Different River

”You can never step in the same river twice.” –Heraclitus

May 12, 2005

Court Declares Constitutional Right to Same-Sex Marriage

Filed under: — Different River @ 11:06 pm

Well, it’s finally happened. The Federal District Court for Nebraska has declared a constitutional right to same-sex marriage. In particular, Judge Joseph H. Bataillon has declared that Article 29 of the Nebraska Constitution is “unconstitutional, as it it (1) a denial of equal protection and is (2) a bill of attainder.”

Article 29 of the Nebraska Constitution states:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

This was adopted as a constitutional amendment by the voters in November 2000, with over 70% of the vote. Keep this in mind as you read the following.

Read the court’s order. It’s an exercise in Orwellian language unlike any I’ve seen in a long time.

Dealing with (2) first because it’s simpler: A “bill of attainder” is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial” (see here). This judge, while conceding that, “Historically, bills of attainder imposed the death penalty,” nevertheless finds that this amendment “singles out a particular group and restricts its ability to effect political change,” which, he figures, is pretty much the same thing, because it “is intended to prohibit their political ability to effectuate changes opposed by the majority.”

In other words, if you can get your legislation passed because a majority voted to prohibit it, you’ve been punished, and that’s unconstitutional. (Imagine if this standard were applied to every law and every group!)

“Equal Protection” is a reference to the Fourteenth Amendment‘s extension of the First Amendment restrictions to the states. (Prior to that, the First Amendment restrained only Congress.) Fair enough. The First Amendment includes a right “to petition the government for a redress of grievances.” Fair enough.

However, this court decision claims that the right to petition the government for a redress of grievances is violated by a constitional amendment prohibiting that government from recognizing same-sex marriage. Huh? You heard me. Here are the court’s exact words:

As applied to the undisputed facts of this case, the court finds that Section 29, as written and as applied, imposes significant burdens on both the expressive and intimate associational rights of plaintiffs’ members and creates a significant barrier to the plaintiffs’ right to petition or participate in the political process. …

Most importantly, … Section 29 erects significant burdens on the promotion of, or lobbying for, any legislative or governmental action that would eventually extend rights or recognition to gays and lesbians

Read that last (bolded) sentence again. Basically, this is saying that by amending the constitution to prohibit a certain type of law, the right to petition the legislature for that type is violated.

Well yes, that’s the point!

But according to this court, when 70% of the voters voted for something, and this violates the right of the other 30% to petition the legislature to undo what the 70% of the people voted for.

By this logic, any constitutional amendment which puts anylimit on the powers of the legislature is a violation of the First Amendment. After all, an amendment prohibiting slavery inhibits wannabe slaveholders from petitioning for restoration of the “right” to hold slaves. (Haven’t heard any petitions for that since the Thirteenth Amendment, right? See my point?) An an amendment guaranteeing free speech inhibits advocates of censorship from petitioning the legislature for censorship. An amendment barring unreasonable searches and seizures inhibits advocates of a police state. An amendment that prohibits the legislature from prohibiting the free exercise of religion inhibits atheists from petitioning for the outlawing of religion, Catholics from petitioning for outlawing Protestantism, Protestants from petitioning for outlawing Catholicism, and Nazis from petitioning for killing all the Jews. And, of course, all those groups have been subjected to “punishment” under that “bill of attainder” that used to be called the “Bill of Rights.”

In fact, by this logic, any time the people place any limit whatsoever on the powers of government, the court could strike down that limit by claiming it violated the rights of opponents to petition for the government to exercise power in excess of that limit.

The real kicker is, the judge based his opinion on precedent, claiming (correctly) that the Supreme Court had made a similar holding in Romer v. Evans (1996).

Back in the days of the Declaration of Independence, we believe that governments “deriv[ed] their just powers from the consent of the governed.” Now, we are told that any limits on the governed place on the government violated the rights of the governed.

If this is allowed to stand — and there’s no reason to believe it won’t be — there will be no end to it. There will be — if there are not already — no limits to the power of government, except perhaps the preferences of individual federal judges. Judges who, once appointed, are by design unaccountable for their decisions. Judges have already ordered legislatures (in Vermont and Massachusetts) to pass new laws regardless of whether they like them, and now they have declared that the people have no right to restrict the government from passing laws they don’t like. The judiciary has gone beyond judicial activism and into self-parody.

Other thoughts so far:

Eugene Volokh has an excellent post on this decision. He makes the same points, only better and less dramatically (he is, after all, a law professor). He also predicts reversal on appeal. I hope he’s right, but I’m not betting on it.

A lawyer who writes under the name “Spoons” has a way of translating Prof. Volokh’s article into more dramatic terms.

Anti-Anti-Americanism in Egypt

Filed under: — Different River @ 9:30 pm

One of those things that every “right-thinking” (which is to say, left-thinking) person in America or Europe knows, is that the Arabs hate America because of George W. Bush and his interference in Iraq, not to mention his pro-Israel inclinations. (Remember the warnings about the “Arab street”?) Oh, yes, and Bush is stupid and ignorant too, especially when it comes for foreign countries and cultures.

Well, an American in Egypt has taken all this a bit too much to heart. Josh Stacher is an American who has been living in Cairo for several years, first getting a master’s degree at American University in Cairo, and now writing a Ph.D. dissertation on contemporary politics in Egypt and Syria under the auspices of the University of St. Andrews (which is in Scotland, but Josh is in Egypt). He reads classical Arabic, speaks Egyptian Arabic, and blogs in English at The Arabist Network. He is already being cited as “an academic expert on Egypt and Syria.” And he had this experience at a meeting of the al-Ghad opposition in Egypt:

So we are sitting there waiting with everyone else and the gentleman next to us started asked us where we were from etc. Yeah, we are Americans and came to see what is up. He made some comment about Mubarak being a dictator and how he loved Americans. Trained that Egyptians are brilliant at separating Americans from the US administration, I gave him the old, “Yeah well Bush is dumb and does not understand the region”. All of the sudden, my friend and I were the center of hostile attention by all those in earshot. You would of thought I insulted the Pope on Sunday.

(Insulting the Pope on Sunday? In Egypt? How many Catholics are there in Egypt? OK, who “does not understand the region” now?)

I then was subjected to multiple people explaining that I was wrong. All the previous American presidents were supporting dictatorships but Bush – well he understands and is smart. Another chap tried to outdo his party colleagues by saying “and the FM Condaleeeeza is very clever” as he pointed to his temple. I quickly readjusted and said, “Well maybe you’all are right.” I then turned to my friend and quietly said in English, “There you go….al-Ghad is the liberals.”

Remember this next time you hear an “academic expert” tell you what the people in the Middle East are thinking.

(Hat tip: TigerHawk.)

Speaking Foreign Words in English

Filed under: — Different River @ 7:13 pm

Joe of Joe’s Dartblog has an interesting post on the pronounciation of foreign words used when speaking English.

John Derbyshire is exactly correct. If you are from an English-speaking nation, you speak English. If you speak English, you pronounce foreign words as standard English pronunciation would dictate. Therefore, the correct pronunciation of ‘latino’ is LAT-in-oh, not La-TEEN-oh.

Now, I have to admit that I completely agree with sentence #3. However, I’m a native speaker of English, and a fluent speaker of no other language, and I have never in my life heard anyone pronounce “latino” as LAT-in-oh. As far as I’m concerned, the correct pronounciation — in English — of “latino” is la-TEEN-oh. Maybe it’s because I’m from California, and Joe is from New York, but I’ve lived in four different states and never heard anyone say “LAT-in-oh.” In fact, I hardly ever even hear the word at all outside the Southwest.

This brings to mind an article I read a few years ago, by Jay Nordlinger, entitled “Gutter Politics,” which states in part:

I’m not going to say “gutter.” That’s what we’re supposed to say now, instead of Qatar — instead of “Qa-TAHR.” It’s the latest thing. From time immemorial — defined as the moment of my birth on — we’ve said “Qa-TAHR.” All red-blooded Amurricans say “Qa-TAHR.” But the other day, I even heard Condi Rice — the otherwise unimpeachable Condi Rice — say “gutter.” I almost busted a gut.

If you start to go native on the pronunciation of foreign capitals and other places, there’s no end to it. None. I called up the Qatari embassy in Washington. The receptionist answered, “Good morning, Embassy of Qa-TAHR.” I smiled. I then asked — this was a native — how Qataris (“gutterees”?) pronounced the name of their country. She said “gutter,” or something close. But one gets the feeling that she wouldn’t say “gutter” when speaking in English. Neither would an American say “United States” instead of “Etats-Unis” when speaking French.

There was a followup to this a few months later:

Ed Bradley of 60 Minutes interviewed the Emir of Qatar himself the other day, and, lo and behold: While Bradley duly said “Gutter,” the Emir — speaking in English — said “Qa-TAHR.” Which is perfectly natural, because “Qa-TAHR” is what you say when speaking English. But CBS News was trying to be more gutteree than the Qataris.

(If you’re not laughing by now, re-read that last sentence…)

I remember reading a very long time ago (early 1980s) a letter to the editor in U.S. News & World Report in which someone wrote in to complain about the inherent racism in the fact that we called Japan “Japan.” This back when every right-thinking person was convinced that that country was overtaking the United States both economically and otherwise, that it would soon be the dominating country in the world, and that we in the U.S. had better learn to not only play second fiddle (there, I split an infinitive!), but get used to it. Anyway, he thought it was due to racism that we called it “Japan” instead of “Nippon.” “No other country in the world is denied the right to choose its own name,” he thundered. My first thought was, “You mean like Deutchland? And España?”

Ten points to the first person who can find a video of Ed Bradley interviewing someone from Italy, Sweden, Finland, Germany, Spain, or Switzerland, and saying “Italia,” “Sverige,” “Suomi,” “Deutchland,” “España,” or any of “Die Schweiz,” “Suisse,” “Svizzera,” “Svizra,” or best of all, “Confoederatio Helvetica.”

The fact is, we English speakers are horribly inconsistent about which foreign words we pronounce (approximately) as they are pronounced in the foreign language (“Honduras”), which we pronounce as if their foreign spelling would be pronounced in English (“Paris”), which we do something in between (“van Gogh”), and which foreign proper nouns for which we have bona fide English words (“Italy”).

To one who grew up in California, as I did, this becomes painfully obvious — especially when someone from another part of country who has taken a few Spanish classes comes to visit. On her first visit to Los Angeles (“Loss AN-jl-us” not “Loh-s AN-gheles” — the “gh” being something like the “ch” in the German “Ich” or “×—” ih Hebrew), my then-future-wife saw a street sign (“La Cienega Blvd.”), applied the Spanish pronunciation rules and said “La See-en-AY-ga” — which sounds hillarious to anyone who knows how locals actually pronounce it: “La See-EN-e-ga.” Which is indeed correct Spanish, since in Spanish it’s actually spelled with an accent mark over the first e (“La Ciénega”) — only problem is, the street sign is “in English” and we don’t have accent marks in English. The same thing happened later when we got to Sepulveda Blvd., which is not pronounced Se-pul-VEED-ah, but Se-PUL-v-da — due to the fact that it’s pronounced that way in Spanish, in which it is spelled Sepúlveda. You might think from these examples residents of Los Angeles pronounce street names consistently — that is, correctly in Spanish — until you get to Los Feliz, which is pronounced “Lahs FEEL-iss” instead of “Lohs Fe-LEEZ.” (Even growing up there, for years I heard that name on the traffic reports, and saw the sign, and didn’t realize they were talking about the same street!)

Jay Nordlinger has more examples of inconsistency:

But the general problem persists. Last winter, I was thinking of starting a “Torino Watch.” Why? Katie Couric was broadcasting from the Salt Lake City Olympics, and she was looking forward to the next Winter Olympics, to be held in . . . “Torino,” she said. Why she said “Torino,” instead of good ol’ Turin, is shrouded in mystery. Would-be sophisticates are always saying “Torino” instead of Turin and “Milano” instead of Milan. But, oddly, they don’t say Roma — except “when in Rome,” presumably — and they don’t say “Venezia” (Venice), “Firenze” (Florence), or “Napoli” (Naples).

But there is a point — or several — and one of them is consistency. Katie Couric may swing with “Torino,” but she’d never say “Köln” instead of Cologne, and she probably wouldn’t refer back to the (horrendous) “München” Olympics. Nor would she pretend that the 2004 Summer Games will be held in “Athena.”

And do you ever say Peking? Only when ordering duck, huh? There’s something vaguely right-wing about saying Peking instead of Beijing, isn’t there? I always feel a little frisson of rebellion when I do so. If you wanted to be a real weirdo, you could say Peiping.

Actually, there is some actual geopolitics behing that last one. “Peiking” is the (anglicization of) the Cantonese (Guangzhounese?) name for that city; “Beijing” is the (anglicization of) the Mandarin name for the same city. We starting out saying “Peiking” because the first English speakers to have extensive contact with China were British traders, and their initial contact was mostly with the Canton (Guangzhou) area in southern China (Hong Kong is in this general area). When the Communists took over, they were mostly Mandarin speakers from the North, and they tried to impose their language on everybody. It hasn’t worked all that well — but they did succeed in convincing most English speakers that it was insensitive to pronounce the name of their capital city in a way that reminded them of how their racially inferior (hah!) countrymen in Guangzhou and Fujian pronounce it.

So, I think we should all pronounce it “Peking” as a way to protest anti-Cantonese bigotry on the part of Mandarin Communists. So there!

Joe has one more complaint:

I would listen to WNYC (NPR in New York) every morning. The regional news, anchored by good speaker Soterios Johnson (who is from Jersey), features New York beat reporter Cindy Rodriguez. This girl, who grew up in Texas, should not be on the radio. She signed off every report saying, “For WNYC, I’m Cindy Rrrrod-RRRRigeZZ.” I instinctively stopped short whenever I heard that sign-off; thinking that a rabid raccoon- possibly possessed- had somehow entered my truck’s otherwise mild mannered Bose sound system. But no. It is Cindy Rodriguez, Texan. An English-speaker. Doing a report in English. In New York. About New York.

I’m sorry, I usually agree with Joe, but I have to disagree with that. I think people have the right to pronounce their names anyway they want. If she wants to pronounce it “Rrrrod-RRRRigeZZ” and spell it “Smith” that’s fine with me — as long as she doesn’t get insulted with people with toungues that can’t roll fast enough don’t roll them. In exchange, when you go to Cancún for spring break, you get to call yourself “Joe” or “José” — your choice, not theirs.

By the way — how do you pronounce the name of that most American of cars, the “Chevrolet”? Because I think the French would pronounce it, “Shev-row-LAY” not “Chev-ROW-lett.” ;-)

Boston Bans Indians

Filed under: — Different River @ 3:15 pm

The Boston Globe reports reports that Boston may lose a bid to host a convention of ethnic-minority journalists because Massachusetts has a law requiring the arrest of any Indians who enter the town of Boston.

The law appears to apply to American Indians (AKA, “Native Americans”), rather than Indian Americans (i.e., people who, or whose ancestors, are from India). But you never know, since the law just says “Indian.” It requires that any Indian attempting to enter Boston be detained, in prison if necessary, until permission to enter is obtained from the Governor.

The law was passed in 1675.

If my understanding of the Fourteenth Amendment is correct, this is a blatant violation of Section I of that Amendment, which means it should have been repealed right after the Amendment was ratified in 1868. Which means the legislators of Massachusetts are way behind in their duties.

The law reads as follows:

We find that still there still remains ground of Fear, that unless more effectual Care care be taken, we may be exposed to mischief by some of that Barbarous Crew, or any Strangers not of our Nation, by their coming into, or residing in the Town of Boston. . . . Secondly, That there be a Guard appointed at the end of the said Town towards Roxbury, to hinder the coming in of any Indian, until Application be first made to the Governor, or Council if fitting, and to be . . . remanded back with the same Guard, not to be suffered to lodge in Town, unless in Prison.

My guess is that the law has not been enforced in a while. My guess is the guard has not been appointed either. If they repeal the law, can I have the guard’s back pay? ;-)

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