A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT http://feeds.feedburner.com/Dilanblogspotcom

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SEABISCUIT'S IMPACT IN CALIFORNIA:
On April 29, I posted a rememberance of my youth among the huge crowds at Santa Anita. (I can't link to it because Blogger's link is down, but you can scroll down to see the post.) With the decline of horse racing as a spectator sport, Santa Anita and Hollywood Park, the two major racecourses in the Los Angeles area, now draw only a handful of people to their vast grandstands.

On the silver screen this week, however, in Seabiscuit, you can see a different Santa Anita. This Santa Anita was the most popular track in America during the years immediately preceding World War II. Indeed, after being used during the war as a waystation for Japanese and Japanese-Americans being sent to concentration camps, Santa Anita returned to host more huge crowds in the postwar era. Hollywood Park became hugely popular too, and one of the two would lead the nation in average attendance every year well in the 1980's.

Much is said about the importance of the racehorse Seabiscuit-- he provided a vessel for the hopes of a nation mired in the great Depression and in the runup to another world war. He popularized sports broadcasting, as his races would gain larger radio audiences than the President's "fireside chats". His owner, trainer, and jockey overcame adversity to achieve immortality through his exploits. And he won two of the most important races in American history-- his 1938 match race against Triple Crown winner War Admiral at Pimlico, in which he surprised most of racing's East Coast establishment by shipping east and beating what was thought to be a superhorse; and the 1940 Santa Anita Handicap, which Seabiscuit won over the previous year's winner (Kayak II), after being a frustrated loser of two nose-and-nose photo finishes in 1937 and 1938 (the latter to a lucky three year old carrying absurdly light weight), and after missing the 1939 race due to injury.

Laura Hillenbrand, who authored the book that the new film is based on, does a fine job of telling those well-known elements of Seabiscuit's story. But I grew up hearing a very different Seabiscuit story. It is the story that was told by Santa Anita, Hollywood Park, and Del Mar (the beautiful seaside racetrack north of San Diego). Seabiscuit, to Southern California, is more than just an amazing horse. Seabiscuit was California's first equine superstar-- indeed, one of the state's first true superstars in any professional sport.

It's hard to believe now, given that we have five baseball teams, three football teams, four basketball teams, and three hockey teams in the state, but for a long time, California had an inferiority complex in sports (as it did in many other things, such as high culture). We were way, way, out of the loop. New York, not Las Vegas, was the great boxing mecca. Baseball didn't have a team west of St. Louis. College football's great teams were in the midwest, such as Fielding Yost's "point a minute" Michigan Wolverines, Red Grange's Illinois Fighting Illini, and Knute Rockne's Notre Dame Fighting Irish. Hockey was not a major sport in the United States (and in any event, was another East / Midwest sport), and basketball and pro football were not major sports period. And horse racing was the province of New York (Belmont, Aqueduct, Jamaica, Saratoga), Maryland (Havre de Grace, Pimlico), Kentucky (Churchill, Latonia, Keeneland), and Florida (Hialeah).

San Francisco had been an established city since the gold rush, but had been devestated by a horrible earthquake and fire. Los Angeles had just started to grow due to the increasing popularity of the motion picture industry. The first crack in the armor was in college football-- California's teams, coached by Andy Smith, and USC's teams, coached by Howard Jones, became national powers. Jones smartly arranged an annual game against Notre Dame that became college football's greatest intersectional rivalry, and frequently got his team into the annual Rose Bowl game in Pasadena where he could showcase his teams against top teams from the east and midwest.

But the first professional athlete to break through was Seabiscuit. When Seabiscuit won his match race against War Admiral in 1938, California was a decade away from getting its first NFL team, two decades away from getting its first baseball and basketball teams, and almost three decades away from getting its first NHL teams. It was a decidedly minor league state. Seabiscuit was the first professional athlete that announced that perhaps California was not the boondocks of professional sports-- that California would be a force to be reckoned with.

Moreover, Seabiscuit simply made Southern Californians crazy about horse racing. Santa Anita opened to a small crowd in December 1934. The owner of the track, Charles Strub, had a lot of money (the track cost the then-unfathomable sum of $1 million to build), and put up $100,000 (tied for the largest purse for a horse race ever at the time) as a prize for his big handicap race in order to draw great east coast horses. The first renewal of the race drew Equipoise and Twenty Grand, two of the greatest horses of the era, along with triple crown race winners Faireno and Head Play. Commencing a tradition that Californians would proudly reenact from time to time over the years, the vaunted easterners all got beat-- a lightly regarded former steeplechaser named Azucar won the race.

But the Santa Anita Handicap was more of a curiosity than a great event-- until Seabiscuit came along. Seabiscuit became a crowd favorite in March 1937 and March 1938 by losing the rich race twice, both times by a nose, to Rosemont (a really good horse) and Stagehand (a three year old who carried 100 pounds, 30 less than Seabiscuit and about eight pounds less than just about any longshot ever carries in a modern handicap race). He then went to Hollywood Park, which opened in 1938 and needed a name attraction for its big race, the Hollywood Gold Cup. Seabiscuit won that race after making up a huge deficit in the stretch to a good speed horse, Specify. A huge crowd packed the new track to see him do it.

Seabiscuit cristened Del Mar too. In the summer of 1938, after the planned War Admiral match race fell through because of an injury to Seabiscuit (it would later be run in November), Seabiscuit was looking for a race, and Del Mar's owner, Bing Crosby, was looking for a way to promote his track. Crosby proposed running his horse, Ligaroti, against Seabiscuit in a match race. Traffic piled back 30 miles north, as the seaside track was packed with a crowd that would stand many years as its record attendance. Seabiscuit and Ligaroti raced head and head all the way around the racetrack, and their jockeys actually got into a fight in the stretch during the race and were flailing back and forth with each other. Seabiscuit won the race by a nose.

Finally, when Seabiscuit came back and won the 1940 Santa Anita Handicap, he drew over 65,000 people to Santa Anita. By this time, Californians were hooked. They were betting absurd sums of over $100,000 (in the middle of the great depression!) on every race. Heaven knows how many of those people first came out to a California track because the great Seabiscuit, California's biggest athletic star, the hero of the nation, the most famous horse in the world, was running. Certainly there was no other venue in all of California where one could see anyone of such cultural importance. But what we do know is that the afterglow of Seabiscuit lasted some 50 years. It is only since 1991 or so, when the sport really went into a tailspin, when the crowds have finally thinned out.

I really don't know if California racing would have succeeded without Seabiscuit. Certainly Santa Anita and Hollywood Park have never missed an opportunity to acknowledge Seabiscuit's influence. To this day, there is one statue, of one horse, on the Santa Anita grounds. That statue is of the horse that brought people to the track like no other: Seabiscuit.
posted by Dilan at 7:42 PM

 
FATHER GEORGE W. RUTLER, GAY MARRIAGE, AND NATURAL LAW:
You may remember that when now-Justice Clarence Thomas was nominated for the Supreme Court, before the Anita Hill accusations were made, a controversy arose over Thomas' praising of an article that supported the use of "natural law" in constitutional adjudication. Those big words basically mean that the article's author was arguing that the Supreme Court should decline to enforce laws that are contrary to the precepts of "nature", or, more often, God. Natural law derives from St. Thomas Aquinas' theory that posits that God instills in human beings certain moral precepts, which are then used by humans (imperfectly) to create human laws. Natural law does not have to be religious in nature; some other theorists reject Aquinas' attribution of natural law principles to God, but agree that humans are born with these principles hard-wired into their circuitry.

Natural law has a perfectly honorable tradition as a philosophical hypothesis and ethical philosophy. The Declaration of Independence, famously, invokes natural law when it states that humans "are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness". And the Catholic Church continues to study and invoke natural law as the governing ethical philosophy of the Church. The problem comes when it is invoked as law, or a principle of constitutional interpretation, as was advocated in the article Thomas praised. First, in its religious form, natural law would essentially establish a theocracy. Whatever the value of Catholic moral teachings, if we allow such teachings to be a valid basis to strike down legislation, we would be no different than Muslim countries where laws must conform to the Koran.

But even in its secular form, natural law is extremely dangerous, because, as even Aquinas recognized, its principles are so general. Nobody believes that humans are born with the Napoleanic codes inscribed in their brains. Rather, natural law theories posit that we are born with such abstract concepts as "you should not kill another human being" and "you have an obligation to take care of the weak". Of course, the article Thomas praised (wouldn't you know it) was advocating the use of such principles to strike down laws that legalize abortion. But even if we assume that these concepts are hardwired into our brains, they are too abstract to provide even a minimal basis for interpretation by a court-- abortion is a perfect example of this, as people would argue whether it constitutes "killing another human being" (Aquinas himself, for instance, did not oppose all abortions) or "not taking care of the weak", or whether in fact a fetus has not yet achieved full humanity, and that the mother's weakness is the relevant consideration of society.

As a result, natural law has properly been rejected as a means of constitutional interpretation, and even Thomas disavowed his praise for natural law during his confirmation hearings. But in one institution-- the Catholic Church-- natural law is still the touchstone of any analysis of what governments may or may not do. Of course, as we have seen lately, the Catholic Church's perception of its relationship to the law is peculiar indeed; the institution seems to feel that it is not bound by laws requiring those who take responsibility for the children of others to take steps to prevent sexual abuse of children, and further that any enforcement of the laws requiring cooperation with law enforcement is a violation of the Church's First Amendment right to free exercise of religion. (Under this theory, of course, the government would have had no power to stop David Koresh from raping pre-teenagers.) While this position is obviously a transparent ruse to protect the pedophiles and their enablers that are strewn throughout the Church hierarchy, I can also tell you that many Catholics (especially conservative ones) believe it. But while not bound by the law, the Church takes an aggressive position regarding its right to shape it, and the goal seems to be to bring human law in line with natural law principles as the Church sees them.

That's a long introduction for a noxious post that was made by prominent New York conservative priest Father George W. Rutler in National Review Online today. It was a response to an argument by John O' Sullivan, who argues that the solution to the gay marriage controversy is to permit competition among various models of marriage, including traditional religious marriage, civil marriages (which would include gay marriage), and domestic partnerships. O'Sullivan's argument is complicated, but it basically says that traditional marriage will suffer no harm from the competition. Here is Father Rutler's response:

"The point is not whether the State should recognize same-sex marriages (the term in itself being oxymoronic). The fact is that the State cannot do it. As the Canadian bishops recently wrote to the Prime Minister of Canada: Marriage pre-exists the State and is fundamental to society and the institution of marriage therefore cannot be modified by the State or a court of law. They also pointed out that 'same-sex marriage' discriminates against heterosexual marriage and the family which would be deprived of their social and legal recognition as the fundamental and irreplaceable basis of society."

This, of course, is classic natural law reasoning, with a perverse claim of victimization thrown in at the end. (I thought conservatives were opposed to the culture of victimization.) And the natural law reasoning is totally spurious. Of course, Father Rutler, marriages existed in the church before the State recognized it. And of course, those marriages "cannot be modified by the State or a court of law". But that has nothing to do with the issue at hand, which is what the state chooses to recognize as marriage and afford benefits to. The question of gay marriage is the question of discrimination-- whether or not the state can grant benefits to heteros that it refuses to grant to gays, including inheritance rights, immigration rights, child visitation, hospital visitation, insurance coverage, and the like. States should not hand these rights out in a discriminatory fashion whether they are labeled "marriage" or "a ham sandwich". And a government which chooses to continue to use the label "marriage" while handing these benefits out in a non-discriminatory fashion is not "modifying" the definition of marriage that preexisted the state, any more than a state that allows a person to remarry after divorce (not permitted under Catholic doctrine) or allowing a Catholic to marry a non-Catholic without an agreement to raise the children as Catholic (generally discouraged by the Church) is modifying the definition of marriage that preexisted the state. The state is simply modifying the manner in which it affords certain benefits to certain people who enter into certain social arrangements, i.e., civil marriage. Nothing the state can or will do will change the religious definition of marriage.

Let's take another example where we can see this more clearly. Catholic funeral rites also predate the United States government. The Catholic Church defines a "funeral" in a certain fashion, and requires certain ceremonies to take place as part of a funeral. If the US government decides to pay for the costs of funerals of dead veterans, and further decides to do it in a non-discriminatory fashion, paying not only for Catholic funerals that contain these ceremonies but also for other types of funerals, devised more recently, that do not contain them, is the government "changing" the definition of the funeral? Of course not! The Catholic Church can still believe what it wants to believe about its funeral ceremonies, and the US government is simply using a non-discriminatory definition of "funeral" to determine when veterans' benefits are paid.

Finally, a point about Father Rutler's discrimination claim. It is obvious as it can be that marriage laws discriminate in favor of heterosexuals, and Father Rutler must know this. So, he recasts this argument to say that taking away heteros "social and legal recognition as the fundamental and irreplaceable basis of society" is tantamount to discriminating against heteros. First, this is plainly not true. It is not discrimination to stop discriminating in favor of a group. When laws against interracial marriage were eliminated, did that action discriminate against those who preferred to marry within their race? Of course not-- they can still marry within their race, even now.

(As an aside, this post originally used affirmative action / racial preferences as an example of the foregoing. It was pointed out to me by a reader that when California passed Proposition 209, some advocates and at least one federal judge did say that eliminating racial preferences for minorities would constitute discrimination. I believe that the actual issue with ballot measures that eliminate racial preferences is somewhat more narrow-- i.e., that minorities are forced to seek favors from the government at the state level whereas others may seek them at the local level, and that such ballot measures eliminate racial preferences even when they are a remedy for discrimination, and the elimination of effective remedies for state discrimination violates equal protection. That is of little matter, however. It is clear that the elimination of legalized prejudice against homosexuals in no way discriminates against heterosexuals; there is no way in which favoritism towards heteros was any sort of a remedy for previous discrimination.)

But there is another problem with Father Rutler's discrimination claim as well. He identifies two aspects of heterosexuality that he says are being taken away by recognition of gay marriage. The "social recognition" of heteros as the fundamental basis of society, and the "legal recognition" of the same. The legal recognition argument is answered above-- taking away legalized discrimination in favor of a particular group does not constitute discrimination against that group. It simply levels the playing field. But I find the "social recognition" claim even more interesting. It is quite true that the social recognition of heterosexuality as fundamental to society is declining. But these gay marriage laws are reflecting that trend, not causing it. Rather, this social recognition is changing because more and more people are rejecting the Catholic Church's teachings that homosexuality is immoral, and that the legal system should be used to stop people from engaging in gay sex. Father Rutler's plea of discrimination is the petulant whining of someone who knows he is losing the culture war; of someone who is coming to realize that something that he views as extremely important, and likely to send us all to hell, is viewed as a basically private matter that is none of his business by ever greater portions of society.

The funny thing is, gay marriage isn't going to change this, except to the extent that gay couples are more visible and people come more and more to respect their right to be who they are. Father Rutler is afraid not only that legal recognition of gay couples may come, but that such legal recognition will cause people to see the basic humanity of gay people that he, and many in his Church, are unable to see. His views are deserving of no sympathy; only pity.
posted by Dilan at 10:56 AM

 
THE DIFFERENCE BETWEEN MORAL CRITICISM AND GAY BASHING, AND HOW
THE RIGHT WING BLURS IT:
The Supreme Court's recent decision in Lawrence v. Texas, invalidating a sodomy statute and overturning Bowers v. Hardwick (which upheld a statute that would throw homosexuals and heterosexuals in jail for up to 20 years for having oral or anal sex), has occasioned much hand-wringing on the right, which seems fixated on the idea that this is the first step on the road to gay marriage.

A lot of this argumentation is very disturbing to me. I support gay marriage, but I also know that it's a long way from invalidating a sodomy statute that makes criminals out of gays who perform sex acts that are performed by many, if not most, hetero Americans to recognizing gay marriage. Indeed, the Court expressly did not reach the argument made by the defendant in Lawrence that the Texas law was invalid because it discriminated against gays and lesbians. Rather, the Court held that the unenumerated right to privacy that has been found in the Constitution in earlier cases such as Griswold v. Connecticut and Roe v. Wade extends to protect the right of anyone, gay or straight, to commit private consensual acts of sodomy. Further, even Justice O'Connor, who was alone among the Justices in indicating her willingness to strike down the statute as discriminatory against gays, specifically stated that she thought that statutes that discriminate against homosexuals should be sustained if they have a rational basis, and that the protection of traditional marriage is such a rational basis.

So why then are Stanley Kurtz of National Review Online, and David Frum, and other conservatives so up in arms about how this is going to lead to gay marriage? Recent pieces by Jonah Goldberg provide the answer-- gays have prevailed on a broader question of tolerance and that drives certain conservatives who wish to remain intolerant of homosexuals crazy.

The question of tolerance is essentially this: in the past, it was perfectly socially acceptable to harbor a prejudice against gay males (attitudes about lesbians have always been different for some reason-- witness the popularity of lesbian pornography even among homophobic males). It is not anymore. It hasn't been socially acceptable to harbor such a prejudice in educated circles among East and West Coast elites for some time, of course (and the presence of a number of gays among Republican party poobahs, is evidence of this). But now, people are beginning to believe this all over the country. Ellen DeGeneres doesn't threaten anyone, and neither does Will and Grace, or Tom Hanks and Antonio Banderas in Philadelphia. In that sense, Goldberg is totally right; cultural conservatives have lost the war over homosexuality.
posted by Dilan at 11:22 AM

 
[CONTINUED]
Sodomy laws were the front line of that war. Why? Because the entire purpose of such laws was literally, to scare homosexuals straight. They were rarely enforced anymore. Many were amended to delete references to heterosexual sodomy. But they were an expression of prejudice and animus against gays and lesbians, and on that level, they had to stay on the books.

Of course, conservatives and their lawyers did not characterize the purpose of the laws in these terms. Rather, they said that these laws expressed permissible majoritarian disapproval against gays. However, that was entirely and obviously a cover. For one doesn't normally express moral disapproval by threatening to jail sinners. Failing to honor one's father and mother, having other gods before the God of the Bible, and coveting one's neighbor's wife or things are all specifically
outlawed in the Ten Commandments (unlike homosexuality, which is prohibited in Leviticus, a chapter of the Bible that contains all sorts of dietary rules that modern evangelical Christians almost all disregard). Yet none of them are punishable by jail time, nor are there any significant numbers of Christian conservatives calling for such punishment. So, if the purpose of these laws
wasn't disapproval of the sin, it had to be animus towards the sinner.

Further, the conservative movement was very clever about how they kept sodomy statutes in place. First, they strongly advocated a narrow form of constitutional construction that was intended to prevent what happened last week in Lawrence, i.e., there are no unenumerated rights in the Constitution, equal protection of the laws does not cover gays, moral
disapproval of a particular group is a sufficient state interest to uphold a law, and anyone who says otherwise is a dangerous liberal activist. But it was conservatives, such as Anthony Kennedy and Sandra Day O'Connor, who provided the crucial rejection of those arguments. Indeed, there is no way that either of them is going to vote for gay marriage as a constitutional right. This is no slippery slope. The fact is, while one can argue about the constitutional interpretation in Lawrence, this is not going to lead to wholesale
striking down of popular laws on the basis of unenumerated rights. In fact, in the past 50 years, I can think of exactly three cases that struck down a popular law on that basis, and all of them are in the area of abortion. Despite 30 years of constitutionalized abortion law, the doctrine of unenumerated rights has not extended to any areas where there has not been a strong popular
consensus. The notion of unelected judges running amok simply has not occurred and will not occur given the composition of the current Court. (The best example of this was Washington v. Glucksberg, where the Court refused to recognized an unenumerated "right to die" that overrode state laws prohibiting assisted suicide.)

The second conservative strategy on sodomy laws was to change the subject, or indicate that oh yes, if they were in the legislature, they would vote against such silly laws, but it should be up to the citizens of _______ to determine if they wanted such a law. I realize that in a sense this is a principled position-- it is Justice Thomas' position in his dissenting opinion (unlike the prudish
Justice Scalia, who clearly longs for the good old days when his theological views were reflected in state laws, Thomas clearly does not think the government has any business telling gays and lesbians that they can't have sex). But it is also a big cop-out. Sodomy statutes are not simply bad laws; they are fundamentally unjust ones. They either criminalize the private conduct of most Americans, or they criminalize the conduct of a disfavored class. Either way, they are an outrage.
And the conservative rhetoric did not befit the outrage. No, quite the contrary, conservatives were basically saying that on the margins, they didn't think these laws were very good, but they weren't going to do anything to persuade states not to enact them or keep them on the books.
posted by Dilan at 11:20 AM

 
[CONTINUED]
In this sense, conservatives basically got what they deserved in Lawrence. It's one thing to say that the judiciary should not get involved where the democratic process is busy repealing these unjust laws at the urging of those who are asking the judiciary to stay out. It's quite another to quietly acquiesce and even knowingly condone the presence of these unjust laws for years and years, and then act all outraged when the judiciary intervenes and obliterates them. The Court merely did something that the right wing should have done long ago.

And why didn't the right wing do it? Simple politics. Every tolerant elite right winger knew darned well that these laws were wrong and unjust, but those same conservatives knew that some anti-gay bigots and Christian theocrats remained in their base who supported the laws. So, the only way to handle the issue was to change the subject, which they did for many years.

So why are they now putting the focus on gay marriage? I think it is more subject-changing. If conservatives opine on Lawrence, they can't win. Say it was rightly decided or, at least, that it is good that these laws are wiped out, and they alienate their base (as Jonah Goldberg has found out). Say it was wrongly decided and it looks like you are catering to anti-gay religious zealots in supporting extreme laws that are unpopular in most of America.

On the other hand, the American public isn't yet ready for gay marriage. Truly, they should be-- gay marriage is nothing more than ensuring civil equality for homosexuals, so that they don't pay higher taxes, don't get screwed in inheritance or custody disputes, aren't disallowed from visiting their lovers and life partners in the hospital, etc. But the public doesn't see it that way-- the magic word "marriage" conjures up all sorts of proto-religious attitudes that interfere with the public's recognition of the equality principle.

As I said though, the Court was absolutely clear that Lawrence was not going to lead to the recognition of gay marriage. But this is a nice spin tactic-- the Republicans are trying to change the subject from what it should be, i.e., the party's abominable decades-long tacit support of sodomy statutes, to a different area of gay rights where their position is more popular. It might work. But nobody should forget that the G.O.P. is the party that, until forced by court decision in 2003 to abandon the position, advocated throwing gays and lesbians in jail.

Now let's bring ourselves back to the title of this post. In saying all these things, the question might arise, "do you really think that anyone who morally disapproves of homosexual sex is a bigot?" No, I actually don't. From what little I know of Christian doctrine, I don't think the Biblical prohibition of it is nearly as clear or fundamental as some conservative Christians do. But I understand that people can believe this, or any other sex act, is immoral.

But it seems to me that many conservatives use this moral condemnation argument as an excuse to conceal actual bigotry towards gays and lesbians. It isn't bigoted to believe that these acts are immoral. It is bigoted to support, tacitly or openly, throwing people in jail for engaging in them. And it is disgraceful that one political party, that claims the support of almost half the American
public, has seen it profitable to cater to such bigotry for so long.
posted by Dilan at 11:19 AM