Brown

When did "Brown" become the new thing that we self-important intellectuals are supposed to call everyone who is not of predominantly European, African, and/or East Asian origin? I don't actually object to the term as such. Assuming that we are not going to abandon anytime soon the project of categorizing people by racial or ethnic origin, "Brown" does a fairly good job of conveying American social attitudes toward the people it describes: not subject to the disabilities of Blackness, but not afforded the privileges of Whiteness, either. What bugs me is that everyone around me started using the word without explanation or acknowledgement, as if they had received a universal memorandum so unassailable in its logic as to preclude further discussion.

I did not receive this memorandum. Rather, I distinctly recall coming across the term by accident, in the unprepossessing forum of an "Ask Amy" column. Amy's correspondent complained that her mother disapproved of the writer's boyfriend: "the problem? He is Brown and I am not." There was "Brown" in the Washington Post, a daily newspaper of national reach, as if the term had been in common usage since Dr. Johnson retired to Gough Square. While I could puzzle out the writer's intention from the context, I felt entitled to a footnote, a word of explanation from the Post's copy desk to the effect of "attention readers: by virtue of Style Manual revision 234B, persons of other than predominantly European, African, or East Asian origin will henceforth be referred to as Brown."

I am only a little annoyed because this reminds me of what happened with the word "Asian." When I was a kid, everybody called people of East and South East Asian origin "Oriental." Self-important intellectuals called them "Oriental"; "Orientals" called themselves "Oriental." And then it was decided that the term should change to "Asian." The switch started on the East Coast--at the time I was applying to colleges, everyone I knew in the Midwest still said "Oriental," but I was scolded for using the term while on a college visit in the East. And I've used the word "Asian" ever since, not because I believe that even one person in ten knows why "Oriental" is offensive, but because saying it makes you sound like a redneck. My change in usage, and everyone else's, has made the transition self-reinforcing: anyone under the age of 70 who uses the term "Oriental" today is either unusually sheltered or being deliberately provocative.

(If you're curious, "Oriental" is supposed to be offensive because it divides the world into Occident (West, from the Latin occidere, "to set") and Orient (East, from the Latin oriri, "to rise") with it being Eurocentric to label someone as being "from the East," thereby implying that the speaker's society is located at the central reference point. Ask your Asian friend in the next cubicle over if she knew that.)

But the abandonment of "Oriental" has resulted in a net loss of linguistic specificity, because, again, assuming that categorizing others by ethnicity is an inescapable part of human experience, "Oriental" had a less ambiguous reach than "Asian." Today, when I say "Asian," the listener must decode whether I'm just using the substitute terminology for people we both grew up knowing as "Oriental," or whether I really could be talking about someone of Sri Lankan or Kazakhstani origin. And if I'm talking to a British person, they must guess whether I am translating for their benefit to the British meaning of "Asian," which refers to people of Indian subcontinental ancestry. In America, of course, such people are now "Brown."

And so, much as it vexes me, I too have caught myself saying "Brown." All I want to know is, who gets to decide these things? To whom have we ceded the power to crawl inside our brains and reprogram our labels for the world outside? No, don't answer that question. I fear the response will include a citation to an academic journal of which the title ends in "Studies," and an article making repeated use of "unpack."

***

On a related note, can I just take this opportunity to question the assumption held by many American office workers that Latino janitors don't know the English word "trash"? Whenever people in my office want to dispose of something too large to fit in a standard trash can, they tape a sign to it that says "basura."

Now, if you moved to another country and took a job where a significant part of your job responsibilities included collecting trash, don't you think that within the first day or two you'd probably pick up the word in that country's language for "trash"?

Really what those signs should say is "look, I know a word in Spanish!"

Mainely Bigots / Pope to Anglican Chauvanists: Come to Papa

The Holy Prepuce hereby suspends his blogging hiatus to deliver an important message to (1) voters who repealed Maine's same-sex marriage provision on Tuesday; and (2) Anglicans accepting the Pope's invitation to a special Catholic "communion" featuring Anglican liturgy but none of those pesky women priests, gay bishops, or same-sex blessings. The message is: What the Hell is wrong with you people?

Let me explain.

We're all busy, and there are lots of good causes out there, so I don't expect that everyone is going to carry a sign or staff a phone bank for marriage equality. I'm even willing to say that if there were a ballot initiative to create (rather than repeal) a marriage equality law, I'm OK with people who don't care much about the issue staying home and not voting. And I recognize that there is a principled conservative objection to the process by which marriage has been judicially redefined in Massachusetts, Iowa, and, before Proposition 8, California.

But, people: to get in your car and drive down to the community center for the express purpose of voting against marriage equality -- for this there can be no excuse. There is no objection to marriage equality that does not, in the final analysis, reduce to anti-gay animus.

Now, as to the Anglicans. There are plenty of acceptable reasons to remain or become a Roman Catholic. If you were raised a Catholic, and that's your family heritage and culture and for those reasons you stay in the church in spite of, or without really thinking much about, the whole women-can't-be-in-charge-and-gays-will-burn-for-their-sins thing, that's fine by me. If you were raised in another religion, but after a process of spiritual discernment you come to believe in Roman Catholic theology, and you join in spite of the aforementioned issues, more power to you.

But, again, people: to join a religion specifically because it forbids women clergy and condemns homosexuals -- that's not OK. And it won't do for you to hide behind the claim that you sincerely believe God forbids women priests and homosexuality. Otherwise we enter a world of complete ethical relativism, where any chauvinism imaginable may be absolved by the profession of faith in its divine origin.

Furthermore, by defecting to Catholicism, what exactly are you saying about core Protestant beliefs? Suddenly the Pope is infallible, transubstantiation and the immaculate conception are real, and justification is by works as well as faith? All those Huguenots got slaughtered, all those Belfast pubs blown up for nothing?

Perhaps we are witnessing the birth of a new Christian ecumenicalism: "Let's put aside our differences and focus on the core beliefs that unite us: men are in charge, and gays are going to Hell."

Jesus Christ.

Porn, Hookers, and Section 213 of the Internal Revenue Code

To: Holy Prepuce! Readers
From: Holy Prepuce
Re: Deductibility of Your Prostitution and Pornography Expenses Under Section 213 of the Internal Revenue Code

Question Presented

You have asked me to advise you as to whether your prostitution and pornography expenditures can be claimed as medical expense deductions pursuant to Section 213 of the Internal Revenue Code, assuming they exceed 7.5% of your adjusted gross incomes.

Brief Answer

No. The United States Tax Court views such expenditures as "personal expenses not intended to treat any medical condition." Furthermore, IRS regulations prohibit deduction of fees for "illegal operations or treatment." Claiming such deductions may also result in assessment of an accuracy-related penalty.

Analysis

A recent decision of the United States Tax Court, Halby v. Commissioner, T.C. Mem. 2009-204 (Sept. 14, 2009), is squarely on point. The facts, as recounted in the opinion, are as follows:

Petitioner [William G. Halby] is a lawyer admitted to practice in New York State. Petitioner resided in New York at the time he filed his petition.

During 2004 and 2005 petitioner frequented prostitutes in New York. Petitioner did not visit these prostitutes as part of a course of therapy prescribed by his doctor, nor did petitioner ask his doctor to prescribe any sort of sex therapy. Petitioner kept track of these visits in a journal. The journal included the date, the name of the “service provider,” and the amount. Petitioner did not discuss these visits with his doctors afterwards to determine their impact on his health.

During 2004 and 2005 petitioner purchased pornography and books and magazines on sex therapy. Petitioner also recorded the dates and amounts of the purchases in his journal.

The IRS subsequently disallowed certain medical expense deductions claimed on Halby's 2004 and 2005 income tax returns:

The $73,934 disallowed by respondent [IRS] for 2004 included:(1) $2,368 for medical books, magazines, videos, and pornographic material; (2) $65,934 for prostitutes; and (3) $5,632 in bank and finance charges incurred in connection with loans used to pay for the claimed medical expenses. . . . The $47,024 disallowed for 2005 included: (1) $5,005 for books, magazines, videos, and pornographic materials; and (2) $42,152 for prostitutes.

Halby filed a petition in the Tax Court, challenging the IRS's determinations.

The IRS argued that Halby was "not entitled to deduct amounts paid to prostitutes because such payments were illegal and petitioner has not provided substantiation as required by section 1.213-1(h), Income Tax Regs." Section 1.213-1(h) requires that taxpayers substantiate medical expense deductions by listing for each expense the payee name, payee address, date, and amount. Upon IRS request, the taxpayer must also produce an itemized invoice, identifying the patient, type of service rendered, and specific purpose thereof.

The IRS further argued that Halby was "not entitled to a deduction for amounts paid for books on sex therapy and pornographic material because those amounts were incurred for petitioner’s general welfare."

Halby "d[id] not argue that section 213 and the regulations thereunder allow a deduction for these costs." Rather, he

point[ed] to book and magazine articles about the positive health effects of sex therapy and argue[d] that [the court] should allow him a deduction despite the illegality of his conduct or the fact that petitioner’s doctor did not prescribe this treatment.

At the outset of its holding, the Tax Court noted that "[t]ax deductions are a matter of legislative grace, and a taxpayer has the burden of proving that he is entitled to the deductions claimed." Finding that Halby had not met this burden, the Tax Court ruled in favor of the IRS, reasoning as follows:

Section 1.213-1(e)(1)(ii), Income Tax Regs., provides that a taxpayer is not entitled to a deduction for any illegal operation or treatment. Petitioner’s payments to various prostitutes were personal expenses not prescribed by a doctor and not intended to treat a medical condition. Petitioner is not entitled to deductions for these amounts.

Petitioner is likewise not entitled to deductions for amounts paid for books and magazines on sex therapy and pornography. The purchases were not for the treatment of a medical condition but were instead personal items. Sec. 1.213-1(e)(1)(ii), Income Tax Regs.

The Tax Court further ruled that Halby was liable for an accuracy-related penalty, because he

did not have reasonable cause or a reasonable basis for claiming the deductions at issue. Petitioner has been an attorney for 40 years and specialized in tax law. Petitioner should have known that his visits to prostitutes in New York were illegal and that section 213, the regulations thereunder, and caselaw do not support his claimed deductions.

Halby has since told Forbes Magazine that he plans to appeal, "focusing on what he said was an argument he made in legal briefs but which the judges didn't discuss: The U.S. Constitution contains a right of privacy that protects consensual sex whether paid or not." He also told Forbes that the "pornographic materials . . . now fill[] 'shelf after shelf in my apartment.'"

Conclusion

Readers, your proposed course of conduct is unsupported by the Internal Revenue Code or IRS regulations. Although I understand that your prostitution and pornography expenses this year are likely to be considerable, I strongly advise that you do not claim them as deductions on your 2009 individual income tax returns.

Please let me know if I can be of further assistance on this matter.

H.P.

Kathleen Parker in the Monkey House

Talk about no good deed going unpunished! For several years, a bipartisan coalition of legislators has introduced various bills that would provide a tiny expansion of Medicare coverage: authorizing reimbursement for "advance care planning consultations." These are sessions in which a physician counsels patients about end-of-life topics such as hospice care, living wills, and life-sustaining treatment orders.

Many physicians already provide such consultations, and some are reimbursed by private insurance. But for Medicare patients, the availability of this advice is dependent on the charity of overworked primary care physicians, or the ability of community organizations to provide it free of charge. Proposed legislation that would have reimbursed such consultations under Medicare was introduced on a bipartisan basis in 2007 (S.465 and S.466) and re-introduced this year (H.R. 1989, H.R.2911, and S.1150).

And then.

The Medicare reimbursement provision got rolled into Section 1233 of America's Affordable Health Choices Act of 2009, the massive healthcare reform bill currently before the House of Representatives. And as quickly as you can say "insane industry-generated talking points," screaming protesters at town hall meetings were denouncing Section 1233 as a program of mandatory euthanasia-promotion straight out of Kurt Vonnegut's "Welcome to the Monkey House."

The accusation is pure madness, of course, one to which no responsible journalist would give credence, right? Ah, but enter Kathleen Parker, professional Moderate Conservative and reasoned editorialist for the Washington Post Writers' Group. In an August 12 column, Parker sets her trademark tone by opening with "We do need to turn down the rhetorical heat... let's assume that no one wants to kill off old people." But then she explains that "the debate is over whether these consultations are conclusively voluntary -- and the bill... is vague enough to cause concern."

Parker's evidence that the bill is murky on whether G-men will haul Granny to the Ethical Suicide Parlor for a "consultation"? (1) Medicare would pay for consultations every five years, except more frequently if a patient's condition has worsened; (2) The consultation could include formulation of "an order regarding life-sustaining treatment"; (3) Depending on state law, nurse practitioners and physician's assistants could be reimbursed for these consultations; and (4) The Secretary of Health and Human Services would be required to develop "quality measures" on end-of-life care and advanced care planning. Yes, I'm leaving out the nuance of Parker's argument. Yes, you should read the column for yourself to see how she connects the dots. No, it won't make any more sense.

Of course, Parker is not saying that Section 1233 really mandates pro-suicide rap sessions at the adult day center, just that "people instinctively (and correctly) fear bureaucracy -- especially in matters of life and death... and have a right to demand clarity." To paraphrase Hillary Clinton on Obama's secret devotion to Islam, Parker is telling us that Section 1233 isn't really about killing seniors, as far as she knows.

Fortunately, Parker has a solution: "A simple amendment to HR 3200 would do much to cool tempers. All that's needed is specific language saying that these end-of-life consultations are not mandatory -- either for physicians or patients -- and that there would be no penalty, either in coverage or compensation, for declining to participate. In the absence of such language, one may reasonably assume otherwise."

No, Kathleen, one may not reasonably assume otherwise. Point me to an instance in which the Medicare reimbursability of a service has been interpreted to make that service mandatory, and maybe you'll convince me. And while you're at it, explain to me how Congress could enact your proposed amendment without simultaneously amending every other provision of the Medicare statutes to clarify: "this service is not mandatory, either."

Besides, if the anti-reform bloviators paid attention to their own rhetoric, they'd realize they have little to worry about. Most of the enforced euthanasia will never happen. Like all other medical services, it will be "rationed" by the "bureaucrats who come between you and your doctor." It's like the borscht belt gag about the restaurant: "the food was terrible -- and such small portions!"

The Monty Hall Problem Meets The Bachelorette

Last Monday evening inexplicably found the Holy Prepuce attending a Bachelorette viewing party. In a turn of events that almost merited its billing as "the most dramatic Final Rose Ceremony ever," previously-eliminated bachelor Reid Rosenthal returned unexpectedly to the program.

Reid's arrival greatly surprised bachelorette Jillian Harris, who had just dispatched finalist Kiptyn Locke and was about to declare her love for alpha male Ed Swiderski. (In the post-feminist world of reality television, the distaff may choose its betrothed, even sampling candidates' sexual talents along the way, but the marriage proposal must come from the spear.)

My fellow viewers expressed differing views as to whether Jillian should dump Ed for Reid. I had no opinion as to the gentlemen's relative merits, having seen too few episodes to form one, and was disappointed at my inability to participate in the exercise.

But then, I had a brainwave: Jillian must switch. Why? The Monty Hall Problem, of course.

Imagine that Jillian is a contestant on Let's Make a Deal. The host, Monty Hall, shows her three doors, and tells her there is car behind one of them. Behind the other two are goats. (As a child, I often wondered whether losing Let's Make a Deal contestants were required to take home the livestock, and if so, whether they took proper care of it.)

Jillian chooses door #1. Monty, who knows where the car is, opens door #3, revealing a goat. Monty now gives Jillian the options of standing by her selection of door #1 or switching to door #2. Assume that under the rules of the show, Monty must always open an unpicked door, must only reveal a goat (not the car) in doing so, and, regardless of where the car is, must always offer the opportunity to switch doors. Assume also that when Monty has a choice of doors to open--i.e. when both unpicked doors contain goats--he is required to choose at random.

The question: should Jillian stay with door #1, should she switch to door #2, or does it make no difference? The answer, which nearly everyone gets wrong, is that she should switch to door #2. Doing so doubles her chance of winning the car.

People usually get this wrong because they remain fixated on the one-in-three a priori odds of the car being behind any particular door. Opening a door doesn't change where the car is, they reason, so the relative odds of it being behind #1 or #2 remain what they were: even.

The conclusion that switching makes no difference fails to recognize the conditional probabilities that kick in with the new information conveyed by Monty's choice. Formal explanations are discussed here, but put simply, where a contestant has chosen door #1, Monty has only a 50/50 likelihood of opening door #3 if the car is behind door #1, but must open door #3 if the car is behind door #2. Hence, Monty's choice to open door #3 is twice as likely to signify a car behind door #2 as it is to signify a car behind door #1.

On The Bachelorette Jillian isn't trying to pick a car, she's trying to pick the perfect husband. But unlike in normal life, where she would have the opportunity to choose from many men encountered over a number of years, her choice on The Bachelorette is subject to Let's Make a Deal-like constraints. A contestant on Let's Make a Deal can't go hunting for free cars wherever and whenever she wants, she must take her chances right now, with the three doors before her.

For the sake of analysis, let's take the final two Bachelorette episodes as a single "game." Thus, we'll treat Jillian's decisions to eliminate Reid and Kiptyn as a single event, i.e., the selection of Ed out of three possible suitors.

We're allowed to do this because of my next assumption, which is that Jillian's conscious mind has become confused. It did an OK job of whittling the field of bachelors down to three, but the exhausting whirlwind of travel, green-room liquor, and sudden stardom has negated its ability to choose intelligently among the finalists. Jillian's selection of Ed is based on irrelevant heuristics, as was the order in which she eliminated Reid and Kiptyn.

Assume also that Jillian's subconscious mind is unaffected; that it wants what's best for Jillian and knows which one of the three men is right for her. But being subconscious, it can't fully direct Jillian's decisions. It can only cause her to consider, or not consider, certain courses of action.

Until Reid shows up, Jillian's conscious mind has been driving her decisions. The rules of The Bachelorette require that she eliminate a prescribed number of bachelors in each formalized Rose Ceremony, and she has dutifully complied. But with Reid's return at the emotional climax of the series, the producers have changed the rules unexpectedly. Jillian's guard is down, and her subconscious mind seizes the opportunity: it makes Jillian consider taking Reid back.

Jillian's subconscious mind is Monty Hall. Jillian thought she had made a one-time choice (Ed) among three "doors." Her subconscious has presented her with a second chance at one of the "doors" (Reid) after exposing the third "door" (Kiptyn) as a "goat."

How do we know that Kiptyn is a goat? Let's make another assumption here: out of fairness, the same Bachelorette producers who changed the rules to permit Jillian a second chance at Reid would also allow her a second chance at Kiptyn. In other words, when Reid walked onto the set, Jillian could have said, "I know I don't want Reid, so if I get a do-over, I'll think about using it on Kiptyn." (Given the Molly / Melissa switch on the last Bachelor, the assumption is not unreasonable.) Jillian's subconscious thus has the power to "open" either Reid or Kiptyn by causing Jillian not to reconsider him. And just as Monty Hall is not permitted to eliminate the car, presumably Jillian's subconscious isn't going to "open" the perfect husband and subject Jillian to the pointless cruelty of choosing between goats. Jillian doesn't think about a Kiptyn do-over; Kiptyn is "opened"; ergo Kiptyn is a goat.

A final assumption: Reid's reappearance is sufficiently destabilizing that it compels Jillian at least to consider dumping Ed. Jillian's subconscious can't force her to think of no one but Ed, even if it believes that he is the perfect husband. Jillian's conscious mind must make the choice between Ed and Reid.

So, should Jillian switch to Reid? The Monty Hall Problem tells us yes. Given Jillian's initial choice of Ed and Reid's return, it is two to one that the "opening" of Kiptyn signifies that Reid is the "car"--the perfect husband.

Unfortunately (SPOILER ALERT, in case the finale is still queued on your TiVo), Jillian does not switch, and is now engaged to Ed. She has settled for an ill-suited marriage, life's ultimate game of Let's Make a Deal.

This has been the nerdiest Rose Ceremony ever.

Note to Facebook readers: If you reached this post by following a link from the Facebook profile of HP!'s secret identity, please note that this is the last blog post that I will be linking to my profile. To keep my blog in your Facebook "Stream," please visit the new HP! Facebook page and click on "Become a Fan." If you do, you will continue receiving the content you demand on topics such as religion, culture, lunatic kidnapping plots, game shows, and smut. An explanation of why I'm re-anonymizing the blog and making it "opt-in" is on the new page.

The DOMA Brief, Part Two

My June 21 post, taking issue with accusations that the Obama administration had drawn a moral equivalence between gay marriage and incest or pedophilia, generated quite a bit of discussion on the Facebook page of HP's secret identity. This post adapts and expands some of my responses to those comments.

Why do I have such a bee in my bonnet about what I termed the "shrill and intellectually dishonest talking points" containing these accusations? It is because I think that marriage equality is a central civil rights issue of our day. And I think the creation and repetition of these talking points by some within the marriage equality movement has the potential to undermine the movement's credibility. The appearance that we are not prepared to discuss this issue in an intellectually serious way saps the force of our legitimate objections to the government's brief, and more generally fuels the stereotype of liberals as reflexive parrots who don't check our facts or think through the consequences of what we say. I am also a believer in intellectual honesty for its own sake, and it concerns me that these talking points may have been cynically promoted by lawyer-activists who are intentionally misleading the general public to create sensationalist outrage.

As you may remember, this is about a legal brief in which the government defended the federal Defense of Marriage Act (DOMA) against Constitutional challenge. Reaction focused on a citation to three cases in which marriages valid in one jurisdiction were not recognized in another. Two dealt with marriage between relatives, one dealt with different minimum ages for marriage. I argued that two of the three cases dealt with neither "incest" nor "pedophilia" as those terms would commonly be understood in America today. One case did involve a marriage (between adults) that--although legal in the place and time performed--would today be viewed as unacceptably incestuous by most Americas. But this case, like the others, was cited in a context that to my reading drew no moral comparison to gay marriage. The bottom line of my post was that "[t]here are so many legitimate reasons to dislike this brief that we don't need to be inventing more."

As I see it, there are at least five legitimate criticisms of the brief. These include, first, the Obama administration's choice to defend the Constitutionality of DOMA at all. While it is true that the Department of Justice ordinarily defends all current statutes against attack on Constitutional grounds, there are rare exceptions and this ought to have been one of them. Second, the tortured position that DOMA does not discriminate on the basis of sexual orientation in the provision of federal benefits. Clearly it does so--it renders married gays and lesbians ineligible for federal rights and benefits to which married heterosexuals are entitled. Third, the position that DOMA was not "born of animosity toward the class of persons affected," when anti-gay animus was so obviously a major factor in its enactment. Fourth, the suggestion that "promoting traditional marriages" or saving taxpayers money via discrimination against a particular minority are legitimate governmental objectives. Fifth, the unnecessarily narrow view that a law restricting the rights, benefits, and recognition of marriage does not burden the fundamental right to marry so long as it does not prevent marriages themselves.

Given the importance of making clear the above objections, I think it has been counterproductive to dominate the discussion with the dubious claim that the brief smears gays and gay marriage by comparing the latter to incest or pedophilia. So let me try to explain at more length why I think the government drew no such moral comparison. First, to be clear, the brief contains no explicit comparison. (You might not know this from the media and Internet.) So if there is a comparison, it is necessarily an implicit one. To evaluate that contention, we need to consider the specific arguments to which the government was responding when it cited those cases.

DOMA does two quite distinct things. Section 2 allows states to refuse to recognize same-sex marriages performed elsewhere. Section 3 sets the federal government’s definition of marriage as being between one man and one woman, thereby denying federal recognition of same-sex (or polygamous) marriages.

The Constitutional objections to these provisions are also quite distinct. The objection to Section 2 is that it violates the Constitution's Full Faith & Credit clause, which requires that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." In other words, the objection goes, the Constitution requires that any marriage performed in state A must be recognized in state B. The objection to Section 3 is that it violates the Constitution's Equal Protection or Due Process clauses, by treating gays and lesbians differently as a class than other people with respect to the federal rights and benefits attendant to marriage, or by burdening their fundamental rights to marry.

One useful way to think of the distinction between the two objections comes from the way Constitutional Law is typically taught in law schools. The first course, "Con Law I", deals with national powers and federalism. That is, what powers does the federal government have, what powers do state governments have, and what is the interaction between these two sets? Most students find this course dull. The second course, "Con Law II", deals with individual rights. These are the sexy issues that make the headlines: free speech, religion, abortion, and, of course, gay marriage. Most students find this course interesting. The Full Faith and Credit objection is a Con Law I argument; the Equal Protection / Due Process objection is a Con Law II argument.

The key thing to understand about the Full Faith and Credit objection is that it does not turn on the question of whether gay marriage is a good thing, whether homosexuality is a moral thing, or whether discrimination against gay people is a bad thing. It simply says that once state A decides who is allowed to get married there, state B can't refuse to recognize those marriages, and Congress can't change that.

And it was solely in the context of responding to the Full Faith and Credit objection that the three cases were cited. The government's response was that the Full Faith and Credit clause has always been understood to incorporate traditional Conflicts-of-Laws principles. It argues that one such principle is that a state need not recognize an out-of-state marriage that, as a matter of public policy (as opposed to some technical requirement like whether the application must be notarized), would not be permitted in-state. The cited cases illustrate this principle. Thus the only comparison being drawn between same-sex marriage and marriage to a relative or a minor is that all are currently subject to differing policy-based restrictions in various states. There is no implicit moral comparison, because the relative morality of these marriage categories is irrelevant to the Full Faith and Credit argument.

By comparison, if the cases were cited in the Equal Protection / Due Process sections of the government’s brief, I would interpret this as an implicit comparison. To vastly oversimplify half a semester of Con Law II, the key inquiry in any such analysis is what level of "scrutiny" should be applied to a law that treats groups of people unequally. The higher the level of scrutiny applied to laws affecting your group, the more likely you are to win an argument that those laws are unconstitutional. The question of whether or not homosexuality is a morally neutral innate characteristic like race or gender is central to the question of whether a heightened scrutiny must be applied to laws that discriminate against gays and lesbians. Had the government cited Catalano in this section, I might conclude that it believes men who want to marry their boyfriends are morally equivalent to men who want to marry their nieces, and that laws discriminating against each group should be judged with the same low level of scrutiny. But it did not.

Now, the additional accusation is made that even if the government makes no explicit or implicit comparison by citing these cases, doing so is its coded way of telegraphing anti-gay animus, because the cases touch on traditional slurs made against gays and lesbians. Otherwise, why choose cases that deal with such unpleasant subjects? Well, for one thing, cases about non-recognition of out-of-state marriages are pretty much all going to deal with age and consanguinity. Other than sexual orientation, these are the only policy-based marriage restrictions that currently differ from state to state.

Furthermore, what slurs exactly are being implicated here? Gays and lesbians are attracted to their (adult) relatives? I've never heard that one. Gay men molest little boys? That's a classic, to be sure, but it seems like there are more effective ways to invoke that stereotype than citing a case about the legal-in-most-states marriage of a sixteen year old girl to a husband of indeterminate age. So while it’s possible that the government consciously chose these cases as a signal to the good ol’ straight boy judge that the plaintiffs should lose because gays are all perverts, I think it more likely that it selected these cases because there weren’t a lot of others to choose from on this issue.

One point raised by several commentators is that another historical "policy-based" restriction on marriage was the prohibition on interracial marriage. If this Conflicts-of-Law argument suggests DOMA doesn't violate the Full Faith and Credit clause, they say, doesn't it just as easily suggest that the clause would allow a "racial DOMA" permitting states not to recognize interracial marriages performed elsewhere? And doesn't this show that the argument is bigoted and incorrect? I would say yes, and no. It's not clear that a Full Faith & Credit objection to a "racial DOMA" would be any more or less valid than the objection raised to the actual DOMA. Certainly Loving v. Virginia was not decided on that basis, even though potentially available (the Lovings were prosecuted in Virginia for their Washington D.C. interracial marriage, under a criminal statute that the Supreme Court struck down on Equal Protection and Due Process grounds.) The real premise of this argument is that sexual orientation and race should be treated alike; that anti-same-sex marriage laws should be viewed through the same Constitutional lens as anti-miscegenation laws. I happen to agree, but this is squarely an Equal Protection / Due Process premise, properly aimed at Section 3 of DOMA and at the state marriage laws themselves. Indeed, it's a premise that, if accepted by the courts, would render Section 2 of DOMA meaningless, and the Full Faith and Credit objection moot.

Finally, although I think the Obama administration should not have defended the Constitutionality of DOMA, I also think some recognition should be given that such exceedingly rare exceptions are not made lightly. One only has to turn the situation around to see the concern. Suppose, for example, that the current Democratic Congress were to pass sweeping civil rights measures, elevating sexual orientation to the status of race and gender with respect to employment, housing, and public accommodation. If a Republican administration came to power and decided not to defend those statutes, we liberals would be howling. And we would be just as angry, if not angrier, if this hypothetical administration adopted the middle ground that some have suggested the DOJ do here: write a half-assed brief not raising any arguments that might offend a core constituency. So while I disagree with Obama’s judgment, I think it’s a bit naïve to pretend it was an easy call to make.

I nonetheless agree with Joe Subay of Americablog (one of the "cynical lawyer-activists" I take issue with above) that “[f]or some, the decision whether to defend or oppose DOMA is purely a legal exercise. For many of us, it's our lives.” And it’s precisely this direct impact on the core of peoples’ lives--in a way that directly implicates rights I think the Constitution protects--that makes me disagree with Obama’s judgment call. That is the talking point the marriage equality movement should be pushing.

The Secret Life of the American Teenager

I've been working on a lengthy and pedantic follow-up to last Sunday's post about the Obama administration's brief in defense of the Defense of Marriage Act. But in the meantime, I'm going to tell you why I love "The Secret Life of the American Teenager," which returned to the ABC Family Network last Monday.

First, Molly Ringwald is in it. Molly Ringwald!

Second, remember Olivia Hussey who played Juliet in Franco Zeffirelli's Romeo and Juliet? Well, her daughter India Eisley is in it, and she plays exactly the kind of sarcastic middle school girl I would be if I were a middle school girl.

Third, the season opener incorporated the following sequence of events:

Scene 3: Grace, abstinence-'till-marriage-pledged evangelical Christian, has not spoken to her father since he became angry at her announcement that God won't mind after all when she has sex with her boyfriend Jack. She's on the phone with her mother and brother, who are in the car after dropping the father off at the airport. Expository dialogue reveals that the father, not seen to this point, is taking off on a private plane to render medical aid in a third world country. Grace, who is sprinkling flower petals on her bed in preparation for Jack's arrival and the imminent loss of her virginity, refuses to call her father and apologize before the plane takes off.

At this point it is obvious to anyone watching that John Schneider (Bo Duke from "The Dukes of Hazzard") has not returned for a second season in his role as Grace's father, and the plane is going to crash. (Mrs. P: "Dude, the plane is going to crash." Holy Prepuce: "The plane is totally going to crash.")

Scene 7: Grace, no longer a virgin, delivers the most frank, mature, and empowered address about adolescent sexuality ever spoken on American television. She is happy, fulfilled, in love with her boyfriend, at peace with herself and God. Coming from this character, it is a stunningly bold alternative example for a generation made to feel dirty and fearful about its sexuality by abstinence-only curricula and the Promise Keepers.

Scene 8: Jack comes downstairs. Grace's mom and brother enter, crying. The plane has crashed. Jack announces that he and Grace have just had sex. Grace comes downstairs. Grace's brother, who has Down Syndrome, says (of their deceased father), "you killed him!"

Yes!

No, Obama Did Not Compare Gay Marriage To Incest and Pedophilia

The Holy Prepuce is as much of a pro-gay-marriage lefty as the rest of you, and was just as disappointed that the Obama administration chose to defend the constitutionality of the federal Defense of Marriage Act (DOMA) in court. So it is only out of loving concern that I say unto you: people, let's dial back on the shrill and intellectually dishonest talking points. No, the government did not "compare [gay] love to incest and pedophilia" (Salon), "invoke[] incest and people marrying children" (Americablog), or "compar[e] [U.S. Rep. Jared Polis's] loving relationship with [his] partner, Marlon, to incest."

I, too, was outraged that the Change-Master-in-Chief had authorized such retrograde libel until (unlike, I suspect, many of the pundits) I actually sat down and read the brief. The language at issue responds to the argument that Section 2 of DOMA, exempting states from recognizing same-sex marriages performed elsewhere, violates Article IV, Sec. 1 of the U.S. Constitution, which requires that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

The brief answers this contention in part as follows:

Both the First and Second Restatement of Conflicts of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 134. And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").

As far as I can tell, the only comparison being drawn here is that all three restrictions on whom one may marry (opposite sex, over a particular age, beyond a certain degree of consanguinity) are questions of "policy." A state's requirement that your spouse be someone of the opposite sex may be bad policy, but it is certainly a policy. The brief is not suggesting any moral equivalence between gay marriage and marriage to relatives or minors. Nor is it terribly obvious how there could be even an implicit comparison, as it would be of no relevance to the narrow point being made.

And even if the government were suggesting such a comparison, describing at least two of these cases as being about "pedophilia" or "incest" is a little overblown. Marriage at age 16 is permitted with parental consent in the majority of U.S. states, and for all we know from this brief, the groom in Wilkins may have been no older than the bride. Marriage between first cousins, while icky and perhaps "incestuous" from a genetic standpoint, is commonplace in many cultures and indeed perfectly legal in about half of the United States. Certainly it is not what most people are referring to when they talk about "incest." I will grant you that marriage between an uncle and a niece, as in Catalano, would be widely condemned in the U.S. today, but again, the brief is not saying that gay marriage is morally comparable to uncle/niece marriage.

So while I'm squinting hard between the lines for the subtext where the Obama administration suggests that gays only want to marry so they can move into to your cul-de-sac and molest their children while yours watch, I'm just not buying that it's there. There are so many legitimate reasons to dislike this brief that we don't need to be inventing more.

This is why no one ever invites me to appear on MSNBC.

Easter Monday

The Holy Prepuce would like to make clear that, should he ever be nailed to an object, he does not want the anniversary celebrated as "Good" anything.

This year, as every year, Christians around the world celebrated Good Friday with reenactments of the Biblical Crucifixion. And, again as every year, residents of Bulacan Province in the Philippines took things just that one step further by actually nailing each other to crosses. The ritual is a perennial journalistic standby: it's easy to schedule coverage, it's always photogenic, and typically there's some hook. Last year's hook was the government health advisory warning penitents to receive tetanus vaccinations, to ensure that they self-flagellate only with "well-maintained" whips, and to disinfect their four-inch nails prior to hammering them through each others' hands and feet. More comprehensive health warnings, such as "don't nail yourself to crosses, you crazy bastards," apparently went unspoken. This year's angle was the revelation that Jewish Australian comedian John Safran was discovered among the penitents, being crucified under an assumed name.

Every now and again, I like to do some original reporting for this blog, so I asked the one person I know in the Philippines what she thought about the practice. Her comments suggest that middle class Manilans have approximately the same relationship to Bulakenyo crucifixion as most Americans have to Appalachian Pentecostal snake handling: it's deeply weird, it's faintly embarrassing that people in other countries know about it, and they've only ever seen it on TV.

My source, who prefers not to be named out of fear at what she described as a reflexive tendency toward "butthurt" against public criticism of Filipino cultural institutions, went on to say the following:

[M]y only opinion on the matter, with my limited knowledge on the subject, is "Holy SHIT that's gotta hurt." I mean, they use real nails and shit. (I always change the channel.) But for a more insightful opinion for your piece, I'll actually quote my Dad, who had some interesting comments when they showed it on TV: these people go through all of that excruciating physical pain every year, then they go home and beat their wives and children, gamble, drink, steal, and engage in all sorts of debauchery.

They're probably in it for the attention they get from the townspeople, like, "Wow, you're so brave and self-sacrificing." I think it takes the concept of the act of confession, in Catholicism, and then magnifies it hundredfold, so these people think that if they just commit to this torture once every year, it makes up for the less godly things they do the other 364 days, in God's eyes.

In other news on the Easter-related themes of corporeal punishment, resurrection, and redemption, I would direct your attention to:

• This article on Alabama judge Herman Thomas, indicted for (among other things) allegedly checking male inmates out of jail, taking them to a specially-furnished storage room near his chambers, and "forcing [them] to expose their buttocks to 'paddling and/or whipping.'"


• The reference, in this article, to the "National Organization for Victims of Juvenile Lifers." The NOVJL website does not disclose the source of its funding, but one suspects that like many "victims' rights" groups, NOVJL is a front organisation for the Corrections Corporation of America or the California Correctional Peace Officers Association. (Both lobby aggressively against bad-for-their-business reductions in incarceration.) But seriously, what kind of an asshole joins a group specifically founded to advocate continued sentencing of 13-year-olds to life imprisonment without the possibility of parole?


• This article on a Maryland plea bargain, under which all charges will be dropped in case of the victim's resurrection. Said a spokeswoman for the Baltimore State's Attorney's Office: "This would need to be a Jesus-like resurrection. It cannot be a reincarnation in another object or animal."

Lay On, McGruff

McGruff the Crime Dog, monomaniacal biter of crime and criminals alike, was sucker-punched in the face on Saturday before an audience of horrified children in our nation's capitol.

As a retired costumed character (three summers as Bugs Bunny at Six Flags, if you must know), the Holy Prepuce is familiar with occupational hazards of that job. Along with heat stroke and hyperventilation, having the crap beaten out of me was a risk knowingly assumed each time I cinched up the "bib" and chin strap.

Assault on costumed characters is a universal phenomenon. Perhaps the perpetrators act out of simple revulsion at excessive cheerfulness, but I suspect the motivations are more complex. Surely there is an element of transferred rage: at parents who encouraged the belief, humiliating in retrospect, that costumed characters are "real"; at life and time themselves, which stole away forever the fantastical world of early childhood. The awful realization--that the internationally famous anthropomorphic animals who visit the local amusement park especially to hug you are actually just sweaty college kids--could drive anyone to disillusioned violence.

For my own part, I accepted the blows as penance for the prostitution I was committing. Here was Bugs Bunny--whose antics embody the triumph-by-wits of the Greatest Generation's ethnic lower middle class--transmogrified into a mute child-hugger. The middle-schoolers pummeling my gut may not have understood the deeper significance of their vigilantism, but in my own self-flagellatory way I hoped they one day would.

Such pre-teen boys (usually in groups) are the dominant perpetrators of these assaults, and the attack on McGruff would not have been newsworthy had the culprits fit that demographic. But in a delightful turn of events, McGruff's clock was in fact cleaned by on-duty WMATA bus driver Shawn Brim, 38. According to a police report, Brim "climbed out of the bus, adjusted both sideview mirrors and then slugged McGruff in the face with his closed fist . . . . McGruff staggered, children screamed and the crime dog's attacker jumped back into the bus and drove off . . . [as a] call of an assault on a police officer went out over the police radio."

Brim was later charged with simple assault on McGruff's human occupant, D.C. Police Officer Tyrone Hardy. The decision to charge simple assault, rather than assault on a police officer, raises an interesting legal question: to commit "APO" in most jurisdictions, the defendant must know that the victim is a police officer. Does socking McGruff the Crime Dog count? The person inhabiting McGruff turned out to be a real-life police officer, but the role could as easily be played by a civilian. Except where the victim is a plainclothes officer, the knowledge element of APO is usually open-and-shut because of the police uniform. Would McGruff's oversize blues count? The government's restraint in charging Brim means we'll never know--at least not until the next McGruff beat-down.

As it happens, the past few days have not seen a distinguished showing for public transit operators. The National Transportation Safety Board announced that throughout a September 12, 2009 California commuter rail trip that ended in 25 fatalities, engineer Richard Sanchez had been text messaging an unidentified teenage boy, sending his final message only 22 seconds before colliding with a freight train. (As is de rigueur in passenger rail investigations, the train's conductor tested positive for marijuana.) Sanchez's texts revealed that the boy had ridden in an engine cab four days earlier, and that Sanchez planned to let the boy drive the train later that day: "I'm REALLY looking forward to getting you in the cab and showing you how to run a locomotive . . . I'm gonna do all the radiotalkin' ... ur gonna run the locomotive & I'm gonna tell u how to do it."

Had Sanchez survived the collision, he might have become the only adult ever busted for electronically suggesting that a minor "run [his] locomotive" while talking about an actual locomotive.

On the Origin of Vaccine-Autism Fundamentalism, by Means of Unnatural Credulity -or- the Preservation of Ill-Favored Ideas in the Struggle for Reason

Last Thursday, a special federal court ruled in three test cases that the petitioners' autism did not result from the measles mumps rubella (MMR) vaccine. Finding that the petitioners' families had been "misled by physicians who are guilty . . . of gross medical misjudgment," the court denied compensation and decried the evidence for a vaccine-autism link as "bad science conducted to support litigation rather than to advance medical and scientific understanding.''

The decision's release on Charles Darwin's 200th birthday was fortuitous, the "vax/aut" crowd having not a little in common with the fundamentalists who so despise the father of evolutionary biology. Like fundamentalists, vax/aut proponents have become so invested in the truth of their particular idea that they ignore, rationalize, or attack as fraudulent any evidence to the contrary. Evidence in favor of their idea is distorted and endlessly repeated, and gaps in the evidence for alternative ideas are treated as further proof.

I suspect that fundamentalists' ire for Darwin goes beyond evolution, and stems as much from the approach to knowledge for which he stands. Setting out on the Beagle, Darwin held an idea common among 19th century Anglicans: that modern plants and animals descend from nearly identical ancestors created by God at the beginning of the world. But when Darwin's observations in the Galápagos suggested an alternative hypothesis, one that better fit the newly available evidence, he abandoned the old idea. This methodology for approaching ideas--evaluating them for explanatory success and then refining or discarding them in light of new facts--poses an existential threat to the entire project of fundamentalism.

The genesis of the vax/aut hypothesis was not in itself irrational. Certain forms of autism tend to manifest around the age at which most children receive MMR. And mercury, an ingredient in the vaccine preservative thimerosal, is known to cause neurological damage in vastly larger quantities.

But subsequent analysis has revealed the conclusions drawn from timing of onset to represent a simple post hoc fallacy. The incidence of autism turns out to be the same among children receiving vaccines with and without thimerosal, or receiving no vaccinations at all. And here is where the vax/aut enthusiasts show their fundamentalist stripes. Like the contrarians who insist the moon landing was faked and Snapple is sterilizing African-Americans, vax/aut types are unmoved by the evidence.

It's not that vax/aut believers aren't sympathetic--many are parents of autistic children and understandably yearn for any explanation of the otherwise inexplicable devastation wrought upon their families. Often they have been seduced by cure-peddling quacks and book-hawking celebrities.

But the vax/aut faithful provide red meat to the "anti-vax" movement: parents who refuse to vaccinate their children and think you shouldn't either. The obscenity of this movement's attack on perhaps the greatest public health achievement in history is stupefying. A campaign to reinstitute open sewers or ban refrigeration could scarcely threaten greater violence to the general well-being.

Tragically, anti-vaxers may be validating Darwin as we speak. More than survival or even reproduction, the traits most favored by natural selection are those that ensure an organism's offspring survive to reproduce. If credulity is a heritable trait, forgoing vaccination is an excellent way to boost the odds your children won't pass it on.

Gay Teen Monster Truck Driving Curfews

The Holy Prepuce never expected to use "irony" and "monster trucks" in the same sentence, but how's this? Following January 19th's fatal accident at the Tacoma, Washington Monster Jam, rival monster truck promoter George Eisenhart dismissed safety concerns about his upcoming Motor Sports Monster Truck & Thrill Show, telling Madison, Wisconsin's WKOW "This is our 16th year, and I wish I had a big piece of wood to knock on right now, but we have not had an incident besides a gal slipping in the aisle at another location." Days later, Eisenhart was crushed to death by a monster truck.

While I'm busy making light of vehicular tragedies, I have to say that although Allstate's Parent-Teen Driving Contract may be an excellent idea, I wonder how an organization whose business depends on the sensible use of statistics could attempt to pass off the following:


Assuming that the average teen is awake no more than 18 hours per day, warning that half of all fatal accidents happen in a 9-hour period is equivalent to grousing that 40% of workplace absenteeism occurs on Mondays and Fridays. And when we factor in that most teens spend a good part of their other 9 waking hours in school, we are led to the inescapable conclusion that 3PM to Midnight is a remarkably safe time to drive. The obvious solution is immediate repeal of teen driving curfews nationwide, so that teens can take care of essential business at night and stay off the road during the 8AM bloodbath.

If an insurance company can't manage the non-risible use of statistics, there is little hope for the rest of us. I am reminded of my college's gay & lesbian student association, which--I swear to God--ran simultaneous poster campaigns proclaiming "One in Ten People Is Gay" and "Two-Thirds of Child Molesters Are Straight."

Gaza

You know what I think we should do to solve the crisis in Gaza? I say we get a whole bunch of 747s and take out all of the seats so they can hold 1000 people each. Then we land them at Gaza Yasser Arafat International Airport (GZA), and when the stairways drive up we have a State Department official come out of each plane with a big stack of Green Cards. And then anybody who wants to can get on the planes, and we fly them all to Montana or Wyoming where we give them a big chunk of federal land that is twice the size of the current state of Israel, and everybody gets a brand-new doublewide with water/sewer hookup and premium cable.

Because you have to figure that despite all the rhetoric, a good percentage of Gazans have got to be saying to themselves, "Dude, death to Israel and all that, but this sucks. I'm living 6 to a room, my ass is full of shrapnel, and my mom wants me to blow myself up over some orange grove my grandfather supposedly owned in '48. In America, they have this shopping mall with a roller coaster right inside the goddamn food court. And also they have these chairs where you put in a dollar and the chair gives you a massage, but nobody even uses them because you can sit in the one at the Brookstone for free. And there are these machines that mix Coke with crushed ice and you drink it with a straw, but it's a special staw that opens into a little spoon at the bottom so you can scoop the ice out instead if that's what you want to do. Whereas here, the electricity works three hours a day and Hamas confiscated my spoon. Also, in America, there's this MTV show called 'A Double Shot at Love,' where twelve straight guys and twelve lesbians all live in the same house with these bisexual twin sisters. And every week the twins have to eliminate some of the guys and some of the lesbians, and at the end the winners and the twins have a big double wedding in a hot tub. Dude, screw orange groves."

I'm just saying.

With Bonus CD-ROM!

The Holy Prepuce has been remiss of late in updating this blog, but hopes to make it up to you with this last-minute holiday gift suggestion, discovered while visiting the Saint Louis Science Center:


That's right, it's the Columbia Accident Investigation Report with Bonus CD-ROM!

Friend of the Court, Heiress of the Almighty Eternal Creator

Throughout the campaigns for and against California's execrable Proposition Eight, faithful HP! reader FearlessLeader compiled the crème of supporters' virulent, idiotic, and unintentionally hilarious statements on her blog Fundamentally Flawed. There was little I could add. But now that the briefing is underway in the California Supreme Court challenge, I must bring your attention to this amicus curiae submission filed by one "D.Q. Mariette Do-Nguyen, Heiress of the Almighty Eternal Creator."

Although not an attorney, Ms. Do-Nguyen has done a respectable job of formatting her brief in accordance with typical appellate practice. The Brief begins with the required statement of amicus' interest in the matter: Ms. Do-Nguyen explains that she is "[a]cting on behalf of the Almighty Eternal Creator, who is holding sole ownership to His creations, all planets, including the earth and everything above, below and on it, myself as His heiress...."

Do-Nguyen then provides a Statement of Facts, which informs the court that

Through elections and appointments, Global government leaders and officials are selected by the Almighty Eternal Creator to serve the people.... Without any exception, all human souls are created by the Almighty Eternal Creator! All souls arrive at the time of conception. The power of human souls works through male sperm and female eggs to form human physical bodies!... Earth is a copy of Heaven and this means all things must exist in the spiritual realm before coming down to earth, such as the three branches of global government: the executive, legislative, and judicial branches. These three branches must have rules and regulations that must pass by an executive of the Almighty Creator’s laws.

The Statement of Facts goes on to explain that the A.E.C. forbids gay marriage because he has "ordered human souls to be fertile and multiply, fill the earth with human natural bodies!" (For similar reasons, the A.E.C. also takes a dim view of in vitro fertilization and abortion.)

Do-Nguyen transitions to an Argument, in which she explains that the courts of California do not have the authority to reverse the A.E.C.'s ban on gay marriage. She illustrates her contention with the following example:

Example: If an individual attempts to assassinate the State of California's Governor or the United States President, and the person got caught, surely the person would be charged with attempted murder of the State of California's Governor or the President of the United States, and jurors would sentence him to prison without parole or to capital punishment in accordance with established laws.

At this point, Do-Nguyen departs from orthodox formatting to include a section entitled "Consequences After Each and All Actions." Here she explains the genesis of her decision to submit an Amicus brief:

After a night full of dreams, before dawn of November 11, 2008, before I woke up in the morning, the Almighty Eternal Creator ordered me, saying, "You explain to them the consequences that follow each and all actions. Once they understand, they will listen!"... [T]he Almighty Eternal Creator instructed me to explain the consequences in writing and file with the California Court of Appeals, the Supreme Court, as well as the United States Federal court regarding certain individuals and government agencies for each and all actions. He seriously emphasized that world government leaders and high-ranking officials are like religious leaders and officials, and they must assist each other to comply with the Laws of the Almighty Eternal Creator/sole Owner of the earth and human race.

In particular, Ms. Do-Nguyen appears to be concerned with "the consequences" of "people exercising their free-will rights for wrong purposes." These incorrect exercises of free will include not only homosexuality and abortion, but also the war in Iraq, Eliot Spitzer's interstate transportation of a prostitute, the Clinton/Lewinsky affair, the U.S. Supreme Court's establishment clause jurisprudence, and an ongoing plot by George Bush and the CIA to "rob monies from innocent people after intercepting the telex transfer."

The negative "consequences" of these actions include the present financial crisis, Bill Clinton's coronary artery bypass surgery, an unspecified illness suffered by Sandra Day O'Connor, and global warming.

Do-Nguyen returns to traditional format with a Conclusion, in which she urges the Justices to uphold Proposition Eight, thereby rendering their souls eligible to "receive an energy supply directly from the Creator." (By contrast, striking down the Proposition would result in receipt of "an energy supply 'indirectly' from God, through a destructive channel known as the Devil or Satan.")

When she is finished, Do-Nguyen further complies with the rules by attaching a Certificate of Service listing all parties and their attorneys, and affirming that she has mailed a true copy of her brief to each. She also includes the following language, which I intend to incorporate into all my future Certificates of Service:

I declare that I am, and was at the time of the service hereinafter mentioned, at least 18 years of age and not a party of the above-entitled action. I am an heiress to the Almighty Eternal Creator, and I am fully God and fully human. My natural business mailing address is 9450 Mira Mesa Blvd. B417. San Diego CA 92126.