View from the Loft

On old white guys' fear of Sotomayor

Word.

"Judgment Day"

Two nights ago Jim and I watched Nova's (that's on PBS) program "Judgment Day: Intelligent Design on Trial," a show about the court case in Dover, Pennsylvania that followed the 2004 decision of Dover's school board to require mention of ID as a possible alternative to the theory of evolution.

It's quite frightening to me to see religious fundamentalist attempts to discredit science and to argue that their religious myths should be treated as scientific theory. It has often been noted that without evolution, the biological sciences simply don't make sense. I don't know a lot about evolutionary theory, but I know enough to think it an elegant, beautiful framework for understanding the differentiation of species and the unfolding of all the diversity of life on this planet. So many people who say "I don't believe in evolution" really have no clue about Darwin's work--or about science, or even the basis of scientific thought and the scientific method.

Anyway, the crux of the Dover issue can be briefly summed up this way:

Dover's lawyers tried to argue that ID is science and, therefore, that teaching it does not violate the principle of the separation of church and state in the Establishment clause of the U.S. Constitution. At the end of the trial, Judge John Jones issued a 139-page verdict supporting the teaching of evolution and characterizing intelligent design as a religious idea with no place in the science classroom. It was a landmark decision, all the more so because Judge Jones was appointed by President Bush and nominated by Republican Senator Rick Santorum.

What was fascinating to me was the argument in court of just what constitutes science. What it comes down to is that scientific inquiry requires a testable hypothesis. Those who argue that life on earth was designed by an intelligent agent simply do not have a testable hypothesis: how can you test such a claim? Evolution is a theory that poses testable hypotheses, and over and over again evolutionary theory has met these tests.

Another aspect of arguments involving evolution is the misunderstanding of the word "theory" as used in scientific fields. People behave as if "theory" means "wild-assed guess" (WAG) or a hunch on the part of a scientist or some other such thing more approaching a whim than what scientists mean by the word. Thus people say, "Well, it's only a theory, it's not a fact." True, but "theory" doesn't mean "guess." From Wikipedia:

In science, a theory is a mathematical or logical explanation, or a testable model of the manner of interaction of a set of natural phenomena, capable of predicting future occurrences or observations of the same kind, and capable of being tested through experiment or otherwise falsified through empirical observation. It follows from this that for scientists "theory" and "fact" do not necessarily stand in opposition.

Obviously, this is much more rigorous than "conjecture" or "speculation." But usually when people say dismissively "it's just a theory," they're assuming that a theory is nothing more than a conjecture, of which one is as good as another.

Intelligent Design does not actually provide a rival theory for the origin of species and the changes that take place over time within species. There is no coherent framework. Rather, when faced with challenges (such as its favorite bugaboo, "irreducible complexity"), it simply throws up its hands and says there is no explanation other than an intelligent designer. This is akin to, if not actually the same as, superstition. It is certainly not conducive to exploration, to the whys and hows a scientist will typically probe when confronted by a puzzle.

And what, really, is an Intelligent Designer if not God? There's just no getting around the idea that Intelligent Design is creationism by another name. The convolutions and contortions the ID-ers go through to try to look scientific would be laughable if they weren't so dangerous. Yes, dangerous, because the ID-ers are out to subvert science and science education. They've received lots of help from the notoriously anti-science Bush administration and the religious fundamentalists who read the Bible literally and argue that their view of how life began is every bit as valid as evolutionary theory.

What happens when people take the Bible literally is that they end up with ridiculous claims about how the earth is only 10,000 years old or that kangaroos originated in the Middle East. One has to reject all of what science has shown about geology and biology in order to believe such nonsense.

Millions of people have no trouble being both religious and scientific. To teach religious belief as if it were science is where the trouble begins. The scientists were so compelling in the Dover case that even a judge appointed by George W. Bush could not see his way clear to ruling other than as he did, in favor of evolution and against the idea that ID is science.  (For his trouble he received death threats against himself and his family, and federal protection had to be called in. Sadly, this doesn't surprise me.)

Unfortunately, we probably haven't seen the last of such court cases. Those who want to force their religious beliefs on the rest of us will no doubt continue to press on. Bizarre though it is to those of us who consider ourselves rationalists, such people will continue to insist that their belief in Biblical inerrancy ranks right up there with rigorous, testable scientific hypotheses and theories. That's fine and dandy--as long as they don't seek to impose their beliefs on the rest of us while arguing that Bible stories are science.

Cluelessness is never in short supply

Glenn Greenwald takes up a crucial issue in his analysis of conservative reaction to the New Jersey Supreme Court's ruling that same-sex couples must be afforded the same rights as married couples. That reaction, predictably, decries "judicial activism" and calls for the matter of same-sex civil unions or marriage to be settled by state legislatures rather than by judicial "fiat."

Such calls, as Glenn points out, reflect a dismaying ignorance of how the law works:

Either the New Jersey State Constitution -- as defined by the governing precedents applying it -- compels the legal conclusion reached by the New Jersey Supreme Court or it does not. That is the only relevant issue. It's not a matter of picking and choosing which issues we think it would be nice for a court to resolve and which ones we'd sort of prefer -- given our subjective druthers -- the court leave to the will of the majority.

At the very center of our constitutional republic is the principle that the overarching obligation of courts is to nullify any and all laws that conflict with the guarantees of the Constitution. Or, as Hamilton put it in Federalist No. 78: "wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." Courts in these cases have only one question to answer -- do the relevant constitutional provisions (in this case, Article I, Paragraph 1 of the New Jersey State Constitution) bar the law in question? -- and if so, courts are required to nullify that law. There is no discretion or political judgment involved, and they are not permitted to simply decide that they won't involve themselves in such matters.

In addition, the idea that the "will of the majority" should decide matters of law is a dangerous one that fails to ensure protection of the rights of the minority. A majority of Americans opposed Loving v. Virginia; to have decided the matter of interracial marriage based on the will of the majority would have denied these two people their rights. As Glenn says,

Maybe it would be better in some political, societal or cultural sense if gay marriage and related issues were decided by legislatures and referenda rather than courts. A reasonable argument can certainly be made that it would be "better" for advocates of gay marriage if they win by convincing their fellow citizens rather than via judicial rulings which hold that denial of marriage rights is unconstitutional.

But that is just not how a constitutional republic works. Constitutional guarantees exist to limit majority will, and courts must nullify any laws which conflict with those guarantees -- even if it would be "better" in some vague political sense to leave it to the majority to decide. [my emphasis]

There have been many landmark cases in which the US Supreme Court has outraged the populace by ruling to protect minority rights; presumably, there will be many more (although one has doubts, given the current makeup of the Court). Such rulings are based on constitutional law, not on the desires of the majority. They are the opposite of "judicial activism" in that they rest solidly on interpretation of law.

The hypocrisy of those complaining about judicial activism must also be pointed out. Many of these same people are or were dead set against civil rights legislation, just recently attempting to stop renewal of the Voting Rights Act. If they were honest, they would admit that in many cases, they find legislative activism just as offensive. They cloak themselves in self-righteous squawks about the will of the majority, but when Congress has reflected that will through legislative action (imperfect as our system of representative democracy is), such conservatives screamed just as loudly.

Let's hear it for activist judges!

NarfCrow recently posted an excellent piece on how the right wing exploits fear to push its agenda, zeroing in on the issue of gay marriage. I'd like to add some thoughts of my own about gay marriage, particularly about the charge that "activist" judges are making, not interpreting, law.

There seems to be an idea out there, especially (but certainly not exclusively) on the right, that the will of the majority should determine what is or is not acceptable in our society. That is, some of our citizenry seem to think that the United States is, or should be, a direct democracy. While individual states may, and do, practice direct democracy (insofar as they hold referenda, etc. to determine the will of the electorate), the federal government is not: it is a representative democracy.

In a pure direct democracy, the citizenry would decide all issues directly, without an elected representative. It is but a hop, skip, and a jump from such a proposal to mob rule, at least in the United States as it exists today. And mob rule is, apparently, what the wingnutty right wants.

Why do I say that? Because the extreme right cares not a whit for minority rights.

Let's stop and think for a minute about that. In our democracy, or what used to be our democracy, the will of the majority does not do away with the rights of the minority. That is, the minority are still guaranteed their rights, such as the right to freedom of speech, assembly, religion, and so on, along with the other rights enumerated in our Constitution.

Mob rule is the idea behind the sentiment that those who spoke out against the invasion of Iraq were traitors who had no right to voice their minority opinion. How many times have we heard or read some right-wing pundit or talk-show host call for the imprisonment of those espousing antiwar views? Yet in our democracy, traditionally, the rights of the minority are protected. This is one of the cornerstones of our form of government. The Founding Fathers were all too aware of monarchy and its absolute rule, and they were cognizant as well of the dangers of mob rule.

A representative democracy, when it is allowed to work, bypasses the incendiary emotions of the moment and calls for debate, discussion, and an assessment of who will be affected by a law, and how, and what detriments or benefits may arise. It is the independent judiciary that oversees such protections, striking down laws that violate Constitutional rights and interpreting cases the framers of the Constitution could never have imagined. (The framers knew that the future would bring about such cases and established a Constitution they hoped would be strong, yet flexible.) The Constitution provides for the proctection of minority positions and minority rights, such as the right of blacks to vote when whites acted aggressively to deny blacks that right.

Make no mistake: in 1963, according to a Newsweek poll, 74% of Americans thought racial integration was moving too fast. Yes, Civil Rights legislation helped achieve a movement toward racial equality, but numerous court cases also eventuated in establishing civil rights for African-Americans.

We are often told today, when it comes to gay marriage, that the majority of Americans are against it. That may be. But, as yesterday was Loving Day,  let us look at Loving v. Virginia.

It's only been 39 years since the U.S. Supreme Court overturned the laws of Virginia and 15 other states against interracial marriage. In Loving v. Virginia, the married couple--a black woman and a white man--were wed in Washington, D.C. and moved back to Virginia afterwards. There, they were indicted with violating the law against miscegenation and sentenced to a year in jail. However, the judge suspended that sentence for 25 years on the condition that they not appear together in the state of Virginia during that time. In issuing his ruling, the judge said:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

At that time, seventy-two percent of the American people were opposed to interracial marriage. Seventy-two percent. Yet "activist" judges on the Supreme Court interpreted the law to mean that no state had the right to deny marriage to interracial couples. (It was not until 1991 that more Americans approved of interracial marriage than opposed it. 1991!) Too bad if the majority was uncomfortable with interracial marriage. The Court ruled that, even though a minority of Americans wished to marry interracially, thereby offending the sensibilities of most other Americans, still their right to marry was indisputable.

Now we are told that the rights of the minority--gay couples--don't matter. It is even held that this minority is trying to impose their will upon the majority, that the demand for equal rights under the law tyrannises the majority. By this twisted logic, the spat-upon, beaten and jailed black students who attempted to integrate lunch counters in the '60s South were, in fact, bullies trying to force their "agenda" upon a victimized white majority.

Today people argue that "common sense" tells us that only a man and a woman should be allowed to marry, or that the Bible demands it--the same "reasoning" used to decry interracial marriage. We are told that homosexual marriages will destroy the institution of marriage, or defile it in some way.

But what happened when interracial marriage was declared legal in all states? Did civilization cease to exist? Was marriage irreparably harmed?

Maybe this is what people are afraid of:

That decision has, in the ensuing years, changed the way the nation looks -- the percentage of interracial marriages has increased fivefold from 1970 to 2000, according the U.S. Census, from 1 percent of all marriages to more than 5 percent. The number of children living in interracial families has quadrupled in that time period, going from 900,000 to more than 3 million, and the Census Bureau predicts that such interracial unions will continue to increase.

There is, perhaps, a fear that gay people will marry and raise kids as these interracial couples have done and are doing. Well, what's wrong with that? The only answer to that question, honestly, is an answer born of bigotry and intolerance.

Our judiciary serves a purpose. It is to be above bigotry, prejudice, political posturing and partisanship. Its task is to uphold the Constitution, to interpret the laws, to protect the rights of the minority. President Bush betrayed his ignorance of our form of government when he said that a constitutional amendment defining marriage was necessary because "activist judges have left our nation with no other choice."

This writer said it well:

Loving showed us the importance of our judicial tradition. How long would it have taken a majority of people in all 50 states to agree that interracial marriage should be accepted? Or how long would it have taken for them to agree that segregated schools should not be allowed? Or for that matter, how long would it have taken to give African-Americans full legal rights?

How long will it take before gay couples in this country will be accepted? Will BushCo succeed in establishing a Court all too ready to abdicate their roles as guardians of the Constitution in order to press a particular agenda? That would be a tragedy, one all too easy to imagine happening.

We can only hope that the small, obsessive, fear-driven minds seeking to demonize gay people will eventually be overcome. Let's hope gay people don't have to rely on the slowly growing tolerance of the majority to at last ensure their rights. Let's hope that "activist judges" rise above the so-called "will of the people" and do their duty, as they did in Loving v. Virginia.

 

 

Actions to take now

Your voice is needed now on some crucial issues. It's easy to click on the links provided below, but if you can, please find the time to write a letter or make a phone call to your elected officials about these immediate concerns:

Oppose the bankruptcy bill

This bill (S. 256) is backed by banks and credit card companies. Entitled Bankruptcy Abuse Prevention and Consumer Protection Act, this bill would make it more difficult for individuals to file bankruptcy and get out of debt. Over $101 million has gone to federal candidates and party officials in the last three elections, and this is their big payoff.

Why should you oppose this bill? For starters, nine out of ten bankruptcies filed by individuals are due to job loss, divorce or separation, and medical costs. Half of all bankruptcies are due to medical bills alone. This bill, far from "protecting" consumers (as usual, the name indicates the opposite of what the bill actually does), punishes them for circumstances that may be beyond their control. Seniors, who often lived on a fixed income, have seen credit card debt among them rise by 89% from 1992 to 2001.

And now those credit card companies that urge every one of us to go into debt and thereby line their pockets want to make it all but impossible for those who succumbed to their aggressive recruitment to regain any possibility of solvency.

Please click here to send a message to your senators urging them to vote against this bill.

Oppose Bush's plan to stack the courts

Bush has re-submitted the names of 20 nominees to federal judgships, all of whom were turned down in his first term. He has no intention of working with the Democrats (or any reasonable people) to find judges who are acceptable to those with no corporate, hard-right, or religious-right interests. The nominee being debated this week is mining and cattle industry lobbyist William Myers III, whom Senator Leahy has called "the most anti-environment nominee sent to the Senate in my time here."

Judges are appointed for life, and Bush hopes to cement his ideology and pro-corporate rabidity far into the future by choosing judges who will carry out his agenda.

Please urge your senators to stand firm against all 20 of these nominees! Our environment, our civil liberties, our freedoms, and our own interests--as opposed to those of big corporations--depend upon the Democratic minority holding firm against these extremist nominees. Go here to sign and add a comment to a petition to be sent to your senators.