The Rainbow Dissent

b1_rainbow_gavel_ah_s877x500The 5-4 majority opinion in Obergefell vs. Hodges was grounded in the idea of liberty through due process of law.

What surprises me is how the dissent turned out. I thought that Chief Justice Roberts would swing; that Scalia would have a reasonable dissent; that Thomas would align with Scalia; and that Alito would too while making the usual ass of himself. Only Alito was true to form. Thomas actually had a reasonable (though flawed) opinion, while Roberts not only didn’t swing but made a fool and hypocrite of himself. Scalia, surprisingly, had nothing to show for himself. Let’s look at the dissenters in turn, from best to worst.

thomasClarence Thomas. Thomas argued that the majority is misapplying the 14th Amendment’s Due-Process Clause — which safeguards life, liberty, and property — because, he says, liberty only includes the protection of individual rights against government interference, not the conferral of government benefits:

“Even assuming that the ‘liberty’ in the Due Process Clause encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”

He cites evidence indicating that the liberty protected by the clause has been understood in this very limited way, and he is largely correct. But legal critics have noted his two glaring oversights. First, he ignores the 14th Amendment’s even more important Equal Protection Clause, which says that no state shall deny to any person within its jurisdiction “the equal protection of the laws”. The issue is simple: state laws that recognize only opposite-sex marriage unconstitutionally discriminate on the basis of gender and/or sexual orientation, and whenever state laws do discriminate like this (on the basis of of race, gender, and/or sexual orientation) that is usually held to be unconstitutional, irrespective of whether the laws in question grant positive benefits or not. State governments can choose whether or not to provide public education, but it’s unconstitutional for them to be selective in their decision; they can’t provide education only to whites, or only to men.

Second, Thomas isn’t even entirely right on the Due Process Clause, because he ignores the contractual nature of marriage, which is key. The right to freedom of contract has long been understood as a liberty protected by the constitution. Freedom includes the right to voluntarily enter into an agreement that restricts one’s future options in exchange for benefits. Employment contracts and marriage contracts are all forms of liberty. Obviously — and when I say “obviously”, I do mean from a constitutional perspective — a person who is barred from entering into a contractual agreement is less free than the one who can. Marriage is not, as Thomas implies, “just” a matter of getting benefits per se; it’s a matter of entering into a private-party contract.

In my mind, both the Due Process Clause and Equal Protection Clause of the 14th Amendment make same-sex marriage bans unconstitutional. On top of this, there is judicial precedent for striking down marriage bans on the basis of liberty and equity. Loving vs. Virginia invalidated bans on interracial unions in 1967, and Turner vs. Safley did the same for prisoners in 1987. The majority opinion in Obergefell vs. Hodges followed this stream of jurisprudence. It was constitutionally sound.

scaliaAntonin Scalia. That leaves us with the three others, who had little to show for themselves. I had thought Scalia would make the best case for the dissent based on his preliminary remarks last month. His concern had been for the right of religious pastors to conduct marriage according to their creed. Gay marriage should be decided by states, he said, because that allows states to make exceptions — for example, that gays can be married, but ministers who don’t believe in gay marriage cannot be forced to marry them. If, on the other hand, the supreme court ruled gay marriage as a constitutional right, ministers wouldn’t be able to opt out.

That was a reasonable argument, but quickly shot down by his colleagues. Unwilling pastors, rabbis, priests, etc. are protected by the First Amendment. They cannot be forced to officiate at marriages they object to. There are rabbis who refuse to conduct marriages between Jews and non-Jews — even though we have a constitutional prohibition against religious discrimination — and those rabbis get all the powers and privileges of the state. Scalia’s objection amounted to a phantom menace, and it’s no surprise he didn’t revisit the issue in his dissent.

So he was left with the lame objection that the majority is using the 14th Amendment in a way that was never intended by its writers:

“When the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. The majority have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”

All that does is beg the question and fail to acknowledge the majority’s points of the Due Process and Equal Protection Clauses.

alitoSamuel Alito. Alito opined that gay marriage isn’t protected by the Due Process Clause because the concept of liberty applies only to those principles that are rooted in U.S. tradition. The concept of gay marriage is too new:

“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.”

But the majority gives good reasons why that right is fundamental, as we saw above.

Alito also decried a conception of marriage that isn’t focused on procreation. States, he says, have formalized and promoted marriage in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. But classic family values are irrelevant here.

John G. Roberts portraitJohn Roberts. Roberts showed signs of swinging in the preliminaries but ultimately copped out:

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”

Or in other words, as he later quipped, “This is a court, not a legislature.” That statement is laughable given the decision he penned only one day before. In King vs. Burwell he saved Obamacare by rewriting one of its statutes — a clear overreach of judiciary prerogative if there ever was one. Obergefell vs. Hodges doesn’t require the overreach. It requires an engagement with the Due Process and Equal Protection Clauses, and the precedents set by previous supreme court decisions. Roberts’ sidestepping of these issues made him a callow hypocrite.

The Chief Justice Got His Cases Backwards

john-robertsOur chief justice has been interesting to watch. His swing-vote with the liberals in National Federation of Independent Business vs. Sebelius (2012) earned him my respect, and not simply because I support Obamacare. The Supreme Court doesn’t exist to rule in favor of what we like, or against what we dislike, only to determine the constitutionality of laws under fire.

Roberts correctly recognized that Obamacare was a constitutional exercise of Congress’ taxing power. And we should be clear about this, since many people continue to dispute the issue: Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise. To object that the health care mandate was not written as a tax but as a penalty, and that the bill’s authors and administration denied that Obamacare was a tax, doesn’t settle the issue in advance. The authors were wrong in their denial.

Intentions disproven by results are empty. If I intend to write a sonnet, but I write a limerick, the end result is a limerick, and my intentions bloody failed. The end result of Obamacare was the absolute functional equivalent of a tax. If Roberts read something into the text of the law that wasn’t originally meant, he saw what was clearly there irrespective of that, and that’s why the 2012 case to uphold Obamacare was constitutionally solid.

What made that decision even more impressive is that Roberts is conservative-leaning and not wild about Obamacare. He went against his personal biases in upholding the mandate, thereby showing the kind of integrity that I believe should be emulated more often on the supreme court.

That was then. Flash-forward to the supreme court decision issued last Thursday, King vs. Burwell, in which Obamacare was saved a second time, in the 36 states that don’t participate in insurance exchanges that provide eligibility for tax credits. The language of the statute provides eligibility for such credits only to people with state-operated exchanges (14 states provide this), but Roberts claimed that the disputed clause is ambiguous and so should be interpreted in a more lenient manner — and by himself.

The Wall Street Journal criticizes Roberts as follows:

“The black-letter language of ObamaCare limits insurance subsidies to ‘an exchange established by the State.’ But the Democrats who wrote the bill in 2010 never imagined that 36 states would refuse to participate. So the White House through the IRS wrote a regulation that also opened the subsidy spigots to exchanges established by the federal government.

Chief Justice Roberts has now become a co-conspirator in this executive law-making. With the verve of a legislator, he has effectively amended the statute to read ‘established by the State — or by the way the Federal Government.’ His opinion — joined by the four liberal Justices and Anthony Kennedy — is all the more startling because it goes beyond normal deference to regulators.

Chief Justice Roberts concedes that the challengers’ arguments ‘about the plain meaning’ of the law ‘are strong.’ But then he writes that Congress in its 2010 haste bypassed ‘the traditional legislative process’ and thus ‘the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.’ So because ObamaCare is a bad law, the Court must interpret it differently from other laws.”

I don’t like having to agree with this, but I do. Roberts assumed executive and legislative roles in order to deal with a tension between a statutory text and the statute’s structure and purpose. But in such cases, the rule of law is clear: the government takes priority. According to the Chevron doctrine, when a statute is ambiguous, courts should defer to the interpretation of the implementing agency. Roberts didn’t do that; he arrogated the role to himself.

I can sympathize with the reason for his judiciary arrogance. He and the liberal justices were obviously trying to save Obamacare in a quick and dirty way so that we wouldn’t be left with a mess in 36 states. Millions of people could have lost their health insurance subsidies. I’m personally happy that they have been rescued, but I’m not impressed with how it was done.

What makes the chief justice look twice as bad is his dissent only one day later in Obergefell vs. Hodges. On Friday he sided with the three conservative justices against gay marriage precisely on grounds that “the supreme court is not a legislature”. That’s Pot Roberts calling out Kettle Liberals — and the kettle isn’t as black as he thinks. The question of gay marriage involves the logical extension of constitutional rights, liberties protected by the Fourteenth Amendment’s Due Process Clause, and basic discrimination issues related to the Equal Protection Clause. The supreme court has long held that the right to marry is protected by the constitution — as in Loving vs. Virginia (which invalidated bans on interracial unions) and Turner vs. Safley (which held that prisoners could not be denied the right to marry).

Roberts got his cases backwards. By rights, he should have dissented in Thursday’s Obamacare decision, and said yes on Friday to the constitutionality of gay marriage. I don’t really like complaining about Thursday’s decision when I’m pleased by the end result, but the interpretive role of the supreme court is a critical one, and unlike his earlier decision in 2012, Roberts now seems to have well exceeded his judiciary role. It sets a bad precedent.

TV’s Golden Age: The Best Shows Ranked

Much has been debated about today’s golden age of TV and its relation to cinema. In my view, cable television of the past decade (c. 2005+) has been the rough equivalent to cinema of the ’70s, where dark themes, risky plotting, and patient character development are usual fare. It’s no surprise that cable has been pulling more actors and directors away from their cinematic roots. TV is the new home for artistic freedom. Said the LA Times six years ago:

“Studios have cut back their number of upscale dramatic projects, while many cable networks have shown an increased appetite for darker material. Cable networks such as HBO function more like studios used to, where certain shows deliver a certain amount of profitability and then they can make choices that take risks. Even personalities who can still write their own tickets in the feature world — Winslet (Mildred Pierce) and Scorsese (Boardwalk Empire), for instance — have gravitated to cable’s freedom.”

Last year William Friedkin weighed in with the opinion that while “films used to be rooted in gravity, about real people doing real things”, that focus has been increasingly lost since the advent of the blockbuster (Star Wars, Jaws) in the late ’70s. “Many of the fine filmmakers of today are going to long-form TV,” he says. “It is the most welcoming place to work for a director today.” I think Friedkin is slightly overstating the case. Hollywood has certainly lost its artistic focus since the ’70s, but there are enough exceptions to justify its existence. Barely.

Here are my favorite TV shows ranked in descending order.

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1. Stranger Things. 4 seasons (so far). 2016-2022. Watching Stranger Things allows me to relive my ’80s childhood in the best possible ways, and reminds me how lucky I was to grow up in a time when kids were independent, didn’t have helicopter-parents, and had far more creative outlets for their imagination than what you get today online. That sort of vivacious freedom is hard to find today. Like Mike, Lucas, and Dustin, I went out with my friends and explored the world — in the woods or by the pond or across the sand dunes — and connected with my parents mostly at dinner time. The series is an homage to other things too, like old-school Dungeons & Dragons before the game became lame and commercialized. The kids are fantastic and their acting skills amazing, and this is critical to the show’s success. It was rejected my many network executives because the idea of kids as lead actors in an adult series was too daunting. Seasons 1 and 2 are masterpieces of modern TV, and season 4 quite excellent, though season 3 was excremental (I ranked the seasons here and the episodes here). And I was so inspired by the first two seasons that I put aside my disdain for fan fiction and wrote a trilogy that imagines these kids in their adult years, and their ongoing battles with the Upside Down.

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2. Breaking Bad. 5 seasons. 2008-2013. Stranger Things may be my personal favorite, but objectively I would call Breaking Bad the best show of all time. It starts strong and gets stronger, never flagging on its promises, and I dare say if the show writers had gone to ten seasons they probably could have kept the momentum going. They settle for nothing less than excellence. Breaking Bad is the revenge tragedy of a school teacher who feels that he’s been emasculated by the fate of cancer, on top of being screwed out of a business partnership that could have made him millions. He’s a chemistry genius but under-achiever, and puts up with endless teasing by his family, especially his DEA brother-in-law. By season five he’s a killer and a drug-lord — people have learned to respect him or else — and the journey to that point is a brilliant character evolution. The suspense levels are insane; even the worst episode is superior, though I did rank the best.

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3. Hannibal. 3 seasons. 2013-2015. I consider Hannibal the poster child of TV’s golden age; the aesthetic is that overwhelming. Think how David Lynch might reinvent Hannibal Lecter, and then throw in some of Cronenberg’s body horror and Argento’s insane imagery. The result is that Silence of the Lambs has been way superseded, something I thought impossible. Mutilations and gore are given transcendence. The first two seasons consist of original material taking place before the events of the novels. The third is two mini-seasons, the first half covering Hannibal (reversing the chronology of the books with Lecter’s exile in Italy and Mason Verger conflict; these are set in the time of Will Graham instead of Clarice Starling), the second half Red Dragon. Here’s how all the episodes rank. There were supposed to be six seasons altogether, and it’s outrageous that the show was cancelled. If you had told me back in ’91 that something of this astonishing scope and quality would ever make cable network, I wouldn’t have believed it.

Does Mark Frost's new book explain that Twin Peaks ending?
4. Twin Peaks. 3 seasons. 1990-1991; 2017. The first two seasons are classic, but the third is a towering achievement. If you’re expecting more in the style of the early seasons, you will be disappointed. But if like me you think the prequel-film Fire Walk With Me is a masterpiece, chances are you’ll love season three and all of its weird and hideously disturbing elements. These are some of the most mesmerizing and esoteric hours of television you will ever see, a rare treat to lovers of dream-logic, painful no doubt to those who crave plain meanings. In the end, Cooper is able to use the knowledge he’s acquired from years in limbo to jump back in time and prevent Laura Palmer from being killed, and how he makes a wreck of this and compounds Laura’s tragedy is quintessential Lynch to be chewed over for many moons. If not for the insufferable weakness of season two’s second half, Twin Peaks would place at #3.

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5. Game of Thrones. 8 seasons. 2011-2019. With the end game played out, George Martin has become virtually irrelevant to his own creation. Basically we got the sixth and seventh books before they are published. And like the books, the series has been a game-changer in fantasy, with wild plotting, understated magic, graphic sex, constant backbiting, and heroes who die unfairly in every other episode. The focus is on court intrigue and politics, and no one takes the supernatural threat broiling up north seriously until too late. If I had to summarize Game of Thrones in a sentence, I’d say it’s about power and political ambitions, and what it takes to make people see beyond their local and petty interests if they can. Here are the best episodes.

The Wire | Official Website for the HBO Series |
6. The Wire. 5 seasons. 2002-2008. The way this show deals with power, race, and class in American life (or at least in Baltimore) is unparalleled. The best season is the fourth, where in shifting gears from gang politics to the impotent school system — and by focusing on four particular kids dealt the shittiest hands in life — we get tragedy so real it tears up our hearts. We see that revolutionary changes are doomed to fail, even when lead by ambitious authority heroes like Bunny Colvin. In season 3 he was the cop who “legalized” drugs in a section of the city, managed to drop crime, and was shit-canned for it. Now he helps teach trouble-making kids in a special school program, and ends up reaching at least some of them who would otherwise be lost, until the city officials, true to form, pull the plug on the project. And if season 5 jumped the shark — one of the cops starts faking serial killings in order to get the mayor to approve overtime — it was still mighty enjoyable.

Tales From the Loop' Review – The Hollywood Reporter
7. Tales from the Loop. 1 season. 2020. This single-season show is basically Stranger Things filtered through a Kubrick-like lens where everything is held coldly at arm’s length, even as it magnifies the intimate and personal. Dialogue is restrained and used like a precious commodity; every word counts. We end up seeing lot of impossible wonders — time travel, body swapping, time freeze, snow that falls upwards, parallel-world travel, and robots with uncannily human traits — but the series isn’t about any of that. It’s about people; their fears, tragedies, and deepest hopes. It’s a pure delight to watch, and I’m surprised it got made. Like Blade Runner 2049, its plotting is way too patient for most 21st-century viewers. Here’s how the episodes rank.
8. Dark Matter. 3 seasons. 2015-2017. I liked the first season so much that I watched it again right away, which is something I’ve never done with any TV show except Stranger Things. There’s something uniquely compulsive about Dark Matter, even if objectively it’s not the most outstanding series. It starts with six people waking up on a starship. They have no memory of who they are but soon learn they were (are) notorious criminals being hunted by the law. Their past secrets are gradually revealed as they travel to planets and space stations and get involved in nefarious plots, and as characters they are simply terrific. The tender moments between Five and Six are my favorite – she the underage geek who wants to be part of the team, he the man who hates what he’s done. Here’s how the first-season episodes rank. Season two had some fun with alternate versions of these characters in parallel universes, and season 3 upped the game considerably with the renegade Four.

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9. The Fall. 3 seasons. 2013-2016. Don’t be put off by the controversy. In its unflinching look at violence against women, The Fall never glamorizes the the issue. I can see why some people think it does. As in Hannibal the aesthetic is intoxicating while the serial killer is less distant. Lecter sees his victims as mere pigs for food; Spector has grievances about justice. He’s protective of vulnerable people, especially children. He hates particular women, wants to “transform” them, and the intimate way he goes about his obscene killings makes us feel somehow complicit. Things get even creepier in season two when Spector bonds with a young teenager who craves sadomasochistic thrills. The performances from this girl are brilliant and takes the show to a new level. Some were disappointed with season three, but not me. The glacial-paced storytelling was used very effectively to give space in examining the evil inside of Paul.
10. Regenesis. 4 seasons. 2004-2008. Forget Orphan Black. This is the Canadian science fiction show that makes cloning and governmental conspiracies believable. Few Americans have heard of these Toronto-based scientists who work against bio-terrorism and disease, and it’s almost impossible to come by on DVD. Unlike most sci-fic thrillers, Regenesis isn’t so much about saving the day as learning to live with irreversible damage, and there’s a high body count among the main cast. It’s probably the most realistic ever seen in the genre, thanks to the scientific advisor who insisted on it. The first season features Ellen Page who plays the daughter of the lead scientist, and her story-arc practically steals the show: she befriends a dying boy who thinks he’s a clone. I love her scenes with Peter Outerbridge. See, for example, her ice cream scene (they talk about ebola) and her grief scene (when Mick dies).

Watch Fargo Season 2 | Prime Video
11. Fargo. 4 seasons. 2014-2017, 2020. Fargo is a funny beast. All seasons are excellent and contain some of the best direction and production values you’ll find in any TV series. And I always look forward to the next episode. But when all is said and done, I tend to forget about Fargo. It doesn’t leave a lasting impression on me, and this is also the way I feel about the classic film. It seems wrong to call it overrated, and I suspect the problem is rather with me, that there’s something to this franchise that I just don’t fully “get”. It’s filled with allegories and digressions, but they seem (to me anyway) to mean less than they pretend. There’s a brooding theme about how random and cruel life can be, but it doesn’t strike me as especially profound. All I know is that I’m fully engaged by the series as I watch it, and less than detached when I reflect on it.

For All Mankind Season 2 Episode 1 Recap / Ending, Explained
12. For All Mankind. 3 seasons (so far). 2019-2022. Finally, an alternate history that never flags. Man in the High Castle imagined America under German and Japanese control after World War II, but only the first season of that series was really good. For All Mankind is still going strong by the end of its third season, and promising even better to come. The series imagines the space race never ended, going well beyond the 60s into the 21st century. The moon landings are achieved by women astronauts well before their time in our timeline, and by season 3, America and Russia are embarking on the first mission to Mars. (It’s the 90s and a lesbian president defeats Bill Clinton in the 92 election.) What makes For All Mankind so compelling is that it never feels like science fiction; it seems as real as everything we did in the 60s with the moon adventures. And it fleshes out the lives of the characters so well that they feel our own family.
13. Cobra Kai. 4 seasons (so far). 2018-2022. Who would have thought this karate soap opera could be so good? Let’s face it, the Karate Kid films have aged terribly. The bad guys were ciphers with no backstories — Johnny Lawrence and his Cobra Kai gang completely unsympathetic jerks — while the good guy was an endearing character, but didn’t work very well as a karate protagonist. Daniel LaRusso was basically a poster child for the Reagan years, optimistic about the underdog’s potential to “be all you can be” to the point of absurdity. Cobra Kai inverts this premise, so that the underdogs become the assholes — and the previous underdog (LaRusso) becomes an even bigger asshole. That’s a story, and Cobra Kai milks it for all its worth. It’s cheesy but genuinely endearing; it imagines an alternate California valley where karate is taken so seriously by everyone that it takes on almost a religious significance. It brings back the characters from the old films way better than you’d think possible. Oh yeah, and the fight scenes are absolutely splendid. Here’s how the episodes rank.

The Wickedness of Christian Farming

Someday Pastor Steve is going to break his hand when he hits the podium. Assuming he doesn’t give himself a brain aneurysm from screaming about sin.

The “sin” under fire today is that of Christian farming. Our pastor believes that true Christians shouldn’t dwell in remote countryside areas, especially on farms. Farming activities — tending livestock, growing produce, etc. — should be carried out by the wicked and the unsaved. “In the flesh,” he says, “we’d all love to go out and live in the middle of nowhere. But I’d rather be a SPIRITUAL farmer! I’d rather work in GOD’S vineyard! I’d rather sow SEED in the HEARTS of people who are dying and going to hell!”

Ergo, true Christians live in cities. Hilarious.