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.


Esoteric Message Sign of the Month

D&LAnd the winner is … Bernard Health, a Nashville-based insurance advisory firm with three locations in town (as well as a couple in Ohio and Indiana). That message in the photo is on the streetside sign at their retail location at the intersection of Harding Pike and White Bridge Road. Will many, or even any, of the throngs of Nashville drivers who pass through this busy intersection grasp the semi-arcane “Dewey & Leboeuf” reference?

Indeed the lawyers might. Dewey & Lebeof is the largest U.S. law firm ever to collapse into bankruptcy. The New York headquartered firm, which once had 1,400 attorneys, went Chapter 11 back in mid 2012. Just yesterday the Manhattan D.A. unsealed a 106-count indictment charging four key D&L leaders with grand larceny, securities fraud and falsifying business records. (The New Yorker ran a terrific piece by top-flight business journalist James B. Stewart last October chronicling the firm’s downfall.)

So the sign on Harding: How does Bernard Health’s braintrust imagine that it can drum up some business advising lawyers on health insurance by warning them not to mimic the most spectacular law firm failure in U.S. history? I posed that question to Ruthie Dean, Director of Communications at Bernard. She told me that while there wasn’t an insurance angle to D&L’s debacle, Bernard is trying to get lawyers to ponder the intersection of healthcare and mismanagement. Law firms, it turns out, are charged more by insurance companies for group health plans — often much more, according to Dean, who says it’s “because lawyers are categorized as high utilizers of healthcare.” Dean says it often makes sense for smaller law firms to drop the group plan and let their people buy insurance on the individual market, where they can’t be penalized just for being lawyers. (Although they can be mocked, I’m assured by other sources.)

Will lawyers tooling down Harding Pike recognize health insurance advisory services as the way to avert mismanagement and bankruptcy and scandal and prison? Hard to know, but props to Bernard Health for giving it a shot via a creative (if esoteric) use of the message board. Do lawyers utilize healthcare more because as a group they are hypochondriacs? We’ll leave that one for another day.

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.


Short Term Weather and Long Term Climate

As another arctic blast of cold air descends on Tennessee, no doubt there are plenty of wingnuts in our midst contemplating frigid temperatures as proof of the giant socialist left-wing conspiracy that is global warming and climate change. So let’s take a moment to remind our scientifically challenged fellow citizens that (a) a colder than usual winter disproves nothing about climate change, and (b) the particular source of recent cold weather might actually be a result of climate change.

As the climate science and journalism outfit Climate Central has recently documented, this month’s North American deep freeze highlights the fact that intense cold now happens much less frequently than it used to.

Climate Central calculated the number of nights below a specific temperature threshold for dozens of U.S. cities based on the local climatology and current weather conditions. The calculations encompass the entire winter season, and show that overall there is a downward trend in the number of extreme cold nights like we’re currently experiencing — although there are variations in a few cities. This trend is consistent with climate studies showing that overall, winters across the contiguous U.S. have warmed by .61°F per decade since 1970, and every region has warmed at least somewhat over that time.

Here’s what it looks like for our fair city.

frigidnashville

Obviously the graph will spike up a bit when the present winter is accounted for, but the long term trend is pretty hard to miss. In global terms, Climate Central points out, there has not been a below-average temperature month (any month) since February 1985, which means that “anyone younger than 28 has never experienced a colder-than-average month, globally speaking.” Will January 2014 end the streak? According to CC, while it may be downright chilly here in our fair hemisphere, global patterns suggest January is not on course to pull it off.

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


NSA In Perspective

Many on the left have spent the last few days processing the president’s speech last week on NSA reforms and trying to figure out if this is (finally) evidence that Obama is turning a corner on surveillance, security, and privacy. Good perspective on this comes, as usual, from Glenn Greenwald, writing last Friday in The Guardian:

And now we have the spectacle of President Obama reciting paeans to the values of individual privacy and the pressing need for NSA safeguards. “Individual freedom is the wellspring of human progress,” he gushed with an impressively straight face. “One thing I’m certain of, this debate will make us stronger,” he pronounced, while still seeking to imprison for decades the whistleblower who enabled that debate. The bottom line, he said, is this: “I believe we need a new approach.”

But those pretty rhetorical flourishes were accompanied by a series of plainly cosmetic “reforms”. By design, those proposals will do little more than maintain rigidly in place the very bulk surveillance systems that have sparked such controversy and anger.

GG does point to some positive developments: FISA court reform, less control over national security letters, distancing NSA from control of metadata, and the diminished inclination to spy on leaders of friendly nations. But on the whole it is sad but true that he can reach this justifiable conclusion: “Those who want genuine changes should not look to politicians, and certainly not to Barack Obama, to wait for it to be gifted.”


Follow

Get every new post delivered to your Inbox.