Wednesday, November 27, 2013

Dangerous Intersection: The Knockout Game and Stand Your Ground

By now, I’m sure that most everyone has heard about the “Knockout Game”. For those who’ve been living under a rock, the “game” involves teens walking up to innocent passersby and attempting to knock them out with a single punch.

This is obviously a frightening situation.

So query the following: Let’s say that you’re like the man in the video above, walking down an alley on your way home from work or maybe on your way to lunch, when you see a group of teenagers walking toward you. You don’t know if those kids are “playing” the knockout game, but you’ve heard about the game and scene videos of the “game”. Is is reasonable for you to be concerned that the teenagers approaching you might be playing the knockout game? Should you take steps to avoid those kids? Should you go into a defensive posture, just in case?

Can you draw your gun and kill them before they attack you?

Yes, you read that last question right. If you’re worried that an approaching group of teens might be playing the knockout game, can you kill them to prevent them from attacking you?

I’m going to come back to that last question in a moment. But first, I want to take a moment to address the simpler (well, not really…) question about evasive or defensive actions. Obviously, we should all be aware of our surroundings. That is a basic rule for safety. And there is nothing wrong with avoiding an obviously dangerous situation or taking defensive precautions if a situation is unavoidable.

What concerns me is the question of which groups of teens will (or should) cause people to take avoidance or defensive precautions. I remember when President Obama spoke about the Trayvon Martin shooting and about growing up black in America. I was really struck by his reminiscences of what it was like to be a young black man in America:

I think it’s important to recognize that the African-American community is looking at this issue through a set of experiences and a history that — that doesn’t go away.

There are very few African-American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me.

And there are very few African-American men who haven’t had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me, at least before I was a senator.

There are very few African-Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.

And, you know, I — I don't want to exaggerate this, but those sets of experiences inform how the African-American community interprets what happened one night in Florida.

And it's inescapable for people to bring those experiences to bear.

And that just felt so … wrong … to me. Obviously, I didn’t grow up as a black teen. I can’t imagine what it must be like to know that others, especially whites, look at you with suspicion in their eyes, solely on the basis of the color of your skin. I can’t imagine the pain that must cause or how much that must make you feel like an outsider in your own country, your own city. It saddens me that we live in a society where that sort of racial profiling still exists.

And yet I’m also saddened that we live in a society where random acts of violence like the knockout game exist. And when I hear that, at least in Brooklyn, it appears that there is indeed a racial, religious, or cultural element to the targeting in the knockout game — a sort of reverse profiling, if you will — then I’m honestly not sure how I should feel. I don’t want to look at a group of teens and worry that they might choose to hurt me; yet wouldn’t I be stupid not to take precautions, just in case?

Which brings me back to the uglier question: Can a person who is worried that a group of teens might be playing the knockout game and might be sizing that person up as a target, take preemptive action and kill the teens before they have a chance to attack? To answer that question, let’s take a look at Indiana’s “stand your ground law” (Indiana Code § 35-41-3-2):

(c) A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

I’m not sure if racially profiling a group of teenagers qualifies as a “reasonable belief” … but I’m also not sure, especially in light of news of the “knockout game”, that someone would be unreasonable if they were to look at a group of teenagers, especially if the teens looked “dangerous” and conclude that the imminent use of unlawful force (i.e., a knockout punch) was likely. Moreover, I’m not sure precisely how the first sentence and the second sentence actually work together in application. The second sentence grants a person the right to use deadly force (without retreating or seeking to avoid the confrontation) if that person “reasonably believes that that force is necessary to prevent serious bodily injury”.

So, again, consider a person walking down an alley — with knowledge of the existence of the “knockout game” — and seeing a group of teens approaching. Does that person have a reasonable belief that those teens might be planning to “play” the knockout game? Is that belief more or less reasonable if we take into consideration how the teens are dressed or the color of their skin or the neighborhood in which our protagonist is walking? In a perfect world, certainly skin color should play no part whatsoever in that analysis. Unfortunately, ours is not yet a perfect world and I (shamefully, I’ll admit) think that it probably would be unreasonable to suggest that the appearance of potential assailants be ignored. Moreover, we can’t ignore both what we’ve seen in the videos about the knockout game or the fact that those “playing” endeavor to make their attack one of shock, awe, and, most of all, surprise.

So can that hypothetical man, seeing a group of teens walking toward him, a group of teens who, on the basis of their appearance, just might be playing the knockout game, take preemptive action to keep himself safe, even if that preemptive action involves a gun?

My conclusion? I don’t have one. Not really. I don’t want to see anyone get killed, especially innocent teens doing nothing more than walking down a street with their friends. By the same token, though, I don’t want to see innocent people attacked by teens intent of causing mayhem or injury as a show of machismo or something. I think that we need to take reports of the “knockout game” seriously. But we also need to understand what might be fueling this sort of violence. Is it rage? Is it a devaluing of human life? I don’t know. We need to find ways to fight the causes of this sort of conduct. And we must be sure that we are taking appropriate efforts to keep people safe on our streets. But, at the same time, we must be vigilant against vigilante justice or the shoot first mentality that laws like “stand your ground” promote.

I fear that as word of the knockout game spreads and as further incidents are discussed in the media, it won’t be long before people begin to act in preemptive self-defense. And once we start down that road, how long will it be before innocent black teens begin to die for the crime of walking down a street while black? For that matter, how long will it be before innocent teens begin to stand their own ground against those they worry might act on the mistaken belief that the teen is playing the “knockout game”. What is the old cliché? “Violence begets violence?” I worry that the intersection of fears, both rational and irrational, the easy access to firearms, and “shoot first” laws like “stand your ground” will prove a fertile ground for yet more violence and mayhem on our streets where the likely victims will be the innocent and our own sense of safety.

(For my previous posts on Indiana’s “stand your ground law” please see Stand Your Ground: An Analysis and Stand Your Ground: A Further Analysis.)

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Thursday, November 21, 2013

The Filibuster

It looks like Senate Democrats have decided that they’ve had enough of the obstructionism from Senate Republicans and will, therefore, go forward with the “nuclear option” to amend the Senate’s rules concerning the use of the filibuster. [Note: I started writing this post during lunch, a few hours before the vote was taken…] Now, let me say at the outset that I do think that the filibuster has its time and place; however, I think that the modern filibuster is a poor shadow of what a filibuster is supposed to be and it’s use has been so badly abused that reform was needed.

Once upon a time, in order to filibuster a bill, a Senator had to stand at the lectern and talk and talk and talk and talk. Eventually, either the Senator would tire or the rest of the Senate could recognize the point and move on or something else more pressing would come up and the Senate would table the legislation being filibustered. One of the nice things about that “old school” model was that the filibuster could be tied directly to the Senator leading it and that Senator was virtually obligated to explain his or her objections to the legislation (or nominee) during that floor speech. A senator wasn’t going to stand up before the Senate (and the American people) and say, “I object to this nomination because I didn’t get my way on something else” or “I object to this nomination unless I get my way on something else”. Politics just didn’t work that way. Objection to the legislation or nominee really had to be tied to, well, the legislation or the nominee.

But then the filibuster changed and senators could filibuster a bill without the need for a speech or even really taking responsibility. Rather, the minority party can simply object to bringing legislation or a nominee to a vote and require the majority to muster 60 votes to get around that procedural hurdle. Without 60 votes, the legislation or nomination dies. Do we really want the Senate’s role of providing advice and consent to the President on nominations to require a super-majority, even when objection to a nomination is not based on the qualifications or views of the nominee?

Before I go further, I’d like to share three infographics put out by the Senate Democrats. I think that these infographics are quite illustrative of the problem and why a fix is necessary. (Note: I have not independently checked the statistics in these infographics).

I think that the last infographic is the most telling. You’ll hear Republicans yell and scream that “Democrats did it too” referring to Democratic filibusters of President Bush’s nominees. And, sure enough, Democrats did filibuster President Bush’s nominees 7 times (and objected to Republican efforts to change the filibuster rules). But those 7 Democratic filibusters were 2 fewer than Senate Republicans filibusters of President Clinton’s nominees. Moreover, the sudden uptick in filibusters of President Clinton’s nominees was obviously not tied to Democratic filibusters of President George H.W. Bush’s nominees (who were never filibustered).

I’ve previously written about Republican abuse of the filibuster (such as the time in 2010 that Sen. Bunning filibustered a nomination … that he and every other Republican eventually voted for) or, more importantly, the Republican filibuster of any nominee to head the Consumer Financial Protection Bureau, not because of any objection to the qualifications or even ideology the nominees, but rather because Republicans didn’t get their way when the law that created the Consumer Financial Protection Bureau was passed. (My post Using the Advice & Consent Clause with the Filibuster to Impede the Function of Government includes some history of the filibuster and more examples of abuse.) Remember what Senate Minority Leader Mitch McConnell (R-Kentucky) said (emphasis added):

Earlier this year, 44 of my Senate Republican colleagues and I served notice that we will not confirm any nominee as director, regardless of party, until structural changes are made to make the bureau accountable to the American people — and more transparent.

In late October, Senate Republicans filibustered the nomination of Rep. Mel Watt, President Obama’s nominee to head the Federal Housing Finance Agency. As far as historians can tell, Rep. Watt was the first sitting member of Congress to be successfully filibustered since before the Civil War. And, during the last few weeks, Senate Republicans also filibustered 3 of President Obama’s judicial nominations to the D.C. Circuit Court of Appeals. They did so, not because of ideological opposition to any of those nominees or because any of them were unqualified. Rather, the nominations were filibustered because Republicans don’t want the balance of that court to shift from right to left as it would if the three unfilled positions on that court were filled. Republicans have said that President Obama is trying to “pack the court” by filling vacancies, notwithstanding that no less than the Chief Justice of the Supreme Court has said that those vacancies need to be filled. Of course, Senate Republicans had no problem filling vacancies on that court when the nominations came from a Republican President. Or consider Sen. Lindsey Graham’s (R-South Carolina) threat to block all nominees until he gets additional information about Benghazi (and note further than Sen. Graham’s threat came in the wake of CBS’ bogus 60 Minutes story that had to be retracted once it was demonstrated that the principal source in that story lied).

In fact, the hypocrisy on display from some Republicans is truly stunning (even by the standards of politics generally and Washington politics in particular). Witness, for example, these quotes compiled by Right Wing Watch:

1. Mitch McConnell (KY)

“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).

“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).

2. John Cornyn (TX)

“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).

“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).

3. Lamar Alexander (TN)

“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).

“I would never filibuster any President's judicial nominee. Period” (6/9/05).

4. John McCain (AZ)

“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).

5. Chuck Grassley (IA)

It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).

“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).

6. Saxby Chambliss (GA)

“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).

7. Lindsey Graham (SC)

“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).

8. Johnny Isakson (GA)

I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).

9. James Inhofe (OK)

“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).

10. Mike Crapo (ID)

“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).

11 . Richard Shelby (AL)

“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).

12. Orrin Hatch (UT)*

Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).

So Senate Democrats finally decided that enough was enough. Here is Senate Majority Leader Harry Reid’s (D-Nevada) speech in favor of changing the Senate’s rules to do away with filibusters but only for presidential nominations and excluding nominations to the Supreme Court:

Transcript (via Talking Points Memo):

The American people believe Congress is broken. The American people believe the Senate is broken. And I believe the American people are right.

During this Congress – the 113th Congress – the United States Senate has wasted an unprecedented amount of time on procedural hurdles and partisan obstruction. As a result, the work of this country goes undone. Congress should be passing legislation that strengthens our economy and protects American families. Instead we’re burning wasted hours and wasted days between filibusters.

Even one of the Senate’s most basic duties – confirmation of presidential nominees – has become completely unworkable. For the first time in history, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges.

It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee. Instead, they block qualified executive branch nominees to circumvent the legislative process. They block qualified executive branch nominees to force wholesale changes to laws. They block qualified executive branch nominees to restructure entire executive branch departments. And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.

The need for change is obvious. In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration – during the last four and a half years. These nominees deserve at least an up-or-down vote. But Republican filibusters deny them a fair vote and deny the President his team.

This gridlock has consequences. Terrible consequences. It is not only bad for President Obama and bad for the United States Senate; it’s bad for our country. It is bad for our national security and for our economic security.

That’s why it’s time to get the Senate working again – not for the good of the current Democratic majority or some future Republican majority, but for the good of the country. It’s time to change the Senate, before this institution becomes obsolete.

At the beginning of this Congress, the Republican Leader pledged that, quote, “this Congress should be more bipartisan than the last Congress.” We’re told in scripture that, “When a man makes a vow... he must not break his word.” Numbers 30-2. In January, Republicans promised to work with the majority to process nominations… in a timely manner by unanimous consent, except in extraordinary circumstances.

Exactly three weeks later, Republicans mounted a first-in-history filibuster of a highly qualified nominee for Secretary of Defense. Despite being a former Republican Senator and a decorated war hero, Defense Secretary Chuck Hagel’s nomination was pending in the Senate for a record 34 days, more than three times the previous average. Remember, our country was at war. Republicans have blocked executive branch nominees like Secretary Hagel not because they object to the qualifications of the nominee, but simply because they seek to undermine the very government in which they were elected to serve.

Take the nomination of Richard Cordray to lead the Consumer Financial Protection Bureau. There was no doubt about Mr. Cordray’s ability to do the job. But the Consumer Financial Protection Bureau – the brainchild of Senator Elizabeth Warren – went for more than two years without a leader, because Republicans refused to accept the law of the land – because they wanted to roll back a law that protects consumers from the greed of big Wall Street banks.  I say to my Republican colleagues, you don’t have to like the laws of the land. But you do have to respect those laws, acknowledge them and abide them.

Similar obstruction continued unabated for seven more months, until Democrats threatened to change Senate rules to allow up-or-down votes on executive nominees. In July, after obstructing dozens of executive nominees for months, and some for years, Republicans once again promised that they would end their unprecedented obstruction.

One look at the Senate’s Executive Calendar shows nothing has changed since July.  Republicans have continued their record obstruction as if no agreement had ever been reached. Republicans have continued their record obstruction as if no vow had ever been made. There are currently 75 executive branch nominees ready to be confirmed by the Senate that have been waiting an average of 140 days for confirmation. One executive nominee to the agency that safeguards the water our children and grandchildren drink and the air they breathe has waited more than 800 days for confirmation.

We agreed in July that the Senate should be confirming nominees to ensure the proper functioning of government. But consistent and unprecedented obstruction by the Republican Caucus has turned “advise and consent” into “deny and obstruct.”

In addition to filibustering a nominee for Secretary of Defense for the first time in history, Senate Republicans also blocked a sitting member of Congress from an Administration position for the first time since 1843. As a senior member of the House Financial Services Committee, Congressman Mel Watt’s understanding of the mistakes that led to the housing crisis made him uniquely qualified to serve as administrator of the Federal Housing Finance Agency. Senate Republicans simply don’t like the consumer protections Congressman Watt was nominated to develop and implement.  So they denied a fellow member of Congress and a graduate of Yale Law School even the courtesy of an up-or-down vote.

In the last three weeks alone, Republicans have blocked up-or-down votes on three highly qualified nominees to the D.C. Circuit Court of Appeals, considered by many to be the second highest court in the land. Republicans have blocked four of President Obama’s five nominees to the D.C. Circuit, whereas Democrats approved four of President Bush’s six nominees to this important court. Today, 25 percent of the D.C. Circuit Court is vacant. There isn’t a single legitimate objection to the qualifications of any of these nominees. Yet Republicans refused to give them an up-or-down vote – a simple yes-or-no vote. Republicans simply don’t want President Obama to make any appointments at all to this vital court.

Further, only 23 district court nominees have been filibustered in the entire history of this country.  Twenty of them were nominated by President Obama. With one out of every 10 federal judgeships vacant, millions of Americans who rely on courts that are overworked and understaffed are being denied the justice they rightly deserve. More than half the nation’s population lives in a part of the country that’s been declared a “judicial emergency.”

The American people are fed up with this kind of obstruction and gridlock. The American people – Democrats, Republicans and Independents – are fed up with this kind of obstruction and gridlock. The American people want Washington to work for American families once again.

I am on their side, which is why I propose an important change to the rules of the United States Senate. The present Republican Leader himself said, “The Senate has repeatedly changed its rules as circumstances dictate.” He is right. In fact, the Senate has changed its rules 18 times by sustaining or overturning the ruling of the presiding officer in the last 36 years, during the tenures of both Republican and Democratic majorities.

The change we propose today would ensure executive and judicial nominees get an up-or-down vote on confirmation – yes or no. This rule change will make cloture for all nominations other than Supreme Court nominees a majority threshold vote – yes or no.

The Senate is a living thing. And to survive, it must change. To the average American, adapting the rules to make Congress work again is just common sense. This is not about Democrats versus Republicans. This is about making Washington work – regardless of who’s in the White House or who controls the Senate. To remain relevant and effective as an institution, The Senate must evolve to meet the challenges of a modern era.

I have no doubt my Republican colleague will argue the fault lies with Democrats. I can say from experience that no one’s hands are entirely clean on this issue. But today the important distinction is not between Democrats and Republicans. It is between those who are willing to help break the gridlock in Washington and those who defend the status quo.

Today Democrats and Independents are saying enough is enough. This change to the rules regarding presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them as well.  That’s simple fairness. And it’s something both sides should be willing to live with to make Washington work again.

I think that rules that give the minority the ability to slow down a majority intent on “steam-rolling” the minority is probably a good idea. Rules that lead to reasoned debate are good rules. Rules designed to force the parties to work across the aisle or to craft bipartisan comprise are good rules. But when any rule is abused and is used, not for the purposes for which it is intended, but to prevent the majority from actually governing, to deprive a President of his Constitutional authority, and in manner that is devoid of substantive objection, then it is time for that rule to be re-considered. The filibuster has its use but that use has been abused. Badly. And that abuse has been bad for the functioning of the government, has rendered a key power of the President a near nullity (absent a super-majority), and renders the old claim that “elections have consequences” a farce.

It is time for Democrats to pull the trigger and reform the filibuster. And they did.

Postscript: I really detest the phrase “nuclear option” to describe a change in rules. Nuclear war suggests millions, even billions of dead people. It suggests all out war with no hope for survival. It suggests, well, evil. Changing rules of order within a democratic process is not akin to nuclear war any more than a faulty website is akin to a hurricane or a war. Analogies are fine, but they need to be appropriate. Nuclear option as an analogy for changing rules to avoid abuse is not such an appropriate analogy.


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Friday, November 8, 2013

Using the Claim of “Religious Freedom” as a Weapon Without Considering What it Really Means

I started this post on Thursday. However, before I could finish the post, a tweet directed my attention to the floor speech by Sen. Dan Coats (R-Indiana) against the Employment Non-Discrimination Act (ENDA) on the basis of “religious freedom”. Thus, I went back and re-worked the draft post so that I could discuss Sen. Coats’ comments as well.

One of the relatively new memes to appear from those who oppose marriage equality is the claim of “religious freedom”. This same argument has also been used in the debate over the birth control mandate and with regard to efforts to seek employment protection for the LGBT community. However, many of those using the claim of “religious freedom” do so as a weapon to justify discrimination or as an excuse to deprive rights and freedoms to others. Moreover, they make the claim of “religious freedom” without any real examination of how the conduct or right at issue actually impacts the freedom to worship or the broader implications of what the claim of “religious freedom” might really mean. And, unfortunately, this “religious freedom” argument seems to be gaining ground as its seductive simplicity has appeal to those who don’t bother to burden themselves with a small dose of independent thought or common sense.

Before I get into the discussion of “religious freedom” itself, let’s first recall what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Note that the First Amendment doesn’t talk about “religious freedom” but, rather, the “free exercise” of religion.

Earlier this week, I came across a link to a blog from Monica Boyer, a Northern Indiana Tea Party leader that argues that her religious freedom is under “direct assault” (emphasis in original):

Religious Freedom is under direct assault. There is no doubt about it. One doesn’t have to look very far in order to feel the jabs and pain of this new “America” we are living in. However, Americans face a decision. More specifically, Hoosiers face a decision.

  1. Accept this as the “new norm” or
  2. Decide that religious freedom is worth fighting for.

If you fall in the category of the first choice, I respectfully ask that you exit this blog, as it is not for you. If you are of the 2nd category, I ask you to buckle up. I want to provide you with talking points and the resources you need to engage with the opposition and those who may simply not understand the importance or relationship between the attack on religious freedom and protecting marriage from being re-defined.

For those who stand for religious freedom, the truth is right at the tip of our fingers. But we must use it. If you have the facts, you will be ready to engage. Below are some arguments the left uses to try to tear apart the family and attack religious freedom.

It’s important to note that in this fight to protect marriage and traditional values, we don’t hate anyone. In fact quite the opposite is true. This fight has nothing to do with preventing anyone from living together, holding property together, or prohibiting anything. It has everything to do with protecting an institution that was ordained by God from the beginning of time, and protecting that freedom our forefathers fought to give… Religious Freedom.

Marriage is not a private matter. It affects entire communities, states, and cultures. It is the foundation to a civil society. Not only is marriage the foundation, but by allowing activist judges  to come in and re-define this institution, we strip our society of religious freedom. We take away our right of conscience to live life according to Biblical principles. By allowing the few activists to come in and strip the meaning of marriage, we take away the freedom of the pulpit and the freedom for our pastors to speak truth from the Word of God.

Indiana already had a law defining marriage between one man and one woman, why do we need to amend the Constitution?

Indiana is a stones throw away from a Supreme Court decision by an activist judge re-defining marriage in the State of Indiana. It has already happened in Massachusetts and Iowa. New Jersey is the latest state to have a judge force a new public policy on marriage upon schools, businesses, charities and churches. Without the protection of a Constitutional amendment, traditional marriage just awaits a legal attack by activists who want to tear apart the foundation of our society.

And so on and so forth.*

But, as I mentioned at the outset, the claim of “religious freedom” is being used as a cudgel to oppose, not just marriage equality, but also laws that seek to end employment discrimination against members of the LGBT community (for those who are unsure, LGBT is an acronym for “lesbian, gay, bisexual, and transgender”). Just yesterday, Sen. Coats (sadly, my Senator…) was the only Senator to offer a speech on the floor of the Senate against the Employment Non-Discrimination Act (ENDA):

(I’m having trouble embedding the video of Sen. Coats’ speech; if it isn’t working for you, you can watch the video at this link.)

I oppose discrimination of any kind, and that includes discrimination, however, also of individuals or institutions for their faith and values. This often gets lost, and it has been lost in this discussion. So there’s two types of discrimination here we’re dealing with and one of those goes to the very fundamental right granted to every American through our Constitution, a cherished value of freedom of expression and religion. And I believe this bill diminishes that freedom. So I feel it’s vital for this body to stand up for our country’s longstanding right to the freedom of religion and speech. For these reasons, I am not able to support this current legislation, and I hope my colleagues would stand with me in protecting religious freedom and oppose this legislation, and I hope my colleagues would stand with me in protecting religious freedom and oppose this legislation.

Did you get that? Sen. Coats believes that a law that bans discrimination on the basis of sexual orientation or gender identity is discriminatory to those who might want to discriminate because their faith tells them to. And, he seems to believe that discrimination is protected by the First Amendment’s freedom of religion and speech. Seriously. I didn’t say it; he did.

I wonder how Sen. Coats or Boyer would react if I said that allowing Red Lobster to serve shellfish or Bob Evans to serve bacon, allowing Walmart to sell garments made of two fabrics, or allowing barber shops to trim men’s hair, all infringed on my religious freedom? After all, G-d said that all of those things were an abomination. Or perhaps a different analogy might be better. Though I don’t know her, from the material that I have read, I suspect that Boyer would favor stricter laws (or even a constitutional amendment) to ban or further reduce abortions. And I know that Sen. Coats would favor such laws. Yet if I said that those laws might have a direct impact upon the ability of a Jewish woman to act in accordance with her faith and thus deprive her of religious freedom, would Sen. Coats and Boyer relent and permit abortions virtually up until the time of birth?

I called Sen. Coats’ office today to ask which types of people Sen. Coats believes can be discriminated against in hiring or firing on the basis of his or someone else’s religious beliefs. I was curious to know if Sen. Coats thinks that a fundamentalist Mormon can refuse to hire African-Americans, whether a Jew can fire Christians for the use of graven images (or simply for eating pork and shellfish), whether a Christian-Scientist can refuse to hire someone who uses medicine or consults doctors (or fire someone who wants healthcare insurance), whether Hindus can fire those who aren’t vegetarians, whether different sects of Christianity (and Catholicism) can refuse to here one another because of their differing interpretations of Biblical texts and obligations, whether a Catholic can fire divorcees or refuse to hire single parents, or whether an evangelical Christian can refuse to hire or fire someone who doesn’t profess a belief that Jesus was the messiah. All of those would seem to implicate “religious freedom” as much or more than homosexuality, yet I believe that all are currently prohibited by existing law. And I haven’t heard Sen. Coats calling for repeal of the Civil Rights Act or similar legislation because of “religious freedom” — at least not yet.

Of course, in reality, what you do generally has no impact whatsoever upon my religious freedom, let alone my right to freely exercise my religion, so long as you don’t prevent me from believing what I choose or directly impacting my religious activities in my house or house of worship (and note that there is a distinction between governmental establishment of religion and free exercise thereof). I think that there is an enormous difference between a religious organization (think a church or parochial school) having the right to require its clergy or teachers to act in accordance with its faith and imposing the same requirements upon secretaries, nurses, janitors, or those in similar roles. When we get to institutions like hospitals or universities, the link between religion and the acts or beliefs of employees seems even more tenuous. And don’t get me started on the recent notion that businesses (like Hobby Lobby) have religious beliefs that are “infringed” by things like the birth control mandate. But, for the record, it is also worth noting that ENDA includes a specific exemption for faith-based organizations.

Anyway, to put all of this into context a bit, think about this passage from Leviticus 24:16:

anyone who blasphemes the name of the Lord is to be put to death. The entire assembly must stone them. Whether foreigner or native-born, when they blaspheme the Name they are to be put to death.

Or maybe you’d prefer Deuteronomy 13:6-10:

If your very own brother, or your son or daughter, or the wife you love, or your closest friend secretly entices you, saying, “Let us go and worship other gods”(gods that neither you nor your ancestors have known, gods of the peoples around you, whether near or far, from one end of the land to the other), do not yield to them or listen to them. Show them no pity. Do not spare them or shield them. You must certainly put them to death. Your hand must be the first in putting them to death, and then the hands of all the people. Stone them to death, because they tried to turn you away from the Lord your God, who brought you out of Egypt, out of the land of slavery.

Would anyone seriously argue that a law that prevents people from killing someone who “blasphemes” or proselytizes qualifies as an improper infringement upon either the “religious freedom” or even “free exercise” of religion? No? I didn’t think so. Yet it would also seem that laws that prevent people from acting upon these Biblical commandments have a far greater impact upon true Biblical observance and so-called “religious freedom” than allowing gays to marry or stopping a business from rejecting a prospective employee because of who she sleeps with. I don’t know about you, but I would certainly have to think that someone who takes the Bible seriously, would be far more worried about those who blaspheme or proselytize for “other gods” than about gay men.**

Permitting marriage equality doesn’t impact Boyer’s ability to believe whatever she wants or to offer whatever prayer gives her comfort. Her worship won’t change and she won’t be required to divorce her husband and marry another woman; nor will she be required to teach her children that marriage equality is “right” (even if it is the law) any more than she is presently obligated to divorce her husband and marry an African-American man or a Buddhist or to teach her children that the Bible isn’t the verbatim truth and that Santa isn’t real.

Similarly, telling a business that it can’t refuse to hire a lesbian solely on the basis of her sexuality or fire a transgendered individual solely on the basis of his gender identity doesn’t impact the right of the business owner to believe either than homosexuality is bad or that being transgendered is … well, I’m not sure what the Bible or religious belief is supposed to say about gender identity. That business owner can try to “pray away the gay” or think whatever he or she wants. It’s no different than the right of that business owner to be a racist bigot or to hate Jews and Muslims or to think that Catholics and Mormons aren’t “true Christians” … all of those rights are preserved in the law at the same time that we tell that business owner that, whatever he may believe, he can’t allow those beliefs to be used to discriminate against others with regard to employment. Laws like ENDA won’t stop anyone, including Boyer or Sen. Coats, from standing on a street corner and yelling to passersby that homosexuality is wrong, an abomination, or that gays will go to Hell. That’s what Westboro Baptist Church does daily. All laws like ENDA will do is expand protection in the hiring and firing process to homosexuals and the transgendered similar to the protections presently afforded on the basis of race, national origin, religion, creed, and disability.

The world is changing. People are growing more tolerant of those who look and think differently than they do. Unfortunately, there is still a significant portion of the population that fears change and, more importantly, fears (or even loathes) those who are different. And they’ll use every argument that they can think of, stoke ever fire of fear, in order to prevent the change and recognition of equality that they see coming. But that change will come and those who think like Sen. Coats and Boyer will be left behind with those who still think that the universe revolves around the Earth, demons cause disease, or that the Earth is only 6,000 years old.

*I may come back to Boyer’s blog post in the future to talk about some of her other arguments against marriage equality, including her claim of “gay bullying”, her fear-mongering that churches might be required to perform same-sex marriages, and her use of other countries to examine what might happen in America without bothering to note that those other countries don’t have the freedoms of religion expressed in our First Amendment and do have official state churches. And I really want to to tackle her effort to distinguish miscegenation laws from marriage equality: “Bans on interracial marriage were about keeping men and women apart. The marriage amendment is about keeping men and women together in marriage. Children need a mom and a dad regardless of their race.” But that is for another day. In the meantime, laugh all you want.

**I say “gay men” because the Biblical passage against homosexuality is limited to male-male sex and says nothing about lesbians enjoying themselves. Leviticus 20:13:

If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads.

So query also whether laws that allow gay men to avoid the death penalty also infringe upon the “religious freedom” of true believers. For that matter, why isn’t Boyer demanding the right to stone gays to death so that she is observing Biblical commandments?

Updated to fix (hopefully) the video link and to correct another link.

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Tuesday, November 5, 2013

One Child Is Holding Something That’s Been Banned in America to Protect Them: Commenting on Another Comment

Back in April 2013, I posted One Child Is Holding Something That’s Been Banned in America to Protect Them: Powerful Gun Control PSAs from Moms Demand Action, one of my numerous recent posts on guns and gun control. That post has been one of the most widely viewed posts that I’ve ever written (and it continues to receive a large number of views from readers outside of the United States). You may remember the post because of the three remarkable images:

gun control psas moms demand action

gun control psas moms demand action








gun control psas moms demand action

A week or so after that post was published, I took some time to look at one of the comments written in response: One Child Is Holding Something That’s Been Banned in America to Protect Them: Commenting on a Comment. Well, today I want to spend a little time looking at another comment thread to the post. I think that the comments are illustrative of several problems, hence my decision to share and discuss them. Please remember, that I do not edit or moderate comments (except that I delete comments that are obviously spam).

About a month after the post was published, a user identified as “leon” (clicking on the link takes you to a page about “opaque” [i.e., anonymous] users) posted the following comment (misspellings in original):

this is a terrible awful and moronic excuse. if he kids where to put the gun down and tell it to shoot, the guns wouldnt do ANYTHGIN! statistics show that of all the ways people are getting killed, its people with basball bats that are doing most of the killing. that is proven by reports from the FBI and the CIA why not ban THOSE?! “baseball bats” this whole crappy thing about guns killing people is just all bull-crap! guns dont kill people PEOPLE kill people WITH guns!

Did you note the obvious fallacy in the comment? Just days before the comment was posted, I’d heard a similar argument, recognized the fallacy, and looked it up. Thus, when leon left his post, I was ready and responded just about an hour later:


Thanks so much for taking the time to regurgitate bogus right-wing, pro-gun talking points. Before repeating your statistic, did you even, you know, stop a think? Baseball bats “are doing most of the killing”? Does that even sound plausible? Of course not. Because it’s simply not true.

Here’s what Snopes has to say about this meme that has been in use by pro-gun advocates:

In any debate about gun control in the U.S., someone will inevitably make the argument that “[X] kills more people than guns do” (where [X] is anything from automobiles to scissors to sharks), with the implication that gun control advocates are too narrowly focused on one issue while ignoring other, greater threats to public safety.

One common form of this argument which is often invoked after a prominent incident brings the subject of gun control to the forefront of public discussion (such as the December 2012 shootings at Sandy Hook Elementary School in Newtown, Connecticut) is the claim that more people are killed by baseball bats than by firearms, an assertion typically cited as a truism which is borne out by FBI statistics.

However, information gathered by the FBI does not support this claim. The Uniform Crime Reports made available on the Crime in the U.S. section of the FBI's web site includes homicide data that breaks down killings by the types of weapons used. In 2011, the percentages for weapon types used in homicides throughout the U.S. were as follows:

Firearms: 67.8%
Knives or other cutting instruments: 13.4%
Personal weapons (hands, fists, feet, etc.): 5.7%
Blunt objects (clubs, hammers, etc.): 3.9%
Other dangerous weapons: 9.2%

The FBI doesn’t offer data showing the latter categories broken down into more detail, so it isn't possible to determine from this source exactly what percentage of homicides in 2011 involved the use of baseball bats. But even if one were to assume that every single homicide in the “blunt objects” category was committed with a baseball bat (almost certainly a very large overestimate), firearm-related homicides would still outnumber bat-related homicides by a ratio of more than sixteen to one.

Next time, Leon, try doing a little reseach [sic] first.

Not surprisingly, neither leon nor any other gun rights advocate responded … until last week, when a comment was left by staplehead3 (an apparently anonymous user on Google+ who uses a cross for an avatar); I don’t know if leon and staplehead3 are one and the same (though I have my suspicions…):

Lol “Next time, Leon, try doing a little reseach first.” you may want to take your own advice. I looked at the website you linked and I cannot figure out from which orifice in your body that you pulled those stats from. You are trying to skew statistics in your favor just because you know you can’t win without doing so.

Well, you know me. I couldn’t help responding to staplehead3 (in my comment, a link didn’t display properly; I’ve corrected that below):

I’m not sure how hard it is to do a little research. The table that I included in my comment was copied verbatim from the Snopes article that I linked to. But if that isn’t good enough, you can look at that link for homicide data from the FBI ( If you look in the top row of the far right column (I’m trying to make this easy for you…), you will see that there were 12,664 homicides in 2011. In the row just below that, you’ll see that of those homicides, 8,583 were committed with a firearm (the rows below that break down the type of firearm). If you divide 8,583 by 12,664, you’ll get 67.8% which just happens to be the number that Snopes used. If you then look down a few rows, you’ll see a row labeled “Blunt objects (clubs, hammers, etc.)”. I presume that baseball bats are included in this row as “clubs”. Anyway, if you once again look across that row to the last column, you'll see that in 2011, there were 496 homicides committed with blunt objects. Dividing 496 by 12,664 gives us 3.9%, once again the same number quoted by Snopes.

Now, I recognize that you probably don’t want to accept the FBI crime data as authoritative. So let’s try this: Provide me with concrete empirical evidence from a legitimate data source that shows “of all the ways people are getting killed, its people with basball bats that are doing most of the killing” (those were your words on May 17). You also alleged that your claim “is proven by reports from the FBI and the CIA”. So please provide me the links to those reports proving that “people with baseball bats … are doing most of the killing”. Take your time. I’ll wait.

I wanted to include the following graphic in my response comment, but apparently Blogger doesn’t allow images in comments:

FBI Crime Stats

That is a screenshot that I took of the FBI crime statistics page — the very same page linked to in the Snopes article that I quoted in my first response. I added the red circles to make it that much easier for the statistics to be understood. Also, if you’re interested in the 2012 data (the table above and the data quoted in the Snopes article is from 2011), that information is also available on the FBI’s crime statistics pages. And to nobody’s surprise, the 2012 data shows that, similar to 2011, 69% of homicides were committed with firearms while only 4% were committed with blunt objects (like baseball bats). In fact, since 2007, the highest percentage of homicides by blunt instrument was just over 4½% in 2009.

So, no, “people with basball [sic] bats” are absolutely not “doing most of the killing”. One final point on the statistics themselves: It occurred to me when I was writing this post that the FBI crime statistics deal only with crime; that is, the statistics do not include accidents that were not ruled to be homicides. And I think it’s safe to say (though I’m sure leon and staplehead3 would object) that far, far more people are the victims of accidental shootings than accidental bludgeoning by baseball bats.

With those facts in mind, query a few things:

  • How is it that the meme that leon repeated, that baseball bats rather than guns are responsible for most homicides, is so easily accepted as true and then regurgitated without even applying any common sense thought to the idiocy of the claim?
  • How is that staplehead3 could look at any of those links that I provided and not find the relevant data, concluding instead that I had pulled the statistics from a bodily orifice and skewed them (and did I make up the stats or skew them … I’m not clear on that accusation)?
  • Why are those on the right (and I’m going to presume that both leon and staplehead3 are on the right given the positions that they’ve expressed) are so, seemingly, allergic to statistics and can only comprehend statistics that demonstrate a truth with which they disagree if they tell themselves that they numbers have been “skewed” (recall the claims from the right before the 2012 election that polling data showing President Obama ahead of Mitt Romney must have been skewed)?
  • Why can’t people use comment threads like these to engage in civil discussion and dialogue without name calling?

I don’t have answers to these questions. I do suspect that cognitive dissonance plays some role; that is to say that some people are so tied to and invested with their particular worldview and understanding of how things should be, that data and evidence to the contrary must be wrong. After all, it’s much easier to say “the data is wrong” than to admit that you were wrong or, even worse, re-think your positions. Similarly, I think that may also explain the easy spread of the baseball bat meme. Those who harbor strong pro-gun views may be shocked by mass killings like that at Sandy Hook, and so need an outlet or a scapegoat for their own concerns. Thus, if there is someone or something that can be blamed instead of easy access to guns or the ease by which guns can kill multiple people, then misplacing that blame allows the true “villains” of the story (i.e., guns and the easy access to guns) to be left off of the proverbial hook.

The discussion of whether “guns kill people” is an interesting discussion. It’s a discussion worth having. Dialogue about whether additional gun control laws are needed is worth having. Dialogue about crime in America and keeping our children safe is worth having. But, as I say in reference to so many other things, we can’t have that dialogue if we can’t first agree on basic facts. When people are willing (with a degree of vitriol, no less) to spew obviously bogus “factual” talking points or are able to look at hard statistics compiled by what should be unimpeachable authorities and not comprehend what they’re looking at (or conclude that the statistics are “skewed”), then we’ve reached a point where common sense, meaningful dialogue is, essentially, impossible.

Some of us live in a reality-based world where logic and empirical evidence have value. But too many people have left reality behind, no longer trust empirical evidence, cannot fathom simple logic or rationale arguments, and seek, instead, to try to warp reality to fit into the fantasy that they’ve created for themselves. The question is whether we are going to let them drag us, our country, and our world down that rabbit hole with them … or whether thinking people will say “enough is enough” and try to reclaim the importance of truth as a basis upon which reality exists.

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