Quotation of the Day

It long has been my opinion that, sooner or later, it is the responsibility of the Democratic party to the future of the republic and the political commonwealth to beat the Republicans so badly in so many areas that the Republicans are faced with a choice of either historical irrelevance, or wringing the craziness out of their party by enforcing a set pf party orthodoxy that does not include creationism, gay-bashing, anti-science lunacy, and the crackpot economic theory that has infected the party ever since Arthur Laffer found that cocktail napkin in the airport bar. Until that glorious day when we have proportional voting, viable third parties, and sparkling white unicorn ponies, like it or not, the Democratic party is the only political institution capable of doing that job. That it largely has shirked that job ever since the first time somebody yelled “peacenik!” at it in the late autumn of 1972 does not make the job less real, or the urgency of doing it less immediate.

Charles P. Pierce
(“How the Democrats Can Make the Republicans Pay”)

Quotation of the Day

Any ideology based on the premise that facts don’t count will eventually fail. You can coast for a while on false beliefs, just as you can drive for hundreds of miles with a faulty gas gauge. But there comes a point when the tank runs dry and the best bullshit in the world won’t convince that engine to turn over. Fortunately for us, the Romney machine sputtered and died before it was able to roll over the entire nation and run the ship of state aground.

Steven “DarkSyde” Andrew

(“Team Romney may have been hoisted
by their own willfully ignorant petard”)

A Horse Race and a Hanging

A reader signing himself Harley writes in response to my account of the reporters’ race to cover the hanging of the Modoc leaders in October 1873 (Dubious Documents: The Unlikely Life of William Drannan):

You suggest that according to Drannan’s story of the dispatch race he tried the route that was farther away—you suggest this as Ashland, Oregon, the closer location being Yreka Station (I can't find this on modern maps so is this just nearby Yreka?) Drannan's account of the dispatch race says that it was from Fort Klamath to either Ashland or Jacksonville. He suggests he went to Ashland because it was closer than Jacksonville. Drannan's numbers state this is 80 miles of trail to Ashland versus 100 miles of wagon road to Jacksonville, modern trails and roads suggest a trip of 70 miles versus 75 to 90 miles so his guesses were accurate enough. Modern day Yreka is not closer than either of these destinations, it is about 100 miles away. If the next account of this story was in 1960 then Drannan's account is the only account that can be considered either first hand, or second hand and alive as an adult at the time. The 1960 account is written solely as a history from someone who was probably not born at the time of the events.

Okay, reader Harley has in fact caught me out in a major inaccuracy in my account. You see, I was writing fairly quickly (and entirely from memory) when I wrote that, and I carelessly substituted Yreka for Jacksonville. Yreka, you see, was the town that carried most of the telegraphic correspondence from the front during the Modoc war: government dispatches, reporters’ accounts, and private messages all went out primarily from that location. The hanging, however, was another matter. It took place at Fort Klamath, and the main telegraph station for dispatches from that place was Jacksonville. There are other problems with the story as I related it then, and as there is, as far as I know, no full account of events available either in print or on the internet, I thought I would take a moment to relate the story as it happened, based on contemporary accounts.

But where to start? The Modoc war is not the best known of the conflicts between the invading Euro-Americans and the peoples they found in their path, and it was far from typical, so perhaps a few words are in order about the conflict. The Modoc people lived along the present-day California-Oregon border until 1864, when they were assigned by treaty to Klamath Reservation, and were required to abandon their ancestral lands altogether. Some of them moved there voluntarily in 1867, and the rest were taken there at the end of 1869, but they abandoned the reservation en masse in the spring of 1870. Many, perhaps most, refused to return. In November 1872 a small force of soldiers from Fort Klamath were sent to escort them there, the Modocs resisted, and fled to their traditional stronghold in today’s Lava Bed National Monument. There they holed up, resisting attempts by the army to force them out, and by peace commissioners to entice them to come out voluntarily.

February and March of 1873 were taken up with peace negotiations, and during that time newspaper correspondents set up bases at various army locations, covering the war from there. One of them, Edward Fox of the New York Herald, went so far as to ride into the Modoc encampment during one of the peace conferences to talk with the Modoc leaders, interviewing Captain Jack and John Schonchin among others. Another, H. W. Atwell of the Sacramento Record, spent an uncomfortable night at the Modoc encampment, under threat of death from some of the more volatile warriors, when he accompanied a peace commissioner during some tense negotiations.

These negotiations came to an abrupt end in April, when at a prearranged signal members of the Modoc delegation opened fire on the U. S. representatives, killing two of them and wounding others. When open hostilities resumed immediately after the Modocs were driven from their lava stronghold into the open, where they split up into small bands and were captured. Those who had taken part in the murders under a flag of truce were put on trial in July and six of them were sentenced to be hanged. Two of the sentences were commuted to life imprisonment at the last moment, but Captain Jack, John Schonchin, Black Jim, and Boston Charley were in fact hanged on 3 October 1873.

The major newspapers sent out reporters to cover the event. Fox and Atwell returned, and the San Francisco Chronicle sent out a newcomer to the scene, H. S. Shaw. (The Chronicle’s coverage had been somewhat inconsistent since its original reporter, Robert Bogart, was driven from the scene when his coverage was deemed too favorable to the Modocs.) The powerful Associated Press (not the current outfit of that name), usually represented by a reporter from the San Francisco Evening Bulletin, was conspicuous by its apparent absence.

None of the reporters took note of a Jacksonville teamster named William Turner who was working at the fort. Had they known his background, however, they might have smelt a rat. Turner was a former editor of a Jacksonville newspaper, the Oregon Sentinel, and he was not there by chance. The San Francisco Evening Bulletin had hired him to represent the interests of the press association.

Fox’s coverage was probably the most thorough, including a review of the major events of the war and final interviews with the Modoc leaders, in addition to an account of the execution itself. But the execution was the notable event, and all reporters wanted to be the first to get the news out. Being first was critical in more than one sense; it took time to telegraph information, and there was only one key available at Jacksonville; whoever got there first would quite possibly keep possession of the key long enough to keep his rivals’ stories out of the papers till the next day.

Fox’s preparations were formidable: he had nine horses spaced out along the ninety-mile road to Jacksonville, and three couriers to carry the message. He also had a secret weapon the others didn’t know about; he planned to send a dispatch describing the preliminaries first, before the execution, to seize control of the key, to which his account of the execution would be added, so that even if another reporter’s courier got their before his second message, his account would still go out first. (He had not reckoned on the local power wielded by the Associated Press, however, as we will see.)

Against this the other two reporters openly on the scene sought alternatives. Atwell decided to try for Ashland, which was closer, but the road was little better than a trail in some places, and it would be difficult to make good time. Like Fox, he set up a chain of horses and couriers along his route, and prepared for the event. Shaw decided to try for Yreka, sending his account there by carrier pigeon.

Turner kept his preparations as private as possible. He arranged secretly to clear an old trail, once used to bring supplies to the fort from Jacksonville, but now abandoned. Like the others he had multiple horses and couriers to carry his report of the execution along his chosen path. Unlike the others, he was not concerned with creating a comprehensive report, but only in getting the news of the hanging out first.

The hanging of the Modoc leaders has been described many times since then, both by eyewitnesses and by those attempting to make sense of events, but these four reporters were among the first to attempt it, and certainly were the first to get their versions into print. The events were simple enough. The troops assembled to escort them at 8:30 in the morning, at 9:30 the prisoners were brought forth, by 9:50 they were placed on the gallows, at 10:00 the sentence was read, at 10:18 the ropes were adjusted, and by 10:25 it was all over.

The reporters wrote rapidly, standing by their horses, and within minutes the reports were handed to the various couriers and the race was on. Shaw’s pigeons were launched, but seemed clueless about what they were supposed to do, and circled aimlessly about, finally settling on some nearby branches. The rest, however, were more or less successfully on their way.

Fox’s first courier, sent out well in advance with a report covering the previous day’s activities including the complete military orders for the execution, arrived first, and thus gained control of the key as he had planned. He had written “more to come” at the end of the dispatch, to indicate that this was not the complete transmission, and seemingly felt confident that that would be enough to hold the wire for him. The trouble was, Western Union was hopelessly entwined with the Associated Press; its operators had been acting as local stringers for it throughout the war, and operator had orders to send its dispatch through first if at all possible. Both Turner’s agent and Fox’s arrived before Fox’s first dispatch had been concluded, but as Turner’s agent had arrived some thirty minutes before Fox’s, the telegraph operator used that as an excuse to terminate Fox’s story at the “more to come” point, and to send Turner’s account before resuming Fox’s. The result was that Turner’s brief story became the first news of the execution to reach the outside world.

Atwell, who had tried to get his story out via Ashland, fell victim to some extremely bad luck. One of his couriers had an accident on the road and fell off his horse. (According to one account he was inebriated at the time.) This mishap caused his story to be delayed for a further day, putting him squarely behind the others in the race. And to finish things off, Shaw’s pigeons never did make it to Yreka, and his story was apparently lost. He and Fox, however, had an arrangement by which Fox’s courier carried a version of his story to go out on the Jacksonville line. It took the operator there twenty-two hours to transmit all the material provided by the various reporters.

And this, dear readers, is the story of how the news of the Modoc executions first reached the outside world from Fort Klamath. The sources include the reporters’ own accounts in their respective papers, as well as a number of pieces in the Yreka Journal, the Yreka Union, and the Oregon Sentinel. As I said in my original piece, this did make a considerable local stir at the time, but it was barely reported outside the region. In a later piece I intend to cover William F. Drannan’s account with a bit more detail, but this is as much as I can stand to do at the moment. Drannan will have to wait.

Quotation of the Day

There is a reason why the first thing a historian needs to learn to be a good historian is historiography, also known as the history of history. There is almost no known historical fact and there certainly isn’t any analysis of a historical fact that hasn’t been disputed at least once and, more likely, argued to death by men with beards and an unnatural appreciation for tweed.

Geds (“Menzies Contra Reality, Part 1”)

Bronze-age Goat-herders My Ass

One of the words I don’t really get is the term “construct” when used as a pejorative noun. This is a scholarly construct some Wikipedia editor will write dismissively in explaining why there should be no article on the Ebionite gospel, or the Ur-Hamlet is nothing but a modern construct.—as though that were a reason for neglecting the evidence on the subject. As Jason Thibeault points out (“Jim Garlow: Sexual orientation is a ‘modern construct’, therefore a choice”) so is gravity a modern construct, but that doesn’t mean that people could float off the earth until Isaac Newton named the force and described it in mathematical terms.

I mean, gee whiz, most things are modern constructs, if they are of any importance. Today’s Puritan Bible—the Hebrew Tanach in the Septuagint order alongside the Greek New Testament writings—is a modern construct. The second law of thermodynamics, so much beloved by the anti-evolution crowd, is a modern construct. The Rapture, for christ’s sake, is a modern construct. While the Rapture is bullshit, the second law of thermodynamics is (as far as I know) still the best scientific approximation of the truth, and the Puritan Bible at least closer to the original texts than its predecessors (though that’s not saying much), all are recent constructs viewed against the long reach of history.

It’s not the recentness of the construct that matters, it is its utility, or its beauty, or its ability to explain the evidence. In the case of the phrase “sexual orientation,” however, we are not even talking about a construct of any sort, but only of a different phrase for something that has been understood for centuries: different people are sexually aroused by different things.

The ancients were quite aware of this fact; there’s nothing new about it. Different things turn different people on. At present we have a more detailed understanding of human sexuality than in ancient times, and we have made categories and lists of the various possibilities; orientation is part of this and refers to the gender to which one is sexually attracted, as in same (homo) or different (hetero). The increasing precision of the terminology may be new, but the knowledge isn’t.

This character that Jason is replying to—apparently his name is Jim Garlow, though I don’t know who that is otherwise—gets the meaning wrong in his little diatribe, by the way; he says that sexual orientation is how one sees oneself, which it most emphatically is not. But that’s only the beginning of his willful ignorance; he’s trying to make a distinction between attraction and practice. As his parallel he claims that every healthy heterosexual male is naturally polygamous, but that these men don’t have to act on that natural desire. Similarly, therefore, just as men who are attracted to women other than their lawfully wedded wives don’t have to act on their attractions, so men who are attracted to other men don’t have to act on theirs. How this bizarre concept is supposed to be any sort of parallel he doesn’t explain. I mean, a man who is attracted to more than one woman can still have sex with somebody, by his reasoning, but who is the other man supposed to have sex with? Or is he supposed to remain celibate? Or what, exactly?

No, Jason nails this one, and I was with him all the way through this paragraph:

Each person in society contributes to the society most optimally when they are healthy, happy and in a career well suited to them. Finding a loving consenting partner (or multiple, if polyamory is allowed for those that so choose) to support you and to provide comfort and yes, even consensual sexual relations, is a big factor in determining whether or not someone will be happy. So it is objectively better for society if people who are naturally gay have all the same recourses toward autonomy, toward self-directed pursuit of happiness as do straights and straight-enoughs.

But then, with his final paragraph, he lost me:

But these people would never see that, because some bronze-age goat herders wove their homophobia into their Bible and said God wrote it.

Oh, man, bronze-age goat-herders? Did you have to go there?

No, no, no… The iron-age urban dwellers who wrote the books that would eventually be incorporated into the bible were far from the bronze-age goat-herders whose lifestyle they idealized (and probably made up). That’s like calling Tennyson a medieval jouster because he liked to write about them. And as for the claim that modern-day homophobes get their fix from the Bible—do they really? Out of that vast collection of noble poetry, blood-drenched history, clever fables and upward of a thousand lies (as one of Mark Twain’s characters put it) there are no more than a few references to homosexuality (Leviticus 18:22, 20:13, Romans 1:27), and while they are nasty, they hardly constitute a major theme. One of the indications of just how desperate Bible-believing homophobes are is they way they have read homosexuality into various passages, such as the destruction of the cities of the plain by fire. No, it doesn’t look as if they get it from the Bible; rather they use the Bible as a crutch for their prejudices.

I mean, when was the last time you saw any of them complain about people who reap to the very edges of their fields, not leaving anything for the poor and the alien? But that's in there too; check out Leviticus 23:22. It's in the book, as Johnny Standley used to object to those who didn't believe in the power of Grandma's lye soap.

Quotation of the Day

If freedom of religion, conscience and speech are to mean anything, religious doctrines, symbols and assertions must be open to inquiry, criticism and, indeed, ridicule. Otherwise, the human thought process will be shut down by force of law in order to protect the sensibilities of the superstitious, and free inquiry into the most central issues facing humanity since the birth of the species will be effectively foreclosed.

Hussein Ibish, Blasphemy: an indispensable human right

Quotation of the Day

The ‘right to religion’ is meant to be the right to a personal religion and belief. But when religion is part of the state, or judicial system, it is no longer a matter of religious belief but of political power.

In fact, religion in the state, educational system or judicial system is the end of any form of equality, choice, rights, freedoms or democratic politics.

Maryam Namazie, “This is about Politics, not Religion”

Quotation of the Day

Libertarians postulate that unfettering everyone’s most self-serving economic motives is the best way to create a vibrant, egalitarian economy, just as unfettering a giant unstable slope of rocks on a steep hillside is the best way to create a stone cathedral at the base of the hill. MRAs hold that men are unfairly treated in today’s world by comparison to women, while simultaneously holding that the subjugation of women is natural and inevitable and no big deal. Libertarianism and MRAism are philosophies that will not withstand honest and rigorous investigation by a moderately bright 7-year-old, in other words, and yet the ranks of skeptics’groups are crawling with both.

Chris Clarke, “Cats, Skepticism, and MRAs”

Thought for the Day

Why would anyone think that an ancient set of works, any ancient set of works, would provide moral guidance on much of anything? The Biblical writers learned their “values” from their culture. That’s how we do it too.

Duane Smith

Like on Sunday

Sitting here, in front of my computer, I feel a sudden jolt of sadness shake me. And then it crosses my mind—it’s sunday. Sunday evening. Hello darkness my old friend; LoS is back. Like on Sunday. A sense of sorrow, of regret, that all good things were coming to an end and there was nothing left to look forward to. In my journal, after trying to explain it a couple of times, I started just saying that I feel “like on sunday”, and then just abbreviating it LoS.

Originally, of course, it was about the weekend—a time that had been so bright with promise friday night reduced to ashes of might-have-beens on sunday. A time when the consequences of procrastination had to be faced and that massive assignment given two weeks ago actually had to be done in a handful of hours. A time when the demons danced and the forces of hell rejoiced.

But for most of my life sunday evening has meant no more than any other time; my schedule is as likely to involve me doing something on the weekend as doing something on weekdays. And yet, still the feeling comes. There is something basic, primeval, in this rhythm of despair. The number of times I’ve had the sense of LoS wash over me on a sunday night cannot be counted.

And therein lies the rub. Cherry-picking, confirmation bias, all that sort of thing. Does LoS really happen on schedule, appearing on the summons of a long-ago school schedule? Being more than usually self-obsessed I’ve actually kept records of this feeling, along with other irrational shafts of displeasure, and—at least while I was actually keeping the record—discovered that LoS was no more likely to happen on a sunday evening than at any other time. Nor was I particularly prone to it on a sunday. I just notice it more, apparently, when it does come then.

And yet—and yet it feels to me as if it does. Many times, like the bolt from the blues just now, I have felt the familiar stroke of a minor chord across the strings of my spirit and believed myself to be participating in a long-dead ritual set in the stones of my childhood and mindlessly perpetuated by some sort of cosmic clock. But it probably isn’t. Far more likely it is nothing more than the consequence of a choice of label given when groping for a shorthand to describe a nameless impression a long time ago.

Quotation of the Day

Tilting the playing field in favor of the established rich at the expense of small businesses, tax payers, along with fair competition and brilliant innovation, is not a bug, this a feature of modern day conservative policy. The conservative CEO class has looted the nation for three decades under that policy. With President Mitt Romney they can dream of one more big score, but they can absolutely count one of their own to help pull up the ladder and give them and their spoils safe passage to the gleaming offshore paradises that await, when the jig is finally up.

Stephen “DarkSyde” Andrew

Thought for the Day

I wish people could be OK with that, with the fact that religion isn't true. After all, they can still go to church. They can still pray. They can still observe the rituals and special days. They can still read holy books and discuss teachings. They can still imagine heaven. They can still contemplate hell. They can still fantasize about knowing, all by themselves, deep secrets of the universe.

Religion does not need to be true for people to be interested in it, inspired by it, educated by it, moved by it. But it needs to be true if people are going to learn about the universe and about people.

And it's not true, so let's not ask it to be, and let's not try to extract knowledge where there is none to be had.

Larry Tanner

Quotation of the Day

A government with the power to force us to buy health insurance can also force restaurants to serve black people.

Bruce Bartlett as quoted by Andrew Sullivan

Time and Timbuktu

Barbarians are smashing the tombs of the Muslim saints in Timbuktu, and nobody gives a shit. Certainly I don’t; it’s not my field. And they aren’t my saints—and I wouldn’t care if they were. Hell, you could drag the bones of Galileo and Samuel Clemens and Martin Luther King about the streets and have one merry old celebration desecrating them and it wouldn’t bother me any; let the dead take care of the dead as some old wise guy once said. You could do the same with my bones for that matter, once I’m dead and not using them any longer. It’s all one to me.

I care more about the old libraries of Timbuktu, though it’s still not my field and I couldn’t read them if I had them sitting right here in front of me. So far, if the reports be true, the old documents with their ghosts of the thoughts of the dead and forgotten are safe; the barbarians care nothing about them. But that’s the thing—who knows what a barbarian will choose to destroy next? That’s the cool thing about barbarism; it takes no effort of any kind to eradicate permanently what generations of human beings have treasured and preserved so that the memory of humankind may be kept to some limited extent alive. It takes effort to remember; none to forget.

We hear that an assault on one of these old shrines was deflected when local citizens formed a human chain to protect it from the vandals. Cynically we may suppose that they were doing it for all the wrong reasons—superstition, fanaticism, tourism. What’s the difference? It’s a magnificent gesture, a finger of light given to the darkness. Inevitably the darkness of oblivion wins, order dissolves into chaos, nothing is left but firefly glow in the darkness. Oblivion is easy; continuity is hard. Which, when you think about it, is why the barbarians can be given no quarter. There is no compromise between existence and non-existence, movement and stillness, light and darkness. Darkness inevitably wins in the long run—but we live in the short run. And there light can prevail. It’s not much—but it’s all we’ve got.

Quotation of the Day

The handful of men, and smaller number of women, who have spent the last year actively trying to ruin people’s lives, and those who have recently joined them when they realized that their ass-grabbing culture was threatened as well, really have only one motivation: They don’t want to live in a world in which women can tell guys to fuck off without said woman paying a cost of some kind, being put in her place, or a threat being made against her so she will think twice about speaking up in the future.

Greg Laden

Quotation of the Day

If this country actually did have that famous rule of law that we talk so often about, if we actually cared about the UN Convention Against Torture that we pushed through 30 years ago, if we actually gave a damn about torture and human rights as we so often grandly claim to, that trial would have taken place here. But we don’t mean any of those things. We condemn every other nation for doing what we do, then we feign offense at the outrageous suggestion that we are hypocrites. We arrest and prosecute others, like the son of Liberian dictator Charles Taylor, for torture and we issue grandiose statements of our eternal commitment to human rights. That, ladies and gentlemen, is American exceptionalism.

Ed Brayton

Quotation of the Day

[R]eason must be the guiding principle of our democracy. In a nation of citizens from so many different backgrounds and beliefs, the only way we can solve our problems is through cultivating intelligent, moral, and ethical interactions among all people.

Pete Stark

Advice from a Flounder

The Cranston prayer banner case has descended from low comedy to outright farce, with a group of Cranston citizens filing a brief to intervene in the case after it had already been decided. For those who aren’t familiar with the case, or maybe don’t remember it (the internet seems to have shortened people’s memories further than ever) let me observe that the city of Cranston, Rhode Island, erected an illegal prayer banner in a local high school half a century ago, and then had the gall to argue that it should be kept up because it had been hanging there (illegally) for a half century. The court ordered them to take it down.

Well now a group of Cranston citizens—the names of these jackasses are Michael Motaranni, Christian Frangos, Olivia Frangos, Carolyn Mesagno, Lori McClain, Jared McMullen and Ronald L’Heureux—are trying to argue that “compelling and dispositive arguments were presented to the Cranston School Committee at the public hearings that were not included in Defendants’ briefs to this Court. Movants believe that these arguments, if considered by this Court, would have resulted in a different ruling.” The judge tersely added, “They are wrong.” Relying on “the Aitken act of 1872 authorizing the use of bibles in all schools in America” Michael Motaranni and his associates argued that virtually every school prayer case has been wrongly decided at least since 1947.

There is an obvious problem with this—several of them, actually. First there is a category error involved here—“authorizing the use of bibles in all schools in America” is not the same thing as authorizing prayer. The bible is a religious text—or rather a collection of religious (and secular) texts held to be sacred by a variety of religious groups. The bible can, in fact, be used in government schools today, as a historic or literary document. Use of the bible in school is not necessarily endorsing one particular religious viewpoint over another.

Prayer, on the other hand, is a religious exercise. There is no such thing as a secular prayer. Any school-sponsored prayer crosses the line that separates spiritual and temporal affairs. Even if “the Aitken act of 1872 authorizing the use of bibles in all schools in America” were in force, it would not be relevant to the issue at hand—state-sponsored prayer.

But where on earth did this crackerjack legal team get the impression that there was an “Aitken act of 1872 authorizing the use of bibles in all schools in America”? What was their source for this erroneous belief? This is what cracks me up about this—this notion goes back to the anonymous internet document sometimes called “History Forgotten” or “Forsaken Roots”. Its author, apparently remembering in a vague and confused way the story of the Aitken Bible, claimed that Congress passed this resolution in 1782:

The Congress of the United States recommends and approves the Holy Bible for use in all schools.

Now when Robert Aitken printed the King James Bible in America for the first time (until the revolution printing it was a Crown monopoly) Congress did in fact pass a resolution approving it and recommending it “to the inhabitants of the United States”. It also authorized him to publicize its recommendation “in the manner he shall think proper.” It did not however authorize “the use of the bible in all schools in America”. That was an error made by the anonymous author of “Forsaken Roots”. He probably had in mind Aitken’s own description of his bible being “for use in schools.” Congress at no time echoed this language, however.

Please note, this is one step lower than relying on the likes of David Barton for ammunition; this is relying on an anonymous internet document, sans documentation, that mistakenly recycled bad Christian Nation arguments into an imaginary act of congress. Pathetic doesn’t begin to describe the case.

Redefining Marriage: Anyone Can Play

I don’t know how I stumbled onto this story out of Minnesota—I know somebody I read sent me there, but I can’t retrace my steps now—but a Federal judge there sent down this absolutely blistering opinion (Radtke v Local #638 Fund, PDF) against a union’s medical fund that decided on its own bizarre interpretation of state law that a man and his wife were not legally married. The Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund denied benefits to Christine Radtke, claiming that she was not legally Calvin Radtke’s spouse. In point of fact Calvin Radtke and his wife Christine were legally married under Minnesota law on 10 August 2005, as the fund in question was fully aware, as they were supplied with copies of the documents in question. But the fund decided that the marriage was not valid because Minnesota law explicitly rejects marriage “between persons of the same sex”. Apparently “Lawful marriage may be contracted only between persons of the opposite sex”.

So how on earth does this affect the Radtkes’ marriage? It is a matter of record that Calvin was recognized as male and Christine as female by the state of Minnesota at the time of their marriage. But the fund argued that as Christine was assigned male at the time of her birth, that should be the governing factor, and their marriage was therefore not valid under Minnesota law.

It was on this point that Judge Michael J. Davis waxed sarcastic, explaining the obvious as though trying to simplify matters so that a two-year-old could understand:

Minnesota’s requirements for the capacity to enter into a marriage contract, by their very nature, apply at the time the marriage is entered into. For example, both parties must have “attained the full age of 18 years.” Minn. Stat. § 517.02. Both parties must not be married to anyone else. Minn. Stat. § 517.03, subd. 1(a)(1). To apply these requirements as of some time other than the time of the marriage would be absurd—divorced individuals would be prohibited from marrying, and adults could not marry because they once were children. There is nothing in Minnesota law indicating that the opposite-sex requirement of § 517.01 should be treated differently from the other capacity requirements. Therefore, the opposite-sex requirement must be determined as of the time of the marriage, rather than as of the time of the participants’ births.

For reasons best known to themselves the Fund’s lawyers chose to drag in various irrelevancies concerning same-sex marriage—how it is seen by the Federal government and the state of Texas, for example. As the Radtkes were not claiming benefits on the basis of a “same-sex marriage” none of this had any conceivable relevance, as the Judge Davis correctly noted. The sole question at issue was whether the state of Minnesota recognized Christine Alisen Jensen as female at the time of her marriage—which it clearly did, as legal documents (including her amended birth certificate) showed, and her status as female was accepted by the IRS, the Minnesota Department of Public Safety, and the Social Security Administration.

The summary of the decision reads in part:

The Plan was unambiguously written to allow all persons who are legal spouses under Minnesota law to be eligible family dependents. The Fund’s role was to ascertain Minnesota law. It was not the Fund’s role to impose its own definitions of gender and marriage upon its participants. In this case, the Fund ignored all evidence of the State of Minnesota’s view of Plaintiff’s sex and marital status. The Fund’s decision was not only wrong, under a de novo review, it was a flagrant violation of its duty under any standard of review.

As if to make clear that their redefinition of marriage was not an honest misunderstanding of Minnesota law but only a cloak behind which they were hiding their prejudices, the union fund chose to rewrite its plan explicitly to exclude transgender spouses from all coverage:

[T]he Plan defines a spouse as a male or female member of a legally recognized marriage between a man and a woman. . . . For purposes of deciding whether a marriage is between a man and a woman, in all cases, the Board will only recognize the anatomical sex of the individual at the time of birth.

Nothing like an honest bigot, I guess. George Wallace would be proud.

Quotation of the Day

The whole goal of denialists is to create the appearance of a legitimate debate when there is in fact no legitimate scientific debate to be had. What is the point of arguing with someone who denies the moon landing? Or evolution? Or that HIV causes AIDS? Or the holocaust? They get real angry when you mention that one as they feel it creates a moral equivalence between the types of denial. But the operative word is “denial”…

Mark Hoofnagle