for this consistency even when it seemed to go against her more feminist views.

However, unwilling to write about a court opinion I had not read, I took the time to find it and read it (link above to the official PDF), and found that it was a considerably less impressive story even than I had supposed.

I should perhaps have been tipped off by the fact that the decision was effectively unanimous–seven of nine Justices joining in the majority opinion, Justice Thomas writing a concurring opinion in which he agreed with the result but thought the equal protection language went further than necessary to reach it, and the new Justice Gorsuch not having heard oral arguments not participating in the decision.  The court did not consider it controversial.  They did, however, overturn part of the decision of the Second Circuit Federal Court of Appeals, so apparently there was a difficult issue in the matter.

It is also of some interest to us because although couched as an immigration case it ultimately proves to be a citizenship case, and we have addressed the statutes and cases involved in whether or not someone is a natural born citizen in connection with The Birther Issue when it was raised concerning President Obama, and more recently in web log post #41:  Ted Cruz and the Birther Issue.  The terms under which someone is, or is not, born an American citizen are sometimes confusing.  That was what was at issue here.

Morales-Santana was arrested in New York on a number of relatively minor charges, and the Immigration and Naturalization Service decided to deport him to the Dominican Republic, claiming that he was not a United States citizen.  That was where the story started to get interesting.  It seems that the Respondent’s father, José Morales, was an American citizen, having been born in Puerto Rico, and having lived there for almost nineteen years.  Twenty days before his nineteenth birthday he moved to the Dominican Republic to accept a job offer, and soon moved in with a native Dominican woman.  She gave birth to the Respondent, and the father immediately acknowledged paternity and shortly thereafter married the woman, making the child a member of his household.  Everyone assumed the child was an American citizen like his father.

However, the statute defining whether an unwed U.S. citizen father confers citizenship on his out-of-wedlock child specified, among other things, that the father had to have lived in the United States or its Territories or Possessions (Puerto Rico qualifies) for at least five years after reaching the age of fourteen.  José Morales, having left Puerto Rico less than a month before his nineteenth birthday, fell short of that requirement by twenty days.  Therefore he himself was a citizen, but his child, born abroad out of wedlock to a non-citizen mother, was not.

Morales-Santana, however, recognized a flaw in the law.  Had the situation been reversed–had his mother been an American citizen who bore a child out of wedlock with a non-citizen father–the statute only required that such a mother have been in residence for one year following her fourteenth birthday.  That meant, Morales-Santana argued, that women were being given a right that was being denied to men, in violation of the Equal Protection rights as understood by the United States Supreme Court.

The Second Circuit Court agreed, and decided that the citizenship conferred on children of unwed mothers ought equally to be conferred on those of unwed fathers, and stated that Morales-Santana could not be deported because he was, in fact, a United States citizen.

The government appealed, resulting in this decision.

What Ginsberg tells us is that the anomaly in the statute is the exception for unwed mothers.  The five year rule applies in all other related cases–not only unwed fathers, but married couples in which either spouse is an American citizen and the other is not.  If the Court were to rule that the unwed mother status applied equally to unwed fathers, it would have to rule that the same status applied in all these cases–but the legislature clearly intended that the five year rule would be the norm, and the one year rule a special exception for pregnant unmarried girls.  They would essentially be discarding the entire statute in favor of the exception.  Instead, they ruled that the one year exception was unconstitutional–a ruling whose only effect on the Respondent was that he could not claim citizenship through his father based on the inequity of a rule covering mothers but not fathers.

So Ginsberg certainly did strip some women of a statutory right, but she deserves to be credited for doing so consistently with her express view of equal protection.  Asserting that men and women should be treated the same does mean that sometimes women will be treated worse than they otherwise might have been.  This is one of those cases; it otherwise is not that important.

As a footnote, the court notes at one point that the statute asserts that a child born out of wedlock whose father acknowledges him and takes responsibility for his care will be regarded a citizen from the moment of his birth.  That is relevant to our discussion of what it means to be a natural-born citizen.

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