As unelectable politicians popular with teenagers go, I have to say, I'm really feeling some serious nostalgia for Ralph Nader now that I've seen what Ron Paul mania looks lie. It may be that I came closer to agreeing with Nader than I do with Paul.Or, now that I think about it, maybe it's just that Nader's supporters didn't delude themselves into thinking he had a shot at anything more than a few percent of the vote, so they didn't come across quite so insane.But man, I can't wait for the Republican primary to be over. The political boards here are getting close to unreadable.

During the course of one of my many arguments on these boards, I noticed that the person I was arguing with was using some pretty sketchy sources. Some quick google work verified that he was relying on a wikipedia article. Part of the issue was that he was misquoting the article to make it sound more like it supported his position, but it wasn't a very good article to begin with. Since the information in question was about tax-exempt organizations, and I am familiar with where to find filings for U.S. tax-exempt organizations, I decided to update the article with information straight from the horse's mouth. Big mistake. Two days later, I'm completely addicted to editing articles. I've even created one of my own, which I'm sure will bore anyone who reads it to tears. Someone save me...

I think it's really cool that Gmail displays targeted ads based on the content of my conversations.  But apparently they've decided to take it to the next level and recommend lifestyle changes.  My ads at the moment:

1.  Premiere Finishing School for ladies.
2.  Quality Underbust Corsets
3.  Crossdressing Community
4.  Makeup tips for transvestites.

Here I was feeling all manly, and it turns out all along my online behavior is that of a pudgy, ill-mannered transvestite.  

In arguments about the legalization of same-sex marriage, I often hear people claim that their opposition to same-sex marriage is motivated not by prejudice or hatred toward gay people or homosexuality in general, but by respect for marriage as a tradition.  My approach in general is to point out that in an equal protection analysis, tradition alone is not a justification for denial of equal rights.  But by focusing on the rights involved, I think I've let people get away with a fast one.  I've let people use tradition as a red herring for the prejudice that actually motivates them. Essentially, I don't think anyone actually believes that tradition is worth protecting unless there is a reason to support that tradition.

In the context of marriage, we have changed tradition many times just within the short history of our nation.  Past changes in the traditional definition of marriage to allow black people to get married, or to allow interracial couples, or to allow interfaith couples, were bitterly opposed at the time, but now are generally accepted, because our social mores have changed and legal discrimination based on race is considered abhorrent to nearly everyone.  This indicates that even to folks currently defending the tradition of marriage, changing the definition of marriage is not a bad thing in and of itself, if the current definition results in discrimination of a sort that they disapprove of.

Changing the definition of marriage to allow same-sex marriage, however, is still roundly denounced.  Given that the same group thinks it was fine to change tradition where they thought the reasons for doing so were valid, it's hard for me to see how the current opposition can be motivated by anything other than distaste for homosexuality.  That is, the reason that this particular change is considered bad is not because tradition is sacrosanct, but because this particular change in tradition is distasteful. And I can only conclude that the reason this change is distasteful in a way that previous changes were not is due to the belief that homosexuality is wrong (or at the least, that it should be treated as inferior to heterosexuality). 

In other words, the righteous indignation I so often see in response to assertions that opposition to same-sex marriage is motivated by prejudice is unfounded.  While I understand that no one likes to think of themselves as prejudiced, it would make these arguments much more honest if we could stop pretending that it is respect for tradition rather than belief in the superiority of heterosexuality that motivates opposition to same-sex marriage.

I started this discussion originally on my board, but I thought I'd post it here as well. 

The New York Court of Appeals upheld a state law banning same-sex marriage.  The court held that marriage was a fundamental right, which is a promising sign for marriage rights, but held that that right is only fundamental for heterosexual couples. 

From a constitutional perspective, I think the court here simply got it wrong.  They agreed that marriage was a fundamental right, but argued that same-sex marriage can't be a fundamental right because it is a relatively new concept.  As a result, rather than applying strict scrutiny, the court approached this case as though the key question is whether there is any rational reason to allow opposite-sex marriage that might not apply as strongly to same-sex marriage, and concluded that (1) because opposite-sex couples are more likely to reproduce than same-sex couples, encouraging a stable environment for raising children is a rational reason to support opposite-sex marriage that a state could rationally conclude does not apply with as much force to same-sex marriage, and (2) children benefit more from having two parents of opposite sex as role models, and opposite-sex marriage encourages that environment.

Even leaving aside the complete lack of evidence for the second of those two potential "rational" bases, I thought the dissent had the better argument regarding whether marriage is a fundamental right--you cannot recognize marriage as a fundamental right, but deny that right to a particular group solely because that group has historically been denied that right.  That is, the court defined the right at stake too narrowly--they cast it as a request for recognition of a new right to same-sex marriage, rather than a request for recognition of the existing right to marriage itself.  I think the dissent raised another interesting argument--even assuming the Court was correct that same-sex marriage is not a fundamental right, the question ought not to be whether there is a rational basis for granting benefits to opposite-sex couples, but whether there exists a legitimate basis for excluding same-sex couples.   That is, the question even under the Court's rational-basis approach should be whether excluding same-sex couples from marriage rationally further a legitimate state interest.  Cast that way, I think it is much harder to find rational support for the ban.

It's been a while, but I finally am trying to finish this series. This post will deal with how our current federal tax system is structured, and will then discuss the arguments for and against a progressive tax structure.  I have no doubt that I will leave something important out, but I thought it would be best to finally get this damned thing done.

Our tax structure:

Our tax system, at the federal level, consists primarily of a progressive income tax, coupled with regressive income-based payroll taxes (as well as some excise taxes that I don't know enough to discuss intelligently, but which don't account for a large portion of our tax base). 

Just to clarify some terminology that comes up often in these discussions, "progressive" means that as your income rises beyond certain thresholds, additional earnings are taxed at a higher rate.  For example, someone earning $10,000 may pay 10% tax on that $10,000.  Someone earning $15,000, however, would pay 10% tax on the first $10,000 he earns, but might then pay 20% tax on the remaining $5,000.  Thus, his marginal income tax rate (the rate of tax he pays on each new dollar he earns) is 20%.  His effective income tax rate (meaning the total amount of tax paid as a percentage of his total income), however, would be roughly 13.3%.  The income tax currently has a top marginal rate of 35%, which applies to taxable income (meaning income net of any deductions to which you may be entitled) in excess of $326,450.

In addition to the progressive income tax, our system imposes a payroll tax on wage earnings, of which 1/2 is deducted directly from an employee's paycheck, and half is paid by the employer.  A portion of this tax applies to all wage earnings, but the bulk of it (the portion reserved for social security and medicare) applies only to the first approximately $90,000 in wages.  In other words, payroll taxes are regressive: persons earning less than $90,000 pay a higher percentage of their earnings than persons earning more than $90,000.

Under our tax system, corporations are treated as taxpayers separate from their shareholders, and are subject to a tax of roughly 35% (although a lower rate applies to small corporations).  This leads to the potential for double taxation, since earnings will be taxed to the corporation, and will then be taxed to the shareholders as income when the corporation pays a dividend.  In practice, this risk is relatively small, but it was politically potent enough to lead to a recent change in our tax laws: dividends from corporations are now taxed at 15%, instead of at the normal marginal income tax rates.

Gains from property purchased for investment (capital gains) are also subject to a favored tax rate.  The rationale for this was to encourage liquidity of investments.  Gain in value of property held for investment is not taxed until the property is sold or otherwise disposed of.  As a result, if property increases in value, there is an incentive to hold on to the property rather than to sell it.  It was thought that by lowering the capital gains tax rate, we would encourage people to sell their investment property, which some thought would result in a boost to the economoy.

Finally, we charge an estate and gift tax for transfers of property at death or during life.  Lifetime gifts of wealth in excess of an aggregate total of $1,000,000 are subject to taxation on a graduated scale.  The maximum marginal tax rate is currently 46%.  Transfers of wealth upon death are subject to tax only to the extent that the estate exceeds a certain minimum threshold.  At present, that threshold is $2,000,000, but it will increase each year until 2009, where it will reach $3,500,000.  Estates over that minimum amount are taxed on a progressive scale, with a maximum rate that is currently 46%, but will decline to 45% beginning next year, and will drop to 35% beginning in 2010. 

The current tax burden:

At present, the average effective federal tax rate, including all federal taxes, is 21%.  That is, the average federal tax burden for an individual is 21% of their income.  Broken down by tax type, the average person pays federal income tax of 10.3%, payroll tax of 8.3%, estate tax of 0.2%, and corporate income tax of 2.4% (that is, the corporate income tax results in a 2.4% reduction in income to the individual shareholder).  This burden is distributed progressively, however, so that persons in the bottom quintile pay an average effective tax rate of 3.3%, while persons in the top quintile pay roughly 25.4%.  A further breakdown is available here.

The argument for and against progressivity:

Our tax system has been progressive to various degrees since its inception.  However, some believe that progressivity inhibits economic growth by making each additional dollar earned worth less (and thereby discouraging earning past a certain point).  In addition, some have expressed concerns over the fairness of charging higher rates to some people than to others.  Some also view progressive taxation as punishment for achievement. 

There are several arguments used to justify progressive taxation.  The first is based on the burden caused by taxation: As income levels rise, a greater portion of income is disposable income, and therefore, a wealthier person is burdened less by a high tax rate than a poorer person.  Another common argument is that the wealthy benefit most from the existence of government, and therefore have the highest obligation to contribute to funding it.  A third is that the marginal utility of wealth decreases with each additional dollar earned, and that some redistribution of wealth helps society operate more efficiently.

I spent more time than I meant on the current system, and less on the actual merits of progressivity, but I don't think I can write anymore right now.   Anyway, comments are welcome.

The current administration has placed a heavy emphasis on both cutting the overall tax burden and on redistributing the burden so that percentage that those with large incomes pay is not as much higher than the percentage that those with small incomes pay. I thought it might be helpful, since these issues come up on the forums quite often, to have a basic primer on the issues involved in redistributing the tax burden, as well as on some of the mechanics of taxation, since it can be a bit complicated and the media doesn’t always do a great job of explaining things.

This first installment is mainly background: how we got our income tax and what restrictions are placed on it by the constitution. It is not meant to be a comprehensive guide, but merely an overview. Future installments will discuss how taxes actually work, and the issues involved in progressive taxation and redistribution of income.

What gave the government the power to take our money in the first place?

Our founding fathers, recognizing that our government would need some way to pay for itself, gave Congress extremely broad powers to levy taxes. Article I, section 8 of the Constitution provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

Thus the power of Congress to collect tax was limited in its scope only to the requirement that they be used to provide for the common defense and general welfare (a phrase whose interpretation is often disputed). The manner in which Congress could levy taxes, however, had substantial limits. First, all taxes were required to be uniform throughout the United States. In other words, Congress couldn’t create different rates for citizens of different states. Second, Article I, Section 9 provides that “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein before directed to be taken.” That is, “direct taxes” such as taxes on real or personal property (or, at the time, slaves) could only be levied on the basis of state population, and not on the basis of income. Other forms of taxation had no such limitation.

In the late 19th century, the Supreme Court ruled income taxation unconstitutional for the reason that part of income is derived from property, making it a “direct tax.” This came despite an earlier ruling upholding an income tax during the Civil War. For a short period after this, the Court issued a series of rather conflicted rulings regarding whether or not certain types of taxes were “direct” or not. This resulted in the corporate income tax being considered constitutional, even though an individual income tax was not. There was speculation that the Court was on its way to reversing its ruling that income tax was unconstitutional. The distinction between “direct” and other taxes was eliminated, rendering the issue moot, however, when the 16th amendment was passed, giving Congress the power “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” The 16th amendment strengthened Congress’s already substantial taxation powers, eliminating restrictions on the manner of taxation (although retaining the requirements that taxes be uniform throughout the United States).

What can the government use our money for?

As noted above, Congress has the power “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” There has been some dispute as to the scope of the term “general welfare.” Some (most notably James Madison) have argued that “general Welfare” was limited to those powers explicitly granted to Congress by other sections of the Constitution, so that the tax power is simply the manner by which Congress can fund the activities that it is expressly authorized to engage in by the Constitution. Others (including Alexander Hamilton) have argued that “general welfare” can be interpreted literally, and that Congress has the power to tax and spend as long as it does so to promote the general welfare. This latter view has won out in the courts, and debate on the subject has completely ended, at least as a legal matter. The debate over how taxes should be used remains very much alive as a policy matter, however, with some advocating the use of tax funds on social programs that ostensibly promote the general welfare, and others advocating limiting taxation primarily to providing for the common defense, with very provision for non-defense-related general welfare.

The California Supreme Court recently heard arguments in three cases involving lesbian couples that split up after becoming mothers. The problem is that the laws designed to fix rights and responsibilities of parents after a divorce were crafted with straight couples in mind, with the result that it is not clear what happens when only one of the parents is biologically related to the child (as is the case when one partner is artificially inseminated, for example). This problem is complicated by the fact that each of these divorces were on extremely unfriendly terms. As a result, the biological mother is put in a position in which her best legal argument for keeping custody of the child may very well be that lesbian couples should not be treated on equal legal footing with straight couples.

The laws need to be fixed in order to recognize these all too common problems. Families that are tied together by something other than pure biology are becoming more and more common, and absent the availability of institutions like marriage to create binding legal ties between family members, these situations are going to continue to be even more difficult to resolve than they already are. In many cases, the non-related mother will adopt the child in order to achieve a legal status on par with that of the biological mother. But even that option is not always available, particularly in states that do not allow gay individuals to adopt, or that do not allow unmarried partners to adopt a child if the biological parent does not relinquish her own parental rights.

Personally, I think this kind of situation makes it crystal clear that same-sex couples need to have access to an institution like civil marriage, civil unions, domestic partnership, or whatever one wants to call a state-recognized bond between two people. It also is necessary to clarify parentage in cases of artificial insemination or surrogacy in cases in which the couple involved, whether straight or gay, has chosen not to get married. The fact that one partner contributes no biological material should not be the sole decisive factor in determining custody, child support rights, or the myriad other legal issues arising out of the decision to start a family.

I can't remember exactly why this popped into my head, but I used to work at an ice cream parlor, and perhaps because our staff had a very punk look to them, people were always leaving religious pamphlets in our tip jar. Most were simply honest, if alarmist, attempts to warn us of the dangers of not believing in Jesus. But some were so far odd that they stuck in my mind. Understand, I personally usually enjoy being approached by evangelists simply because I admire such devout faith and I like to hear new perspectives on religion. But once that faith is reduced to a flyer, the admiration is far too often replaced by bemusement (or amusement) at how groups are willing to cross the boundaries of good taste in order to try to "market" their faith.

My all-time favorite: A check made out to Whosoever Believeth in the amount of "Eternal Life and xx/100," signed Jesus Christ. Memo: John 3:16.

I don't think that strong faith is incompatible with a sense of perspective, but the more extreme believers seem to give that impression, and I often wonder if for some people, the strength of their religious convictions is a product more of their inherent stubbornness and belief in their own infallibility (not to mention an unwillingness to accept the consequences should they turn out to be wrong) than it is of their honest submission to the infallibility of God. Some of that may be a product of my own stubbornness and belief in my infallibility; I personally have enormous faith in the divine, but none at all that my approach to worship is the only correct path. Naturally, I like to think that my way is the best way But accepting my bias for what it is, I can't help but wonder, when I speak with someone who is so firmly committed to their religion that they refuse to consider any other possibility, whether their commitment is a product of faith alone or whether it might be tainted with stubbornness, narcissism, and fear.

After two weeks of doing absolutely nothing, I start my new job tomorrow. Naturally, I'm staying up late to ensure that I'll get no sleep and make the worst impression possible on my new employer. I don't know why I can never make myself go to bed the night before a big event, but it happens every time. It's not that I can't sleep. I can always sleep once I'm in bed. But I can't make myself get in there. It's like the internet suddenly becomes a land of adventure, with excitement around every corner. Oh, look, a post about gay marriage! How can I resist? Hey, there's a thread about how much liberals suck! I had better put my two cents in, for the good of all humanity!

On the bright side, half a night's sleep after 2 weeks of sleeping as much as I want is way better than half a night's sleep after 6 months of 60-80 hour weeks.

I'm getting really sick of the constant partisan rhetoric over budget issues. Too much of Washington politics is about appearing to be fighting for your constituents instead of actually doing what will make them better off.

On the Republican side, for some reason Bush and his supporters are focusing an inordinate amount of energy on Social Security. The plan they put forward does very little to actually help the projected shortfalls. Instead of figuring out a way to pay the promised benefits, it instead converts a portion of the program to an ownership-based system, meaning that younger workers will be paying less into the pool that pays our current retirees' benefits. While there is some merit to the notion that personal accounts have a chance of getting better returns, they will not prevent Social Security from becoming insolvent, and they will make the system less progressive in its benefits, meaning that the people in the most need will be worse off. Meanwhile, the projected budget deficits dwarf the predicted Social Security shortfall. Social Security deserves attention, but I can't help but think that it's being used to distract from the more pressing budget concerns

On the Democratic side, no alternative solutions are being offered on the Social Security issue. Much criticism is being put forward, but there doesn't seem to be much other than accusations (accurate though they may be) that the President is trying to distract from other problems. The Social Security problem is real, even if it is not the biggest problem facing our nation right now. And the President has a substantial amount of power to control the legislative agenda. Given those things, Democrats would do better to face the problem directly than to snipe without offering substantive solutions.

The problem is that there is no free lunch--fixing Social Security shortfalls is going to require additional taxes or cutting benefits, and both sides know that proposing either one in our current climate is career suicide. I personally would like to see the cap raised (or even lifted), so that instead of taxing 12% of the first $89,000 of income for Social Security, we taxed 12% of income, period. That would render the tax flat, instead of regressive, and would go a long way toward addressing the shortfall in funds. But since that would have a marginal negative effect on middle class taxpayers, it will never happen. Instead, the dance continues, with both sides more concerned about their own political futures than about actually fixing what's broken.

I'm going to take the lazy route to a journal entry, mostly because I always lose track of posts that I'm proud of on the forums, and this is a good way to keep track of them.

In 1972, the Supreme Court ruled the death penalty to be cruel and unusual punishment, focusing largely on the "harsh, freakish, and arbitrary" manner in which the death penalty was applied. In the next few years, many states who believed in the death penalty fought to pass new capital punishment statutes that would provide additional safeguards and guidance to juries, including establishing two-step sentencing processes. In 1976, the Supreme Court ruled that the death penalty would not always be cruel and unusual punishment, focusing on whether capital punishment statutes provided "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." Since then, 38 of the 50 states have adopted capital punishment statutes, well over 3000 convicted criminals have been executed.Despite the Supreme Court's ruling, I continue to believe that the death penalty should not be practiced, in large part because I don't believe it furthers the legitimate goals of our criminal justice system enough to justify the substantial risks involved. The arguments I hear advanced in support instead are those of deterrence, incapacitation, and punishment/just deserts.

The death penalty is not an effective deterrent of other would-be criminals. For the death penalty to be effective as a deterrent, it would need to be applied consistently and promptly, and there is no way to do either one without violating the Constitution. With a delay of several years to account for the required appeals, as well as the fact that juries will differ on who deserves the death penalty and who does not, neither promptness nor consistency is an attainable goal, nor should it be, given the risks if we give up those safeguards. It is also questionable that the death penalty would serve as deterrent even if it were carried out quickly and consistently. Criminals who premeditate their crimes often believe they will get away with them, and are unlikely to be deterred by the gravity of the potential punishment. But capital crimes are mostly not premeditated--they are committed in the heat of the moment, and it is unlikely that they calmly consider the potential consequences to themselves before engaging in their crime.

The death penalty does serve to incapacitate the criminal in question, but not substantially more than life in prison with no possibility of parole would. Recidivism rates among convicted murderers are quite low, and prison breaks are rare. While there is always a risk, there is no way to know which criminal might commit a second murder, and the only way to completely eliminate that risk would be to execute every convicted murderer, which is simply not constitutionally feasible.

The main argument I hear advanced in favor of the death penalty, however, is that of retribution of "just deserts." It is argued that if someone takes a life, they deserve to have the same done to them. While I agree that the severity of the punishment for murder should be greater than that for virtually any other crime, I do not agree that "an eye for an eye" is an approach that should be taken by any civilized justice system. I simply do not believe that one killing justifies another, other than in self-defense. A related argument is that the victim's family and loved ones will not have peace until the murderer is killed. I don't think that the satisfaction of individual relatives should be our primary consideration regardless, but it is worth noting that not every relative responds this way. In the words of Coretta Scott King, "As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder."

In addition to these primary points, there are several problems with the death penalty as it currently is administered. The first is that there is still no way to guarantee that we will not execute an innocent. We have quite regularly convicted innocent people of murder or even capital murder. Reprieve has come in several cases only a few hours or even minutes before scheduled executions. There have been several cases as well in which a person was executed despite substantial doubt as to their guilt. While it is unlikely that any investigation will be made, since they are already dead, it is quite possible that we have executed people who are innocent of their crime. Given the possibility of false conviction, it makes sense to restrict our punishment to something that is reversible if new evidence comes to light.

There are also issues with racial discrimination or other arbitrary determination of who deserves the death penalty and who doesn't. The death row population is disproportionately made up of black men. While this correlates roughly to the proportion of murder convictions in general, it is worth noting that in addition, the odds of a death sentence are substantially higher in cases involving a white victim. In 1990, the U.S. General Accounting Office concluded an empirical study of the impact of race in capital punishment, finding "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision [the 1972 decision finding the death penalty unconstitutional]" and that "race of victim influence was found at all stages of the criminal justice system process...." Gender and socioeconomic discrimination appears to play a factor as well. Women commit approximately 15% of murders, yet only about 1% of capital convictions are of women (oddly, approximately 1/3 of these are of women who kill their husbands in retaliation for a long-standing pattern of physical abuse--not my first choice for the death penalty, personally). And it is well established that the poor are more likely to be sentenced to death than the wealthy, in no small part because it is substantially easier for the wealthy to hire competent legal counsel.

I simply don't believe that the death penalty provides enough benefit to society to justify the negatives associated with its use.

I don't usually shave over the weekend, mainly because if I'm going to shave, I may as well shower, and if I shower, I may as well get dressed, and if I'm getting dressed, then what the hell is the weekend for?

So on Monday morning, I usually have my work cut out for me. My beard doesn't grow in terribly thick, but thick enough that 3 days' growth is a pain to get rid of. But having watched Queer Eye for the Straight Guy for the last few years, I had a brilliant idea. If scruffy people are supposed to still shave from the jawline down, so that they still look groomed, why can't clean people who are lazy do the same thing? So here I am at work with 4 days of beard growth, and thanks to a couple of moments shaving my neck, it looks like I'm growing a beard on purpose instead of that I'm too lazy to wake up an extra 5 minutes early. I'm brilliant!!

A California trial court ruled that the CA law limiting marriage to a union between a man and a woman violated California's Constitution. I read the decision while eating my lunch, and I have to say, this judge decided the case on exactly the grounds that I've been hoping a court would use since this issue first came up, using the standard that I thought should apply. Basically, this was a pretty solid decision in my book.

Under equal protection law, a law that creates different benefits based on classification of the people to whom the law applies. These classifications are permissible if they are sufficiently justified. In general, this requires that the state have a rational basis for the creation of the classification, and the law will be upheld unless the claimant can prove that the state had no such rational basis. If the law uses a "suspect" classification, however, it will be subject to strict scrutiny, and will be struck down unless the state can show that it has a compelling interest that justifies the law, and that the law, as crafted, is necessary to further that interest. The court here held that because the classification in this case was based solely upon gender, strict scrutiny applied, likening the situation to that involved in the anti-miscegenation cases. In addition, it adjudicated a fundamental right--that of marriage--which further argues in favor of strict scrutiny of the law's justification. The Court noted, however, the law would fail even under rational basis review.

To justify marriage, the state used a couple of arguments. First, it argued that opposite-sex marriage is deeply rooted in the state's culture, history, and tradition, and that it should not be redefined into something that it never has been. The Court noted that some legislative embodiments of tradition are okay, if they also have a rational basis aside from the mere fact that they are traditional. But a protracted denial of equal protection cannot be justified simply because the state has always violated the constitution that way. This was made clear in the interracial marriage cases; opponents of interracial marriage argued that historically and culturally, blacks had never been allowed to marry whites, and that therefore the statute was justified. The court rejected this. This approach was confirmed again in Lawrence v. Texas, when the U.S. Supreme Court noted (citing the miscegenation cases) that the fact that a majority has traditionally viewed a particular practice as immoral is not enough on its own to justify rendering that practice illegal.

The state then argued that preserving tradition was okay, given that the state affords virtually all of the same rights to same-sex couples as it does to married couples. The Court noted that the legal test applied is whether or not the state had a rational basis for denying the right to marriage in the first place, not whether its subsequent actions have ameliorated the effect of that initial decision. The fact that the state has created a superstructure of marriage-like benefits does not bear on the issue of whether preventing same-sex marriage itself is justified. The fact that the state was willing to give all of these benefits to same-sex couples in fact cuts against the existence of a rational basis for denying marriage rights--if there is no right conveyed by marriage that the state believes is inappropriate for same-sex couples to have, it is harder to argue that there is a basis for denying them the rites of marriage as well.

Basically, for a random trial court's decision, this was a remarkably well-crafted, well thought-out decision (perhaps because it had a high enough profile that the parties briefed it extremely well) that may actually have a chance of surviving appeal, although it will be fought bitterly. I am looking forward to seeing where this goes.

I've been pretty unhappy with my job for a while now. I love tax work, but my firm has been extremely slow in that area for quite a while now, with the result that I've been stuck doing much more non-tax-related stuff than I would have liked. I stuck it out for a while, since what tax work I did was really interesting, including some interesting work on a prominent international tax litigation. Unfortunately, because I'm a tax attorney, any non-tax-related work I get tends to be the stuff that the other departments couldn't pawn off on their own people, which means that it's long, tedious, and boring. Despite a pretty healthy inferiority complex, nurtured by years of careful self-doubt, I knew that I was capable of much, much better than the crap that was coming across my desk, and went from feeling inadequate to feeling pretty resentful toward my firm for not being able to find a better use for me than as a part-time tax attorney and part-time glorified lackey.

About a month ago, it became pretty clear that things weren't going to get busier for me in my area any time soon, and I decided to get started trying to find a firm with a busier tax practice. I went on a couple of interviews, and this afternoon, got a job offer from a firm that does work that is quite close to my own area of practice, but has a much stronger tax group (and pays slightly better to boot). A couple hours after that, I got a call from another firm to call me back for a second interview. Basically, my whole mood (which has been pretty foul, at least for me, for the last several months) has turned around So, yay for me!

Connecticut is moving toward legalizing same-sex civil unions. It was approved 25 to 13 by the Connecticut legislature's judiciary committee, and supporters believe they have the votes necessary to pass the measure when it comes before the State House and Senate. The Governor has also said she supports the concept of civil union, although I don't think she has actually lent her support to this particular measure. If it actually happens, it would make them the first state ever to do so without judicial pressure--that is, the first state that did so purely as an expression of the will of the people, rather than because their state constitution required them to.

Gay rights groups initially opposed the measure because it did not grant full marriage rights, but have since stepped aside, because they did not want to, as the NY Times editorial staff put it, "make the perfect the enemy of the good." I am always hesitant to support compromise in situations when I truly believe that there should be no need for it, but I am glad that, at the least, gay couples will have access to far greater legal rights than they previously had.

I personally think that same-sex marriage should be the goal here. I don't think civil unions are truly equal to marriage in the rights they convey (particularly given that they are not, as yet, transferable from state to state, and have no effect at the federal level), and I think requiring a separate institution for gay couples than for straight couples is questionable at best. Imagine if, when we altered our legal definition of marriage a couple of centuries ago to allow marriage between black couples, or when we legalized interracial marriage in the 20th century, we had insisted that it be called something other than marriage. Even if the substantive rights conveyed were equal on their face, could anyone, with a straight face, argue that it reflected an equal treatment of the two institutions?

I'll save a longwinded rant on the same-sex marriage issue for some future entry, but for now, I am optimistic that even if it may be a while before legal equality is reached nationwide, this proposed legislation indicates that there is growing support for it. Polls of younger people already indicate substantial support for full equal treatment. As time goes by, that support will only grow, despite vehement opposition. It's a promising development.

Discussions of discrimination tend to get extremely contentious, largely because both sides seem extremely concerned with being accused of being an "ist" of some sort. Nothing brings out the claws faster than an assertion that a particular minority group is the victim of discrimination. The absurdity of some of the claims I hear is truly astounding. I have been told (with a straight face, no less), for example, that (1) disrimination does not really happen much anymore, (2) that programs like AA are responsible for a lot of today's discrimination, (3) that the PC police have made a victim out of straight white male Christians, etc. When the subject of Hate Crime legislation comes up, it tends to be dismissed by these folks almost out of hand, as though the idea of punishing hate crimes were so ludicrous as not even to be worth discussing. Personally, however, I think that most of the arguments I hear are based on total misperceptions of both what Hate Crimes are and why we treat them differently.

Hate Crimes are defined by the FBI as "criminal offenses that are motivated, in whole or in part, by the offender’s bias against a race, religion, sexual orientation, ethnicity/national origin, or disability, and committed against persons, property, or society." Hate Crimes are not separate crimes; they are traditional crimes motivated by bias rather than by motives such as profit, personal anger, etc. Hate Crime legislation essentially increases the penalties for crimes that are motivated by bias over and above the penalty that such a crime would ordinarily carry.

The arguments I most often hear in opposition to Hate Crime legislation are as follows: (1) Hate Crimes are like thought crimes--we should not punish people differently based on why they committed a crime (that is, hating the victim's race does not make one more or less culpable than hating the victim's personality); (2) Killing someone based on their race doesn't make them anymore dead than killing someone for another reason--how can we justify telling the families of murder victims that their family member's death was not as bad as that of another murder victim? (3) Many states already punish murder with the death penalty--how could the penalties get any worse? (this last came from our current President during a debate with Gore before the 2000 elections; it is really just a variant of #2, but Bushisms really deserve their own category). These arguments all strike me as misguided, for several reasons.

The second and third arguments, which I hear most often, are based on the faulty assumption that murder is the only hate crime. This is simply not the case. In fact, according to the FBI's statistics, of the 8715 bias-motivated crimes committed in 2003, only 14 were homicide of any kind. The vast majority were things like assault, intimidation, and vandalism. Since none of these carry the death penalty, argument #3 (the President Bush special) loses much of its force.

Where the crime falls short of murder, hate crimes are indeed worse for the victim than other sorts of crimes. A black shopowner whose front door is tagged with "N*****" is apt to be affected much more severely than one whose door is tagged with "Kilroy was here."

But the key distinction that few opponents seem to recognize is that hate crimes have an effect on other people sharing the same racial/ethnic/religious/gender/sexual orientation group as the victim. If a shop in a black neighborhood is tagged with "N*****s must die," the negative impact of that crime is not limited to the person whose property has been defaced. Instead, the crime can be seen to in fact be more severe in its impact than the same crime without bias motivation. The added punishment is not based on the bad thoughts of the perpetrator, but on the impact that expressing those thoughts in action has on both his/her victim and on those who share the trait against which the perpetrator is expressing bias.

And although where murder is involved, the effect on the victim is no worse when the crime is hate-motivated than when it is not, the effect on others in the victim's racial group may very well be worse in the case of a bias-motivated homicide than in an ordinary homicide. If Bob kills Joe because Joe slept with Bob's wife, no one has any direct reason to fear for their own safety unless they have also been sleeping with Bob's wife. If, however, Bob kills Joe because Joe is gay, any gay person who is acquainted with Bob has reason to fear for his own life.

Obviously, the degree of this added impact can be debated, but if the discussion focuses on that impact, rather than on the more common (and in my opinion, often disingenuous) arguments that most often are raised, I think it is much more likely to be productive. For whatever reason, though, the reluctance that many feel to recognize bias seems to carry forward into a reluctance to have a meaningful discussion of how to address actions based on that bias.