elusivem

(originally posted 2/7/2012) It was revealed today after many years of research that gays are saving the world. Humanity will parish if it was not for gays because of something called the Pink Moon Causality.  It is not a scientific fact that gays are saving the world, but rather a fact based in law. It is referred to as a rational basis. Rational basis like dark matter only exists within its own universe using its own laws of physics. In this case, the rationality lives within ideas of individual minds having no measurable existence outside the musing of lawyers and yet like dark matter the causality of these abstract musings have very real consequences on the tangible world around us. 

In a 2 to 1 ruling, the Ninth Circuit Court of Appeals ruled that California’s Proposition 8 banning same sex marriage is unconstitutional. I frequently read court opinions as a hobby. There are 128 pages of opinions in this case. I learned to read court opinions after considerable practice and finished reading this one within two hours of its posting. On a side note, it is interesting that the news streamed the ruling within minutes. I realize that I am not a fast reader, but how many people can read a 128 page court ruling in 10 minutes? jaylake is the only person I know that can read that fast. I have seen him do it though I doubt he wastes his time reading what is only of interest to lawyers and flakes like me.

The majority in this case (Justice Reinhardt and Justice Hawkins) thoroughly pounded the proponents of Proposition 8.  It is not possible to summarize the opinion in two paragraphs, but here is the jest of the main points.

The first part is to establish standing. It is generally claimed that gays do not suffer from not being married therefore there cannot be any discrimination.This is the core hypocrisy to the-everything-but-marriage crowed. If gays are not harmed by not having use of the word marriage then marriage itself must not be important and the use of the word is trivial. However, the court definitively ruled marriage is an important word. The court said marriage is the only word that conveys “a harmony in living” in a way that no other word can convey. Would splashing, “will you enter into a registered domestic partnership with me” across a Jumbotron have the same meaning as “Will you marry me?” Marriage instantly brings to mind a till-death-do-us-part bond that cannot be described using any other word. The word is not inconsequential and therefore denying the use of the word harms gays establishing standing to challenge the law.

The court then tackles the proponents’ reasons for banning same sex marriage. Discrimination is permissible in law if there is a justification. This the part of the opinion that is important because it establishes rational basis for the law and will be the basis for any challenge.  The proponents said that the ban promotes families and allows society to proceed with caution.  Over many pages, the justices explain how each reason is hollow and has not relationship to banning same sex marriages. The proponents of Proposition 8 admit that domestic partnerships have every right as marriage, so the law has no practical government purpose. This is key. In the end, the court’s conclusion is that since there is no practical use then sole purpose of Proposition 8 is born out of animosity by imposing public disapproval of gays. The justices write “Proposition 8 enacts nothing more or less than judgment about the worth of and dignity of gays and lesbians as a class.” This part of the opinion is a good read and worthy of another journal entry.

This rational basis test used in this ruling is important. The dissenting opinion by Justice Smith focuses on this element. It seems that Justice Smith thinks the rational basis is de facto prima facie. Rational basis has to be accepted on the face of it. Merely stating a rational basis is sufficient to uphold the law. Nobody has to explain or justify the rationality. He states that courts are compelled to accept the rationale regardless of facts. Justice Smith believes that for a rational basis to be factual one must do nothing more than simply be able to say it; not prove it.

The primary rational reason for banning same sex marriage is that only biological (original male/female) parents can raise children best. The supporters for Proposition 8 stated during proceedings that they have no underlying basis (i.e. studies) for this statement except for their personal beliefs. Additionally, the state of California, the actual government body that is supposed to establish the rational basis, said there is no basis and refused to support it. Its own reviews and studies show that same sex couples raise children equally well if not better than biological parents.

In this case, the proponents stated a need for the law but then also admitted it has no basis in fact. However, in Justice Smith’s universe of law, the proponents can say anything they want and then take it back, but it is still a fact. They in effect can cover a lie with the truth and then still be allowed to keep the lie.

Why do we care? It is likely the Supreme Court will take the same position. The Kennedy Court has been overturning laws based on the reality basis. In the court’s eyes, rational facts can only come from the law’s author. This guts the entire concept of rational basis and turning it on its head when litigating constitutional questions of discrimination. In their mind, facts come from those who write the laws and everything thing else is dismissed as irrelevant fiction. It is the ultimate because I said so argument. Discriminating against gays is saving humanity, because if gays marry, the moon will crash into the earth. The Pink Moon Causality says so. It is a fact.

We should at least get a medal for giving up marriage to save humankind.

P.S. Everybody says this case is headed for the Supreme Court and maybe it is, but it appears to me the majority in this opinion would rather it not go to Washington. It was written in such a way as to allow and even encourage the Supreme Court to turn down the appeal. It is so narrowly focused that the opinion is not about same sex marriage rights and will not affect any other state. The opinion is written to tackle the simple question: can a right be taken away after the right was established? This court says the state of California recognized that gays have full rights as citizens. It is not the federal appeals court granting or otherwise affirming the right. Therefore, this is not the test the Supreme Court wants and can let the ruling stand because it will not affect any other case such as Nebraska 416 law which is often cited in this opinion.

I spent a week in England delivering project management training to my counterparts in the UK. Over the course of my career, I have purchased or develop PM training for literally a 1,000 people. We internally developed this particular training and it is some of the best training I have seen. Risk management is one of the primary topics and is typically found in most project management training. We used a keep-it-simple approach to risk management because there was no need to include complex risk management training if we are unable to do basic risk management first.

Our risk management training starts out with a simple exercise. “Imagine you are a member of a fund raising committee. Your committee will be responsible for planning a spaghetti dinner to raise money. As a member of this committee, what keeps you up at night worrying?” Using the idea of a charity dinner creates a common notion by which we explore various topics of risk and issue management. We can look at both academic and concrete real life examples with a simple illustration.  

Although the spaghetti dinner was not my idea, I know very well the problems of planning such an event. Last year a distraught friend of mine called me with an immense problem. Her 9-year-old son needed a new heart. I have known the family for decades and understood their situation. Several portions of a transplant procedure are not covered by insurance and must be paid for out of pocket. These costs add up to tens if not hundreds of thousands of dollars. In this latest need for the family, the hospital would not put her son on the transplant list without proof of guarantied air transportation such as an air ambulance service. Transportation cost was $10,000 and not covered by insurance.

She was desperate and thought that I as a widely traveled person might be able to help her son. She needed whatever contacts I have or favors owed to me. Thinking she needed help finding somebody with access to a plane, I told her that transportation for her son would be worked out no matter what. Not knowing how I could find somebody with access to a plane or come up with the money, I committed myself anyways. With all the crap to worry about, this is one thing that should not be a concern for anybody in their position. I wanted remove this barrier with no more worry or thought for them.

She quickly thanked me, but told me that was not the problem. The local Loyal Order of Buffalo planned a big spaghetti dinner to help raise the money to cover some of their costs. The dinner was announced weeks in advance – fliers were in every store window around the community and there had been radio announcements running for two weeks. The problem was the effort for planning a spaghetti dinner turned out to be too big for the lodge and backed out at the last minute. They had not done a thing. It was Thursday afternoon and the dinner was Saturday night. She was asking me to put on a spaghetti dinner for 1,000 people in 48 hours. Out of my mouth came the words without hesitation, “no problem. It’s all taken care of. You go take care of your son.” Simultaneously as I was committing myself to a colossal predicament. What I was really thinking was “Fudge! Giving $10,000 would be much easier even if I don’t have the money – hmm…can I cash advance that much on my credit card?”

Forty-eight hours later, we had one big I-can’t-believe-we-did-it spaghetti dinner for 1,000 people. How I pulled if off is another story, but the point is that I very well know the risks and issues for putting on a charity spaghetti dinner and I am sure most people can imagine the problems for themselves if not downright empathize with the effort it takes. The idea of using a spaghetti dinner as situation for discussing risks and issues was a brilliant idea. We used it in our training and it sparked lively discussions and engaged people in a topic that would have otherwise been boring. Most people could relate to the idea of charity dinner or other similar campaign and was able to contribute to the topic’s discussion.

What does this have to do with England and our society’s programming? In England, I received nothing but blanked stares when I finished explaining the charity dinner exercise and asked the question “as member the fund raising committee what keeps you up at night worrying?” Puzzled and trying to elicit a response, I explained the exercise again this time adding the story of my own personal charity endeavor for a friend’s son who needed a heart transplant. The blank stares turned into confusion along a question. Why did you have to raise money for the kid’s heart transplant? There it was. They could not relate or understand the need to raise money for medical care. Medical care is a right in UK.

We in the US are programmed to think there is nothing wrong with raising money through charity dinners to pay for the medical expenses of children.