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Wax-y Build-up

November 14th, 2010 3 comments

I spent most of Friday at St. John’s Law School in scenic Jamaica — the one in Queens, New York — participating in yet another symposium on marriage equality. The students and administrative staff did a great job in putting the event together, and the dean and faculty were welcoming and thoughtful speakers and moderators.

Unlike many similar events, though, this one featured quite a number of speakers from the right — far right — side of the spectrum. That the event was called Legal, Secular, and Religious Perspectives on Marriage Equality/Marriage Protection/Same-Sex Marriage was in itself telling. Let’s make sure every perspective is represented even if doing so requires a tongue-tying title. (Even that wasn’t enough for the angry Jane Adolphe of Ave Maria Law School though, who opined that same-sex marriage should be placed in ironic quotes since it “can’t exist.”)

Balance is good. But I always find odd and more than a little off-putting that most of the anger in these debates comes from the right — you know, the side without the immediate personal stake. As fellow panelist Courtney Joslin told me during a break, it had “been a long time” since she’d been around so many people who thought that she was worth less than they were. And they’re not shy about that sentiment.

In the first of what will likely be a series of posts on the conference, I’d like to focus on the very offensive scattershot of arguments spewed forth by Penn law professor Amy Wax. She’s better known for her insidiously racist book Race, Wrongs and Remedies,1  in which she cheerily relieves government of the obligation to do much of anything about the effects of the centuries-long political and social subordination of African-Americans. She also suggests that efforts to improve their lot  might have limited effect even with the sort of good ol’ self-help she prescribes, because (citing IQ tests) “blacks have lower cognitive ability than whites or Asians.” Continuing in this essentializing mode, she then writes that “[a]t this point it is not known whether different groups are equally endowed with all the abilities that make for success in modern technological societies.”

Biology is (mostly) all that matters and there’s no use trying to do much about it. This is the underpinning of Wax’s simplistic world view, and it suffused her presentation on Friday in which she savaged the marriage equality movement. In a bizarre and undertheorized version of the natural law argument, she seemed to ground her opposition in an idiosyncratic version of the procreation argument: Gay or lesbian couples can’t procreate without outside assistance (I wonder what her response would be to a change in that fact), and since biology matters, well, QED.

That view was centrally on display in Wax’s neo-eugenic view of families, which exist in a “hierarchy,” with opposite-sex couples with their own bio children ensconced permanently at the top of the pyramid. Yes, she said, she’d be “somewhat disappointed” if one of her three kids turned out to be gay because that would mean they wouldn’t be able to produce their own biological children.

When I suggested, during Q&A, that it might turn out that having a gay offspring who adopted a child might turn out to be a gift rather than a “disappointment,” Wax began her response by acknowledging the heroism of adoptive parents, but then added the non-responsive and obvious point that an adoption also involved a loss at the other end of the adoptive pipeline — the birth parents. Well, duh. That doesn’t explain why her kid’s hypothetical act of heroism wouldn’t take him or her out of the disappointment category. Based on her worldview, I’d suggest that the intractable problem is that the adoptive kid — who might, after all, not have the same cognitive ability as a mini-Wax — wasn’t as good as a bio offspring would have been. (Adoption, she said, was “second best.”) “I stand by what I said,” she offered, without further elaboration.

Wax also decried the constitutionalization of the marriage issue, stated that sexual orientation classifications were no different from discriminations based on looks or intelligence, and accused the other side of being interested only in rights and not in the normative meaning of marriage. Oh, and she also said that “gays hate the polygamy analogy,” a comparison she finds persuasive.

I have neither time nor stomach for addressing these latter points here, but may do so in a subsequent post.

For now, let me end with this: Like Maggie Gallagher, Wax ends up doing marriage equality a favor. Sitting next to me during the jaw-dropping presentation was an attorney who told me that, because of her Catholicism, she was “struggling” with the idea that same-sex couples might be allowed to marry. (She was unequivocally in favor of civil unions.) She was there to listen and to learn. But as she listened to Wax’s uncharitable presentation, she became increasingly agitated. The part about adopted kids really offended her.

Yesterday, this thoughtful and undecided woman — and, I’d guess, many others in the audience — moved a step closer toward the pro-equality camp. The bigotry she was hearing had made her realize the need to protect and strengthen GLBT families — families that exhibit the very humanity that Wax denigrates.

  1. This is the correct title. I had originally misnamed the book “Rights, Wrongs, and Remedies”. Professor Wax called the error to my attention and was very gracious in doing so.

My Law and Public Health Book

November 1st, 2010 2 comments
Reconsidering Law and Policy Debates

Just about an hour ago, I received my ten advance copies of the book I’ve edited and contributed to, entitled:

Reconsidering Law and Policy Debates: A Public Health Perspective (Cambridge University Press 2011). If you click on the link, you’ll be e-whisked away to the on-line catalogue page, which describes the book and lets you click on an excerpt, which is the Introduction (which I wrote).

I’ll have more to say about this when officially published (although you can order it now; just saying….), but here’s the description:

This book offers fresh approaches to a variety of social and political issues that have become highly polarized and resistant to compromise by examining them through a population-based public health perspective. The topics included are some of the most contentious: abortion and reproductive rights; end-of-life issues, including the right to die and the treatment of pain; the connection between racism and poor health outcomes for African-Americans; the right of same-sex couples to marry; the toll of gun violence and how to reduce it; domestic violence and how the criminal justice model fails to deal with it effectively; and how tort compensation and punitive damages can further public health goals. People at every point along the political spectrum will find the book enlightening and informative.

Written by ten authors, all of whom have cross-disciplinary expertise, this book shifts the focus away from the point of view of rights, politics, or morality and examines the effect of laws and policies from the perspective of public health and welfare.

As you might guess, I wrote the chapter on marriage equality.

This is my first book (well, sort of mine), and I’m very excited. (To buy at a discount, enter code: F10CULHANE; the discount is available for a limited time.) As I said, I’ll write more when the book is officially published.

Swimming Pool Racism Story: Denouement

May 14th, 2010 1 comment

Recall the story from last summer, where members of a swim club in the suburbs of Philadelphia freaked at the presence of African-American kids, revoked the contract by which the kids had been allowed to use the pool, and thereby caused a national storm of protests. (You can get the full story here.)

A lawsuit ensued. Read this article from today’s Philly Inquirer and tell me: Who was the winner here? What might have happened had the olive branch offered been accepted? The facility could soon be dirt.

Categories: swimming pool racism Tags: ,

Projecting A Cyber Snowball from my Laptop

February 25th, 2010 1 comment
A useful spell in the tub.

A useful spell in the tub.

Just a few short minutes ago, as the snow began to really pile up and the wind to howl, I hit “send” on the manuscript my seven co-authors and I have been working on for what seems like a decade. (In fact, the project began with a symposium almost two years ago; we signed with Cambridge almost a year ago; and the chapters began coming in by this Fall). I’m the editor of the volume, with all of the great and challenging tasks that position commands. So what is this book, and when will you be able to find it at a bookstore near you? Thanks for asking.

The book takes some of the most red-hot, and polarized issues on the political landscape and puts them through a public health, population-based wringer. The topics are: reproductive (abortion) rights; end of life matters; marriage equality (my chapter); the persistent connection between racism and health disparities; gun violence; domestic violence; and tort law and reform. How might these questions and issues be illuminated by looking at them from a perspective that didn’t focus so much on rights and morality, but on the health and welfare of the population? Through some cosmic stroke of good fortune, I managed to convince some of the very brightest and most thoughtful legal and public health scholars to participate, and editing the book was a special privilege (albeit an exhausting and occasionally frustrating one, as when documents wouldn’t do what they were requested, then commanded, to do. I hate Word but that’s another issue entirely.)

I’m guessing at this point that the book will be out later this year, but it’s a bit early to say for sure. But now I can say with confidence that it’s going to happen. (Now where did I put that Grand Marnier?)

I’ll be shamelessly flogging the book in the months to come. What is its title, you might wonder? Well, that’s the one thing I’m not crazy about — it has a tentative title that can still be changed. I’ve been wracking my brain, but for some reason the perfect title yet eludes me (and all of us). Any ideas, readers? Please? A valuable prize to be named later awaits whoever can bring me to my feet in an Archimedes-inspired exclamation. (Archimedes might never have actually yelled “Eureka!” — but I will.)

50,000! (Thanks)

July 14th, 2009 No comments

In late January of this year, I started to blog faithfully. Doing so was scary, as what I most feared was a clanging silence. As this recent article in the New York Times points out, in 2008 there were some 133 million blogs, of which about 7.4 million had been updated within the past 120 days. I’m glad I didn’t know that before I started.

Six months into this, I’m happy and proud to report that, just a few minutes ago, wordinedgewise.org crossed the 50,000 page view threshold! The audience has grow each month, with June seeing an explosion: Over 8,000 unique visitors viewed more than 22,000 total pages.

As regular readers know, I cover all kinds of social, political, sports-related, personal, and just plain silly issues. I’ve had lively and, I hope, respectful debates with other bloggers, notably Andrew Sullivan over at the Atlantic (the Daily Dish), who engaged me in a back-and-forth over late-term abortion. My current take on the Philadelphia area swimming pool controversy has been linked to CNN, and spawned a ton of comments (not all of which are as respectful as I’d hope).

The blog has been fun to write, and enlightening to me. I’ve changed some positions, and been inspired to think about things that I might otherwise have ignored. Thanks for your interest, your encouragement, and — always — your comments and suggestions.

Race and Swimming (Part Two)

July 14th, 2009 No comments

Creative Steps, the Philadelphia day camp that was booted from the suburban Valley (Swim) Club for reasons that were largely racial, has rejected the club’s offer to return. Here’s the Inky’s take on this latest development, leaving out most of the back story (which you can find here):

Creative Steps rejects offer to return

By Derrick Nunnally and Zoe Tillman

Inquirer Staff Writers

“Amid a storm of racial controversy, a Philadelphia day camp whose children were asked to leave a private suburban swim club have rejected the club’s invitation to return and announced plans to sue.

“‘The children are permanently scarred,’ Alethea Wright, executive director of Creative Steps Inc., said in a news conference yesterday at the camp’s headquarters in the Oxford Circle section.

“She said that she had not returned a text message from Valley Club President John G. Duesler Jr. asking her to call him, and that the camp and dozens of families of campers will file a federal discrimination suit this month.

“Wright, noting that Duesler cited the pool’s inability to accommodate the 65 day-campers when he asked them not to return, said she didn’t see how the group could go back ‘unless additional footage is added.’

“[T]he situation has drawn global publicity, a separate federal discrimination lawsuit, and a civil-rights investigation by the state’s Human Relations Commission.”At the Creative Steps news conference, [d]ozens of assembled parents unanimously said they had no interest in sending their children back to the Valley Club.

“‘I didn’t know people hated people so much,’ said Sherlene Washington, who added that her 8-year-old grandson had been ‘hurt.’

“After the invitation to return went out, attorneys for parents of a group of the day-camp students said a discrimination lawsuit filed last week against the club was on hold.

“That lawsuit’s future, attorney Brian Mildenberg said at his South Broad Street office yesterday, depends on ‘everybody being pleased.’ The club has not yet been served with the suit, but Mildenberg said the parents he represents could still move forward with the case.

“The new lawsuit is to be filed this month, attorneys said. About 45 families, along with the day camp itself, are to be plaintiffs in the discrimination and breach-of-contract case.

“‘This has nothing to do with safety,’ attorney Gabriel Levin said. ‘It has to do with the color of their skin.’

“Before a camp trip to a gymnastics event in Huntingdon Valley yesterday, several of the children who made the June 29 trip to Valley Club’s pool expressed little desire to return.

“‘I don’t want to go back,’ Creative Steps camper Jabriel Brown, 12, said yesterday. ‘I don’t want to get treated the same.’

**********

I find my sympathies shifting.

First, here’s a word of warning: Litigation is not something to embrace except as a last resort. Although I’ve been teaching Tort Law for many years, I didn’t realize just how bad litigation could be until I was, to my surprise, involved in two cases of my own within the past few years. Neither of these would I have chosen had other real options existed. Lawsuits are soul-draining, tension-producing, nightmare-reliving, expensive propositions.

Here’s a case where a suit can and probably should be avoided. It seems like the Valley Club has, albeit belatedly, realized that its actions were based on ignorance and racism, and have now attempted to make this right. What purpose is Ms. Wright seeking to serve by refusing to talk to Mr. Duesler? I’m hoping that the lawyers will try to work out some accommodation here, whether or not the kids feel comfortable returning to the club (I can certainly see why they wouldn’t).

And speaking of the kids….Once again, I see them as pawns. As one commenter on the last post remarked, the white kids were harmed by their parents’ hysterical reaction, just as the African-American kids were hurt by the sharp racism they encountered. But are these kids really best served when their parents and adult supervisors decline to engage in dialogue on how to improve the situation, both now and for the future? Maybe years of this kind of awful treatment have sent Ms. Wright the message that only legal steps can fix problems; if so, that message is surely being transmitted intergenerationally. How sad.

Here’s a lawyer for the camp:

“‘The children’s best interests are not being served,’ lawyer Carolyn Nichols said. ‘Simple lip service does not amount to change.’

“The day care center also wants the resignation of all swim club board members and the removal of any club members who made the racist comments, Nichols said.

“‘Our goal is to ensure that this type of behavior never happens again,’ she said.

With respect to the injured parties here: Your lawyer isn’t doing you any favors. All of her points are shaky:

The offer to return isn’t “lip service”: it’s a concrete and positive step.

Is resignation really the only option here? What about the possibility that people’s minds (and hearts?) really have been opened, and that this same Board might act differently next time?

And if you want to prevent a behavior from recurring, a lawsuit in the face of corrective steps might send this message: “Don’t bother trying to make things better next time. You’ll be sued either way.”

How about some real “Creative Steps” — including dialogue and reconciliation?

The Hierarchy of Lawlessness

June 10th, 2009 No comments

Let’s play a depressing game. Consider these stories, and spot as many cases of lawlessness as you can:

  • As I wrote about a couple of days ago, a Philadelphia mob attacked and severely beat a rape suspect. The actions were condoned, encouraged, and rewarded by city officials. In this piece, Columbia University Professor Marc Lamont Hill attempts to justify the mob’s actions by noting that black women can’t count on the criminal  justice system to vindicate their interests.1
  • In the wake of the killing of Dr. George Tiller, who ran one of only three late-term abortion clinics in the country (now two, as his clinic is closing), Dr.  Susan Hill, a friend of the late Dr. Tiller’s and President of the National Women’s Health Foundation, appears on the Rachel Maddow show and says that the police often do not protect women who seek late-term abortions when they are harassed by anti-choice nuts. Apparently, the Freedom of Access to Clinics Entrances Act (“FACE”), the federal statute that allows both the U.S. Attorney General and any aggrieved person to sue for acts of violence or intimidation, isn’t doing enough to stem this misplaced zealotry, either.  Dr. Hill also states that the level of violence and intimidation has spiked since Dr. Tiller’s death, but also notes that federal marshals are on the ground to safeguard women’s safety. (The linked video is worth your time.)
  • This compelling story from the latest ABA Journal: In 1909, a black man is convicted of raping a white woman despite overwhelming evidence of his innocence. (Stop me if you’ve heard this before.) The judge essentially orders the convicted man’s attorneys not to appeal his death sentence. Other attorneys do step in and appeal, eventually filing a petition for habeas corpus in federal court, challenging the detention on constitutional grounds (including the right to a fair trial). The petition is denied in the lower court, but the court also stays the defendant’s execution pending appeal. When Supreme Court Justice John Harlan allows the appeal, an angry mob — enabled by the local sheriff — lynches the poor man, and shoots him “just in case.” The Supremes then host their one and only (still!)  criminal trial, eventually finding the sheriff, a deputy, and several mob members guilty of contempt of court. All are sentenced to (ridiculously brief) jail time, but are greeted as conquering heroes upon their return to their home town of Chattanooga, Tennessee. Meanwhile, the black lawyers who took the appeal, fearing for their lives, are forced to relocate.
  • The U.S. Government tortures enemy combatants, then protects those who ordered the torture. Congress attempts to strip the detainees of their habeas corpus rights, but the U.S. Supreme Court, in Boumediene v. Bush,  strikes down the law, finding that the procedures in place to challenge their detention were insufficient as a matter of due process.

Lawlessness isn’t limited to angry mobs. But such vigilantes are emboldened, and given example and cover, when those charged with enforcing the law — from renegade juries, prosecutors and law-enforcement officials to elected officials, to judges who forget their  role in the constitutional design, to legislators who pass laws they should know are unconstitutional — fail to do their jobs.

The above stories suggest a scary lattice of lawlessness. Violent anti-abortion protesters who aren’t arrested and prosecuted for breaking the law encourage others, equally or more violent. The stranglehold of Jim Crow racism was almost impossible to break given the lawlessness of public officials; it took the Supreme Court to create (admittedly crummy) accountability.  The Philadelphia mob will spawn others, because the message from the city is clear: “We’ll look the other way.” And only the Supreme Court, by the narrowest of 5-4  margins, stood between Congress and the further erosion of our Constitution when it comes to our treatment of detainees.

Maybe it’s the pervasiveness of this outlaw mentality that explains Marc Lamont Hill’s attempt at justifying the mob’s actions last week. Here’s what he had to say:

“I…have no antipathy toward the ghetto kangaroo court that sentenced him to a thorough ass-whooping. Still, I remain wary of hasty rushes to judgment (and punishment) regardless of the circumstance. After all, it was the ostensible need to quickly avenge rape that led to the physical and juridical lynching of thousands of black men throughout history. Also, if the racial tables were turned, we would surely disapprove of a white mob beating a possible black rapist. Black and white, however, are not two sides of the same racial coin.”

Hill then goes on to cite compelling historical and sociological evidence of the law’s failure to regard the black female body as worthy of protection. He then concludes:

“In a perfect world, law enforcement would be enough. Unfortunately, we live in a world so fractured by racism and sexism that black female bodies are still rendered unimportant. On Tuesday, the neighbors decided to send a different message. Until the broader society gets it, the community’s brand of justice is both appropriate and necessary.”

There’s so much wrong with this argument that I hardly know where to start. First, even if (as we must concede) the criminal justice system is flawed, that does not mean that the mob justice he champions is better. The mob had already attacked the wrong guy before they fingered this one. Is it OK if they’re wrong? If not, how does he know that the guy  they did beat is the right one? Because the very police he doesn’t trust said so?  And how far would he let the mob go? This alleged rapist was hospitalized. What if he’d died? Would that have been OK, assuming the same level of force was used?

None of these pedestrian concerns appear to have occurred to Hill, who practices being provocative on FOX News. Nor does he appear to have thought through the implications of excusing criminal behavior based on the race of the parties involved. Saying that “black and white are not two sides of the same racial coin” is sound-bite ready, but what does it mean? More to the point, what might that statement justify? Lawlessness isn’t so easily cabined, once unleashed and condoned. He’s “wary” of this kind of behavior? So what?

Batman is pretty cool as a comic book character (although I always preferred the less complicated Superman as a kid), but a nation of lawless zealots who “know best” and their academic and official enablers is less appealing.

  1. h/t Kris Kachline for alerting me to this article.