Why I Do Not Oppose Gay Marriage

OK before I get into this post, a few caveats:

1) Insofar as the Federal Constitution is involved, I still believe that the Constitution cannot legitimately be interpreted either descriptively (based on precedent) or normatively (according to the most proper method of interpretation) to require states to allow same-sex marriage (SSM). I've blogged about this in the past (see here), and stand by much of what I've written.

2) This post is titled "Why I Do Not Oppose Gay Marriage" not "Why Everyone Should Not Oppose Gay Marriage." There are legitimate religious and moral arguments against SSM, which while they do not appeal to me, are perfectly acceptable means of legislating in the United States. I am no Rawlsian and do not limit political deliberation to public reasons. Moral and religious constructs are perfectly legitimate bases for laws in most cases, and I've seen no argument to exclude them in this case.

3) I am not making a case in favor of civil unions or domestic partnerships. There are literally hundreds of undisputed, tangible benefits that accrue to married couples that are denied to same-sex couples when they cannot enter civil unions or domestic partnerships. Frankly, given all these benefits, it's hard to really come up with an argument against civil unions, and I am starting with the baseline that civil unions should be allowed.

Onto the subject at hand. For much of my blogging career I have been opposed to gay marriage. Although I haven't written much about it (here being an exception), I've defended the anti-SSM position on blogs such as Dovbear. But after a number of years of thinking about it, I've come to the realization that there simply isn't any reason for me to oppose it.

What changed my mind? I'm not totally sure, but I believe it was a combination between gaining a greater understanding of the benefits of SSM and no longer placing as much weight on the costs (costs which are mostly illusory).

Let's look at the the arguments pro and con.

Arguments For SSM

The arguments in support of SSM are of two types, deontological and utilitarian. First the deontological:

1) SSM should be permitted a matter of equality. In the past I've opposed this argument since I believed that same-sex couples and opposite sex couples were not similarly situated. As a matter of constitutional law, I continue to believe I am correct. But as a matter of political morality, the essential definition of marriage is constantly evolving and the almost universal opposition to banning gay sodomy coupled with the growing support for civil unions and domestic partnerships leads me to believe that the concept of marriage is currently in flux. As a result, this argument appeals to me more than in the past.

The utilitarian argument is as such:

1) Marriage is clearly a benefit to the individuals involved. As stated above, I am not discussing tangible benefits such as visitation rights and marital property, which are undisputed benefits. I am talking more about the psychological benefits of having one's relationships accepted by society at large, which surely is important. If anyone doubts that society's willingness to stamp a relationship with a measure of approval is a benefit to a couple, imagine tomorrow that New York decided to outlaw Jewish marriages or interracial marriages, and only afford those unions the status of civil unions. Would Jewish or Black civil rights groups stand idly in the background because those couples in a civil union have the exact same rights as married couples? Would anyone reading this post not feel a degree of horror at New York's open and notorious act of discrimination?

Now, the analogy isn't perfect and as a matter of constitutional law there is a huge difference between same-sex couples and interracial or Jewish couples. But this isn't a question of law, but rather political morality, and the essential aspects of the analogy basically hold.

Arguments Against SSM

So now that I've laid out the arguments in support, have opponents of SSM mustered any strong arguments in opposition? I do not believe so and will explain why below. At the end of the day, the benefits of SSM far outweigh the costs. Let's look at these arguments:

1) Marriage has always been between men and women. There are two version of his argument, the Strong version and the Weak version. While I am sympathetic to the Weak argument and will return to it below, the Strong argument is fatally flawed.

The Strong version claims that marriage has always been between people of the opposite gender and therefore SSM is not marriage. As structured this arguments obviously falls prey to the Humean is/ought fallacy. The fact that marriage has always been one way does not entail that it shoul always be that way. Civil marriage is the US is currently in flux, and the aspect of marriage limiting the institution to opposite-sex couples is no longer as clear as in the past. Marriage is shifting and we should not deny the label "marriage" to same-sex couples merely because we have done so in the past.

2) Marriage is harmed by SSM. This argument is notoriously slippery. In what way is my marriage harmed if two gay guys down the block want to get married? Rarely is this argument explicated in way that would actually explain the harm.

The most explicable version of this argument was proferred by Amy Wax in a Federalist Society debate over SSM. In a nutshell, Wax argued that marriage is a bundle of criteria that taken together define the institution. One criterion is that marriage must be monogamous (obviously this hasn't always been true, but it is the accepted definition in the Western World today). Since, as Wax goes on to say, gay men tend to be more promiscuous than straight men and have more partners, if we permit SSM, we'll be allowing people who do not believe that marriage must be monogamous to negate the monogamy criterion. How does that work? Since marriage is defined in part by how people act, and 2% of men in this country are gay (and generally do not believe in monogamy), we'll be adding a large number of marriages between participants who do not support monogamy as a rule to the overall number of marriages. Those 2% will obviate the monogamy criterion because they will dilute the total number of monogamous marriages. But since they oppose monogamy as a rule, they will also be openly nonmonogamous openly and others may follow their lead and enter into marriages, which will not be monogamous. The more people who marry with the express intent to not be monogamous, the further the definition of marriage will be away from monogamy. The monogamy criterion will no longer be part of the definition of marriage, and that will lead others to forgo monogamy as well. Hence the change in marriage as we know it.

This argument fails on a number of grounds (I am basically restating Dale Carpenter and Andrew Koppelman's responses). First, most SSMs are between lesbians who are famously monogamous. If anything, they should outweigh the gay men who openly and notoriously enter into nonmonogamous marriages. Secondly, SSM will make up a very small percentage of marriages. It's hard to imagine those marriage will have a substantial effect on the rest of society. Definitional changes cannot be effected by such a tiny minority of marriages. As long as the overwhelming majority of marriages have a monogamy criterion, marriage will still be defined partly as a monogamous institution. Finally, even if a small percentage of marriage could have a real effect on the institution of marriage, there is a serious weakness in Wax's argument. How do we get from "gay men will marry without the intention of staying monogamous" to "others will follow their lead?" How will others know the rules of those gay men's marriages? I have no idea what type of marriage my neighbors practice, even though I realize that odds are some of their marriages are not entirely monogamous. Why would straight couples suddenly decide to have open marriages just because some gay men decided to do so? The logic just doesn't follow.


3) Permitting SSM in other countries has weakened marriage in those countries. This is an essentially empirical argument, most prominently offered by Stanley Kurtz. But Kurtz's statistics say nothing about whether the correlation between the negative effects of marriage and permitting SSM is actually causation. Essentially someone must make an argument to link the two. At the end of the day, this argument is parasitic on Wax's argument, because Wax provides a framework for understanding the data Kurtz and others provide. And Wax's arguments are clearly insufficient to justify not allowing SSM.

The above arguments are the most commonly offered intellectual justifications for not permitting SSM. But they fail to describe any costs to our society if we allowed SSM. And they surely do not provide a basis for denying same-sex couples the benefits of SSM. So I do not see any reason to oppose SSM anymore.

Given the above, why did I title my post "Why I Do Not Oppose Gay Marriage" rather than "Why I Support Gay Marriage?" Well, I'm still a conservative. While the criterion of marriage that only includes opposite-sex couples is in a state of flux right now, there has not been enough of a change on the ground for me to support SSM across the board. Not a single state has voluntarily decided to extend marriage to same-sex couples. 30 states right now have a constitutional ban against SSM. We are still ways away from SSM becoming part of our social traditions. Essentially I accept the weak version of the "marriage has always been this way" argument because I will afford our current practices a presumption of correctness (unless they are scathingly unjust) until the practices are modified organically.

But I would be completely open to NY, which is now completely under Democratic control, voting in SSM. I concur with Justice Brandies, who famously argued that the states should be laboratories of democracy. Let's let some states accept SSM, with DOMA ensuring that other states do not need to do so, and we can see whether SSM is capable of fitting within the norms of our society. We have little to lose and everything to gain. And if it happens in New York, you won't see me picketing outside of City Hall.

Judicial Politics Only Go One Way Apparently

The idea that judges decide cases based on their personal policy preferences is not new, and is often used as a tool by both parties against judges who decide cases in ways they don't like. Conservatives often rail against "judicial activism," which is essentially an empty term, devoid of any real content, and usually means decisions that go against the speaker's preferred outcome. Liberals brand conservative justices as right-wing ideologues who have no interest in interpreting the Constitution, but rather want to impose conservative values on the country.

But in reality the two critiques are not so similar. Many conservative politicians espouse "strict constructionalism," a judicial ideology opposed even by hard-core textualists such as Antonin Scalia as unreasonable. The more sophisticated version understands the Constitution to have a fixed semantic meaning that be derived without looking to morality or politics. But the conservative critique of liberal activism at least starts with the premise that the Constitution has a meaning that can be derived without recourse to moral or political views. Judges who allow their personal moral code or their policy preferences are diverging from the meaning of the Constitution.

Liberals tend to focus on moral concepts such as equality and liberty and expect judges to allow those concepts to illuminate the legal norms embedded in the Constitution. The academic version of the liberal view of judging (e.g., Dworkin, Tribe, etc.) also holds up the Constitution as a moral document that is interpreted based on modern sensibilities. Conservative judges who interpret the text based on semantic meaning are really setting up a facade to cover their naked political decisions because interpretation necessarily requires moral/political analysis.

So frankly I don't understand the this passage written by two pretty liberal legal scholars:

[McCain] voted to confirm every Bush nominee, and has said he will select conservative judges and would not have selected Justices Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter, or John Paul Stevens (the latter two Republican-appointed), judges widely respected for placing the law ahead of politics.

If ingredient in constitutional interpretation is the integration of moral values with legal concepts, then in what sense do the above named justices put law ahead of politics? Part of law is politics (or morality or whatever you want to call it) by their own definition. So unless we define "law" as "good liberal outcomes" and "politics" as "bad conservative outcomes" this sentence just doesn't make any sense.

At the end of the day, the liberal critique is arbitrary. If the Constitution must be interpreted morally, then why can't conservatives allow their moral views to influence their decisions? At the end of the day, the liberal critique is reducible to disputes over the most correct moral values. The conservative critique at least would, in theory, countenance liberal outcomes if that's what the semantic meaning of the Constitution mandated. So to some degree the conservative position is a bit more principled.

Thoughts on Election Day

Despite my tepid McCain endorsement, I'm still sort of excited that Obama won. With only a few minor disagreements, Randy Barnett's post sums up my feelings perfectly.

It looks like the Democrats are not going to get to 60 in the Senate. That's a much bigger deal than who ended up being President.

Same sex marriage in California is on the way out. Eugene Volokh has a post about its possible ramifications on the already-existing gay marriages in California. I plan to write a post about SSM in the coming days, but I'm happy to see another attempt to have the courts stick its nose where it doesn't belong shot down. Anyway, California's referendum/amendment system is a ridiculous means to pass legislation, which although probably not unconstitutional, is an only slightly less absurd way to decide important questions of policy.

Why John McCain Should Be President

I've stayed on the sidelines for most of this political campaign, but with one more day to go now is probably the time, right?

I have to be honest, but neither candidate really appeals to me. Not because I'm so conservative that I'm appalled by McCain's realization that we need a pragmatic immigration policy, or because he opposed to the federal marriage amendment. These are good things. And surely Barack Obama's political views leave a lot to be desired.

However, I must admit that McCain isn't exactly the most inspiring leader. And the campaign he's run is undoubtedly negative. Just last week Obama spent enough money to buy actual network TV time in what was effectively a half an hour commercial. On the same night, McCain appeared on Larry King Live. As one pundit put it, Obama spent almost the entire time talking about Barack Obama; McCain spent the time talking about ...... Barak Obama. While the candidate who is down in polls tends to attack his opponent (the old "tear him down to bring me up" approach), McCain's campaign has been overwhelmingly negative in the past few weeks. I have to say that I'm not a huge fan of constant negative campaigning.

On the other hand, despite Obama's tremendous political skills and ability to inspire, his unprecedented lack of experience is quite worrisome. For all effective purposes, he's been in the Senate for two years. It's rare for senators to be elected as President. But when was the last time a senator was chosen with so little experience? Has there ever been a senator elected president before even completing his term? While experience is not everything, it provides all-important data when making fundemental decisions. I have a hard imagining that a potential President could really respond effectively to difficult and urgent foreign policy problems without some serious leadership experience.

Despite the personal flaws elaborated on above, at the end of the day Presidents must be chosen based on policy, not personality. And on policy I tend to lean more towards McCain than Obama ( I know, shocking). McCain's foreign policy appeals to me primarily because of his views on Iraq. A hasty withdrawal would be a disaster in that area of the world. If Iraq collapses in civil war, the region could explode. While I believe that McCain's foreign policy overall could use a little advice from professional diplomats such as Dennis Ross, McCain's willingness to make the difficult, if unpopular, choices, gives him a leg up over Obama, who does not seem to believe that we can win in Iraq.

And then there are economics. McCain wants to cut taxes across the board, while Obama wants to raise taxes on the top 5%. But raising taxes during a recession is a terrible idea. Even the great liberal economist, John Maynard Keynes, proposed increasing spending to get economies out of recessions, not raising taxes. Raising taxes only hurts economies when times are tough.

Divided government is also an important consideration. Surely the excesses of the Bush administration can be traced to one part controlling the Legislative and Executive branches. When the branches do not properly check each other, they tend to run wild. A democratic President with a filibuster-proof Senate and a huge majority in the House would be able to implement whatever extreme policies they feel would solve our national problems. Even a Democrat should be wary of that possibility. Just look how the eight years turned out for us Republicans.

Politics aside, I believe both candidates could be good Presidents and would be fine seeing either one occupy the White House in January. But I hope the American people make the right choice tomorrow and give McCain a shot. And, hey, if it doesn't work, maybe Obama will actually be ready in 2012.

Update on Rafi

It's been a while since we last posted on the blog, and we wish to update our venerable readers about Rafi's status. At the end of the day, Rafi is doing pretty well. He's actually reaching his developmental milestones, which at this point aren't really much. He sleeps through most of the night, which makes so much easier for both of us. While he's still eating exclusively from the feeding tube, our (especially Shifra's) increased experience has made the feedings more efficient and consequently less difficult for Rafi and both of us.

That's the good news. The bad news is Rafi has undergone a battery of tests over the last month, including an audiology test, a sleep study, and a meeting with a phalanx of doctors. These tests, of course, exclude his periodic appointments with his cardiologist and pediatrician. We have one more test tomorrow, and next week the doctors at NYU will decide whether Rafi needs surgery now, or can wait until he's older. As it stands, it looks like surgery can be delayed, but we're not holding our breath.

Rafi has also started early intervention. Luckily the therapists come to our apartment and save Shifra the exceptionally difficult task of schleping Rafi out to their offices on public transportation.

All things considered, Rafi is quite a tough kid. He rarely cries for no reason and smiles frequently. Despite seeing doctor after doctor, and having undergone two surgeries, he's a well-adjusted baby. Most of the credit goes to Shifra, but Rafi has to get some too (I come in a distant third and my contribution mainly involves playing superbaby and burping him after his innumerable feedings).

Rafi is not out of the woods yet, but as his condition is no longer life threatening (at least at this stage), I feel as if we can breath easier. Despite everything he's the world's cutest baby, and we can't imagine life without him.

Today's Bris

The bris went well today. We had a lot more people than expected, but luckily the caterer brought extra food and no one went home hungry. A lot of people went the extra mile to get there (a special thanks goes to my cousins in Silver Spring who drove up today just for the bris - that's eight hours of driving in one day with a one year old for those counting at home).

The baby is sleeping now and we hope will sleep through the night. His name is Raphael Yehuda. His second name comes from Shifra's grandfather, who passed away last year and we chose Raphael because we like the name and because we hope he recovers from his ailments. At present, I'm still calling him Spike, but Shifra likes Rafi, so I'll be forced to make the switch soon.

Anyway, I hope that now that he's home and a member of the Tribe, things can calm down and we can get into a normal schedule. We're still waiting on his jaw and whether they can even do the surgery when he's an infant. But otherwise we're getting into a routine and will finally be able to really enjoy our time with him.

Baby's Bris

Sorry we haven't written in a while, but I'm sure you all can understand what having a baby at home does to one's spare time (pretty much anihilates it). The baby is B"H doing very well, but his feedings continue to be a hassle. If anyone has any experience with using a feeding tube on a baby, please give me some tips! In general, the baby still has some discomfort during the feedings, which makes each session unpleasant for both of us. I think the situation is improving, but if you have any information about making the feedings more enjoyable, please let me know.

The baby is still on blood thinners since his last echo revealed that he still has something unusual in a vein near his heart due to the heart surgery. His cardiologist said that she is not certain that the anomaly is a blood clot, but to be safe, he is being treated as though he has one. The baby will technically be on blood thinners until the end of the month when he will have another echo, but since there is no immediate danger, the blood thinners are being suspended for about a week so we can finally have the bris! The bris will G-d willing take place this Sunday afternoon at our synagogue (you can email us for details). We are incredibly thankful that this is actually happening, and we're looking forward to when we can refer to the baby by his name (although the nicknames we came up with are pretty cute too).

We are also still waiting to hear from our hospital about jaw surgery for the baby. The last we heard, the OMF team was not sure if surgery can be performed at this time for the baby, and that we'd probably have to wait some time for it to be done. We're planning on getting second opinion with NYU anyway, but that's still in the works.

In general, the baby is just adorable (in my non-biased opinion), and he loves lying on his playmat watching its little stuffed animals hovering overhead. It's such a blessing to finally have him home.

Baby's Home!

Not everything is perfect, but he's finally here. More about it tomorrow.

Surgery Day

Today the baby had surgery to receive a stomach tube, which we'll use to feed him until he learns how to eat properly. Thankfully the surgery went very well, and the baby is currently sleeping off the anesthesia. I was glad to see that the actual tube is quite thin and small, and shouldn't be bothersome to the baby. He's on a breathing tube once again, so we can't hold him right now, but hopefully the tube will be removed later tonight or by tomorrow morning.
The baby will also need another echo to determine if the blood clot is going away/gone by now, so we're waiting on that as well. He'll remain on blood thinners until we know for certain.
We certainly wish that the baby can come home this week for Shabbos, and I guess we'll see how the week plays out.

Friday Baby Update

Being able to hold the baby certainly makes this whole experience a lot easier to deal with, but we're not out of the woods yet. We had a small scare from the cardiac team this week, who found what may be a clot in a vein near the baby's heart from the surgery. They're treating him with blood thinners, monitoring his progress and hopefully he'll be fine. The baby will be on blood thinners for 1-2 weeks, and hopefully it'll be closer to a week.
He's also been seen daily by a feeding specialist, Dolores. With each session, he's taking more and more milk by bottle, which is great, but Dolores says that due to his little chin, it's difficult for him to take sufficient milk on his own, and the feeding tube is still necessary.
OMF surgeons (Oral Maxillofacial) confirmed this with their evaluation yesterday. They're convinced that the baby will need surgery to enlarge his jaw and have ordered a CT scan to obtain measurements. The surgery is not going to take place for another month, though, and the baby will B"H be able to come home for a bit in the meantime! Hopefully, the clot issue will be resolved soon, and we can bring him home for a few weeks (with the feeding tube).
So, at least we have a bit of a timetable now, which is comforting, though I hate the thought of putting our baby through more surgery, even though I know it's for the best. It's been really tough, but we try to take the situation day by day.

Thank you all very much for the your supportive messages, emails, and voicemails. It's difficult to return calls, but we do appreciate them all very much.

Holding The Baby

I think Baby is happier since they removed all the contraptions that covered his face. With only a feeding tube remaining, we can finally see what Baby really looks like. He's a real cutie.

Today we just spent the vast majority of the day holding him. He fell asleep, woke up, and ate in our arms. It's just nice to be able to hold our child after almost two weeks of tests and a major surgery. As one would expect, Baby really likes being held. He just looks at us, and we look at him. It's sad to leave him behind when we go home, and even sadder for me since I won't get a chance to see him until late tomorrow, but we're hopeful that he'll come home soon and then we'll hold him as much as we want.

More Baby News

Updated Again (Friday, August 15, 5:30 pm)

Updated

It looks like the respirator is coming out tomorrow morning. The nurses have been decreasing his morphine dose and today he was very active and awake (he likes it when we hold his hand). He was even making eye contact with us (or so we think).

After they take out the respirator, we'll finally be able to hold him. I'm really, really excited to hold him. It's sad that it's been a week already and he's never been held, but I'm sure Shifra and I will make it up to him. :-) We'll keep you guys informed.

Update (August 13, 10 pm): They took the respirator out tonight. We almost got a chance to hold him before going home, but he was all swaddled up and sleeping and no one wants to wake up a sleeping baby. So it looks like tomorrow is the big day. The doctor told us that he might be ready to go home by Sunday or Monday. We can't wait.

Update (August 15, 5:30 pm): We were allowed to hold the baby yesterday for the first time. He's still very hoarse because of the respirator, so his cries are really low. But he can still make himself heard.

His heart is doing very well, but he has to learn how to eat, and that's what will keep him in the hospital for the next few days. We're hoping he'll be home by next Shabbos, but it's still too early to be sure.

Baby Update

Updated Again

Updated

We don't have much to add to what I wrote Friday. The surgery is still scheduled for tomorrow morning, but we don't know what time. The baby is ready to go and is doing quite well.

We spent Shabbos at home, so we didn't get to see the baby for a long, almost 36 hour period. We had our cell phones on just in case the hospital needed to contact us in an emergency, but thankfully the call never came. The nurse informed us that the baby was very active over Shabbos and was actually awake when we came down to see him this morning. At this time, the staff is taking blood and suctioning his nose, and we decided to step out to give them some space.

We expect him to be hooked up to a number of machines tomorrow after his surgery, which is scary, but we realize the necessity of it. We'll update tomorrow once we hear the baby came out of surgery ok.

We appreciate all your offers to help, and every prayer makes a difference. Please daven for Tinok ben Shifra Yocheved tomorrow.

August 11, 11 am: The surgery is scheduled to start at around 1 pm. I'll post as soon as I have any news.

August 11, 8 pm: The surgery was completed without a hitch. Baby is back in the NICU and will start the road to recovery tonight. If everything goes well, he'll come off the respirator tomorrow night, and should be home before next Shabbos (August 23). He's not out of the woods yet, but we can see a break in the trees. Thank you for all your prayers.

The Next Few Weeks

New Update (August 8, 3:30 pm)

New Update (August 7, 11 pm)

New Update Below (August 7, 12 am):

Updates Below:

A lot has happened since I last blogged. There has been work, New Jersey CLE, etc. But most importantly a once-far off event has now become imminent.

Tomorrow night at about 7 pm, I will be accompanying Shifra to Columbia Medical Center, where her labor will be induced, although her actual due date is on Tisha Ba'av (August 10th). Her doctors want to induce since our baby has a heart defect called Transposition of the Great Arteries (TGA) and so would like specific individuals of their cardiac team to be present at the birth. Without getting into too much detail, our baby's heart is not working properly and the defect will require surgery to correct it. Although the surgery's success rate is over 90%, open heart surgery on a newborn infant always carries with it the attendant risks of any surgery. So despite our optimism, the next week will be a very trying time.

Our baby will likely spend the next two weeks or more in the neonatal intensive care unit (NICU). Columbia is the top hospital in New York for pediatric cardiology, and everyone I have spoken to speaks highly of the care at the NICU, but of course it's hard to not be worried. Thankfully we had the opportunity to tour the NICU, so we're as emotionally prepared as possible. But it must be different when the baby is one's own baby, so frankly I have no idea what it will be like.

We would like to keep everyone posted on our own and our baby's progress, and updating on this blog seems like a good opportunity. We'll do our best to write updates as they occur, and keep everyone as informed as possible.

Thank you in advance for your thoughts and prayers at this time.

August 5, 10:56 PM: Shifra gave birth to a six pound, ten ounce baby boy at approximately 3:20 PM. The labor went as well as one could imagine, and the baby was born vaginally (C Sections are common for mothers with babies with TGA). The baby was whisked away from us before we could even get a good look, but we later found out that the baby was doing as well as expected given his condition. The doctors performed a balloon procedure to help circulate oxygenated blood throughout his bloodstream, which was successful.

We were able to see the baby a little later in the day, and the experience was tough. It's one thing to see newborn babies hooked up to all types of machines, but it is entirely different when it is one's own baby in the NICU. It was a little emotional, but we got through it. Right now, we're both extremely tired, but excited to see the baby tomorrow.

August 7, 12 AM: To start, I want to thank everyone for their well-wishes in the comments and elsewhere. Know that Shifra and I read and appreciate every comment. To white shirt/working guy, I owe you a phone call. Also, Shifra is doing very well. She's obviously sore, but she's walking around well, and will be discharged later today. I'm really proud of her for how she's handled everything.

Today was a much more calm day. The baby was moved from the transitional nursery into the NICU. The NICU is a fantastic place by all accounts and the nurses and doctors there seem really on top of things.

It was a lot easier emotionally to see the baby. He's still all wired up, but we're finding it easier to see the baby and not the wires. The NICU is less crowded than the transitional nursery and we are permitted to stay there as long as we like. 24/7 access to the baby, as they call it.

The baby is doing pretty well, and the surgery is scheduled for Friday. Those few hours while the surgery takes place are going to be very difficult, and I'm dreading the moment when the doctor comes out to tell us how everything went. While the success rate is very high and the surgeon is very good, a bad outcome will be devastating.

But to relay good news, the baby is fairly active for an infant on morphine. He moves around a lot, and reacts pretty strongly to discomfort (he was startled over and over by cold instruments). He opened his eyes when I spoke to him, so perhaps he recognizes my voice (they say newborn babies do that). Much of the family came by to see him and Shifra (and maybe even me too), which was nice. I'm going to work tomorrow, so I'll see him again tomorrow night. Please daven for Tinok ben Shifra Yocheved and Shifra Yocheved bas Chaim Shlomo.

August 7, 11 pm: We found out today that the baby is going to have surgery tomorrow at 730 am. Everything looks fine and his condition is stable enough for the surgery. The earlier they do the surgery, the better for the baby's recovery. We also found out that, G-d willing, he'll be ready to go home by the end of next week or the beginning of the subsequent week. That's less than two weeks in the hospital for open heart surgery! Plus, our surgeon has a 97.9% success rate, so we're really, really hopeful. Of course, it's really nerve wracking, but I'm optimistic and a lot of people are davening for him, so hopefully things should go well.

Btw, going to work was a really, really bad idea. I knew my boss lacked people skills, but I never knew he didn't have basic human emotions.

I work for a solo practitioner and am the only attorney or paralegal in the office, so I understand my boss relies on me and the workload tends to pile up. I completely get that. That's why I came into work today even though I have the vacation days in the bank and my wife really needed my help. It's also why after my boss had an incident and offered to let me and the rest of his staff go home for the day with pay, I offered to stick around and do work. I feel responsible for my work and realize he'll have to do whatever I can't finish.

But frankly if the job market was a little better, today would have been my last day. Here's how the conversation went today:

Me (walking into his office to see him for the first time since I had the baby): how's everything?
Boss: Wow you look like you need coffee.
Me: I'll be ok.
Boss: So what's the story?
Me: Story with what? My wife?
Boss: Ok this is what you have to do today.....

To be fair I did call him yesterday and he did say congratulations. Here comes the good part though:

Boss: You'll do this assignment today and tomorrow.
me: Actually the baby's surgery is tomorrow.
Boss: (loud sigh). So you want to take off right?
Me: Well, yea....
Boss: Don't surprise me like that.
Me: Surprise you? I just found about the surgery date last night.
Boss: How come you didn't tell me that Defendants' counsel in Case X filed an opposition to our motion?
Me: Uh, I didn't know about it since I haven't been here this week.
Boss: (annoyance that I didn't know about it, since I guess I was should have checking the ECF while my wife was pushing even though the ECF sends notifications to his email, not mine).

Whatever. I've told him at least three times about the surgery, including this week when I informed him that I couldn't be sure I'd come in this week after Monday. Honestly, I don't recall being this upset at someone in a long, long time. I've tried to look at this from all angles, but I can't see one that would justify this type of behavior. So I left work early, realizing that if I didn't have a chance to see my baby today and he, G-d forbid, didn't survive tomorrow, I would never forgive myself for missing this time with him to help someone whose reaction to being informed that my baby is having life threatening surgery was "why didn't you tell me about this earlier?"

Oh, and what did he tell me on the way out? "Ok you can go, but next week you really have to make an effort."

So seriously, if anyone knows of any openings for a soon-to-be admitted attorney and can get me in, I'd really appreciate it.

August 8, 3:30 pm: So it turns out the surgery didn't end up happening today. It's been rescheduled for Monday morning, either the first slot or the second. We'll post as soon as we find out. I'm not in the mood to get yelled at, so I haven't called my boss yet. I think he has a wedding tonight, so I'll call the office at around 7 to leave him a message.

Talk About Bad Advice

And from a law professor, no less. I certainly respect Professor Somin's work, but this post is just irresponsible:

As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

I've gone on the record about how people overstudy for the bar exam. But not attending BarBri classes? Reading the books and taking "some" practice exams? That's a really, really bad idea. The costs of failing the exam far outweigh the costs of any extra studying. Go to class, do a lot of questions, read the outlines a number of times, and do some essays.

Taking The Bar?

It's that time again; the time when all the recent law school grads start on the two month path toward the bar exam. The trek involves 3-4 hours a day bar review courses and supplemental studying. But you know what? It's much, much better than actually working full-time. But that's a subject for another time.

I recommend reading LWY's post on the topic. For the most part, I agree with his thoughts. There's no reason to go crazy in May. In fact there's no reason to go crazy in June. I don't think everyone needs to follow the paced program, but if you want to do so, knock yourself out. What's important is to realize that you have no chance of remembering anything you learned in May by the time Contracts or Property rolls around. It's just too much material right now. You'll learn everything in July, when you read the outlines over and over again.

So take it easy for the first month of so. By the time you take the simulated MBE, you'll probably know half of what you'll need to know for the bar. And the reality is, you'll spend the next month studying the material and doing all the PMBR and Barbri questions anyway, and that's when the real studying starts.

Been Very Busy

It's been a while since I wrote my last post, and that's not because I'm bored of blogging or out of ideas. On the contrary, I have a lot to write about, but I just don't have the time to actually sit down and write about it.

When I was looking for a job, I had all the time in the world. Now that I'm working and taking New Jersey CLE courses, I have almost no free time and when I do, I'm too tired to even read blogs, so forget about writing or commenting. Tomorrow will be my first non-Yom Tov day off in over a month.

I hope once these classes end in a few weeks, I'll have time to get into a schedule and find time for blogging.

Heller And The Incorporation Doctrine

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.

For Anyone Who Thought It Couldn't Get Any Worse....

The UN, as we all know, is not exactly Israel's friend. And its Human Rights Counsel makes most UN bodies seem like Micronesia. But today they got even worse.

For the last seven years the Human Rights Counsel has had a special position for an investigator of Israel's conduct in the territories. John Dugard, a South African international law scholar, filled that position for the past seven years and was consistently pro-Palestinian.

But he's stepping down and now the UNHRC decided to appoint the unquestionably anti-Israel Richard Falk. If anyone thought this body had any relevance, this appointment should dispel that notion.

Should We Always Learn Torah? The Lesson of Mordechai

See this post by mevaseretzion. He argues that one can increase his own spirituality illicitly by not doing the right thing at the time. Even if another mitzva has more "value" and would push the person to a higher spiritual value, sometimes that person must forgo the added spirituality by doing something else which is necessary. This is one lesson of Mordechai's political tenure.

I agree with mevaseretzion. The truth is mevaseretzion's distinction is similar to the obligation to do mitzvos despite the fact that Torah is of greater importance.

There is a mitzva to shake a Lulav. But if Talmud Torah has the greatest value, then why should we pause Torah learning to fulfill the mitzva of Lulav? Isn't the most reasonable course of action to do the mitzva that is the most valuable? I'm sure there are all types of answers to this question, but the most obvious point is that we sometimes are required to act in ways that run contrary to our obligation to do the most valuable mitzva. Even though by learning Torah instead of shaking Lulav we would be making the best use of our time (by doing the more valuable mitzva), G-d does not want us to do what is most valuable, but rather to do what he commanded.

This logic applied to Mordechai. Rather than learn Torah full-time, he became part of the government, which was imperative to the well-being of the Jewish people. The most valuable mitzva would have been to learn Torah, so he did not maximize his time if we look at the situation purely based on the value of the mitzvos. But our obligation to follow G-d's command and not determine our own value calculus. He makes that decision, not us.