The Demeanor of the Candidate

 

On Thursday, much of the nation watched a hearing in the Senate Judiciary Committee regarding Brett Kavanaugh, the current nominee of President Donald Trump for a seat on the Supreme Court, and allegations of sexual misconduct in his youth.  My impression is that people saw the proceedings colored by some combination of political views and personal experience. 

Democratic supporters see the need to investigate the allegations.  Republican supporters see it as a political show where suddenly these allegations surface just before the Senate needs to vote on the nominee.  

Women who’ve been raped or sexually abused (and those who know these women) may be suffering again through the horror of that experience.  Men may be worried that some forgotten event in their teens or twenties might be dredged up and now it’s a he-said-she-said situation.

While I could comment on all the above, I’m wondering if the trump card isn’t Kavanaugh’s demeanor both in his statement (a diatribe against the Democrats) and his emotion and anger.  If I were his lawyer, I wouldn’t want him on the stand.  If I were on the jury, I’d suspect he’s hiding guilt behind this offence of blame, accusations and anger.  As a juror, I’d probably vote “guilty as charged!”

I don’t think anything will stop the majority Republicans in the Senate from seating him on the high court.  I also suspect that the party in part sees him as red meat for the base:  he may be finally the vote that overturns Roe.  Think of that for the Republicans in the mid-terms and 2020:  the short shelf life for Roe added to the tax cut, beating up on trade partners, defense of the National Anthem, severe reduction in immigration, etc.  So much red meat for the base.

Kavanaugh is the poster child for the party of the angry white man!

The President Shall Nominate a Replacement for Justice Scalia

No sooner had Antonin Scalia, Associate Justice  of the Supreme Court un-expectedly died, when the controversy over his replacement started.

The President wants to nominate a replacement.  A number of Republican senators and Presidential candidates say we should wait until the public votes for a new president.

Who is correct?  

Let's start with a quote from the Constitution of the United States, Article II, Section 2.  Referring to the President of the United States, the second sentence of the second paragraph states "...and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Justices of the supreme Court..."

At times like these, we should follow the Constitution.  The Constitution is clear, using the auxiliary verb "shall" to indicate an obligation.  Not just a nice idea, not just a suggestion, not just maybe he should, but "shall" means it's a true obligation.

Most importantly, there's nothing in the Constitution saying that if the President only has 1 year left in his term, he should wait for the next President.  It's just not there.

So the President is obligated to submit a nominee to the Senate.  Once nominated, the Senate has its role of providing Advice and Consent.  In that role, the Senate can advise the President that he shouldn't have nominated anyone.  But, giving the obligatory nature of the auxiliary verb "shall," that would be unconstitutional advice.  Sorry, Senators!

The Senate also must provide its Consent to any nominee.  If the Senate does consent to the nominee of the President, they can vote accordingly.  And the President can try again.  And the Senate might not vote to approve the nominee.  This back and forth until the next President is sworn in.  That would at least be constitutional.

But, to follow the Constitution, the President shall nominate a replacement for Justice Scolia.  Not to do so would be unconstitutional.

Marriage and the Supreme Court

The high court issued two land-mark decisions on what is popularly called "same sex marriage."  In separate 5-4 decis-ions, the court's decisions came out with decisions favorable to supporters of same sex marriage.

We will shortly see the barrage of political spin on all fronts.  But, from my analysis, the court decided in a logical manner.

Defense of Marriage Act (DOMA) Decision

In this case, the court correctly determined that DOMA violated the constitution.  In simple language, since same-sex marriage contracts are equally legal as two-sex marriage contracts in certain states, the Federal Government is acting unconstitutionally by saying some of these valid contracts can be honored by, say the IRS or other Federal agencies, whereas other equally valid contracts are honored.  There is no simple logical or legal reason for this.   (Technically, DOMA was found to violate the equal protection clause of the Fourteenth Amendment, as made applicable to the United States through the due process clause of the Fifth Amendment.   Thanks to my friend Josh for the legal details.)

So, here's my analysis of the decision:

• Simple logic:  This decision is simple as the Feds can't uphold some marriage con-tracts while not upholding other mar-riage contracts.  Fair-ness demands they honor them all or honor none of them.
  
• States rights:  So, today, the left is championing state's rights to define marriage, whereas certain conservatives who oppose the decision want the heavy hand of the Federal government to say "wait, we have some overriding principal and we'll impose our will on everyone."  Here, these conservatives are wrong.  They proclaim a weaker Fed, until some issue comes up when they can control the lives of those who differ from them.
  
• Theocrats:  We will hear religious leaders and religious politicians decrying the government cannot redefine the "traditional" marriage.  But these are the leaders who what to impose the principals of their interpretation of religion on all.  The want to encode tenants of religion into national law.  Here I have many things to say:
  - I do not believe in any encodement of any religious principals in national law.  This is both unconstitutional and against my religious beliefs
  - I am a Christian and I belief in teachings of Jesus Christ.  Jesus clearly had many problems with the high priests and scribes who wanted to hold all to their beliefs without walking their talk.  The theocrats are the high priests and scribes of our days and we must not follow them as they do not have authority in the eyes of God.

How Should Marriage Be Defined and by Whom?
We have been delivered to this point in time when this is the real question and this is where all sides want to prevail.  But before I tackle the issue, we need to look at the background:  how did we get from marriage as a local mercantile contract between business partners to marriage as something that spans the realms of religion and government?

A Brief History of Marriage  (taken from a previous post)
Forms of committed relationships between a man and woman date back millennia in many cultures. In many of the earlier forms a woman was considered given to a man. In European history, this was often seen as more a business deal, arranged by the families, where the woman may have been given as part of a transaction involving material goods.

Cultural traditions for marriage vary around the world and date back centuries, though the particulars typically evolved over the years. Often religious beliefs or superstitions were entwined in these traditions.

Formal state and/or religious recognition are relatively recent additions. In Europe, the first example of requiring a religious ceremony of marriage was in the Catholic Church, after the 1545 Council of Trent. However, religions ceremonies did occur for centuries before this date, but they were optional. Civil marriages emerged in Europe in the 1700s and 1800s.

The emergence of state recognition of marriage, particularly in Europe, roughly parallels the transition from state religions to tolerance for multiple religious traditions. Before that, the bureaucracy of state and church were so intertwined that the need for separate state involvement was not needed.

Back to the Question at Hand

We, in western society at least, have over the last 200 to 300 years come to move marriage into the public realm.  But, the major religions still believe marriage is theirs to define.

Thus, the conflict between church and state to define marriage.  Even in some religions, such as Judaism and Christianity, there is a divide.   Some sects cling to what they call "traditional marriage" yet others do marry same-sex couples.

This is the driving force in the power struggle for defining marriage:  does government in a multicultural society let the traditionalists, who may claim this is how it always was and always shall be?  Does government simply put it up to a vote?

As I have no trust of the theocrats, I can't accept any one view point strong-arming their opinion into law.  And, we all know the "Bible-based" marriage argument is weak, in light of many figures in the Hebrew scriptures who were unfaithful, or who had a lover on the side, etc.   The argument that it takes a man and a woman to conceive has a degree of merit, but, even in the arguments at the Supreme Court, the justices pointed out that marriage is not solely for propagation.  And there are many 2-sex couples who can't conceive as well as many ways that infertile couples and same-sex couples can conceive and have children.

In an equal manner, I don't like the idea of the definition of marriage being decided by a elected politicians or a ballot question or a judge in some court case.   Either, we end up with what DOMA tried to do, namely use the strong arm of the Fed to define marriage, or a patchwork of state-by-state decisions.

The Many Facets of Marriage

So, is marriage mostly for the propagation of the species?  Or for the committed, intimate relationship of soul-mates?  Or for the financial security of one or both spouses?  While traditionalists would say "all of the above" this is not always the case.  Some couples don't want to have children.  Some marry later in life so it's more about companionship.

Marriage has a somewhat different meaning and purpose for each couple, even if the traditionalists only put forward the model of a young couple marrying and having a family.

What Does My Faith Tell Me?

While many Christians will disagree with me, I can't say that a same-sex relationship is an abomination in the sight of God. I think we have to look hard at the teachings of Jesus and how Jesus lived and interacted with the people of his time on earth.   Yes, Jesus attended a "traditional marriage" at Cana and help out with the wine shortage.  Many take this as his endorsement of "traditional marriage,"  which it may be.   

But Jesus, unlike the scribes and pharisees of his day and the theocrats of our time, did not preach the prescriptions of what we should not do.  These folks love to be seen in public doing "good" things and following the rules.

Rather, he focused us on the greatest commandment of loving God and neighbor.  This love within needs to bring us a change of heart.  We must accept all, especially those on the fringes.  In Jesus' day, this was the tax collectors, prostitutes, and widows.  In our day, when we see who the theocrats rail against certain groups, those in the fringes include the undocumented aliens, minorities, LGBT folk (aka, "abominations"), the poor and homeless.

I know many same-sex couples who are motivated by love for each other.  I have many LGBT friends who have a strong faith in the Lord.  They don't exhibit the vile and hatred we see from the theocrats.  So, the question to me, is who is closer to the kingdom of God?

What to Do?

My proposal is simple: get the government out of the marriage business. A good pragmatic Libertarian has to always ask: “Does it make sense for the government to be involved in this?” I say: “No!”

The states should deal with legal contracts, which is one of the necessities of “being married” -- for example, ownership of common property, joint custody of dependents, rights related to health care, inheritance etc. So, I say any couple should be able to draw up a state-recognized legal contract regarding these matters.

And let the marriage ceremony return to the cultural traditions of the couple, be they religious or non-religious. Those traditions that recognize same-sex marriage can perform them; those opposed don’t have to.

Freedom and choice for all with no government intervention. That’s my solution.

Supreme Court Rules Strip-Search of 13-Yr. Old Girl Illegal

As reported by the AP:

The Supreme Court ruled Thursday that school officials violated an Arizona teenager's rights by strip-searching her for prescription-strength ibuprofen, declaring that U.S. educators cannot force children to remove their clothing unless student safety is at risk.

In an 8-1 ruling, the justices said that Safford Middle School officials violated the Fourth Amendment ban on unreasonable searches with their treatment of Savana Redding. The court ruled that the officials could not be held financially liable but left it to lower courts to decide if the school district could.

In my post of April 21, 2009, I expressed my outrage of the violation of this girl's body by school officials looking for ibuprofin! Can you believe that? For the sake of finding maybe a couple of ibuprofin pills, they made her expose her breasts and her pelvic area!

I still say this is sexual abuse. And not far removed from rape and child abuse! Though the intent was not sexual, just the same her body was violated by having to expose herself to school officials.

In any other workplace in the US, the firm would be sued and management fired if a woman was required to expose her breasts and pelvic area for any reason!

While the Supreme Court ruled strongly in favor of justice for Savana Redding, they ruled that the officials could not be held financially liable. But I question if they should not be charged with indecent assault!

School officials have no right to violate the bodies of students. Period.

Supreme Court Hears Case of 13-Yr. Girl Strip-Searched by School Officials

Is this an outrageous or what? Strip searching a 13-year old girl because she might have prescription-strength ibuprofen!

NPR reports:

The Supreme Court seemed worried Tuesday about tying the hands of school officials looking for drugs and weapons on campus as they wrestled with the appropriateness of a strip-search of a 13-year-old girl accused of having prescription-strength ibuprofen.

Savana Redding was 13 when Safford, Ariz., Middle School officials, on a tip from another student, ordered her to remove her clothes and shake out her underwear looking for pills. The district bans prescription and over-the-counter drugs.
Her lawyer argued to the Supreme Court that such a "intrusive and traumatic" search would be unconstitutional in every circumstance if school administrators were not directly told the contraband was in her underwear.

NPR also reports:

Vice Principal Kerry Wilson took Redding to his office to search her backpack. When nothing was found, Redding was taken to a nurse's office where she says she was ordered to take off her shirt and pants. Redding said they then told her to move her bra to the side and to stretch her underwear waistband, exposing her breasts and pelvic area. No pills were found.

Analysis

I find this intrusive search for a possible prescription drug to be an outrageous violation of her rights. Wasn’t it sufficient to check her bag and pockets? How could one ibuprofen be such a threat to the school that a strip search was necessary?

Furthermore, since she had to bare her breasts and pelvic area, I find this very close to rape and child abuse. Granted there was no physical contact or penetration, but think of the extreme personal embarrassment and the visual violation of one’s “private parts.” Rape is not a sexual crime; it is a crime of power – a person in a position of greater power violates the private parts of another.

This is just another example of women of all ages can becoming the victims of abuse of our right to privacy.

In my view, this school official should be liable for sexual abuse!