Friday, June 26, 2015

Obergefell v. Hodges, a huge step for more than just marriage equality?

Today’s marriage-equality decision from the U.S. Supreme Court is a truly watershed moment for what regular folks would call “liberty.” You know, freedom -- the right to do what you want as long as it’s not hurting someone else.

In fact, it is frankly so “duh” obvious to most folks that I know that an adult ought to be allowed to marry the consenting adult of his or her choice that a non-lawyer could wonder, as I saw some of my friends doing today on Facebook: “Why the hell was this decision so close? It was 5-4!”

Here’s why: this opinion is, from the perspective of this lawyer, actually a big deal – a very big deal – for reasons that go way past the right to marry. And those who don't want it to be a big deal were fighting hard against it.

See, what the average, non-lawyer folks call “liberty” is not what the U.S. Supreme Court has traditionally viewed as the definition. In fact, Justice Thomas wrote in his dissent today:

“The majority claims these state laws deprive petitioners of ‘liberty,’ but the concept of ‘liberty’ it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clause.”

He then goes on to treat the majority opinion as if it is from Mars, ultimately concluding that, as far as he can tell, “liberty” in the constitutional sense doesn’t refer to much more than “freedom from physical restraint.”

“If it doesn’t physically shackle you, quit your whining.” OK, he didn’t actually say that, but he came close.

Likewise, when Justice Kennedy’s majority opinion said what might appear to you and me as a reasonable line: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” Justice Scalia came out with this doozy: “Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

(I'll pause for a moment here to say, actually I did! I've always thought intimacy and spirituality are "freedoms." But, then again, even I make hippie jokes, so there's that).

So is this decision somewhat revolutionary? Does it depart, in any degree, from the “usual” constitutional analysis? Does it threaten the very notions of freedom and liberty that make this republic great? Are hippies taking over?

We’ll cut to the chase: yes, yes, no and no. But for that last one… maybe things got a little more libertarian than usual?

Justices Thomas and Scalia have one thing in their corner for this analysis: if you subscribe to their crabbed “originalist” notion of what constitutes legitimate considerations in defining the parameters of constitutional rights, then yeah, this decision is, I suppose, straight-up wackadoodle. The “founders” were not pro-gay-rights in any sense at all, and the Fourteenth Amendment guarantees of due process and equal protection were not intended, at the time of its drafting, to extend to gay Americans.

So that’s where they are coming from.

Is that what you think our most constitutional rights are defined by: only what the drafters of the constitution thought?

Yeah, me either.

But the U.S. Supreme Court, while not usually adhering to strict “originalist’ thinking, has hardly been a bastion of rights-expansion. Remember, less than thirty years ago, a majority of the justices thought it was just peachy for states to criminalize a blow job depending on the genders of the participants. It took them 17 more years to fix that monstrosity of a ruling. (Guess the identity of at least two of the justices that didn’t like the fix?)

Keeping all that troglodyte thinking in mind, a lot of us lawyer types, steeped in the ways of “substantive due process” and the extreme limits placed thereon by the Court in the past, thought today’s decision was going to come down to a not-so-simple simple question. Although you and your non-lawyer friends might sensibly see the propriety of banning gay couples from marrying to be pretty damn indistinguishable from the same issue as applied to racially-based marriage bars in 1967 in Loving v. Virginia, those of us a little more jaded on the “progress” of actual liberty – not Justice Thomas-style “liberty” – knew that sexual preference had never been deemed by the Court to warrant the so-called “strict scrutiny” analysis that racial classifications have. So we thought that so-called “rational basis” scrutiny – a much looser standard than “strict scrutiny” -- would be the test.

And even though there are precious few cases on the books where the non-sinewy methodology of rational-basis analysis has actually invalidated a law, I think many of us lawyer types truly believed that it would be employed by a five (or even six) justice majority to say, in the most basic terms: “Sorry bigoted states. Your marriage laws that exclude gay couples simply have no rational basis.”

And that would have been, well, fine. You and I would have gotten the result from the ruling that we justifiably wanted, and everything would have been as expected. “Yay marriage equality,” we would all have chanted – you know, except for a few originalist thinkers on the Court.

It’s a lot better than that.

Check out a few of these lines from the majority opinion. There’s the opener:

“The Constitution promises liberty to all within its reach,
a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

My head exploded with joy. They’ve never said that “define and express identity” stuff before.  Try this too:

“A first premise of the Court’s relevant precedents is that
the right to personal choice regarding marriage is inherent
in the concept of individual autonomy.”

You the non-lawyer may have just read that and thought, “Yeah. Cool. Individual autonomy, man, just like the constitution says.”

Let me tell you that “the concept of individual autonomy” is not a phrase oft-found in Supreme Court jurisprudence. It's not in the constitution. In fact, I checked on my Lexismachine. It’s NEVER been used before in a U.S. Supreme Court decision. That’s never, like in ever.

And then there is this monumental boo-yah to the originalists:

“The right to marry is fundamental as a matter of history
and tradition, but rights come not from ancient sources alone.
They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

Did you get all that? “Liberty” isn’t that constipated hunk of 200+-year-old goo rotting in the colons of the originalists. Rather “rights” come from somewhere else, a place that includes history, but does not exclude considerations of expanding notions of freedom From. Our. Own. Era.

That’s now, not 1789, or even the post-Civil War days of the adoption of the Fourteenth Amendment. Now.

This decision isn’t by any means the first time the Court has looked beyond “originalist” intent. But it truly is the first time that I can recall that they got themselves out of the standard trap that comes from originalist-style thinking. Yes, as I said, the majority could have done a simple, dyed-in-the-wool exegesis on “rational basis” scrutiny, found these laws did not survive that scrutiny and shot them down. Instead, they did a little thesis on liberty.

Liberty, like freedom.

I fancy my political leanings as libertarian-ish, but the catch to the “ish” is that I’ve always cared more about personal individual autonomy (Hey! There’s that phrase again!) than economic freedoms. When the chips are down, I vote for whoever is going to stay the hell out of my bedroom. If they will also stay out of my wallet, that’s a plus, but it’s not the very first consideration for me.

So my take on individual rights has never been that they come solely from the government by way of the constitution. Rather, sure, the constitution enumerates certain rights, and then there are others, just as fundamental, that we are endowed with as a free people, for which the government had best have a mighty good reason before infringing upon. They were there before you ever got here, government, and they will be here in spite of your efforts to trample upon them.

This decision today is the first time I ever heard a majority of the U.S. Supreme Court speak in terms that sound more like my view and less like the no-fun/get-off-my-lawn/you-damn-hippies crew.

Instead of the rack and ruin predicted by Justices Scalia and the assault upon the strange and cramped definition of “liberty” used by Justice Thomas, this ruling could be the starting point for actually expanding real freedom, for recognizing a few other rights in the future -- ones that the founding fathers never heard of, but ones that are as fundamental to being a decent caring people in the modern age as the right to marry the consenting adult of one’s choice.

I’ll get pretty far off-point if I start listing ideas, but you can guess some of the main candidates for that status. Start with the right to end one’s life when terminally ill. What's more basic, decent and civilized than that, and more intertwined with the deepest considerations of individual autonomy?

We just became a potentially vastly more caring people today with a well-reasoned ruling that doesn’t fit the usual SCOTUS mold. It addresses real liberty, not “liberty” in the eyes of those who want to restrict it. We’re all a little more free.

Tuesday, June 16, 2015

Review: The Courtney Barnett Three Live at Union Transfer, Philadelphia, June 15, 2015

I like bands.

Maybe it's because I've spent most of my adult life in them, but there's an organic thing -- a chemistry thing -- that happens in a real honest-to-bejeezus band that's way different than just some guy (or woman) fronting a bunch of hired guns who don't particularly have anything invested in the whole operation. In its ideal form, a band is a living and breathing entity that stumbles and falls and soars and swoops and dives with a beautiful, freakin' noisy, but coordinated, purpose. To employ an entirely different metaphor, it's also a beautiful machine, and every member is an essential cog.

When I bought tickets a few months ago to see Aussie singer/songwriter Courtney Barnett, I remember thinking, "I dig the first couple EPs. I really dig the new album. But I'm curious to see how riveting this whole 'singer/songwriter' thing really is going to be live."

                                          Pic from

Yeah, I'd heard a few live clips, and I knew that Barnett and her bandmates -- drummer Dave Mudie and bass player Bones Sloane -- definitely turned up live and that it'd be.... well, good, but great? I was a little skeptical. Seriously, it's that "singer/songwriter" tag, I tell ya. I didn't really go into this with hopes super high for a mindblow.

So much for pre-show prejudices. Really, I had no idea what I was in for.

This band has been on the road a lot lately. Bands -- real bands -- get road-tested and road-worn and road-awesome. The CB3, like it says on the drum kit, is definitely road-awesome at this point.

At Union Transfer in Philly last night, the set went like this. And I'm not going to drag you through every moment. But let's just say that if you showed up hoping to hear clever Courtney play whimsical folk songs, you'd have been sadly disappointed. From the opening, "Hey!" this was a band -- a fucking band -- on a mission. What they did, for instance, to "Canned Tomatoes (Whole)" was nothing short of captivating. You could see that they were still perfecting all the twists and turns of an amped-up arrangement. Courtney bounced all over, working sheets of distortion and volume swells out of her guitar (no need for a second guitarist in this band). Bones leaped and locked in tight with Dave, who controlled all that dynamic tension with power and skill. They killed. I was sold.

I'm an asshole for ever having doubted them in advance.
(In retrospect, I should have known when they were playing "I-94" by Radio Birdman through the PA beforehand that this wasn't going to be an ordinary show).

Almost everything was a highlight, but if you want the cream of the crop, it was the aforementioned "CT(Whole)," the big build in "Kim's Caravan," the opening "Elevator Operator,"the predictably grunge-o-licious "Pedestrian at Best," the always manic/sloppy/wonderful "History Eraser" and an unexpectedly more-gorgeous-than-the-original solo take on You Am I's "Heavy Heart."(There's your clever "singer/songwriter" vibe, I suppose, on that last one). To give you an idea of how much Courtney and the boys revved up the originals, frankly their cover of "Cannonball" by the Breeders seemed unnecessary; they rocked harder than the Breeders anyway....

I went into this show thinking that, yeah, it'll be good. I left committed to catching this band every fucking time they come through my fair city. Hells yeah, CB3. I raise my glass to you, and apologize for my pre-show doubt. I'll be there next time, and you'll be even better, I bet.

A quick "Nice work!" goes out to the two openers. Aussie Darren Hanlon walked up onstage with an acoustic guitar, sang a bunch of songs that would make Billy Bragg a little misty, and left everyone in the place thinking, "Yes, I would totally hang out with/shoot the shit with/get drunk with that guy." Chastity Belt, from Walla Walla, WA, pretended to be from Melbourne, played a Liz Phair/Scrawl hybrid that left me wanting to hear more and generally looked like they were having the time of their lives on this tour. Yeah, I would dig it even more if the drummer rocked out a little heavier and left the low-fi Maureen Tuckerisms behind, but they were cool and full of dynamic tension and I would see them again. What is more fun than seeing a band -- there's that word again -- enjoying the ride? Nothing. That's what. It was a Monday night. And it fucking ruled.

Saturday, June 13, 2015

Some people suck, so I took this photo.

My dogs seriously hate her.

She's a 60s-ish/maybe-older woman who walks around our rural "neighborhood" -- if you can call it that; it's just occasionally intersecting roads connecting old farm fields -- and she is always (always!) on the phone, talking REALLY LOUDLY.

In a nasally Long Island accent.

Yes, really.

It's like Fran Drescher's rude cousin is loose in Mayberry.

"AND THEN I SAYS TO HIIIIIM: "NO! YOU GO FUCK YOURSELF," and similar of her shouted telephonic niceties are what generally set the dogs off.

So when I happen to be out for a walk and I occasionally run into her, I sort of begrudgingly wave hi. The little that I know about her makes me not like her, but I try just the wave. There's no use actually talking to her. She's on the phone. Always. She never returns the greeting, by the way.

But there was a change in the routine just yesterday.  It was going to be brutally hot and humid, so I went out for a really early a.m. walk. For the first time ever, I saw her before I heard her. She actually wasn't talking on the phone.

We were walking toward each other on a quiet empty road. As we got within 25 feet or so, I looked right at her and said, "Good morning," and she said nothing. There was no acknowledgment from her that I'd spoken. "Whatever," I thought and kept moving. Within seconds, she then popped headphones out of her ears. She still said nothing. Then, just after we passed each other, she laughed self-consciously and loudly exclaimed, "HA! THAT'S FUNNY. USUALLY WHEN PEOPLE PASS EACH OTHER WALKING THEY SAY HELLO. I.... GUESS.... NOT!"

Ten years ago, maybe even five, I would have read her the fucking Riot Act. I would have let loose with a verbal barrage that would have told her: (1) I said hi and she ignored me, like she always does, (2) she would know that if she weren't so self-absorbed, and (3) by the way, could you possibly shut the fuck up on your daily walks because we can all hear you inside our houses, and even my dogs hate you."

Instead, I didn't say a word. I ignored her, kept walking and stopped at the next bridge and took a photo of a bucolic stream.

Life is short. It's probably not worth bothering. Move on.