The opening song for the musical Rent poses the question: How do you measure a year in the life of a person? Of course there are some trivial parameters, like the number of cups of coffee, but the important emotions, actions one takes, and impact on others can be said to be measures of love. This highlights the importance of GLBT rights; by denying them the most meaningful measures of their love, their value in society is denigrated and diminished. Late last week, the repeal of “Don’t Ask, Don’t Tell” and it’s underlying law was certified to Congress – effective September 20th, gays will be allowed to openly serve in the US armed forces. Today, GLBT wedding bells are ringing across the state of New York for the first time. Let’s honor and celebrate these accomplishments by taking the measure of half a year in love.

Wedding Bells Are Ringing

Efforts to get states to recognize same-sex marriage have met with some success, and some set-backs. To start the year, New Hampshire’s existing civil unions were automatically converted to marriages, unless notified otherwise. On January 31st, Illinois signed into law the legalization and recognition of civil unions, effective June 1st. On February 24, Hawaii enacted a law allowing civil unions, effective January 1, 2012. The same day, the Maryland Senate voted for same-sex marriage, but the House failed to vote before the end of the legislative session. With the notable exception of Tennessee (dubbed the “Don’t Say Gay” bill), efforts to restrict gay rights have mostly been treading water, fighting against expansion of rights rather than imposing additional restrictions.

And of course, in New York Gov. Cuomo kept the legislative session open until on June 24, New York signed into law marriage equality, effective today.

Looking Forward

Falling just outside our window, Rhode Island enacted civil union legislation July 2nd, effective immediately. There are some ongoing efforts in Maine, Oregon, and Minnesota. In California, legislation was recently signed to include in the curriculum important historical contributions from prominent gays.

Imminent DOMAin

There are dozens of legal challenges to the insidious Defense of Marriage Act. Rather than list them all, let’s look at the important events during the first half of the year.

The big news, of course, is that in late February, Obama announced that the AG had determined that GLBT issues were subject to heightened scrutiny, not rational basis review, and that DOMA’s Section 3 (which denies federal recognition to same-sex marriages and civil unions; Section 2 allows states to refuse to recognize same-sex unions performed in other states) is unconstitutional. As a result, the DoJ announced it will no longer defend DOMA Section 3 and was sending briefs to the effect in all DOMA cases. Congress was given the option to step in to defend, and the House did so. The law firm the House contracted to defend DOMA withdrew from the case in late March, prompting the lawyer in charge of the case to resign from the firm to retain the case. Since then, the DoJ has also started to stop prosecuting select deportation cases involving gay couples (but not all). In the Senate, the Respect for Marriage bill was introduced to repeal DOMA. Also, a Bankruptcy Court ruled DOMA unconstitutional.

Looking Forward

At the beginning of the second half of the year, the DoJ went further than merely stating their position. They filed an extensive brief arguing that DOMA was unconstitutional. This has prompted plaintiffs in other DOMA cases to move for summary judgment. President Obama has announced support for the Respect for Marriage Act, and hearings for it were held last week. The higlight of that hearing was Al Franken demolishing an anti-gay senator for misrepresenting a study. We need more of that!

Some predictions: in a multitude of cases, summary judgment will be granted, ruling DOMA unconstitutional. This will spur cases challenging state laws. The Supreme Court will chose not to hear the DOMA cases, but eventually will hear the state cases. I think the Democrats are going to be able to position themselves to advance gay rights and then ride that record to electoral success next year (especially Obama being able to point to repeal of DADT and hopefully DOMA as campaign promises delivered). I only wish they would make the same shift in position when it comes to the assault on civil rights resulting from the War on Terror.

I am also going to take a controversial stand. I do not believe that Section 2 of DOMA is unconstitutional (to the extent that the constitutionality of denying same-sex marriage is removed from the picture). While Section 3 is clearly unconstitutional, and through the 14th Amendment this makes state laws banning same-sex marriage unconstitutional, Section 2 doesn’t actually violate the Full Faith and Credit clause. Here is the full text of the clause:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

By my interpretation of “the effect thereof,” Congress does have the power to tell states that they may disregard marriages performed in other states. (I would argue that “general laws” precludes Congress from singing out specific states.) This is of course moot, as denying same-sex marriage is unconstitutional whether done by the federal government or a state.

But DADT!

Log Cabin Republicans representing GLBT servicemembers from California had won a federal trial, with a ruling that DADT was unconstitutional. The ruling ordered the discontinuation of enforcement of DADT worldwide. The government appealed and a stay of the injunction was issued, but before briefs were due, legislation to repeal DADT was passed late last year.

The court initially halted the briefing schedule, asking whether the repeal should put the case on hold, but the plaintiffs pointed out that certification was required before the repeal would be finalized. Since certification was not guaranteed, and nebulous to when it might occur, the court on January 28th set the case back in motion.

Looking Forward

Noting that implementation of the training was well underway and the governments brief inthe Golinski DOMA case, on July 6th the 9th Circuit Court lifted its stay. After granting an emergency stay, the Court modified its stay on July 15th to only apply to new recruits. That is, DADT investigations are enjoined only for current members, not new recruits. Also, the court asked whether the substantial completion of certification efforts had mooted the case. With the actual certification signed late last week, my prediction is that the court will declare the case moot on or before September 21st.

Giving Them Their Prop8

The Prop 8 appeal has been frustratingly (but predictably) slow. The 9th Circuit Court ended up asking the California Supreme Court whether state law gave Prop 8 proponents standing, since California decided not to appeal. The California Supreme Court decided not to decide until after the summer recess, so nothing has really happened. There was a bit of a scuffle over the trial judge being gay, but that was nothing more than a diversion and came to naught.

Looking Forward

If the California Supreme Court decides against standing, expect the case to be dismissed. The Supreme Court has indicated in dicta (Arizonans) that there is doubt that a citizen group would have standing in this situation, and the appeals court is unlikely to want to deal with that situation. It is highly probable that the trial will fizzle out if standing is denied, as there wouldn’t be much incentive for SCOTUS to take on the question.

If California law does grant standing, the most likely outcome is that the appeals court would take judicial notice of the DoJ’s current stance on DOMA and rule in favor of the plaintiffs, upholding the trial court ruling that Prop 8 is unconstitutional. SCOTUS would be more inclined to take this case on appeal, as there would be conflicting precedents in other circuits, as well as an easy out via the standing issue if things get too hairy.

In closing, I’d like to offer a toast to all those who were married today, whether same-sex, opposite sex, or ambiguously sexed:

To many more seasons of love.

The repeal of “Don’t Ask, Don’t Tell” (and the law underlying DADT) was certified yesterday by the President, the Secretary of Defense, and the Chair of the Joint Chiefs of Staff. The White House press release from earlier today:

Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality. In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met. ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days–on September 20, 2011.

As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness. Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal. As of September 20th, service members will no longer be forced to hide who they are in order to serve our country. Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.

I want to commend our civilian and military leadership for moving forward in the careful and deliberate manner that this change requires, especially with our nation at war. I want to thank all our men and women in uniform, including those who are gay or lesbian, for their professionalism and patriotism during this transition. Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world and a reflection of the values of justice and equality that the define us as Americans.

To all of our armed forces personnel, congratulations. Serve proudly, and be true to yourself in all things. In honor of this long overdue recognition, I will compose a post regarding the recent developments in LGBT rights this Sunday.

After a week of negotiations with Senate Republicans, the New York Senate finally voted tonight on a bill to allow same sex marriage. The bill passed 33-29. The Assembly still has to vote on the religious protections the Senate added to the bill, but this is expected to pass easily and will be signed into law next week by Governor Cuomo, who was instrumental in pushing to get this bill passed.

And with any luck, this will springboard Michael into getting a blog of his own to add to our daily reads. And maybe it might even get me to resurrect my own blog…

Thank you for not throwing (too many) rotten tomatoes at me, and if Ed needs a break in a year or two, I’d be more than willing to step up a fourth time.

W. Kevin Vicklund

A little over four years ago, Ed blogged about a possible new explanation for how the dinosaurs went extinct (a second impact, in this case). A month later, in late December 2006, a guy named John L. posted a link to a crackpot alternative explanation (the author is a John Stojanowski, so it seems likely they are the same person). The argument was that Pangaea would have reduced gravity so much that the dinosaurs were able to grow to their immense sizes, and that the break-up of Pangaea killed off the dinosaurs because gravity returned to normal levels. Led by yours truly, the readership of Dispatches demolished the arguments put forth by John. Even ridiculously assuming Pangaea was covered primarily by plateaus towering 9 km over the livable surface, the most generous calculations showed that Pangaea could only have reduced gravity by 1%. In order to get the type of reductions John was requiring, Pangaea would have had to been a ball compressed to the density of the surface of a neutron star!

I recently found out that John decided to alter his explanation, suspiciously right after getting his tail whipped here.

More precisely, while not completely giving up on his original explanation, he added another component. The following is an excerpt from John’s addition:

The shift of the Earth’s solid inner core or both the solid inner core and the liquid outer core must be considered. With the consolidation of the continental land masses on a relatively confined surface area of the Earth, a shifting of the core away from Pangea within the equatorial plane could account for a lowering of the surface gravity of Pangea.

The shift of the core would act to maintain the center of mass of the Earth at its axis. … A rough estimate of the change in the gravitational force can be made using Newton’s Universal Gravity Law: W=GMm/r2 … Using a core-shift of 1000km would result in a ratio of about .75 (i.e. the weight of an object with the core-shift would be 75% of that without it at the equator) ignoring other factors. Again, this is only a crude estimate because the assumption being made is that the Earth’s mass is all concentrated at a single point.

Where does he get his value for the core-shift from? It appears that he pulls it out of thin air, simply choosing a value that allows his argument to work. But if you want to use a core-shift as an explanation for why the dinosaurs went extinct, you can’t simply assume it happened. You need to have a reason for why it happened. What would cause this core-shift, and what would the magnitude of the core-shift be?

John does answer the first question. The core-shift, according to him, is to counter the concentration of Pangaea’s mass, such that the center of mass remains at its axis. From his wording, we can ignore the effect of the mantle and assume that the radius of the Earth remains constant. What John is arguing, therefor, is that the core and Pangaea will form a barycenter where the center of the equatorial circle at sea level is. This is actually a fairly reasonable assumption.

If we know the masses, we can calculate the new distance between Pangaea and the core. Let’s call that distance ‘a’ and the distances from Pangaea and the core to the barycenter rp and rc, respectively. Using the same subscripts for the masses, we get the following relationships:

a = r_p + r_c
a = r_p * (1 + (m_p/m_c)

Note that the ratio of radii about the barycenter is inversely proportional to the mass. We can plug in real numbers for the masses (Note: mass for Pangaea taken from previous thread and is about 12 times more massive than all of the modern continents combined):

m_p = 4.05 x 1021 kg
m_c = 1.16 x 1023 kg (inner core) OR
m_c = 1.83 x 1024 kg (inner & outer core)

a = r_p * (1 + 0.035) OR r_p * (1 + 0.0022)

In other words, if just the inner core shifts, the distance from the core to the barycenter is just 3.5% that of the distance from Pangaea to the barycenter (and only 0.22% if the entire core shifts). If the radius of the Earth remains the same (leading to a core-shift of 224 km), without taking into account any other effects, this would mean the gravity at Pangaea’s surface would be reduced by at most 6.6%. Even coupled with the most favorable calculations from the previous thread, the maximum reduction would be about 7.5%, much less than what John requires for his argument. To get that total increase in distance of 1000 km, the radius of the Earth would need to increase by 741 km – more than 11%. Obviously, this would have to create a bulge on one side, rather than an overall increase in diameter. Such a large bulge is physically impossible in an object of that size. It would shatter the Earth.

When you start adding in other effects, such as the mantle (which would shift to fill the void left by the core), the reduction in gravity gets lessened significantly. For instance, the inner core makes up less than 2% of the mass of the Earth. That means that the effect on gravity would remain unchanged – or rather it would shift slightly towards Pangaea, tending to increase gravity. The net effect would still be a lessening of gravity, but one slightly less than 2% of what you would calculate from the core and Pangaea alone. Or a decrease of about 0.07% (this number is the same for the entire core, due to the geometry).

The core problem with all of John’s arguments is that he fails to understand how puny Pangaea is compared to the Earth. It simply is not large enough to have any effect much larger than 1%, even under assumptions bordering on absurdity.

The 9th Circuit Court of Appeals just heard arguments on the Prop 8 trial, i.e. Perry v. “da Guvernator.” The DoJ keeps appealing challenges to Bush-era laws. What do these have in common? The issue of how far the executive branch is obligated to go in order to uphold a law or action it feels is unconstitutional.

The answer is not clear-cut. There are a number of principled stances that can be taken. The executive branch is charged with faithfully executing the laws maade by the legislature (or the people, in the case of a referendum or other direct action). By refusing to defend or enforce these laws, the executive usurps the power of the legislature. Yet the executive is also charged with upholding the constitution. How can these laws be defended if the executive believes in good faith that the laws are unconstitutional?

One solution is to take the stance that the executive does not have the authority to interpret the constitutionality of a legislative action. Its role is to create a regulatory framework to enforce the laws where the framework doesn’t violate the constitution. Barring direction from the legislature, the executive is obligated to defend the laws to the fullest extent possible. Appeals are automatic, and settlements where the law doesn’t get upheld are not allowed. (This does not apply to challenges to the regulatory structure, which the executive has authority over and can thus proceed as it desires). Another solution is to allow the executive to decide whether or not to defend the law.

However, I take a middle-of-the-road approach. I think the executive should be required to defend the law at the trial level, or permit an intervenor to conduct the defense. However, the executive should have the option to “cut bait” and refuse to appeal if the law is struck down, unless given specific directions otherwise. At this point, the executives belief that the law is unconstitutional has been upheld by a court with the authority to determine its constitutionality.

Despite some people begging for coal, I just didn’t feel right without doing something like a real fisking. So I thought I’d write a little about some recent papers by some of the more prominent cdesign proponentists. However, since this is just a bonus, I won’t do a full-on fisking.

First up, Dembski (and Marks), who have written a few papers in the last couple of years attacking the “METHINKS IT IS LIKE A WEASLE” program. Dembski’s recent approach has been very odd. It’s basically “Evolutionary algorithms work really well on systems that mimic life, therefor God must have chosen to use them.” It’s a riff on his old No Free Lunch Theorem argument. But he fails to consider a few important things. First, evolution can utilize parallel search functions. That is, rather than being restricted to a single search function at a time, it can use multiple ones, and pick whichever one gets a beneficial solution first. We would then expect that an algorithm that works really well in that type of system to deliver a lot more of the beneficial solutions. The other is that, of all the potential search algorithms, only a few will be physically possible and still have even a remote chance of returning a beneficial solution. So we would expect a lot of the types of results typical of evolutionary algorithms (modifications and deletions of existing traits) and a few typical of more random searches (new traits), with very little if any of the types of searches that don’t work very well. And this would be what we’d expect if there was no designer.

This brings us to Behe’s latest paper. Here’s the abstract:

Adaptive evolution can cause a species to gain, lose, or modify a function; therefore, it is of basic interest to determine whether any of these modes dominates the evolutionary process under particular circumstances. Because mutation occurs at the molecular level, it is necessary to examine the molecular changes produced by the underlying mutation in order to assess whether a given adaptation is best considered as a gain, loss, or modification of function. Although that was once impossible, the advance of molecular biology in the past half century has made it feasible. In this paper, I review molecular changes underlying some adaptations, with a particular emphasis on evolutionary experiments with microbes conducted over the past four decades. I show that by far the most common adaptive changes seen in those examples are due to the loss or modification of a pre-existing molecular function, and I discuss the possible reasons for the prominence of such mutations. – Michael J. Behe, “Experimental Evolution, Loss-of-Function Mutations and ‘The First Rule of Adaptive Evolution’,” Quarterly Review of Biology, Vol. 85(4) (December, 2010)

Why, that’s exactly what we’d expect to find if evolution were true!

I would like to thank Dembski and Behe for once again providing evidence that there is no need for God to interfere in order for evolution to explain the diversity of life.

In my ‘Merry Vegas’ post, I asked for suggestions on a topic to fisk. I was hoping for something like a request to debunk Behe’s new paper, perhaps, or maybe tackle something one of our persistent trolls has been rambling on and on about. Instead, what I got was a couple requests on short phrases that annoy pedants. Being somewhat of a pedant myself, I can sympathize, but I really can’t bring myself to riff on a single phrase for more than a few sentences. So I guess I’ll tee off on the two suggestions I was given, and follow up with own of my own pet peeves. I was hoping to give a fisking; guess you’ll have to settle for a rant.

“One (or two) of the only” – the use of ‘the only’ here is incorrect, it is singular as used. The correct phrasing is either “one (or two) of only a few” or “one or two of the few”

“Just sayin’” – no you weren’t. You were deliberately implying something that you knew or suspected was untrue. That, or you don’t have the gonadal fortitude to own up to making an error. Piss off, wanker.

“All x are not created equal” – actually could be a good phrase, but is much stronger than what people using it usually mean. It means nothing is the same, when people usually use it to mean some things aren’t the same. The correct phrase is “Not all x are created equal.”

And if you feel like you just got a lump of coal, and you’re not one of the only people to respond, tough luck. All posts are not created equal. Just sayin’…

Standing is a concept that has been much-maligned on Dispatches. All too often it seems to be used as an excuse for a court to dodge a prickly situation. But does it serve a valid purpose? Is it merely being abused, or should it be scrapped entirely?

Standing has its roots in the earliest US Supreme Court decisions. At first, the question revolved around how much a role the judiciary could play in regulating the actions of the other two branches of the federal government. After a series of cases, the Court had established a doctrine that while they could review the actions of the other branches, it was only to be done where a true adversarial relationship between parties existed. This was a departure from British courts, where decisions on the abstract were permitted. It was thought that only in the adversarial relationship could all the issues truly be brought to light. In other words, asking the Court to determine whether a law is unconstitutional based solely on arguments of principle might miss ways that the law might violate the constitution in practice. The result in such a case is that a law might be declared constitutional when it really isn’t. Alternatively, a law might be declared unconstitutional where the feared violation would never actually occur. However, two hundred years of jurisprudence have developed a way around these concerns, in the form of facial and as-applied challenges. Along with a refusal to adjudicate simple power struggles between the other branches of government (the core of the concept of justiciability), this formed the basis of historical standing. Because it was framed as being require by the constitutional separation of powers (like separation of church and state, a concept integral to the Constitution but not an explicit phrase), at this point in time it would take a constitutional amendment to change. Under the current climate, in which “judicial activism” is bandied about like a four-letter word, this just isn’t going to happen.

Modern standing doctrine began to be formulated 87 years ago. In 1923, the Supreme Court decided two related cases: Massachusetts v. Mellon and Frothingham v. Mellon. At issue was a federal program that required participating states to comply with certain provisions (designed to improve the health of new mothers and infants) in order to receive funding. The eponymous state plaintiff argued that this violated the separation of powers between federal and state government. This argument was quickly dismissed by the Court, because there was no harm to Massachusetts other than a dispute over the mere exercise of power (there being an option to opt out of the program), and the taxpayers were being taxed as US citizens, not Massachusetts citizens. For the reasons given above, it would be fruitless to dwell any further on the state argument. Of much greater interest is the private citizen suit, Frothingham.

Frothingham argued that the program violated due process in taking her property by means of taxation. The program itself caused her no harm,nor violated her rights as an individual; the only harm to her was in a possible increase in her tax burden. The problem with this is that the increase to her tax burden was not only negligible (possibly less than a penny), it is uncertain that one’s tax burden will necessarily increase – the legislature ight decide to defund another program to avoid increasing taxes, for example. State courts had ruled that while an individual’s stake in local taxes was a large enough portion of the local tax base to convey standing, it was too small for state taxes; the Supreme Court extended that to the federal level. They did, however, leave an out; direct harm, but not an indirect harm shared by the general population, is grounds for standing. The final paragraph summarizes the Court’s position fairly clearly:

The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws, to the executive the duty of executing them, and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials. Gaines v. Thompson, 7 Wall. 347. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented, the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess. [262 U.S. 447, 488-489]

To this point, I have avoided describing what standing is. It is a set of three requirements for every valid judicial action. First, there must be a party who is harmed in some manner, or is in eminent danger of said harm; a plaintiff. Second, there must be a party that has directly caused that harm; a defendant. Finally, the court must have the power to correct, prevent, or compensate for the harm. This makes quite a bit of sense. You don’t want someone who wasn’t harmed to benefit, especially if the person who was “harmed” actually approved. You want to make sure that any corrective action are directed at whoever caused the harm. And of course, it’s just a waste of time if the court is powerless to do anything about it. Unfortunately, in the aftermath of Frothingham, the courts made the standing requirements more stringent than they should have. Modern standing is often formulated as follows:

To demonstrate standing, a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury.

In Frothingham, the phrasing was “not merely suffers in some indefinite way in common with people generally,” which is logically equivalent to “has suffered a concrete or particularized injury.” It is this error in logic that has caused the confusion generated by cases such as Flast and Hein. It is my opinion that, unless the collection of the taxes is directly tied to the violation, taxpayer status should not convey standing. Two examples of the exception: 1) a program funded by a direct levy, such as a millage increase, or 2) taxes that are constitutionally barred in and of themselves, such as a poll tax. That said, it certainly should be taken into account when plaintiffs allege that government-funded program is violating their individual rights. If someone’s individual rights are violated, it is their responsibility, not other taxpayers, to get the problem corrected. On the other hand, I should not be barred from seeking recourse through the courts simply because everyone else’s rights are also being violated. The failure of Frothingham lies in not recognizing that one should generally only be allowed to assert one’s own rights.

As I begin to write this, the doors are about to close on admission to the beginning of the end of a 17-year saga. About the time this posts, 9:00 am EST, President Obama will sign the bill to eventually end the ban on gays in the US military. The ban will not end right away; thePresident, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have to certify readiness to implement it and then wait another 60 days. This process will take months, and I have a feeling the certification will be announced at a time of political convenience for Obama.