Abortion. Affirmative action. Contraception mandates. Immigration. One person one vote. Public sector labour unions. Each of these remain as matters for the now eight justices of the United States Supreme Court to decide this term.
Many of these would have been the blockbuster end-of-term 5-4 decisions. Many of these were the result of strategic litigation or legislation by conservatives designed to test current Supreme Court doctrine. The four liberal justices of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will very likely remain a clear bloc in these. Of the remaining conservative justices, Chief Justice John Roberts and particularly Anthony Kennedy would be expected to join the liberal justices on some of these matters, with Clarence Thomas and Samuel Alito unlikely to be with them on any of these. If the court splits 4-4, the decision of the Circuit Court of Appeals stands, with no precedential weight outside of the circuit area. As outlined by Linda Hirshman in December, because of the composition of the circuit courts of appeals, this will tend to favour the liberals. But let us consider each of these major cases in detail.
Therefore, the unexpected death of Antonin Scalia will have quite an effect on each of these, if we take Senate Republicans at their word, that they will not support any successor proposed by Barack Obama.
Abortion: Whole Woman’s Health v Hellerstedt
Abortion restrictions in the United States are currently subject to the “undue burden” test of Planned Parenthood v Casey (1992), a plurality opinion jointly written by Anthony Kennedy, Sandra Day O’Connor and David Souter. The court upheld provisions of a Pennsylvania law requiring a 24-hour waiting period, parental consent, a restrictive definition of medical emergency, and reporting requirements for abortion services. They held that requiring spousal notice of an abortion was such an undue burden.
The Republican Party Platform remains as virulent as ever, if not stronger still, in its opposition to allowing gay or lesbian couples to marry. To give context, I have quoted these sections in full at the end of this piece.
The platform attacks the judiciary and the president for their actions, and affirms the party’s commitment to an amendment to the US Constitution which would define marriage as between a man and a woman, thereby overturning laws in six states which currently allow equal marriage. It also refers to social experimentation, a reference to the repeal of Don’t Ask Don’t Tell, allowing gay soldiers to serve openly. These sections were effectively written by Tony Perkins, president of the Family Research Council. The most the disappointed Log Cabin Republicans could secure was the line, “We embrace the principle that all Americans should be treated with respect and dignity”, which means little in the context of the previous passage.
Kris Kobach, Kansas Secretary of State and an advisor to Gov. Mitt Romney on immigration, defended these sections by comparing it to government regulation of behaviour like drugs and polygamy.
This is not just a party which is not yet on board, whose leaders are still evolving, where members have different points of view. It is one whose default position is organised opposition at every level to difference of opinion on the question. Gov. Mitt Romney, who in 1994 claimed to better than Ted Kennedy on gay rights, signed the pledge to support such a Federal Marriage Amendment from the National Organization for Marriage
And yet, in New York, New Hampshire and Washington, equal marriage exists in these states because of the support of certain Republican legislators. The party is not absolute either in its position. The Respect for Marriage Act, has one Republican sponsor, Ileana Ros-Lehtinen of Florida. And there are two groups of gay members of the Republican Party, the Log Cabin Republicans, founded in 1977, and GOProud, founded in 2009.
The Log Cabins put a much greater emphasis on equality for LGBT people than GOProud do. The former lists “Protecting LGBT families” and “Freedom to Marry”, where GOProud make no direct reference in their headline points in their ‘What We Believe’. The Log Cabins refused to endorse President George H. W. Bush in 1992 or President George W. Bush in 2004. They have yet to make an endorsement this year. They played a part in the repeal of Don’t Ask Don’t Tell, suing the US in a federal lawsuit.
GOProud could crudely be described as Tea Party response to the Log Cabins. They proven themselves much more likely to emphasise issues other than rights for gay people in their endorsements. In the primary for the California Senate in 2010, they endorsed Carly Fiorina, who had supported Proposition 8 banning same-sex marriage in the state, as against Tom Campbell, who had penned a piece calling for a No vote in that ballot, and who was promoted by the libertarian magazine Reason, so no fan of big government. They have already endorsed Mitt Romney.
I think the Republican Party is definitely better for having the Log Cabin Republicans within it. They serve as a touching point for the still small but growing number of prominent Republicans who are speaking out for equality, such as Vice President Dick Cheney, now out former RNC Chair Ken Mehlman, Colin Powell, Bush Solicitor-General Ted Olson, Mayor of San Diego Jerry Sanders. With the new group, Young Conservatives for the Freedom to Marry, they took out ads leading up to this week’s Republican National Convention, and they are adding to the conversation within the Republican Party. I’m not so sure I could say the same of the GOProud, who effectively send the message that while questions of marriage are worth talking about, taxes will always trump protections for lesbian, gay, bisexual or transgender people.
Republicans in favour of equality are definitely worth supporting. American Unity was formed earlier this year by a Republican donor with a gay son, and is funding candidates it believes worthy of support.
Because I would like to support the Republican Party (from afar in my case, of course). But I can’t. It is an unreasonable compact to ask someone to make, to support a party that will denigrate their fundamental personal relationships, prey on unfounded concerns, because they will improve people’s financial lives. It is a compact that some rich an well connected gay people can live with; whether equal marriage is five or fifteen years away for them, they don’t suffer or feel the social and economic consequences of so many gay people because of this legal inequality. And I don’t say this even as one who thinks a party’s position on gay rights should be the determining factor in whether to vote for or join a party, or I would not be in Fine Gael.
As with the Democratic Party, the Republican Party is and always has been a coalition. Within the Republican Party, these are crudely characterised as being between the fiscal hawks, religious conservatives and military hawks. What this misses is how the party targets the fears of poorer voters on social issues through a process of misdirection. Where the Republicans stand on gay rights resonates most with me because I’m gay. But there is more that is wrong with them. Take for example their very poor track record on immigration, as seen in recent laws in Arizona and Alabama. Rather than focus on the benefit of immigrants brining diverse skills and ideas to a community, they spin a protectionist story that has not helped these states economically. This year’s platform endorses these measures, a stark contrast from their 1960 platform when Richard Nixon ran for the first time, which for an increase in immigration.
The Republicans could have been a party that would make a strong moral and efficacious argument for the market and individual liberty. There are elected representatives and activists who do hold firm to these values. There are many with a view miles apart. But perhaps worse are those who assume a veil of prejudice because it is politically convenient.
Not that there is no hope with the Republican Party. On the question of equality for gay people, it does take a long view. Former Congressman Jim Kolbe, who was outed as gay while in office, believes that this is the last time the Republican platform will take these anti-gay positions. He could be right. If either Maine or Washington vote in favour of equal marriage at the polls in November, they will become the first state to do so by popular vote. That will change things, making it clear that there are votes to be lost. Perhaps a candidate like Gov. Mitch Daniels could take a stance similar to that of Barack Obama in 2008, when he stated that he was against same-sex marriage, but would vote No to Proposition 8 in California. But it’s a lot to expect.
Ron Paul looks set to win the Iowa Caucus on 3 January, ahead in the polls and Nate Silver currently his chances of success at 52%. There are positives that could be gleaned from such an outcome; if an antiwar candidate who has consistently opposes the increasing encroachments on personal freedom particularly since 2001 were to win even a single state among Republican activists, it would give the leadership of both parties cause to reconsider their policy decisions in these areas. Infringements on rights supposedly enshrined in the Fourth Amendment (security of property from search without warrant) and the Fifth Amendment (fair trial) have continued under President Barack Obama, and he should be challenged in a national debate on these issues. You can be damn sure that if John McCain had been elected and was seeking a second term, Democratic-leaning bloggers and posters would have made a big deal about this as a reason not to campaign against him. The same could be said in praise of Paul’s commitment to end the futile war on drugs. Quite generally, I do have libertarian sympathies on issues across the political spectrum.
But Congressman Ron Paul is not a candidate I could endorse for either the presidency or even, as Andrew Sullivan did last week, for the Republican nomination. In that endorsement, Sullivan refers somewhat obliquely to serious mark on Paul’s character with a single line, “He has had associations in the past that are creepy when not downright ugly”. This is something that deserves much more notice than this, and it is to Sullivan’s discredit that he did so little to address it.
In an article in The New Republic earlier this year, ‘A Libertarian’s Lament: Why Ron Paul Is an Embarrassment to the Creed’, Will Wilkinson recounts how Paul should fail to satisfy a libertarian, such as on issues such as immigration. (My favourite line in the piece is one that refers to Rick Santorum, “In 2006, I tossed a few dollars at the Democrat running for Senate against the loathsome Rick Santorum. It could have been a three-headed goat, for all I cared, but Wikipedia says it was Bob Casey.”) Most importantly in a judgement of character, in my view, is the reference to racist material published under his name in a regular newsletter.
It is widely believed that these newsletters were mainly written by Lew Rockwell, chief of staff to Paul from 1978 to 1982, and in 1982 founded of the Ludwig von Mises Institute, an organization which has a worrying interest in the Confederacy. The contents of these newsletters, have been scanned online and can be read with controversial elements highlighted. These are rife with attacks on black and gay people, and include tacit support for David Duke, a renowned racist politician.
This was reported by James Kirchick in The New Republic, a liberal, Democratic-leaning magazine in their issue of 8 January, 2008.
Paul issued a statement on this that day, which given my criticism of him, I should quote in full:
The quotations in The New Republic article are not mine and do not represent what I believe or have ever believed. I have never uttered such words and denounce such small-minded thoughts.
In fact, I have always agreed with Martin Luther King, Jr. that we should only be concerned with the content of a person’s character, not the color of their skin. As I stated on the floor of the U.S. House on April 20, 1999: ‘I rise in great respect for the courage and high ideals of Rosa Parks who stood steadfastly for the rights of individuals against unjust laws and oppressive governmental policies.’
This story is old news and has been rehashed for over a decade. It’s once again being resurrected for obvious political reasons on the day of the New Hampshire primary.
When I was out of Congress and practicing medicine full-time, a newsletter was published under my name that I did not edit. Several writers contributed to the product. For over a decade, I have publically taken moral responsibility for not paying closer attention to what went out under my name.
This was followed by articles in Reason, a libertarian magazine, by Matt Welch on 11 January and by Julian Sanchez and David Weigel in their issue of 16 January. This is perhaps most revealing, with the political thinking behind the content of the newsletters,
During the period when the most incendiary items appeared—roughly 1989 to 1994—Rockwell and the prominent libertarian theorist Murray Rothbard championed an open strategy of exploiting racial and class resentment to build a coalition with populist “paleoconservatives,” producing a flurry of articles and manifestos whose racially charged talking points and vocabulary mirrored the controversial Paul newsletters recently unearthed by The New Republic.
David Boaz, vice president of the libertarian Cato Insitute, issued a statement explaining their silence to date on the Paul campaign. They were treated by some supporters of Paul as heretics, and accused of libertarian infighting. Julian Sanchez responded to a lot of these fringe criticisms in detail.
In the second round of the controversy, four years later, Ta-Nehisi Coates, a senior editor of The Atlantic has put the case against Paul well and succinctly,
The standard defense has generally been Paul didn’t write the newsletters. I think an honest reckoning with that defense would have someone question the faculties of an adult who would allow a newsletter filled–by Paul’s own admission–with bigotry to be published under one’s name. Had I spent a decade stewarding an eponymous publication steeped in homophobia and anti-Semitism, I would not expect my friends and colleagues to accept an “I didn’t write it”excuse.
I think it is credible, indeed likely, that Ron Paul did not write the offensive material himself. It would not be at all unusual in the political world that the political writing of a representative would be penned by their staff or outsourced further, particularly in the case of a journal which he had given his name to, rather than one coming from his office. But it is inconceivable that for years on end, Paul had no idea what was being published under his name. He was willing to allow ignorant fears of black people and crime and of gay men through the AIDS epidemic to be used to build political support. This is surely grounds for considering him unworthy of support during this primary season.
In his recent book, Reflections on the Revolution in Europe, Christopher Caldwell describes what he sees as the problem Europe faces with the recent increase in Muslim immigration and how it has changed our continent. For a conservative writer from the Weekly Standard to invoke Edmund Burke in his title, it should a clearly significant work.
While dealing with the question at length, he offers few solutions. One might expect in a book such as this that there might be a short summarizing chapter asking where we should go from here. Early in the book, he does praise the merits of the points-based system of immigration, and his chapter Europe’s Crisis of Faith, Mr Caldwell targets what he sees as the fluidity of moral precepts in European countries. This, indeed, seems to be his ultimate thesis. He writes, “When an insecure, malleable, relativistic culture meets a culture that is anchored, confident, and strengthened by common doctrines, it is generally the former that changes to suit the latter”.
Caldwell certainly makes a valuable argument that we should recognize that immigration did not happen in the way that was expected, and that the needs that existed after the Second World War do not still need to be fulfilled by continuing immigration. Continuing immigration is sometimes justified as a solution to Europe’s demographic problem, where with an aging population and declining birth rate, we will soon have a problem paying for social welfare and pensions. Of course, the immigrants themselves will surely claim the same benefits when they retire. What we will need to implement to tackle this problem is an increase in the retirement age (the health of a 65-year-old has improved dramatically in the years since social welfare provisions were implemented) and a reduction in state pensions (lifetime earnings have also increased, so that people should be able to save more for their retirement). Such practical suggestions are lost on Caldwell, which even if they would not tackle the problem, they would alter incentives. European countries should also consider the levels of unemployment benefit, and could legitimately strengthen provisions on years of residency for qualifying eligibility.
His response is that of a social conservative. He blames the rise and success of Islamic extremism in Europe on our cultural uncertainty and lack of strong values. He criticizes an informational video by the Dutch authorities for immigrants, explaining Dutch laws and customs, for the fact that it asks immigrants to handle the country’s moral peculiarities, specifically showing a gay couple expressing affection in public. But this is a norm in the Netherlands, and there is no reason this should be hidden from immigrants till after they are settled in the country and then notice what they deem to be moral laxity. He misses the fact that in modern times, Europeans can be secular while maintaining links with their older culture. He wonders how the Italian Oriana Fallaci can threaten those who harm Florentine landmarks such as the Santa Maria Cathedral given their religious meaning. Such a feeling is not a break from any European secularism, but something that people can and do feel strongly about for cultural reasons.
Caldwell makes a valid case that we can’t expect Islam to experience an Enlightenment if we aid in shielding it from the criticism of a latter-day Voltaire. But the response to this should not be a fearful consolidation of the right, to see the progress of Western civilization as at fault. Europe’s intellectual tradition is one of slow change in response to circumstance, something that could be interpreted as relativist if one wishes to be derisory, but more properly reflects a cautious conservatism. European politicians and intellectuals need to put the moral case for a liberal secular capitalist pluralist society. We do need to be clear about where we stand. There should be no special provisions or protections for beliefs, and to that end, we should go the way of implementing laws prohibiting blasphemy. The laws in European countries should make it clear to immigrants that they cannot expect to change the rule of law as it exists, but that they are otherwise welcome. And, while recognizing the Continent’s Christian heritage, we should not ignore, as Caldwell does by asserting that our views of human rights have exclusively Christian origins, its pre-Christian philosophical and political tradition, of Aristotle, Perikles and Cicero.
The book is, of course, ostensibly about immigration, and the problem with Islam. But it is Europe’s cultural response that is Caldwell’s concern. His use of statistics also show a certain disconnect throughout the book. He cites the low levels of support among Muslims for operations such as the Iraq War, while acknowledging only briefly the low (if not quite as low) levels of support among the population in general. Towards the end of the book, he mentions the fact that 90% of Spanish voters disapproved of the Iraq War, but he fails to make this connexion when relevant.
In discussing the declining strength and increasing moral weakness of Christianity, he wonders why it is we hear of converts from Christianity to Islam, but not vice versa, suggesting that it is lack of conviction of Christians relative to Muslims, and the general decline in the West. But later he mentions that there have been thousands of converts to Christianity from Islam, but who have kept quiet about it because of the reaction in Islamic communities to apostasy.
He makes the claim that it is clearly a failing of democracy if majorities in opinion polls favour a reduction in immigration, as if a question like this should be a litmus test in a tradition of representative government.
In a few odd pages, he justifies the anti-immigrant policies of each a series of the extremist parties in Europe. He defends Vlaams Belang’s policies as they are in a context of general Flemish separatism and nationalism (of course the Nazi’s anti-Semitism was only in the context of their general German nationalism). He claims that we Jörg Haidar could not have been an absolute bigot because he created links with Col. Gaddafi, with whom he found common cause on anti-Semitism. And the Danish People’s Party is ok because one of its senior members is a lesbian bellydancer.
In as much as we need to have this debate about immigration and how to tackle the changing demographics in Europe, Caldwell’s contribution is useful. Of course we need to address the oppression of women, whether honour killings, genital mutilation or forced marriages. And we cannot allow terrorist groups to organize within our country. My criticism is not of the real cause for concern presented by Caldwell and others. But a confident response need not be a conservative one. Whatever marginal increases there have been in religious identification there have been in Europe recently, we should not expect to see any significant return to religious faith. So we cannot rest our hope there. We must be confident in a neutral application of the rule of law, and be proud of our democratic traditions, if we are to set out a message as to what Europe is, and what it should remain.