Friday music post: Stormy Weather

Those of you who listen to NPR will recognize this song as the song they play when the stock market takes a tumble. They've been playing it a lot lately...

(And yes, I know this is Lena Horne's song. I happen to like this version better. Deal.)

Beginning of the end for DOMA?

In the last month or so, the Ninth Circuit has twice questioned the Constitutionality of the Defense of Marriage Act, or DOMA. DOMA has two provisions: first, it states that states are not required to recognize same-sex marriages from other states. Second, DOMA prohibits the federal government from recognizing same-sex marriage. It specifically provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. § 7. The opinions deal with the second provision, and were written by two judges at opposite ends of the political spectrum: Chief Judge Kozinski, a respected conservative, and Judge Reinhardt, known as the most liberal judge on the Ninth Circuit.

Both of these cases arose out of the judges' roles as arbitrators for the Ninth Circuit's Employment Dispute Resolution program. Employees of the U.S. Courts who married a person of the same sex in California were denied health benefits for their spouse by the federal courts. The employees contended that the denial of coverage violated the court's Equal Employment Opportunity rules, which prohibit discrimination on the basis of sex or sexual orientation, as well as violating the Equal Protection provisions of the U.S. Consitution.

Kozinski's opinion avoided the Constitutional question by ruling that the Federal Employees Health Benefits Act (5 U.S.C. § 8903) did not prohibit the government from giving extra coverage beyond what was mandate in the act. However, he noted that the Consitutionality of DOMA was doubtful at best. Kozinski noted that excluding same-sex spouses from the definition of marriages for federal purposes seemed to be based solely on expressing moral disapproval rather than on a legitimate governmental interest, and may be an impermissible attempt by the state to punish private sexual behavior.

Judge Reinhardt's opinion disagreed with Kozinski on his reading of the Federal Employees Health Benefits Act. He held that because the statute provides that "The Office of Personnel Management may contract for or approve the following health benefits plans," it clearly excludes the authority to contract for plans outside of those offered in the statute. He therefore looked at the Constitutionality of DOMA and found it wanting.

Reinhardt looked at the three governmental interests put forward by the legislative history of the Act: defending the institution of traditional, heterosexual marriage; defending traditional notions or morality; and preserving scarce governmental resources. He notes that the first objective is irrelevant because the couple is already married under state law. The second justification does not work because the means by which DOMA encourages traditional morality is by punishing same-sex couples that exercise their rights under state law, and because traditional notions of morality, without more, is not enough to sustain a law as having a legitimate governmental interest. The third proffered interest also fails, as the amount of money saved is so insignificant as to be pretextual. Reinhardt therefore rules DOMA is unconstitutional as applied to federal health benefits for Ninth Circuit employees.

Neither one of these rulings is precedential, but it is interesting to note that federal judges are starting to question DOMA. The more states provide same-sex couples with rights under the law, the more the federal government's refusal to recognize those rights will appear backward and unjust to the general public. Whether by judicial ruling or by statutory repeal, DOMA's definition of marriage is on its last legs.

Oscar Cocktails

So we're finally done with the Academy Awards again, and that means I'm through volunteering for Oscar Night for another year. For those of you who don't know, the Academy sanctions official viewing parties in 52 cities across the nation to raise money for charity. Salt Lake City's Oscar Night is put on by the Utah AIDS Foundation.

Anyway, as part of the festivities, I put together* three special cocktails to celebrate. Unfortunately, due to costs, we were never able to use these recipes, so I thought I'd share them with my readers:

Mumbai Millionaire

a taste of the high life in the subcontinent.

In a champagne flute, mix 1 oz vodka and 0.5 oz mango juice. fill up with champagne.

The Recruiter

Goes down so smooth, you won't figure out what you just got into until you wake up tomorrow morning.

Fill a highball glass with ice. Add 3 oz. Jack Daniels, 1.5 oz Tuaca (vanilla liqueur), 0.75 oz triple sec. Fill up the glass with Coke.

The Joker

It won't kill you, but it will make you... stranger.

Fill a cocktail shaker with ice. pour 0.5 oz of dry vermouth to the ice, slosh around to coat the ice, and drain the excess. Add 3 oz of gin and .5 oz of absinthe to the shaker, shake and pour into martini glass. Float 0.5 oz of Grand Marnier and garnish with a slice of blood orange.

* By "put together" I don't mean "created," I mean "tweaked a recipe a little and gave it a different name."

LDS Doctrine and Same-Sex Couples, part 2: Natural Law

The first objection that a member of the Church might have against homosexual relationships is that it is “just wrong.” A popular version of this “argument” is that “God created Adam and Eve, not Adam and Steve.” While this argument may be dismissed as crude and conclusory, it deserves a serious examination. If right and wrong can be determined by the natural order of things, and sex desire is a natural product of the biological imperative of reproduction, then why would a non-procreative sex act between two members of the same sex be moral?

Natural lawyers therefore make the argument for the immorality of homosexual sex. Law professor Teresa Stanton Collett observes that

To many, acts of anal intercourse, fellatio, or cunnilingus are unnatural and degrading. Opponents argue that these acts treat the human body as a mere instrument for selfish pleasure and fail to express any meaningful union of persons. To affirm relationships involving such acts would not promote good conduct, but instead would falsely suggest an equality of these acts with penile-vaginal intercourse, the distinctive activity of heterosexual marriage.¹

Likewise, Natural Law scholar John Finnis argues for the distinctive nature of penile/vaginal intercourse: "The union of the reproductive organs of husband and wife really unites them biologically (and their biological reality is part of, not merely an instrument of, their personal reality); reproduction is one function and so, in respect of that function, the spouses are indeed one reality . . . ."²

This argument has appeal to members of the Church, given its resemblance to the Proclamation on the Family’s statements that "[g]ender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose," and "[m]arriage between man and woman is essential to [God’s] eternal plan." However, There are many problems with this formulation, from both a logical perspective and for Mormons especially. First, the logic of the natural law position relies on the idea that homosexuality is not "natural." This is a position that is belied by observations of biologists who note homosexual behavior throughout the animal kingdom.³ Also, the argument necessarily concludes that there is one “right” way to act, or even to exist, and all variation is inherently sinful. Simple observation of human behavior and the variety found therein leads one to conclude that there are many decisions that are morally neutral.

Natural law is also a difficult fit with LDS theology. First, the argument posits that morality can be deduced by observing nature or using natural reason. This is problematic for Latter-day Saints, who tend to take a dim view of nature, viewing "the natural man [as] an enemy to God . . . ." (Mosiah 3:19) Natural law theology also relies on Platonic Idealism, something that LDS theology rejects in favor of materialism. Damon Linker, a Catholic scholar and former visiting professor at Brigham Young University, explains that the LDS concept of God contradicts the very foundations of natural law theology:

Unlike the God of Catholics and Protestants—who is usually portrayed as the transcendent, all-powerful, all-good, and all-wise creator of the temporal universe out of nothingness—Smith’s God is a finite being who evolved into his present state of divinity from a condition very much like our own and then merely "organized" preexisting matter in order to form the world . . . . Mormonism tacitly denies that the natural world possesses any intrinsic or God-given moral purpose. Everything we know—or could ever know—about right and wrong comes entirely from divine commands communicated to humanity by prophets.⁴

The other problem with adopting the natural law position as a Latter-day Saint is the argument’s overinclusiveness. Not only are homosexual acts sinful according to natural law, so are any non-procreative heterosexual acts, even within marriage. Recent LDS pronouncements have not condemned birth control or non-procreative sex acts, referring to this question as a matter between husband and wife. The Church has also recognized a purpose in sexual relations within marriage beyond that of procreation, namely "to express love for one another—to bind husband and wife together in loyalty, fidelity, consideration, and common purpose."⁵ Natural Law theology is therefore a problematic basis for LDS arguments against homosexuality.

---

1. Teresa Stanton Collett, Should Marriage Be Privileged? The State’s Interest in Childbearing Unions, in SAME-SEX MARRIAGE: THE MORAL AND LEGAL DEBATE 163, 168. (Robert M. Baird & Stuart E. Rosenbaum, eds., 2004).
2. John Finnis, Law, Morality, and "Sexual Orientation", 69 NOTRE DAME L. REV. 1049, 1066 (1994).
3. BRUCE BAGEMIHL, BIOLOGICAL EXUBERANCE: ANIMAL HOMOSEXUALITY AND BIOLOGICAL DIVERSITY 12 (1999) (recounting scientific observations of homosexual behavior in over 450 animal species).
4. Damon Linker, The Big Test, NEW REPUBLIC, Jan. 1, 2007, at 18, 19–20.
5. 7 CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, TRUE TO THE FAITH, 26 (2004).

I can haz peace, land and bread?

Lolcats goes Marxist-Leninist:

We sleep with vigor. Content with the knowledge that Lenin’s body shall never decay...

Have strength, my little cabbage. By the mercy of NKVD Order No. 00447, we have been chosen for Resettlement.
We will show the tin mines of Kolyma the true power of the proletariat.

Drat, thwarted so close to freedom’s sweet caress… I dreamed for but a taste of the decadent west, and now my eulogy is sung by guard dogs and alarm bells.

More here.

Friday music post: Uninvited

Yeah, it's her. So what? This song is pretty amazing all the same:

So...

I was planning on writing about some 9th Circuit rulings on the Defense of Marriage Act last night, but I had to write an emergency motion to dismiss (work, it always takes away from the important things in life...). Anyway, if you haven't already, you should really click on yesterday's KTVX link (reposted here for your convenience) and watch the Chris Buttars video. It's AMAZING...

"They're the meanest buggers I have ever seen."

Utah State Senator Chris Buttars sounds off about the evil ghey. Guess he doesn't like pumpkin bread.

LDS Doctrine and Same-Sex Couples, part 1: Introduction

OK boys and girls, I'm starting a new 6-part series on Tuesdays. If you have no interest in religious issues, don't worry—it's only one day a week.

The aftermath of California’s passage of Proposition 8 has drawn the battle lines between the LDS church and the gay community. The last few months have been rough for those of us who find themselves in the intersection of these two worlds. Sometimes it is hard to believe that a reconciliation could be possible. While the bad feelings on both sides ensure that reconciliation will not happen any time soon, some would argue that a reconciliation is impossible because of LDS doctrine itself. In the following posts, I will address that issue, and argue that the LDS doctrine does not preclude the possibility of a future change of official policy regarding same-sex relationships.

Opponents of Church acceptance of homosexuality generally bring five basic arguments into play: homosexuality is “just wrong,” the scriptures condemn homosexuality; homosexual relationships violate the law of chastity; homosexual relationships are incompatible with the plan of salvation; and the brethren have not recognized and have actively campaigned against homosexual relationships. The first three arguments are weak from an LDS standpoint, but the latter two arguments engage the very foundations of Church doctrine. Plumbing the depths of these latter two arguments, while leading to no definitive answers about a place for homosexuals in the Church, exposes some play in the joints that would allow accommodation of committed same-sex couples within the LDS community if the Church were inclined to do so.

Oh, so that's why...

Here's an internet personality test: for each item below, answer the following question: does it make you feel

a) revolted
b) appalled
c) fascinated
d) hungry
e) all of the above

Sloppy Joe On A Krispy Kreme

Bob Evans Sausage Gravy Machine

Heart Attack Sandwich—Chicken fried steak, chicken-fried bacon, a country sausage, a fried egg, a fried green tomato topped with cheddar cheese and sandwiched between buns toasted in bacon fat, all served with a gravy dipping sauce.

Corn dog pizza

If you answered anything but D or E to the above questions, you are probably 20 pounds lighter than I am. More food pr0n here.

Friday music post: Hope there's someone

Fish in a barrel

I wasn't going to post on this because I thought it was just too stupid to waste pixels on. However, the more I think about it, the more I think that maybe I'm missing something. Can anyone explain this?

A series of bills in the Legislature are setting a dangerous precedent for the legalization of same-sex marriage, presenters from the Sutherland Institute argued Thursday night.
"We are being urged today to surrender and redefine marriage," said LaVar Christensen. "If we are true to our heritage, we will not yield."

The bills are in question are collectively referred to as the Common Ground Initiative, and they include bills designed to protect gays and lesbians from housing and employment discrimination, to secure domestic partner benefits for state employees, to legally recognize a "joint support declaration" that would secure probate rights for unmarried domestic partners, and to clarify Amendment 3, which outlawed same-sex marriage for Utah in 2005, to allow for some of these benefits to comport with the Utah Constitution. If anyone can tell me what this has to do with same-sex marriage, I would much appreciate it.

I would love to take LeVar Christensen at face value when he says that he and his compatriots "have the utmost empathy and sincere compassion for all human beings," but doing so would require that I understand how these bills have anything to do with the marriage debate. Without that link, I would have to assume that he opposes the bills on their own terms, and that he and the Sutherland Institute support firing people or denying them housing because of their sexual orientation. If that's what he means, I wish he'd just say it.

Really?

SNL gets the Michael Phelps flap exactly right (h/t to Sullivan):

Flaxen Cords

At times during the Presidential campaign, I would trade videos of Ron Paul with a friend of mine. We would discuss how we found ourselves agreeing with his ideas, and actually being convinced by him. Then, just as we were about to be seduced, one of us would remind the other: "just remember that his ideas would wreck the economy."

This was easier for my friend and me to remember: we both took a lot of economics in college. Unfortunately, most of the media are a little more easily duped. There was a particular question asked time and time again in the presidential debates: because of the economic crisis, you obviously won't have money for all of your campaign agenda. What will you sacrifice?" This should have set any student of macroeconomics to yelling at the screen. Governments shouldn't spend less during recessions, they should spend more, as they are the only entity with enough market power to prop up demand and encourage consumer spending.

Since I am concerned that you, dear readers, do not fall into the trap of shoddy economic thinking, I want to introduce you to the seductive lie of Austrian economics and debunk it in a safe place before it does any more damage. To do that, I will enlist the help of a friend: Nobel-Prize winning economist Paul Krugman. Krugman indicts the idea "that slumps are the price we pay for booms, that the suffering the economy experiences during a recession is a necessary punishment for the excesses of the previous expansion."

The hangover theory is perversely seductive—not because it offers an easy way out, but because it doesn't. It turns the wiggles on our charts into a morality play, a tale of hubris and downfall. And it offers adherents the special pleasure of dispensing painful advice with a clear conscience, secure in the belief that they are not heartless but merely practicing tough love.

Powerful as these seductions may be, they must be resisted—for the hangover theory is disastrously wrongheaded. Recessions are not necessary consequences of booms. They can and should be fought, not with austerity but with liberality—with policies that encourage people to spend more, not less. Nor is this merely an academic argument: The hangover theory can do real harm. Liquidationist views played an important role in the spread of the Great Depression—with Austrian theorists such as Friedrich von Hayek and Joseph Schumpeter strenuously arguing, in the very depths of that depression, against any attempt to restore "sham" prosperity by expanding credit and the money supply. And these same views are doing their bit to inhibit recovery in the world's depressed economies at this very moment.

Krugman wrote this article over ten years ago in talking about the Asian recession, but it is every bit as relevant today as it was then. I strongly encourage you to read the whole article, but this takeaway quote is really food for thought:

One often hears that Japan is adrift because its politicians refuse to make hard choices, to take on vested interests. The truth is that the Japanese have been remarkably willing to make hard choices, such as raising taxes sharply in 1997. Indeed, they are in trouble partly because they insist on making hard choices, when what the economy really needs is to take the easy way out. The Great Depression happened largely because policy-makers imagined that austerity was the way to fight a recession; the not-so-great depression that has enveloped much of Asia has been worsened by the same instinct.

Tempest in a teapot

Just a couple more pieces of evidence showing why Don't Ask, Don't Tell is outmoded:

And Don't forget:

Friday music post: Poupee de Cire, Poupee de Son

After some research, I decided that this was the best version I could find on YouTube:

Fiat Lux

These photos are just amazing:

My toothpaste has been detained

So I went on a trip to Phoenix last weekend to take some time off of the cold, the haze, and the rest of Salt Lake. I had a great time, but on the way through security in Sky Harbor, I ran into a problem. I have always been good at getting through security quickly. I can get my shoes on and off quickly, I can empty my pockets and take off my belt without much effort, and of course, I'm a white male, which is probably the biggest factor. But since the last time I was on the airplane, the TSA has found something new to worry about: liquids.

The liquids policy has been in place for a while, and I knew about it—I just didn't think about it when I packed my carry-on bag. Luckily, I got through Salt Lake International's security without incident, so I was optimistic when I started through security in Sky Harbor. After the bag went through the x-ray machine, A screener asked me to open my bag. He rummaged around in my toiletries bag and started to lecture me about the liquids rule. I ended up having to sacrifice my toothpaste, my face scrub, and my shaving cream to the airplane gods. I guess it wasn't too bad; all of those items were over half-empty anyway, and they they didn't get what was in the side pocket on my toiletries bag.

But seriously, toothpaste? Really? And why is there this three-ounce limit? (Incidentally, the TSA rule says three fluid ounces by volume—but that didn't stop them from taking my toothpaste because it said its weight was more than three ounces.) I guess I'm not an expert on these things, but this kind of effort doesn't seem that it makes people safer. I don't think it makes people feel safer, either, which is the point of most of our security. I think Saturday Night Live says it better than I can (click the picture for the video):

I just hope that my toothpaste doesn't end up in GTMO or something. Good luck little buddy.

Nate fails at life

I was out of town all last week and haven't caught up on my blogging. I promise I'll do better tomorrow. Until then, deal.

Fighting the battle of who could care less

Extra! Extra! Read all about it! 23-year-old college student takes a bong hit.

The USOC is clutching its pearls:

"Michael is a role model, and he is well aware of the responsibilities and accountability that come with setting a positive example for others, particularly young people," the USOC said in a statement. "In this instance, regrettably, he failed to fulfill those responsibilities."

And Phelps' quote is appropriately groveling and self-flagellating to the tens of people who are shocked and appalled by a 20-something smoking pot:

"I engaged in behavior which was regrettable and demonstrated bad judgment," Phelps said in the statement released by one of his agents. "I'm 23 years old and despite the successes I've had in the pool, I acted in a youthful and inappropriate way, not in a manner people have come to expect from me. For this, I am sorry. I promise my fans and the public it will not happen again."

Frankly, I want Michael Phelps to apologize to all of us who think that apologies like that just feed the public perception that he did something that anyone at all should care about. I mean, our last three presidents have admitted to smoking pot. Can't we just stop the war against cannabis yet? Seriously, I don't care to smoke it, but t seems like such a waste of resources...