Monday, July 30, 2012

The Roberts Decision

The Roberts Decision as it has come to be described, seems to have undone the ability of even the most distinguished legal analysts to explain even the basics of how legal decisions work.  An appellate decision contains a holding, which is law, and dicta which are not law but may be persuasive in pleading other cases, and obiter dicta, which is a distinguished form of ranting and is neither law nor particularly persuasive in pleading cases.

In this case the holding was that the Affordable Care Act is constitutional.  That's it.  That was the holding.  The dicta is that it is constitutional because it is a tax rather than a penalty and thus within Congress' power to impose taxes.  The obiter dicta is everything else.

There was a second holding limiting the power of the federal government to coerce states by withholding only partially related federal money from them as punishment for non-participation in a particular program.

The rest of what everyone has said and written about the case is not about the holding and not about the law.    Everything everyone else wrote about it, including Roberts, is just obiter dicta, conversation.

But it was a big case, both controversial and political.  So everyone in the media had to hash it over and chew on it and opine.  So much was said and much was written.  But about very little.



[The Most Reverend Salvatore Cordileone, Archbishop of San Francisco, an author of Proposition 8]

The homosexuals and their partisans have good reason to be wroth with Chick-Fil-A, a chain of fried chicken fastfood-eries.  The CEO of the company is a hard-core religious zealot opponent of homosexual marriage and presumably of other forms of acceptance of homosexuals as full members of society, such as holding office, serving in the military, and so on.

There have been declarations of boycott, picketing, and anathema, usually reserved for only the most defiant of political enemies.

There was a similar but more muted reaction to the Mormon Church for its sponsorship and funding of Proposition 8, in which California voters declared that only heterosexual marriages were valid.  

Considering that Chick-Fil-A is a moderate-sized fast food corporation whereas the Mormon Church is a colossus by comparison, the relative silence about the homophobia of the Church of Latter Day Saints seems odd.

Even odder is the deafening silence about the identical condemnation of homosexual marriage by the local Catholic Church.  The Bishop of Oakland, Salvatore Cordileone, was recently promoted to Archbishop of San Francisco.  

The new Archbishop of San Francisco is not just a supporter of Proposition 8, he was one of its principal authors.  He said at a recent press conference, "Marriage can only come about through the embrace of a man and a woman coming together," he said. "I don't see how that is discriminatory against anyone."

Compare the fulminations, boycott, and picketing against Chick-Fil-A with the pro forma denunciations but nothing else against the Catholic Church in San Francisco.

The nearest Chick-Fil-A restaurant is in Santa Rosa, 56 miles away.  On the other hand, more than half the population of San Francisco identify as Roman Catholic.  

Could it be that the leaders of the homosexual marriage movement are more willing to vilify homophobes with little or no power and less willing to confront those with lots of power?  It would seem so.

The national and congressional elections have shown us time and again that people involved in national politics are shameless self-serving weasels.  The near-passes given to the San Francisco Archdiocese and the Mormon Church as compared to the rabid attacks on Chick-Fil-A, tells us that local progressive politicians are no better.  

It is hard not to find the disparity of treatment in the difference between the power of the antagonists.  Chick-Fil-A is a modest-sized corporation with no stores in San Francisco.  The Roman Catholic Church has 400,000 adherents in San Francisco.  

I believe the practice of beating up someone small and weak, while avoiding someone big and powerful pretty much defines the bully and coward, no?