Thank you, Michigan, for giving me something new.

There’s an interesting and new (as in, I’ve never seen it before) theory lurking in Michigan’s reply in _DeBoer v Snyder_, filed with the Supreme Court today.

One of the problems for the anti-SSM legal argument is that the Supreme Court has repeatedly declared marriage to be a fundamental right – specifically in cases where it said that a state could not prohibit someone from getting married because he was in arrears in his child support payments, and a case in which the Supreme Court said a state could not require that imprisoned felons obtain the permission of their warden before getting married.

The standard way to deal with this is to say that *opposite sex marriage* is a fundamental right, but *same sex marriage* isn’t a fundamental right; it’s a novation and as such isn’t subject to the same protection as traditional fundamental rights.

Michigan’s brief suggests a different way to deal with it. Those decisions weren’t actually about *marriage*. See, in the states that gave rise to those decisions, extramarital sex was illegal. So by saying that the states couldn’t deny someone the fundamental right of marriage, the court was really trying to say that the state couldn’t leave these people with no legal outlet for sexual activity. Now that we recognize the fundamental right of intimate personal association and laws banning extramarital sex are presumed unconstitutional, there’s no longer a *need* for a fundamental right of marriage, and states are free to go back to treating marriage as a vehicle for encouraging procreation.

I think it’s a massive distortion of the precedents in question. But it’s *clever*, and it’s new – and honestly, having read hundreds of briefs in these cases over the year, anything truly new is kinda exciting.


Absolute security is impossible

This week’s news that the copilot of a Germanwings flight appears to have crashed the plane into a mountain (not, it is suspected, for reasons of terrorism, but rather for reasons related to concealed depression or mental illness) highlights one of the reasons that 100% security is impossible:

everything is a matter of trade-offs.

Andreas Lubitz was able to do what he did in large part because, once the pilot stepped out of the cockpit, Lubitz was able to *lock him out* in a way that it was impossible for him to gain entry – a technological adaptation installed in planes after 9-11, out of concern that it was really important to ensure that nobody could break in to a cockpit and take control of a plane from resisting flight officers.

We can’t protect ourselves against everything. We have to accept that protecting against one thing often means making ourselves more vulnerable to another, and we have to weigh and assess the likelihood of different risks and the severity of different risks and *judge* – knowing that some risk will always exist no matter what we do.

This is a lesson that modern society, obsessed with safety and security as it is, often seems to forget.

The real nanny state

I’m not theoretically opposed, as some people are, to all cases in which government grants to the poor are conditioned on spending limitations. I think there’s a good argument that the government, in providing support money, wants to be sure that the money actually gets used for *support* – and while I recognize the inherent problem that the existence of a rule prohibiting [x] implies a belief that absent the rule people would do [x], and acknowledge that this assumption is tremendously unfair for the overwhelming majority of the poor, I also think there are people for whom it is *not* unfair, and who are actually helped by such rules. Whether the number of people who are helped, and the value of the help to them, outweighs the number of people who are hurt by the implication that they can’t be trusted, and the damage done to them, is something worth looking at on a case-by-case basis, and not via a categorical one-size-fits-all rule.

That said, I can think of no good reason for Missouri House Bill no 813 ( which, as introduced, prohibits recipients of food stamps from using them to purchase “cookies, chips, energy drinks, soft drinks, seafood, or steak”.

For one thing, seafood is very, very healthy, and there are times when it’s actually fairly cheap.

For another thing – it’s hard to imagine that there are very many people who are helped by this proposition; all you get is an unreasonable limitation on the ability of poor people to buy things like cookies. Surely a poor person is entitled to a cookie now and again, if they can make it work in their budget.

This measure is punitive and serves no real purpose. It’s shocking that it comes from a conservative politician, whose normal rhetoric would be that government shouldn’t be micromanaging the lives of the people. It’s very hard to avoid the conclusion that such aversion to micromanagement only applies to ‘people’ who are part of the in-group favored by the politician in question, not to people in general.

This is a very, very, very bad idea.

An attorney in southern California has filed a petition with the Secretary of State, asking that he be allowed to circulate an initiative called the “Sodomite Suppression Act” (which would, among other things, mandate the death penalty for any same-sex sexual conduct, and would authorize vigilantes to enforce the law if the state refused to do so). Under California’s system there’s basically nothing anyone can do to prevent the petition from circulating.

According to, *seventeen thousand* angry activists have signed an online petition asking the California Bar to disbar him.

As one might expect, I detest this initiative and am angry that anyone would circulate it or sign it.

And yet – asking the state bar to disbar him because he’s circulating an initiative that you are horrified by? I can’t get behind that. The state bar should *not* be in the position of punishing lawyers for their involvement in political activism.

Demonstrate that he refused a client because of their sexual orientation – or, worse, accepted that client and then deliberately sabotaged the client’s interests – and you’ve got grounds for disbarment. But this? Not a chance.

How many warehouses do we need, anyway?

Embedded deep within a news analysis article ( about former Senator Clinton’s email, the New York Times provides this astonishing claim:

> By the end of 2016, all agencies will be required to maintain email in electronic format

The clear implication to this is that there are agencies which are currently maintaining email in some non-electronic format. Which federal agencies are printing out emails to archive them, and *why*?

These aren’t statistics we’re talking about, here.

I’m not particularly interested in the story about former Senator Hillary Clinton and her emails, because (a) I think it’s obvious as a matter of basic policy that an independent third party should have determined which of her emails were private and which weren’t, and (b) I think in general we haven’t thought out particularly well what the rules are for the way email interacts with the overlap between our public and private personas, and a massive scandal involving a secretive putative Presidential candidate isn’t the best way to do that.


But I found this story hilarious:


How Did Hillary Send Bill Email If He Doesn’t Use It?


It seems that former Senator Clinton said that personal email between her and her husband, former President Clinton, exist on a private account – while her husband’s spokesperson says that her husband doesn’t use email.


One of them is pretty clearly lying.

Where the heart is

According to Gotham Unbound (, a book that I sadly didn’t have time to finish before it had to go back to the library and which I will hopefully pick up and finish again later, there’s something unusual about the way the Dutch settled in the area near New Amsterdam: unlike the English, they were drawn to swamps. Their settlement on the tip of Manhattan was in an area which the Mohawk called “the place of reeds”; a swampy bit at the end of the island. Breucklen was a swamp. Vlissingen (later Flushing) was a swamp until relatively recently. Nieuw Harlem was a swamp. Nieu Dorp, near Great Kills, was a swamp.

There’s something so predictable about this that I should have expected it and feel silly for not realizing it: the Dutch, like the English, and like the Swedes centuries later, looked for land that reminded them of home. It’s just that ‘home’ for the Dutch and ‘home’ for the English looked nothing like one another.