Questions for Marriage Equality Foes

A new poll last week showed a striking continuation of the dramatic shift in national public opinion toward broad acceptance of same-sex marriage. The trend is hard to miss:

Source: Washington Post-ABC News poll

Source: Washington Post-ABC News poll

This latest Post/ABC poll also finds that 61 percent favor allowing same-sex couples to adopt children, and 81 percent say businesses should not be allowed to refuse service to gays and lesbians. And there’s an accelerating body of judicial opinion to go with public opinion: In the wake of last summer’s Supreme Court ruling on DOMA we’ve seen federal judges striking down gay marriage bans in Ohio, Kentucky, Virginia, Oklahoma, Utah and Texas, along with state court rulings in New Jersey and Mexico.

Here in Tennessee, of course, a state constitutional ban on same-sex marriage enacted in 2006 remains in effect, although a federal lawsuit of the sort that has worked in these other states is in process.

All of which raises the question: What is going through the minds of stalwart opponents of marriage equality as they digest these developments? The Family Action Council of Tennessee’s David Fowler is among those trying to stop the tide from coming in. Some questions for Mr. Fowler:

[1] Mr. Fowler, you are fond of reminding us that a very large majority of Tennessean voters “approved our constitutional definition of marriage” and that most still say that “marriage is between a man and a woman.” Both of these things are true, but while geographic splits on same-sex marriage approval do show the South lagging other regions, it’s no longer a minority view even here, and it isn’t hard to fathom which way it’s trending. Do you look at the polling data, Mr. Fowler, and honestly convince yourself that this shift happening everywhere is not actually occurring here in Tennessee?

Source: Washington Post-ABC News poll

Source: Washington Post-ABC News poll

[2] You have written that if federal court decisions like the one in Ohio ultimately extend to Tennessee, “a conflict will immediately arise between what the federal government, through the courts, will require Tennessee to recognize as a marriage and what Tennesseans voted to recognize as a marriage.” Is your grasp of constitutional law and the Fourteenth Amendment so tenuous that you will regard federal court decisions striking down bans on same-sex marriage as inciting conflict between federal law and Tennessee voters? Do you believe, accordingly, that the 1967 ruling in Loving v. Virginia invalidating state laws prohibiting interracial marriage was wrongly decided?

[3] You wrote last summer that “if same-sex marriage advocates want equality, then the burden is on them to prove that a same-sex union is essentially the same as a heterosexual union in all regards. Otherwise, everyone knows that there is nothing ‘unequal’ or ‘unfair’ about treating two different things two different ways.” Do you really believe that threats to equal protection under the law are taken seriously only if those in a social category denied equal protection can prove that they are just like those whose rights are protected “in all regards”? So black people have to be able to prove they are like white people “in all regards”? Muslims have to be like Christians “in all regards”? Women have to be like men “in all regards”?

The fact is, Mr. Fowler, that you and your organization cling to a viewpoint support for which is rapidly deteriorating everywhere. Do you imagine that Tennessee will somehow defy the trend and become a heterosexual oasis of bigotry? You are free to believe these things, of course, but why not just admit publicly what you no doubt understand privately: that opposition to marriage equality almost certainly will not outlast judicial momentum toward a Supreme Court ruling that throws Tennessee’s constitutional ban under the bus of history.

So what’s your end game, Mr. Fowler? Will you help usher Tennessee into the 21st century by hopping on the bus now in a gesture of humility and humanity? Or do you choose to remain defiantly in its path, somehow imagining that everyone else is going to suddenly wake up from a Fourteenth Amendment nightmare and reclaim bigotry and discrimination as righteous paths to Tennessee’s glorious future?

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


FedEx Thou Doth Protest Too Much

fedexboxA cranky op-ed by a FedEx executive in today’s Tennessean calls the paper out for its “deeply flawed and erroneous report insinuating that FedEx is less than a full-rate taxpayer.” FedEx VP Michael Fryt is responding to a recent Tennessean story about the DC-based Citizens for Tax Justice’s analysis of Fortune 500 companies that paid no federal income taxes during at least one year since 2008. FedEx made the list twice, for having “paid” federal income taxes at a rate below 0 percent in both 2009 and 2011. As The Tennessean further reported, FedEx paid an effective federal income taxrate of 4.21 percent over the five year period of the study.

Blasting the CTJ report as “compiled by a heavily biased, partisan advocacy group,” Fryt asserts that FedEx “is a full-rate taxpayer and that we pay all the taxes owed to local, state, federal and foreign governments.” Declaring that “the effective income tax rate for FedEx has been no lower than 35 percent in each of the past 20 years,” Fryt calls the analysis misleading because it takes accelerated depreciation into account (as well it should), and he criticizes The Tennessean for printing the story “without contacting us.”

What Fryt and FedEx are doing here is blaming the messenger (two of them, actually) and responding with their own conveniently misleading version of events. But the careful reader will note that something Fryt and FedEx are not doing is denying the empirical truth of the CTJ’s findings.

How is it, you may ask, that the CTJ report can show FedEx paid less than 0 percent (meaning, received a rebate) in federal income taxes in two separate years while a FedEx executive insists that “the effective income tax rate for FedEx has been no lower than 35 percent in each of the past 20 years.”? Both statements can’t be true, right? Someone must be fibbing here?

Not necessarily. The key here probably lies in Fryt’s careful wording, “the effective income tax rate for Fedex…” Note the absence of the word “federal” between “effective” and “income.” Corporations pay not just U.S. federal taxes on income, but also state as well as foreign income taxes. That same CTJ analysis reporting FedEx’s effective rate of 4.2 percent in U.S. federal income taxes between 2008 and 2012 found that the company paid a much higher rate (57.7 percent) to foreign governments on its overseas pretax income. My assumption is that FedEx is counting all forms of income tax (that omission of the word federal is presumably no accident), and in so doing hopes to lead readers to believe that the zero tax years and astoundingly low effective average federal tax rate revealed by CTJ and reported by the Tennessean are factually inaccurate. But if you read Fryt’s op-ed carefully you’ll notice that he never actually repudiates the accuracy of CTJ numbers. Why? Because he can’t.

As mentioned above, Fryt and FedEx righteously assert that the firm pays all taxes owed to all governments. This is a classically defective straw-man argument; nobody claims otherwise, and neither the CTJ analysis nor the Tennessean story intimated that FedEx isn’t meeting its obligations under the law. As far as I’m concerned FedEx is a great American company, one that treats its people well and plays by the rules. A key aim of the CTJ analysis is to show the extent to which copious loopholes and tax breaks legally enable corporations to minimize their income tax obligations.

Fryt concludes his op-ed with familiar corporate whining that U.S. corporate income tax rates are among the highest in the world, creating a tax system that “is seriously flawed and hurts U.S. economic growth and competitiveness.” He’s right that statutory corporate tax rates in the U.S. are among the world’s highest, but it’s also the case that the actual rate large profitable corporations pay is typically less than half the statutory rate.

Fryt and FedEx may not like hearing these realities when they are foisted upon them (accurately) by a “heavily biased, partisan advocacy group.” Ok, then, how about that leftist commie Warren Buffett: “It is a myth that American corporations are paying 35 percent or anything like it…corporate taxes are not strangling American competitiveness.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


At the State Capitol: More Religion! As Much as Possible!

churchstatestreetsIn their ongoing quest to ensure that religious expression is never far from center stage in Tennessee’s public schools, our elected guardians of spiritual zeal down at the state capitol (masquerading as the House Education Committee) today take up the Religious Viewpoints Anti-Discrimination Act (HB1547/SB1793). The measure, which could have been titled the “Make Schoolchildren Commingle With As Much Religion As Humanly Possible Act,” would require that local school boards adopt policies letting students express religious beliefs in all kinds of settings: assemblies, athletic events, pep rallies, graduation ceremonies, and even school day opening announcements. (“The Lord, who by the way frowns upon the idea of one world government, wants you to know that the Model U.N. Club will meet after school today in room 301.”)

Viewed as a whole, the bill comes off as a way to compel kids to listen to religious messages (which may well conflict with their own beliefs) in school as often as possible. But the especially pernicious part of HB1547 is its approach to classroom activities — you know, that pesky learnin’ stuff the schools are supposed to be doing between prayer meetings.

The bill incorporates a lengthy “model policy” that local school boards could adopt to come into compliance with its requirements. Here’s the full text of Article IV of that model policy, titled “Religious Expression and Prayer in Class Assignments” (emphasis added):

A student may express the student’s beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of the student’s submission. Homework and classroom work shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school. Students may not be penalized or rewarded on account of religious content. If a teacher’s assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards, including literary quality, and not be penalized or rewarded on account of its religious content.

There is an obvious contradiction built in to those middle two sentences. On one hand, a teacher can judge a student’s work by “ordinary academic standards of substance and relevance,” but on the other hand the teacher cannot penalize “on account of religious content.” So the student who incorporates creationist notions into an assignment on paleontology or developmental biology or cosmology is … what? Evaluated in a science class as scientifically incompetent, but then not penalized for it? What does that even mean?

This bill is clearly just the thing we need to beef up Tennessee’s national educational reputation. Hell, even the most notorious conservative interest group in America ranks us in the bottom 10 of states in its Report Card on American Education. And by the way, I can’t be penalized for that last sentence, since it did open with “hell,” which qualifies, of course, as “religious content.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


The Business of Discrimination

Apparently there wasn’t room for an accurate headline, like “Bill authorizes bigotry and discrimination,” so the good folks down at 1100 Broadway went with “allows faith objections” instead. Please. The measure (SB 2566) described in the story, which comes before the Senate Judiciary Committee this week, is nothing short of a license for private enterprise to make anti-LGBT hate into a viable business strategy.

TennFront

Desperate to halt political and social momentum toward widespread acceptance of same-sex unions, sponsors of the bill want to use public policy to ensure that businesses can refuse service “related to the celebration of any civil union, domestic partnership, or marriage not recognized by the state” if it violates “sincerely held religious beliefs…regarding sex or gender.” Translation: if your religious beliefs cajole you into hating gay people, you are free in running your business to deny them employment, goods, services, or accommodations without fear of being sued by private parties or acted against by government under any kind of local nondiscrimination law or policy.

The Tennessean story neglects to mention that SB2566 (and its House companion HB2467) are patterned on a model bill developed by an offshoot of the D.C.-based Ethics & Public Policy Center, which fashions itself a think tank “dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.” We’re not sure how Judeo-Christian principles fit in, but this is an organization that confuses bigotry with freedom, at least to judge by this declaration by the EPPC’s president in testimony before the U.S. Commission on Civil Rights last year: “The sweeping application of non-discrimination principles poses an increasingly severe threat to civil liberties.”

Although the bill purports to be about gay marriage, not about being gay generally, Mark Joseph Stern at Slate (writing about a similar bill introduced in Kansas) points to the “breathtaking” potential sweep of these bills:

The law’s advocates claim that it applies only to gay couples—but there’s no clear limiting principle in the text of the bill that would keep it from applying to gay individuals as well. A catch-all clause allows businesses and bureaucrats to discriminate against gay people so long as this discrimination is somehow “related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” This subtle loophole is really just a blank check to discriminate: As long as an individual believes that his service is somehow linked to a gay union of any form, he can legally refuse his services. And since anyone who denies gays service is completely shielded from any charges, no one will ever have to prove that their particular form of discrimination fell within the four corners of the law.

The Kansas version passed their House but was derailed when the Kansas Senate’s GOP leader announced last week that she doesn’t support it because she and her members “don’t condone discrimination.” Fancy that. Your move, Beth.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Nothing Says Monday Like Bigotry in Congress

"Federalism, dude."

“Federalism, dude.”

The U.S. Senate votes today on the Employment Non-Discrimination Act (ENDA), a common-sense measure that would outlaw employment discrimination on the basis of sexual orientation and gender identity. ENDA has been floating around Congress in various forms for almost two decades, and a version of it actually passed the House by a pretty good margin in 2007. In today’s action Democrats need five Republican senators to avoid a filibuster, and as of this morning five sensible GOPers have signaled support for ENDA. Might they be joined by either of Tennessee’s supposedly not-right-wing-crazy senators? Unlikely.

Lamar Alexander is already on record with his disdain for the rights of LGBT workers, as Politico reported last week:

Sen. Lamar Alexander (R-Tenn.), a bipartisan deal-maker who faces a primary challenge in his 2014 reelection bid, said the bill amounted to “too much federal overreach.” … “One of my guiding principles is federalism,” Alexander said. “I don’t think we need an additional federal law to regulate it.”

How refreshing — federalism as a pretense for bigotry! Where have we seen that dance before? Given that we already have federal law engaging in regulatory “overreach” with its ban on employment discrimination on the basis of race, color, religion, sex, and national origin, one must conclude that Lamar stands firmly for repeal of Title VII of the Civil Rights Act of 1964. Top that for GOP primary season unhingery, Joe Carr!

I can find no clear evidence of Sen. Bob Corker’s intentions on today’s vote, but in an op-ed over the weekend, Chris Sanders of the Tennessee Equality Project surmised that Corker won’t support ENDA either. Our two allegedly business-friendly senators might want to get on the same page with Apple CEO Tim Cook, who backs ENDA with the observation that “embracing people’s individuality is a matter of basic human dignity and civil rights.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Required Reading for State House Lawmakers

atfdudeDevoted followers of conservative mayhem at the Tennessee state house will recall one of the finer moments of legislative insanity last winter: a bill aiming to nullify federal firearms legislation by making it illegal for federal agents to enforce those laws in Tennessee. In the wake of an AG opinion that the measure was probably unconstitutional and indications that Gov. Bill Haslam was disinclined to sign the thing, the bill narrowly failed to make it out of committee back in February.

GOP-dominated state houses elsewhere have pushed this gun law nullification thing further along, with Missouri’s in the spotlight this month. That state’s legislature overwhelmingly passed a nullification bill earlier this summer, which Gov. Jay Nixon promptly vetoed. Now the show-me legislature is planning a vote to override the veto when it reconvenes next week. A successful override will require fewer votes than there were in favor the first time around. (And it should be noted that while the bill was largely a GOP effort, it passed with the support of 11 Democrats in the Missouri House and 2 in the Senate.)

So with the Missouri override vote impending, The New York Times runs an op-ed today titled “The Limits of Nullification.” In a state legislature like Tennessee’s, where no failed bad idea isn’t worth bring back for another go, this is a piece that lawmakers need to read for its persuasive case against nullification:

Yes, state legislatures or governors can assert that a federal law offends the Constitution. But as James Madison wrote in his Report of 1800, such declarations are “expressions of opinion” for “exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect.” In assessing constitutionality, our system of governance recognizes one Supreme Court, not 50 individual states. Strangely, if nullification proponents had their way, Chicago’s gun ban, which the Supreme Court invalidated in 2010, might still be in effect.

The Times op-ed is compelling not just for its substance, but also on account of the impeccable Second Amendment-loving credentials of its author: Robert Levy, chairman of the conservative-libertarian Cato Institute and a guy who was plaintiff’s co-counsel in the landmark 2008 Supreme Court case D.C. v. Heller upholding individual gun rights. For any Tennessee lawmaker thinking of trying again on nullification (I’m looking at you, Mae Beavers), Levy’s closing words should change your mind: “I fully support those who see risks in the expansion of federal power, particularly when it comes to intrusions on basic rights like gun ownership. However, to defend those rights, we can’t begin by flouting the very document that inspires that fight in the first place: the Constitution.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Euphemism of the Month: Fairness in Ticketing

ticketscalpingWhile there are some positive aspects of the so-called Fairness in Ticketing Act working its way through the Tennessee state legislature, it is disappointing to see Tennessee Performing Arts Center CEO Kathleen O’Brien embrace the bill so wholeheartedly in a Tennessean op-ed this morning. Railing against a ticket “resale market rife with bad actors” who “make lots of money at the expense of real fans,” O’Brien wants us to see TPAC as part of a coalition working to give consumers “transparency and protection and the opportunity to buy the best tickets at face value prices.” These are lovely goals, but ones that the bill will do very little to accomplish.

The legislation (SB609/HB1000) does have some salutary features. Requirements that the resellers (be they ticket brokers or online marketplaces such as StubHub) disclose on their websites the face value and exact location of seats offered for sale, and say whether or not tickets are actually in their position and ready for delivery, strike me as eminently reasonable. Regulating the industry by having brokers register with the state may also be an improvement, although the requirement that a registered broker “maintain a permanent office or place of business in this state” seems a tad twentieth century.

As originally introduced it was a terrible bill, but the bill may be shedding some of its worst parts. A Senate committee last week approved an amended version that omits absurd provisions in the original bill eliminating ticket holders’ property rights and giving venues and original ticket issuers (such as Ticketbastard) unbridled power to monopolistic control over the resale market. A House committee takes up the measure later this week.

Even with the worst parts amended out, the bill still does nothing to meet the promise by TPAC’s O’Brien that it will help fans obtain the best tickets at face value prices. As news reports have amply documented, event promoters and ticket issuers not only don’t object to scalping, they are at times in cahoots with scalpers. The industry trumpets paperless ticketing as the answer to scalper bots that scarf up all the good seats when a show goes on sale, but most fans see paperless ticketing as an enormous inconvenience that makes it very cumbersome to do what you want with the ticket you buy. Lobbyists for the secondary ticket industry (StubHub and brethren) point out that that if Ticketmaster really wants to lessen the impact of bots on ticket buying, as they righteously claim, then they could easily inform authorities and request prosecution under an existing Tennessee law — but they never do.

On both sides of this issue we find well-funded corporate interests pretending that this is really about consumer protection, when it’s actually about the protection of each side’s business model. As usual, the truth lies somewhere in the middle. The legislation as amended in the state Senate would inject some consumer-friendly transparency into the secondary ticket market, but does nothing to dilute the excesses of event promoters and original ticket issuers whose claims to be looking out for fan interests ring hollow. A horrible bill is apparently being amended into a weak bill. Even if it passes, you still won’t get those highly sought tickets you want at face value unless you happen to be very very lucky on some given Saturday morning at 10:01 am.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


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