A Few Thoughts on Ferguson

Image Credit: Reuters

It’s just past 11:30 PM central time, and I’m still processing my thoughts about Ferguson, the Darren Wilson verdict and the killing of Michael Brown. There’s a lot I don’t know, but here’s some things I do, or at least feel very strongly.

First, with the caveat that this is based on my viewing of CNN (it’s rare for me to ever watch cable TV), there was almost no discussion tonight of how low of a bar probable cause was — the standard the grand jury was asked to consider when deciding whether to move Darren Wilson’s case to trial.

Part of the definition: “Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest).”

Much of tonight’s reporting focused on whether there was a version of the evidence that agreed with Darren Wilson’s take on what happened. But to have probable cause, there just needs to be a reasonable basis for believing Darren Wilson did not properly use force. Per FiveThirtyEight, “According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.”

Second, there were widespread reports of looting and destruction of property, not to be confused with the idea that the majority or even a large number of protesters engaged in such behavior. CNN would show video of people looting a store for 10+ minutes with no police cars showing up. If individuals engaging in looting, they should have been arrested, immediately. If people destroyed police car or shop windows, they should have been arrested, immediately.

And while some people might have been, the overwhelming focus of the police, via my limited CNN vantage point, seemed to be to show force for the sake of showing force, to disperse largely peaceful — and angry, yes, but largely peaceful — protesters, rather than focusing on protecting property and lives and arresting wrongdoers. So many struggled to protest, some struggled to breathe — for tear gas is a form of violence, irrespective of the debate about whether it is justified or not — and all the while the looting and the violence went on.

Police treated Ferguson like a war zone, and the casualties were nonviolent demonstrations and the maximization of peace and just calls for justice. Tear gas by police was a choice. Focusing on clearing streets over cuffing looters was a choice. Many of the police’s choices tonight, to me, look like they were wrong.

Third, and finally for tonight, it will be too easy to not have the needed conversations going forward. It will be too easy to play the pictures of burning police cars over and over again. And the destruction of property, too, is a tragedy, even if it pales in comparison to the tragedy of the loss of Michael Brown’s life, no matter his actions or lack of actions. But CNN, in the more than three and a half hours I watched post-grand jury decision, talked to one protester for not even 15 seconds.

I know I’ve lived white privilege. There’s so much I don’t know. But I can listen and do my best to hear. I can do my best to hear those who believe injustice after injustice has occurred and is occurring against communities of color. I can do my best to hear those who see profiling, discrimination, disrespect and the message that black lives don’t matter coming from the police and other authority figures. I can do my best to understand, to learn what could be done and, when it makes sense and when it can be productive, to speak.

Catholic Schools and Sochi: Not So Different After All

Source: L’OSSERVATORE ROMANO/EPA

Originally published for The Hoya

With the opening ceremonies of the Winter Olympic Games in Sochi, Russia, kicking off today, Vladimir Putin has a message for those in the LGBTQ community who will be visiting for the games, which he first delivered Jan. 17, 2014:

“One can feel calm and at ease. Just leave kids alone, please.”

Exactly one month before, Eastside Catholic School in Sammamish, Wash., delivered a similar message to well-regarded vice principal Mark Zmuda, better known to students as Mr. Z.

Go about your life. Just leave our kids alone please.

For an LGBTQ visitor to Russia, any “propaganda of nontraditional sexual practices,” ranging from wearing pride pins and making pro-gay statements on television to public displays of affection, “could result in arrest, incarceration for 14 days and a fine of as much as $3,100,” according to ESPN.

For Zmuda, Eastside Catholic’s similar judgment cost him his job. He was fired after a fellow teacher informed the school that he had recently married his partner.

From Sochi to Sammamish, the root of intolerance is the same. Whether delivered by Vladimir Putin or Seattle Archbishop J. Peter Sartain, the message is the same. If you are gay and out, you will corrupt our children. If you are gay and out, we will punish you. Stay closeted and hide who you are or you will suffer the consequences.

“Who am I to judge?” asked Pope Francis. “We shall judge,” answered America’s Catholic schools.

Michael Griffin was a French and Spanish teacher of 12 years at Holy Ghost Preparatory School just outside of Philadelphia. Tippi McCullough had taught English for 15 years at Mount St. Mary Academy in Little Rock, Ark.

Music teacher Al Fischer taught at St. Ann Catholic School in St. Louis for four years — that is, until a school official overheard him talking about his plans to wed his partner of 20 years. And Ken Bencomo, who taught English at St. Lucy’s Priory High School in Glendora, Calif., for 17 years, was fired after an article about his marriage — one of the first to occur after the injunction against Proposition 8 was lifted — appeared in a local paper.

These schools all defended their decisions in the name of the responsibility of Catholic schools to uphold their principles and, as Sartain stated, “of both imparting and modeling our teaching.”

One can feel calm and at ease. Just leave kids alone, please.

The Church evolved on the rights of black Americans, and in time it will evolve on gay marriage too. Asking people to deny their own fundamental truth of who they are is too in conflict with the Roman Catholic Church’s message of the human dignity of each person and the value of each human life to stand forever.

In the meantime, in denying gay teachers and administrators their ability to administrate and teach just because of whom they love, the church and these Catholic schools take the side of Putin. Their view is his view. Zmuda’s firing is Putin’s affirmation.

Pope Francis has a moral responsibility to be clear and step in. Francis may think it is a sin to be gay, but to stand idly by while Catholic schools imply it is such a sin that the choice is the closet or getting canned is an affront to the values of human life and human dignity.

Being out isn’t propaganda. Being out isn’t dangerous. Being out doesn’t imperil the children. Being out shouldn’t be grounds for termination in Catholic school or any school. If Catholic schools fired all their employees who used birth control, they wouldn’t have many employees.

“Injustice anywhere is a threat to justice everywhere,” wrote the Rev. Martin Luther King Jr. from a Birmingham jail over 50 years ago. “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

When we look at one group of people as a lesser people, when we sit idly by in the face of intolerance, the “extremists for the preservation of hate” can get the upper hand.

Catholic schools, and Pope Francis in his silence, are helping the extremists in favor of preserving the hate get the upper hand. It must stop.

“Darkness cannot drive out darkness, only light can do that.” King said. “Hate cannot drive out hate, only love can do that.” Putin’s Russia is darkness. I pray Pope Francis and America’s Catholic schools soon see the light.

DOMA Ruling Reflects National Values

Originally published by The Hoya

Same-sex marriage is not just a personal issue. It concerns far more than your right to marry whomever you wish. At its heart, same-sex marriage is a measure of the ability of our communities and our nation to sympathize, to empathize, and to love.

Embracing caring, committed relationships should be a hallmark of every society. These unions should be celebrated and cherished, for we are not simply a society of individuals going about our daily lives. We are people interconnected by a web of relationships. That is what makes us who we are.

If an individual loves another who makes him happy, makes him laugh and is committed to being there for him in sickness and in health, then our society’s values are surely awry if it does not treat these caring souls with dignity and instead demean their relationship simply because of their anatomy. We human beings are far more than a collection of body parts.

Of course, much of the United States still opposes this logic. Even after Wednesday’s rulings on the Defense of Marriage Act and California’s Proposition 8, 37 states still stigmatize same-sex relationships as inferior to opposite-sex relationships.

I had hoped the Court would make same-sex marriage the law of the land in all 50 states. Born and raised in Tennessee, I have seen some of the worst of what my gay friends have had to go through. Their experiences have made me skeptical of the argument that justice is about to roll down across the country like waters or that righteousness will do the same like a mighty stream absent a Supreme Court finding that forces the South’s hand.

And yet, as I reflect on the Supreme Court’s decisions, I am profoundly overjoyed.

Yes, there is still far more work to be done on same-sex marriage and on other important LGBT issues, from same-sex couple adoption rights to employment discrimination. But until I heard Justice Anthony Kennedy’s words from inside the courtroom, after a night of camping out in front of it, I did not fully appreciate just how significant the ruling on DOMA in United States v. Windsor was for our country and for each of us — gay, straight, and in between.

The court found DOMA to be “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” violating “basic due process and equal protection principles applicable to the Federal Government,” though a decision on the dubious constitutionality of states banning same-sex marriages will unfortunately have to wait for another day. Nonetheless, the Supreme Court made it abundantly clear that the Constitution fundamentally protects, as Justice Kennedy wrote, the “moral and sexual choices” of same-sex couples.

The majority opinion affirmed that depriving people of rights, privileges, or benefits simply because of a wish to express disapproval of their sexual orientation is unconstitutional.

The legal default for our nation is no longer discrimination, helping LGBT youth around the country. In a way, the Supreme Court ruling is its own “It Gets Better” video.

The DOMA ruling will help a lot more people visualize a day when they can be out and happy and married to the person they love, and their federal government will now accept that love as equal under the law for the first time.

No matter how snarky and smarmy Justice Antonin Scalia’s (CAS ’57) dissent may have been, the DOMA ruling makes it more possible than ever to visualize a future when all 50 states hold up loving, caring, committed relationships — gay or straight — as examples of what is right, what is natural, and what our society should value.

Edith Windsor and Thea Spyer were together for more than 40 years. Their marriage of two years was recognized by the state of New York before Spyer died in 2011. The United States federal government used to explicitly denigrate their relationship. Not anymore.

The arc of the moral universe is long, but it bends towards justice.

Prop 8 50-State Supreme Court Ruling: It Rhymes, And It Is Coming Next Week

In my last post, I went into a fair amount of detail about the moral and legal arguments for a 50-state ruling striking down California’s Prop 8. Here’s the plain English version of why it’s going to happen.

The absurd arguments for more limited rulings:

You hear a lot of people saying, “well, the Court doesn’t want to issue a broad ruling.” But you can’t always get what you want, because they really can’t do a limited ruling with any sound legal basis.

If they say that the Prop 8 proponents have standing (more on that below), then it’s got to be 50-state.

If the Court says Prop 8 is only unconstitutional because of California’s circumstances, that would means it’s not ok for a state to allow gay marriage and then take those marriage rights away, but if a state doesn’t allow gay marriage in the first place, that’s just dandy!

Another ludicrous option, which for some incoherent reason was put forward by the Obama administration’s Justice Department, is an 8-state ruling that says if a state makes civil unions legal but doesn’t allow gay marriage, then that’s against the Constitution, but it would be ok if a state never granted civil unions or equal legal rights in the first place. Huh?

The ‘aaah this is too hard, we need to try to find a way out!’ rulings:

If they rule on standing, that means the Court says the original funders of the Prop 8 ballot weren’t eligible to appeal a lower court’s ruling that Prop 8 was unconstitutional. Normally the California AG or governor would appeal such a ruling, but they both declined to do so. If the Court rules on standing, who exactly could have appealed that ruling?

The Court, I guess, could re-write standing law and say that an elected official would have to do been the one to appeal the lower court’s ruling, but that seems unlikely, particularly because Justice Kennedy indicated during oral arguments that he thought the Prop 8 proponents had standing, it would be a brand new precedent in standing law, and it would seem to go against California’s constitution.

Ruling on standing would result in a Prop 8 being unconstitutional in CA, but it would also be super problematic for future ballot initiative cases.

The other option would be for the Court to issue a rare ‘we should have never taken this case in the first place! Never mind!’ ruling, which would just have the last ruling stand, which BuzzFeed tells me would mean that gay couples could marry in California and “the other western states within the 9th Circuit.”

This would be the Court’s way of saying ‘let’s just give the states more time to work this out.’ Or, put another way, ‘let’s just keep allowing voters to decide if discrimination on the basis of sexual orientation is OK or not and see how long it takes Mississippi or Alabama to say that gay girls and boys in those states may be able to get married where they were born one day. And let’s just continue to have the children of gay couples be faced with a society that refuses to acknowledge the value and virtue of their parent’s relationship.’

So obviously, that would be cowardice. There’s no “uncharted waters” or potentially dangerous “cliff” here, as Justice Kennedy wondered aloud. We know what we need to know.

As Justice Kennedy said, “There is an immediate legal injury and that’s the voice of these children…There’s some 40,000 children in California…that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

I do not believe Justice Kennedy is stupid. He knows that there are children across the country facing that same immediate legal injury. He knows that none of the other options make any sense.

And that’s why, sometime in the next week or so, the Supreme Court is going to issue a 5-4 ruling that finds that denying gay couples the right to marry is unconstitutional across all 50 states.

May it please the Court, don’t be cowards

Photo by Chip Somodevilla/Getty Images

The legal and moral arguments for same-sex marriage nationwide are clear. Justice Kennedy’s role in history isn’t yet.

On March 26, the Supreme Court heard oral arguments for Hollingsworth vs. Perry, better known as the case regarding California’s Proposition 8.

The main question before the Court is “whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”

The Equal Protection Clause, in practice, means the State cannot just exclude a particular group from a law because it wants to; it has to have a reason that has to be related to a governmental interest. The Court has found that certain suspect classifications, such as race or sex, have to meet a higher standard of scrutiny.

When looking at the case, it’s clear that no matter what level of scrutiny the Court applies, Proposition 8 should fall on the basis of a broad Equal Protection claim that finds a constitutional right for same-sex couples to get married across the United States.

When looking at how the Court might rule, Chief Justice Roberts and Justices Alito, Scalia, and Thomas are all lost causes, but Justice Kennedy might just join a nationwide same-sex marriage ruling yet.

Why? Let’s look at the legal argument of the opponents of same-sex marriage.

Those who want Prop 8 to stand say the law advances the State’s interests in “responsible procreation,” “childrearing,” “proceeding with caution before fundamentally redefining a bedrock social institution,” and restoring “democratic authority over an issue of vital importance to the People of California.”

I’ll address each of these in turn.

First, the idea that including same-sex couples in the definition of marriage somehow furthers “responsible procreation” is absurd. The elderly, the sterile and those who do not intend to have children can all get married, so there is already an expectation that some married couples will not procreate. The fact that many women are having babies outside of marriage obviously has nothing to do with same-sex marriage, and including gay couples in the institution of marriage furthers the norms of monogamy, commitment and stability that help lead to more responsible procreation.

Second, same-sex marriage would clearly further the state interest in childrearing. Same-sex marriage nationwide would lead to more adoptions, which improves childrearing outcomes, and the Prop 8 proponents’ own expert said that the recognition of same-sex marriage would increase the wellbeing of the over 40,000 children who live with same-sex couples in California.

Third, the recommendation to proceed with caution, based on fears of potential future consequences that are not backed up by any evidence, is not enough to justify continued discrimination. Same-sex marriage is now legal in nine states and the District, yet its opponents are not able to cite even one example of negative consequences that have occurred. Plus, the traditional definition of marriage has changed before – it now allows for interracial marriage and doesn’t treat women as property.

Fourth, the State has no interest in allowing the ballot box to deny fundamental rights of citizens, which is why we have the Fourteenth amendment in the first place.

So it’s clear – it is unconstitutional for the State of California, or any other state, to define marriage as the union of a man and a woman, thereby excluding same-sex couples.

Justice Kennedy seems to know this, too.

During oral arguments, he indicated that the Proposition 8 proponents probably had standing. He rightly didn’t think a limited California ruling made any sense, as this would render the law unconstitutional only because it took away rights after they were granted. He didn’t buy the eight-state option put forth by the Obama administration that the law is unconstitutional because California grants equal benefits, but not marriage, to same-sex couples.

Despite this, Justice Kennedy lamented the Court taking the case in the first place. He appears to be uncomfortable and looking for a way out, whether by denying standing or by some other procedural means.

Justice Kennedy, that would be moral and judicial cowardice.

There’s nothing conservative in perpetuating the idea in many states that gay relationships are to be frowned upon or that gay parents have less ability to contribute to society or to parent or to love or to care.

There’s nothing radical in acknowledging the fundamental human dignity and worth of gay people throughout this nation.

There’s nothing admirable about letting the democratic process continue to play itself out. Think of a young homosexual girl or boy in Tennessee or Mississippi, where prejudice and ignorance against those in the LGBT community is still too often condoned and where a pro-gay marriage vote is a long way off.

There’s no valor and no honor in Justice Kennedy trying to hold that black robe over his eyes and ears and deny what is so clearly obvious. There’s no “uncharted waters” here, no “cliff.”

Justice Kennedy, it’s your move. You know what you should do. Now be on the right side of the law, of history, and of justice, and do it.

The Complicated Math of Reducing the Payroll Tax

In my last post, I first advocated eliminating the payroll tax and replacing it with a carbon tax. Well, it turns out a carbon tax actually brings in way less money than I had anticipated – about 7% of the Social Security payroll tax*, in fact.

That’s probably not enough to make the carbon tax politically possible at this time, even if it would be good policy. But if you combined it with other potential sources of revenue, I believe it would still be doable.

How to Make a Grand Bargain Grand

The Republican Party, as it stands now, is fractured, struggling to find a true identity after yet another electoral loss. No doubt, this is a perfect time for Democrats to go on the offensive and attempt to break the GOP’s intransigence and aversion to compromise.

Breaking Republicans’ “no tax increases, ever, for any reason” stance, if only temporarily, is no small feat. But it was a relatively easy feat – with taxes set to go up on everyone and huge spending cuts on the horizon (and the milk cliff!), the GOP had to give in.

In the upcoming fights over the debt ceiling and the sequester, Democrats will have to make Republicans give in – to raising the debt ceiling, to raising further revenues in a progressive way, to keeping the integrity of entitlement programs, to not cutting other important social programs.

With an all out push by President Obama, Democrats can get a carbon tax and progressive tax reform in a Grand Bargain. The price? Progressive Medicare reforms and the permanent reduction of the payroll tax. Now that doesn’t sound too bad, does it?

Democrats, here’s how you do it:

1)   Go on the offensive on Medicare reforms to get progressive tax reform

Medicare without any changes is fiscally unsustainable. That’s just a fact, and it means Democrats have a responsibility to put forwards reform ideas.

Medicare costs are high because health care costs are high, but also because Medicare pays out more in benefits than it takes in – about $241,000 more for “an average-wage two-earner couple together earning $89,000 a year” according to the non-partisan Urban Institute (first established by the LBJ administration).

But Democrats also have a political and strategic advantage to proposing their own reforms, outside of those already established by the Affordable Care Act. To do so makes moot the only talking point the GOP has going for it on extreme reforms like the Ryan Plan – that such policy is needed to keep Medicare from going bankrupt.

So Democrats should advocate means-testing Medicare further (it is already means-tested to a degree). There is space between means-testing too much, which may lead the better-off and healthier to leave Medicare for private insurance, shrinking the risk-pool that keeps costs lower, and not means-testing enough.

Alongside means-testing, Democrats should propose other reforms, like increasing Medicare’s bargaining power and Ezekiel Emanuel’s proposal for “graduated eligibility” that would connect the age of eligibility to lifetime earnings.

Take the wind out of the Ryan Plan backers’ sails, take on progressive Medicare reform, accurately come across as serious about reforming Medicare, and tie Democratic support for these proposals to getting more revenue via tax reform with a 1-1 spending cut to revenue increase ratio – and announce it all in the State of the Union. That’s a winning formula.

2)   Advocate for the reduction of the payroll tax, and a carbon tax, all in one

The payroll tax is horribly regressive, and for a country that, with the help of lobbyists, is all too eager to incentivize certain behavior in the tax code, it makes no sense to decentivize labor via the payroll tax.

That’s an easy argument to make, it’s true, and it’ll be extremely popular. So Democrats should use it to create a more progressive tax system and fight climate change, all at the same time. Reduce the payroll tax and institute a carbon tax.

The argument against a carbon tax in normal circumstances would be that it would kill jobs, etc. But I highly doubt it would be more detrimental to job growth than the payroll tax – in certain industries, sure, but not overall, providing an opportunity to make that talking point a moot point as well.

3) Go on the offensive. Keep pushing these proposals, day after day, and watch Republicans struggle to find reasons to oppose them

The President’s popularity would soar, and an all out, coordinated push by the President and his allies, including both Clintons (get well soon Hillary), would put the Republicans in a impossible position. They would be forced to defend allowing the sequester to take place – and continuing to threaten the US defaulting on our obligations by refusing to raise the debt ceiling – because they opposed these extremely popular proposals.

That won’t fly, and that’s how Democrats can make a Grand Bargain truly grand. Or, at the very least, tremendously increase the President’s popularity and leverage in the negotiations.

[Note: Earlier, I advocated for the elimination of the payroll tax. While I still think that’s a good idea, the math is certainly difficult. A carbon tax would allow us to reduce the payroll tax by about 1.59% to be revenue neutral according to an MIT study, although it is unclear to me if that’s just a reduction in the employee side like this last payroll tax cut was, or overall. If it’s just on the employee side, you’d likely need to combine a carbon tax with other proposals – eliminating subsidies on oil and gas companies, etc. – to get to a permanent 2% reduction/a $1,000 tax cut to make the messaging cleaner. More on the complicated math of reducing the payroll tax from me here.]

Occupying Parks, Not Hearts and Minds

Photo: Mario Tama/Getty Images

Occupy Wall Street is, as Al Gore put it, a “primal scream of democracy.” Most Americans, me included, can indentify with how fed up the protesters are with rising income inequality, declining social mobility, the vast influence of Wall Street and large corporations like General Electric and Estée Lauder in Washington, and the sense that the top 1 percent are doing just fine while the 99 percent struggle with the devastating effects of the Great Recession.

Americans should certainly be angry. People on the middle of the income scale have seen their average incomes increase by 40 percent in the past three decades, while incomes for the top 1 percent increased 275 percent. From 1998 to 2008, there was actually a drop in median household income when adjusted for inflation, from $51,295 in 1998 to $50,303 in 2008. Incomes for the top 1 percent continued to rise drastically.

Meanwhile, bankers who played with middle class savings like they were monopoly money often got off easy with necessary bailouts and egregious and insulting golden parachutes.

Thus, the primal scream.

The problem with this primal scream, however, is that the only ones listening to it have been those who already agree with the Occupiers. In demonstrating their disgust with Wall Street and the incomes and political influence of the top 1 percent, the Occupiers have failed to change the conversation because their movement has been, well, primal.

People over Politics: The Real Life Impact of the Individual Mandate

The Supreme Court is set to take up the constitutional challenges to the Affordable Care Act, with oral arguments beginning in March 2012 and a decision expected in late June 2012, less than five months before Election Day.

While the Court is set to take up a few different challenges to the constitutionality of various aspects of the law, including the essentially compulsory expansion of Medicaid by the states, the most contested question is that of the constitutionality of the individual mandate.

You can read various legal arguments about it being unconstitutional here, here, and here, constitutional here, here, and here, and a summary of the arguments here.

Needless to say, the lower courts have been divided on the issue. A brief summary of the court decisions can be found at the bottom of this article.

Polling, too, has been contradictory. While most polling has consistently found the majority of Americans, and often the vast majority of Americans, opposed to the individual mandate, a recent CNN poll found that 52% of Americans support the provision. I’ve often wondered what a poll would look like if the question posed was “should people who may get sick and need care at some point be mandated to buy health insurance” – would be interesting to see those results.

Most media stories on the individual mandate tend to focus on the above issues – on court battles and public opinion. Very few discuss the GOP’s previous support of the individual mandate – indeed, it was the Heritage Foundation that first proposed the idea.

Even fewer news stories, however, seem to discuss the real life implications of the mandate. It’s time we talked about that.

The Utah Man Without A Campaign Plan

Jon Huntsman Can Still Win the GOP Nomination, But His Campaign Strategy Has To Change

I’ve been laughed at by many of my Democratic friends for insisting that Jon Huntsman can win – and will win – the Republican Presidential Nomination.

When I broke it down, some people at least somewhat agreed with me and, well, others still laughed and said there’s no chance.

You see, I still think Jon Huntsman has a great shot to win the GOP Presidential nomination.