Various Thoughts XIX

Federalist 47 tells us that tyranny is “the accumulation of all powers, legislative, executive, and judiciary, in the same hands.”

How does this relate to regulatory commissions in the government? They set the rules for laws passed by Congress, and they are the ones who decide who violates them. They also act as judge and jury.

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A transgender individual is likely to be viewed as a member of his/her new sex and previous records altered to reflect the new situation. That includes the birth certificate. The new documents would also contain a new name.

Irrespective of any questions concerning society's readiness to accept this concept in general, suppose someone, or, indeed, some governmental agency, like the police, was trying to locate this individual but was only able to get information from those who only knew the person in question prior to the identity change. How would you locate someone whose name and sex you get wrong?

A court-authorized name change or one that accompanies marriage is far more likely to leave some prior information unchanged, although they do make the use of public records more difficult.

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There's an explosion of accusations of sexual misconduct in recent years. In all religions, Around the globe. Chances are good that human beings haven't changed recently and it is what it always was, but the reaction of society differs from time to time, and our perception of what constitutes harassment too (now we feel free to relate current feelings as well as past perceptions – true or not) is more inflated. “She” claims to have been abused and we expect society to act on the basis of what she says and how we react to it: to praise our behavior and to decry that of others, irrespective of of the nature of the accusations. All virtue is on the side of the accuser for she is telling “a” truth that is beyond denial, even if it is not always “the” truth. And for her act she is worthy of praise while the accused is not deserving of trial. The act of which he is accused is heinous, and it should be left at that.

How society viewed the act at the time it occurred is irrelevant. Present standards are all that counts.

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Like so many others I'm a television lawyer. Obviously that's knowing a negligible part of the law, but enough to form some shallow ideas about what I see. They're probably wrong but they're interesting and promote thought.

The issue in question is intent. Can a felony be committed by someone who has no intent to do so? Sometimes yes and sometimes no according to what I've seen. Separately I've learned that under the Fourth Geneva Convention some people can't be prosecuted for crimes they didn't personally commit, which blows a hole in all the trials of those who drove getaway for murderers.

And what is the status of intent in religious law? In Judaism there are some sins which ire said to take place irrespective of intent, but not all. I'm confused.

January 16, 2018

Transgender Bathrooms

The protests continue. Since the presidential election of 2016, and the victory of Donald Trump, there has been a continuous series of protests about anything he or his administration does. The issue itself is not critical to their actions. Indeed, most of the protesters don't even wait to evaluate the facts, but the protests begin on the order of whoever is at the other end of instructions and orders from the social media. Time and place of the protest are provided, and the search is just for angry people. The reason for their anger is irrelevant. There will be leaders to focus it when you get to the site of action.

How many, or how few, attend a protest doesn't matter either. Even if there are only a few there is guaranteed press coverage – often disproportionate to the number of (often artificially) incensed participants. Their rage may be based on the failure of their candidate to win, or a general fear of the one who did, but the expression of their passion is aimed at whatever happens, and whatever will make news and get publicity. It has little to do with the importance of the issue, or right and wrong, but provides a vent for anger and the opportunity to join in the fellowship of protest. And the media is happy to cooperate – to “advertise” the cause du jour.

And the current one is transgender bathrooms. President Obama's interpretation of an 1972 anti discrimination law which includes, in Title IX, the prohibition of discrimination based on “sex,” was that sexual orientation, including sexual dysphoria (“a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity” – according to Google) was included. The George/Christine Jorgensen case had been in the news about two decades earlier, but transgender issues were probably not what Congress had in mind when they passed this legislation. Nonetheless, President Obama decided that schools that receive federal funding are subject to the law and that, as part of this prohibition, they must permit transgender students to use the restrooms of their choice, and he issued this as an Executive Order. Congress was not asked what they had meant. and President Trump has withdrawn the order. Since the issue of transgenderism was not explicitly discussed by the founders, and obviously not granted to the federal government as a responsibility, nor denied to the states, he views it is as a local, not national, decision. That's how the Constitution allocates authority.

There are many issues involved. It's not a simple question. One subject worthy of discussion, of course, relates to the relative powers of the President and that of Congress; another relates to the relationship of the federal government and the states; and another to the level of concern of the public for “minority” groups. Whether ethnic, religious, racial, or other, a group is defined as such in order to have it included under the fifth and fourteenth amendments to the Constitution so as to get special treatment for that group and to make it a federal rather than a local issue.

Do transgender issues fall under this rubric? That's not for me to say. It should be – I'm a citizen, one of “We The People” – but it's not. Nor does it seem to involve the rest of the American people who have not been asked to weigh in, except as protesters. Nor has Congress, which has never expressed it's view of what was meant in 1972 by “the basis of sex.”

Without passing judgment on those with gender dysphoria, it is hard not to wonder about the rights of the majority as some demonstrate to demand the rights of the minorities. It is likely that the majority of the population are not transgender. That doesn't mean that the majority may impose its will on them, but it should make us wonder if our catering to this minority comes at the expense of the feelings of the majority. Are those with gender euphoria (I suppose that's what you'd call those satisfied with their sex), who might prefer not to share their restrooms with those of the biologically opposite sex, without rights? The question is not whether the majority should control the minority (although in a democracy many would argue that it may do so) but whether a minority should control the majority.

The problem relates to the definition and understanding of protected groups. Some are specified in the Constitution and, until it is changed, are the law of the land. But the understanding of what the Constitution and its amendments mean is often decided by the courts, or the President, or a group of protesters. And many believe that this is not the way an important issue should be decided in a democracy.

Should transgender students have the “right” to use the restrooms of their choice? Is this a “one size fits all” issue? What are the rights, if any, of those who are not transgender?

Executive fiat doesn't seem to be the way to answer this question to the satisfaction of our citizens. The voice and views of the non-protesters as well as those in the streets, should be sought and heard. And considered before decisions are made.

Rest In Peace

A few days ago, on the Op Ed page of the New York Times, there was a column by Gail Collins entitled The Senate Bathroom Angle. In it Ms. Collins related the tribulations of Maryland Senator Barbara Mikulski. (It will be soon be former senator, Mikulski having retired after four terms representing her state.) The senator bewailed the lack of adequate rest rooms for women in the Senate and the column's author, in fact, noted that “Almost every veteran woman legislator, in every level of government, has a story about the shortage of bathroom facilities at work.”

It's a valid criticism. When the original government was formulated, and when the government buildings were first designed, the idea of women in the government was not on the radar (and neither was radar). In relation to the particular situation, no one conceived of the idea that there might be a woman senator. So no rest rooms were included to meet the needs of a group of people that no one expected to exist. There were, of course, facilities ultimately constructed to serve senators' wives, and for tourists, but none for woman legislators. The public rooms, and the one meant for Senate wives, became the place for female senators to rest.

But with increasing numbers – about a fifth of all senators now are women, and it's likely to increase – a more fitting solution was necessary, and, in its wisdom, Congress authorized a rest room with two stalls to satisfy the women, and perhaps there will be more. Wait and see. But in the meantime, just wait.

It doesn't seem adequate, but perhaps it's excessive.

The same issue of the Times held an article entitled North Carolina Fails To Repeal Measure That Caused Boycotts. It lamented the fact that North Carolina didn't overturn legislation (H. B. 2) that “requires transgender people [and everyone else] in public buildings to use the bathroom that corresponds with the gender [sex] on their birth certificate.” It's a touchy subject.

Elsewhere in the article it notes “Chad Griffin, the president of the Human Rights Campaign, which opposed H. B. 2 and helped to organize the economic backlash to the law, said on Twitter that Mr. Berger's measure 'doubles down on discrimination … '” (Phil Berger is a state senator who had offered a compromise bill.) The Human Rights Campaign, which has, as its motto “Working for Lesbian, Gay, Bisexual and Transgender Equal Rights,” had this to say about Senator Mikulski: Sen. Mikulski received a 100% rating on the HRC Scorecard for the 113th Congress. The scorecard rates members of Congress on their positions on LGBT-related legislation.

With the knowledge that Congress is a government institution, and is housed in public buildings, I cannot but wonder that the senator sought additional, and separate, rest room facilities for women. Senator Mikulski's support for LGBT positions in the past suggests that a better solution from her point of view would be an elimination of the entire notion of sex-limited rest room facilities, and I'm inclined to believe that even for Senators and Representatives there is no reason why “people in public buildings [should have to] use the bathroom that corresponds with the gender on their birth certificate.” Whether they're LGBT or not isn't the issue, and making it such is a disservice to the public that Congress serves.

It's a foreign concept I suppose, but shouldn't our representatives have to follow the same rules that they say should govern the rest of us?

The Decline Of Congress And Our Citizens

I recently sent the following letter to the New York Times:

Date: May 13, 2016 8:33:07 AM
Subject: U.S. ISSUES NOTICE ON STUDENTS WHO ARE TRANSGENDER
To: letters@nytimes.com

May 13, 2016

Dear Editor:

The President is showing his resolve. At home if not abroad.

The Supreme Court, having discovered the right of privacy (not mentioned in the Constitution) to guarantee the right of contraception (not mentioned in the Constitution), it seems perverse that the President would arbitrarily deny privacy to the majority of students in order to satisfy the demands of the transgender (not mentioned in the Constitution) minority and their supporters. Is the next step unisex toilets or the imposition of the policy on the military?

When do the people get a say? Will our next chance be when we evaluate Secretary Clinton's agreement with the President's views?

Not surprisingly the letter was not published.

The Supreme Court has, for many years, arrogated the rights of Congress by deciding what they meant, what they should have meant, and the general acceptability of the laws they have passed. Congress has abrogated the obligation to legislate by authorizing Executive branch committees to interpret what they mean and to make regulations which have the force of law.

And the President has all but assumed the power to legislate by directing the implementation of such rules with little effective oversight. Political decision have taken precedence over any other considerations.

The only unrepresented group has been the American People – in whose name these actions are being taken.

In the case mentioned above the new rule (transgender “rights” – minority “rights” – which I've discussed in other essays) was imposed unilaterally by the President without consultation with Congress, and certainly without any determination of its acceptability by the American People. And the President's assumption of “Executive Power” has resulted in the imposition of numerous rules and policies, though Congress should have been the decision maker. When necessary, the President has bullied Congress into passing legislation that he can use to justify his positions, and which he believes will provide cover for him when he is challenged in court. At the moment, the Supreme Court is weakened by the absence of one member and is unlikely to make any momentous decisions. Since so many of them have been political in origin that's not entirely a bad thing, but it is contrary to checks and balances system set up in our Constitution. In this instance it's likely that a decision won't be reached for many years and then only when it's a moot point. That's often the case with the court system, but it's probable that the delays will be even greater now (and, since the President will nominate a new Justice, the composition of the Court must be an important consideration for voters).

On paper Congress is a powerful body. The Constitution says so. We the People have made it so. But in reality it has surrendered much of its power, and much has been taken from it, so that it has diminished from the dominant body to the most dependent. Perhaps that's not what we wanted, but we were never asked. Has the time come for us to make our voices heard?

Yours, Mine, And Hours

This is an essay about the Mikveh, a subject that may be unfamiliar to you, and I'll get to that presently – but first some preliminaries.

American society (actually most others as well) has changed. There was a time when the vast majority of “Western” nations were ruled by a law that was based, primarily, on the Bible. There was “good” and there was “bad,” and the rules were reasonably straightforward. Perhaps they didn't always seem “fair,” but that question wasn't really ours to decide or judge.

Eventually lines were drawn between Church and State, and, ultimately, especially with the establishment of the secular state, the whole idea of “right” – such a judgmental construct especially for those who didn't accept theological definitions – was supplemented and, in many respects, superseded by “Rights” which were assigned by the State. These rights were often based on “right” and “wrong” as viewed through the lens of fairness, with “fairness” determined by those on the ground floor – those who wrote the governing documents – and subsequently by the societies in which the new rules were applied. Indeed, cultural “norms,” fads and vogues are often the determinants of “rights.”

Most of the recently discovered rights have centered around minorities, victimhood, and sensitivity. People saw threats in words and images that were intolerable in a fair and liberal modern society, and they sought to eliminate such evil. (Apart from censorship by rulers – religious and secular – there had mainly been restrictions in the past based on what were said to be matters of national security, but in the modern cases sensitivity and fairness were more at issue.) For example, pin-up calendars, long a staple of men's lockers, were decreed to be degrading to women (along with wolf whistles) and all but outlawed. And, similarly, looking at, or otherwise paying unwanted attention to women, or men for that matter, is now considered sexual abuse.

We have also created the category of “hate crime” to show our sensitivity to victims of violence caused by those who are biased against them – usually demonstrated by voiced statements of the perpetrator, and their interpretation by the victim. Of course that might raise problems. If a prejudiced mute assaults a deaf or intellectually challenged minority member, is it a hate crime? In fact the whole idea of a “hate” crime is bizarre. If a bigot insults, and then kills, a minority member over a woman – a “crime of passion” – is it a “love” crime? All crimes are “hate” crimes. If I'm mugged it's the action, not the thought, that angers me. Frequently attributed to Oliver Wendell Holmes, Jr. among others is the aphorism concerning the right to swing your arms ending at the other man's nose. The reason for swinging is irrelevant.

A more recent concern – and this will get me to my main point – is the ruling in many jurisdictions that transgender individuals may use whatever rest room they choose. Sexual restrictions based on birth are biased, and take away the self definition rights of the individual – the right to choose his/her/their/its own self-image. Rest rooms should be gender neutral and everyone should have the right to use whatever facility seems more comfortable (as long as there are no pin-up calendars). Actually, money could be saved by only having a single facility.

But what has all this to do with the Mikveh? In fact, what is a Mikveh?

According to Jewish law it is necessary, before engaging in certain ritual and family actions, to be “pure.” Impurity may arise from a variety of different situations such as (in addition to others) contact with the dead, menstruation, and particular kinds of oaths. The Mikveh is a ritual bath where such purification can take place. The process is also a basic part of conversion, and the new convert is made ritually pure during the ceremony.

The ritual of Mikveh, therefore, is one which may involve both men and women, but the reality is that purification following menstruation is the most frequent situation in which it is used. Thus the facility is reserved for women during most of the hours it is open, but there are times set aside for men who may wish to use it. Separation of the sexes – especially in a situation like this when the involved individual is completely disrobed – is a feature of Judaism. So there are strict schedules governing the Mikveh's use.

There was a recent scandal in the Jewish community when it was learned that a rabbi had been spying on women who were using the facility. Voyeurism has long been an affliction of mankind (literally – “man” is usually the sex of the culprit) however this particular disclosure was considered especially heinous because of who was involved and where it had taken place. But perhaps we overreacted.

While there are traditions in Judaism of modesty and privacy, there are no explicit prohibitions of voyeurism in the Torah, so however we may feel about it personally our revulsion lacks Biblical support. (Indeed, while we condemn certain sexual unions, and while we reject violence that is unassociated with the control of evil or the service of G-d's will, “sexual abuse” is not specifically forbidden. Maybe it's a good thing. Or maybe that's going too far.)  So perhaps the best solution to the problem is to open the Mikveh to all people at all hours.

One thing is certain. The fewer taboos there are on sex, and the more familiar we are with, and thus immune to, the bodies of our sisters and brothers, the less interesting the whole topic of sex will be to the evil-minded among us. Of course it will also be less attractive to the rest of us. Maybe the old days were better.

Nothing Could Be Finer

Jennifer. Seventeen, and never been kissed. Sounds bizarre doesn't it, in this hypersexual post modern age (substitute whatever cant term you prefer).

Of course that's not precisely accurate. The busses of family members were unavoidable, but a strict set of values inherited from her parents, and an uncompromising religious background, made her avoid circumstances in which romantic involvement might arise. But her time would come.

There was an editorial in today's New York Times, and numerous protests all around the country. Charlotte, North Carolina, had passed a “non-discrimination” law which gave transgender individuals the right to use whatever public rest rooms they preferred. (Presumably others were given the same right since the law demanded no proof of gender identification or sex.) There was resistance which was attributed to a fear of rape, and some local governments imposed their own regulations limiting bathroom use to that corresponding to what was declared on their birth certificates, as did the state.

North Carolina has a history. It has lots of history, but my particular interest relates to 1960, when four young men sat at a lunch counter in Greensboro, seeking to be served in accord with the rights guaranteed them by the American Constitution. No creation of a new minority group was involved, nor was there a right proposed that wasn't obvious – even to those who opposed it. No new law was required, nor was it necessary to hypothesize a justification. Now North Carolina was again in the eye of the law, only this time the issues weren't quite so clear.

Of course the idea that bathroom choice would lead to rape was disingenuous, but it was a good and provocative argument for both opponents and supporters of the state legislation. We live in an age when public safety dominates all our thought, and sometimes it's preferable not to discriminate between real threats and imagined ones, between an actual situation and a straw man. It's much easier to stir up emotion then – easier than when addressing a reality that may not be as vulnerable to propaganda. And an appeal to Americans to support the “rights” of transgender individuals irrespective of the views of others seems to be a long overdue call to all “fair-minded” Americans. The issue, however, is safe space, not safety. It is privacy.

But back to Jennifer. (Full disclosure: she's my creation, a straw girl, but a straw girl probably closer to the reality faced by twenty-first century adolescents than the one proposed by the populists and politicians.) She was overjoyed to receive a letter of acceptance to a local university in Charlotte – one located just far enough away that living at home would not be practical. She loves her family, but the time had come to test out independence.

With two brothers and only one bathroom for the family, her trips had always been hurried. She understood the problem and took her situation in good nature. She was a good scout. But she dreamed of the time when she could shower, wash, toilet herself, and even brush her teeth in a comfortable, unrushed setting. It was a feature of “slow” southern culture that she had never enjoyed. There had been tastes of that liberation in high school, but the luxury and relaxation of a shower or other prolonged activity did not apply there.

Jennifer opened the letter from college with great anticipation. First came the acceptance itself. She had worked hard to make this aspect of independence a reality – partly because of pressure from her parents, but largely based on her own initiative – and she couldn't help but believe that she had earned it. There were a lot of forms and notifications and, at the bottom of the stack, an insertion notifying her that bathrooms were open to whoever felt comfortable in them. How could she feel so in a setting in which people of both sexes (in her view) were free to wander around? However sympathetic she may have felt for emotional needs of those confused about their sexual identities, it was hard for her to understand why the rights of the majority could be legislated away – sacrificed – in the interest of satisfying the ”needs” of a newly named minority that was in the limelight now. Perhaps it was politically advantageous to cater to this group, but absent any actual constitutional right or public demand for an amendment to our governing document it was hard to understand the justification.

However politics rules, and the public had to be convinced that opposition to this “right” constituted bigotry. New York's governor is seeking to prevent any New York officials from traveling to North Carolina in order to pressure the state to restore the rights of this oppressed minority. (And the same tactic is being used by others.) It should be remembered that New York State is the home of New York City, America's largest city – a city that has already decided that public urination is not nearly as offensive as we used to think. Although it used to be a cause for arrest, a summons is all that is warranted nowadays. Perhaps the modern approach is to eliminate bathrooms entirely, allowing anyone to rid him-/her-/it- self of internal evils wherever. Or, at the very least, to eliminate all but unisex public rest rooms.)

Perhaps individual rest rooms are the answer; rooms where anyone can go and stay for as long as he (don't infer any sexual bigotry by my use of the word) wants. It would require much more space than is used now and be much more expensive, but it would respect the rights of everyone – except those who demand that everyone else accept his choice of gender.

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[This essay was begun on March 24^th. Today is April 4^th. Unfortunately this screed has taken far longer to write (type) out than is usually the case. Those who know me will understand why; those who don't will, in all likelihood, neither notice nor care. In any event, however, it's the thought that counts.]

I Am What I Am

Give me Affirmative Action credit. I may be white outside, but I feel black inside.

Let me be a fireman. Perhaps I'm quadriplegic, but I feel strong inside, strong enough to rescue people.

I want a Senior Citizen's discount. I may have been born only thirty years ago, but I feel like I'm seventy.

Admit me to medical school. Everyone says I'm dumb, but I feel smart.

Bizarre requests, aren't they? No one would take those self-identifications seriously and no one would act on any of them, but here's another.

PORTLAND, Maine — The Maine Supreme Judicial Court on Thursday guaranteed the right of a transgender child to use the school bathroom designated for the gender with which he or she identifies.... ⁱ

Actually, that item is a little old, dating back to January 30, 2014 so I'm adding the following from the Portland Press Herald on December 2, 2014:

Court orders Orono school district to pay $75,000 award in transgender girl’s lawsuit Nicole Maines and her attorneys will share the payment, concluding a precedent-setting case over denied access to a student bathroom.

The original suit stemmed from a complaint by another boy that he wasn't allowed to use the girl's bathroom at the school, although the child named in the suit (not the complainant but the one he used as an example), who identified as a girl despite his/her birth sex, was permitted to do so. That other child felt like a girl and wanted to be treated as one. And the court agreed.

The case, not surprisingly raises many important questions. One relates to the feelings of others, and to their rights – both those of the other boy and those of the girls using the bathroom. Only the “rights” of the transgender child, however, seem to have been supported by the court. And that leads to the question of whether the courts have (or should have) the authority to make such a decision – to decide that feelings rise to the level of legal realities, and that such feelings are accompanied by rights. And, it appears, they take precedence over the rightsⁱⁱ of others. It seems that wishing will make it so.

What is reality? And who decides what it is? All of our laws are based on it. If, for example, a thief believes that his act is just,ⁱⁱⁱ if his “self-identification” is that of an honest man fighting for the rights of the poor, does that make it reality? Are the thief's rights to freedom, and to the money he may have stolen, the new reality that takes precedence over the views of the victim and of others who may have been involved in the situation?

My intent is not to belittle the feelings of this, or any other, transgender individual but to inquire about whether the problem belongs on the court docket or the schedule of the psychiatrist. The American Psychiatric Association (APA), however, has concluded that gender dysphoria is not a psychiatric disorder,^iv so I can only conclude that the courts are right to act. I'm not sure if the APA considers gender dysphoria a normal condition, but they have concluded that it is not a psychiatric disorder. And, as I noted earlier, the courts have decided that those with such dysphoria have rights which trump those of others who lack it.

There is a song in “La Cage aux Folles,” a 1983 Broadway musical, entitled “I Am What I Am.” In that song Albin, a drag queen, expresses pride in his feelings and disdain for the views of those who question that perspective. But the song is not completely true. It really proclaims “I am what I feel I am.” That's not reality.

“Self-identification” can be a denial of society and its rules and norms. We cannot all make our own definitions and laws. And society – we – cannot accept that position without risk. A system in which every individual has a right to decide who he is, what he wants and what's good for him, irrespective of what others may want, isn't democracy. In a way it returns us to the state of nature. It may not be anarchy, but it's a world in which we all make our own rules and we cannot accept all it implies.

Indeed, we have taken that position in the past. Does a smoker have the right to smoke in the workplace? The courts say no. While the smoker may have the right to pursue his passion, the smoke offends and threatens others. People may drink. They have that right. We've rejected prohibition. But drunk driving isn't permitted. The benchmark is not the drinker's right, but the concerns of others. “Your right to swing your arms ends just where the other man's nose begins.”^v When your action affects me negatively, it is no longer a victimless one. Self-definition isn't good enough. A problem exists when that definition impacts negatively on others. And that impact may be psychological or it may involve the “right” of privacy.

In Roe v Wade, the United States Supreme Court identified a right of privacy by reading between the lines of the Constitution. And, as an extension, in Lawrence v Texas it was their view, and hence the law of the land, that actions in private between two consenting adults are legal. They're no one else's business – especially not the government. I'm hard put to find it in our founding legal document, but I cannot fault the principle.

Two consenting adults. Makes sense. But in this particular case the privacy of others was not considered. The “rights” of only one, the transgender child, were involved. Whether some or all of the others who used the rest room consented to his/her presence was not the issue. And the people who might consider their privacy compromised were children. The court was not considering any act of two consenting adults. Clearly privacy could not be invoked as the origin of this “right.”

So the lower court in Maine didn't follow the lead of the “higher authority” unless it believed that it was being led to expand rights and find them where they had never been seen before. And that seems to be what happened. “Lawyers representing Nicole Maines, who is now 16, said the decision could lay a foundation for other states’ courts that are facing questions about the emerging rights of people who identify as the opposite of their birth gender.”^vi Reality must give way to “the emerging rights of people who identify as [whatever].”

There are many who rail at those who speak out for “law and order.” They attribute it to Tea Party members and other fundamentalists. If we don't jettison our standards entirely though, does that mean we won't punish what we consider wrong? Does it mean that we change our standards with the times, in the name of “sensitivity,” so that unorthodox behavior is acceptable? Do we force others to accept that behavior and agree that it is more important than their own?

It is our tradition to prevent the majority from suppressing the minority, but it is not our tradition to give the minority the right to subdue the majority. And it is certainly not our tradition to ignore reality in order to do so.

Next episode: “Testing – One, Two, Three … Ten” – Musar time.”

I        Dispatch from the Bangor (Maine) Daily News. There are many other stories you can read on the subject. Just do an internet search.

ii       That may be an overstatement. It's not clear that those who are not transgender have any comparable rights.

iii      Clearly Robin Hood was so persuaded.

iv      http://thinkprogress.org/lgbt/2012/12/03/1271431/apa-revises-manual-being-transgender-is-no-longer-a-mental-disorder/

v        Zechariah Chafee, "Freedom of Speech in Wartime," 32 Harvard Law Review 932, 957 (1919)

vi       Portland (Maine) Press Herald, January 30, 2014.

Rights And Wrongs

                                                                                            

According to Protagoras (490-430 BCE), “Man is the measure of all things.” Protagoras was a Greek and, according to Plato, a professional sophist. In view of his history, he qualifies as a dead white European male. Thus we reject everything he says. While that's not my automatic response, in this instance I accept the rejection of this particular declaration of the primacy of Man for several reasons. The most obvious is religious, but I won't get into that at this time. Rather I shall begin with Teddy Roosevelt.

It was the late President who said, in a State of the Union address,ⁱ “No man is above the law ... ”ⁱⁱ And that is the way our country is supposed to operate. Although crime exists and there are many who place themselves above the law, there are many who, less schooled in avoidance of the system and less able to afford sophisticated legal protection, come before what we term “the bar of justice.”

That's the way we work. According to the Constitution, Congress makes the laws and the courts decide on their just enforcement. In between is the executive power which provides the tools for the overall system, and it includes the mechanisms for bringing suspected violators to justice. But the bottom line is that the courts decide what the law is and what the law means. The courts (not Man) are the measure of all things. We know that is true because the Supreme Court has told us that it is.ⁱⁱⁱ

Sometimes it is difficult^iv to see the justice in a court decision. In one case,^v for example, the Supreme Court decided that it was in violation of interstate commerce laws for a farmer to grow wheat for his family's use if that exceeded what the government permitted. The Justices, however, decided that the part for his own consumption was illegal and the decision of the Secretary of Agriculture to fine him was proper and in keeping with the Constitution.

Sometimes the Court sees “rights” in the Constitution that are not obvious to those like me who are uninitiated.^vi Many designate it as “judicial activism.” That's a nice way of saying that it's politics for Justices. So it's important to be sure the right ones are on the bench – a high priority for every President.

Perhaps the courts shouldn't insert themselves in such matters. Perhaps they should. But one could surely argue that the court shouldn't “see” rights simply because they think they ought to be there. One might fear that such a procedure contradicts the idea of the rule of law. He might be concerned that however right a new “right” might be, it has been established wrongly. Perhaps this supports Protagoras's view: In this instance, Man (or Woman^vii) is the measure of all things. One of the more important issues each time there is a presidential election is the knowledge that the President (with the approval of the Senate) will choose candidates for open Supreme Court positions. Since the law is whatever the Justices say it is, choosing one with a particular political philosophy is an important means of making law conform to your own agenda. So an unelected Justice gets a lifetime appointment as a potential creator of rights. The original authors of the Constitution required ratification of their document. They needed to have their ideas approved. Supreme Court Justices do not.^viii

But that's enough quibbling. Back to the issue.

Okay. Griswold v. Connecticut taught us all some important lessons.^ix Privacy. Behind closed doors. Consenting adults. Keeping the government from intruding on our private beliefs and practices makes sense. You don't have to be a libertarian to want to keep public officials from deciding issues that you view as matters of morality. That, however, is coming to pass.^x More and more there is intrusion by the courts on matters of privacy and belief. The issues are no longer privacy and closed doors, or consent, or even adults. The key word is “rights.” The courts have discovered constitutional rights where they may not be apparent to most of us.

The Colorado Division of Civil Rights,^xi a civil rights court, has decided that it is discrimination to require that a transgender student – born a boy but identifying as a girl^xii – be denied use of the girl's bathroom. The use of the teachers' rest room or that of the nurse was deemed to be discriminatory. Fear was expressed that the child would be stigmatized. The consent of the other children in the bathroom was not the issue. Their privacy was not the determining factor even in a public bathroom.

What are the rights of the other children (and their parents) who are embarrassed by the presence in the bathroom of one they considers of the opposite sex? Suppose one of those children has been subject to sexual abuse and is traumatized by the presence of what she considers a member (sic) of the opposite. And what if parents simply don't want their children exposed (literally, figuratively, or both) to the anatomy of the opposite sex?^xiii

Does the ruling apply only to children or also to adults of what some might consider the opposite sex? If only children with “gender dysphoria” are involved, what is the upper limit of age? Do older individuals who identify with the opposite sex have any rights. Should those who object to the ruling or are not covered by it be permitted^xiv to use an alternative bathroom?

This is not the only case of its type but it is the first to specify that the rights of the transgender student trump the rights and beliefs of others. Various courts have affirmed the idea of equal rights for homosexuals, while the New Mexico Supreme Court has ruled that a photographic studio has no right to refuse the business of a same sex couple that wants their ceremony photographed. The personal and religious beliefs of the photographers are secondary issues. As the New York Times put it, “One of the justices, Richard C. Bosson, wrote: 'At its heart, this case teaches that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others.'”

The issue is not any particular moral opinion. And the issue is not minority versus majority rights. The issue is whether the state has the right to impose its own morality on the rest of us. Notwithstanding “compromise … to accommodate the contrasting values of others,” however, at some point civil “rights” become “wrongs,” and the weight of judicial authority doesn't automatically mean that some rights can be sacrificed because of the current social milieu. It's a complicated balancing act in which the rights of the victims must be considered too. But it may be difficult to decide who is the victim. Too often there are instances in which the deciders of the law decide that President Roosevelt (Theodore) was wrong and their social agendas are (above) the law, and are guaranteed by the Constitution whether or not there is any mention of the issue in that document. And the rights that are clearly delineated are secondary to the ones they have “discerned” there, irrespective of what others may think. The judges too often view themselves^xv as the measure of all things.

There was once a view in the military: “Don't ask, don't tell.” It was a view that acknowledged that there was a right of privacy, and it was no one's business what consenting adults did behind closed doors. (The Supreme Court had already decided that what you did on your farm was the government's business.) It was, however, viewed as discriminatory because many considered it as denying their right to declare openly their sexual orientation. They took pride in their views and resented anything that might discourage their declaration. They won their point, and now the courts seem to have decided that their rights take precedence over others.

Score one for civil rights and for the measurers of all things.

Next episode: “Prometheus Bound” – Adam bound?

i       December 7, 1903.

ii       The same idea was expressed in various ways in earlier times (eg by Plato, Aristotle, and Cicero among others).

iii       Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

iv      At least for me.

v       Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942).

vi      When my wife and I were courting (it's like dating but if you've never heard the word it's not at all similar to “hooking up,” “shacking up,” “doing it,” or whatever the current slang is, since the risks of pregnancy, AIDS, or other STD don't exist) contraception was illegal in many states. Then came Griswold v. Connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed 2d 510 (1965) and the rules changed. Griswold v. Connecticut established the constitutional right of privacy, a treasured and ineradicable right ever since, even though no such right can be found in the Constitution as it is written. It is hard to argue with a decision that sanctioned the use of contraceptives by a married couple – two consenting adults – behind closed doors, but it's harder to find that “right” in the words of the Founding Fathers. And labeling the decision permitting contraception as being supported by the constitutional “right of privacy” is hard for the layman to understand. It's established law now, however, and beyond question.

vii     Justice Ruth Bader Ginsburg, was quoted in the New York Times (August 25, 2013) as declaring proudly, and positively, that the current Supreme Court was “one of the most activist courts in history ... stunning in terms of activism.” It is clear that Justice Ginsburg, and others, favor an activist approach and the establishment of their own social agenda as law, whether it corresponds to the Constitution they're sworn to uphold or not.

viii     As I noted earlier, if the Supreme Court says so it's true and we're all bound by it. In a few weeks I'll discuss the issue of our obligation to the words and thoughts of those who preceded us.

ix       See footnote vi.

x         I'll also offer an essay on secular religion in the near future.

xi       June 24, 2013,

xii      The syndrome is not limited to boys, but that was the case decided.

xiii     What should be the policy for the inevitable gym showers?

xiv     Or obligated? Or should they be forbidden because that, too, would stigmatize others?

xv      And their ideas about what ought to be.