NGO mediation can be a low risk high reward strategy for both sides.  In using an NGO mediator, the US is not “submitting” to black mail, and yet is exploring what it might take to wean North Korea from using nuclear threats to get resources it desperately needs for development.  Carrots can be offered in exchange for real movement on the part of the North Koreans to develop their economy for its population in general.  The US and South Korea can be brought gradually into a partnership with North Korea to help build infra-structures, educational institutions, and gradually open up its markets for the good of society in general.  These are win win solutions that can be explored under the cover of an NGO mediation.

It is time to stop the vicious cycle of militarism from again robbing North Koreans of a chance at a better life.  And President Kim Jong un has said as much.  His words, “It is time for North Korea to turn itself from being preoccupied with its own security, towards taking steps toward economic development.”  So it is time.  Send in the clowns.  It’s worth a try.

Paul J. Zwier is professor of law at Emory University School of Law and author of Principled Negotiation and Mediation in the International Arena: Talking with Evil (forthcoming).

Fracking is a process of cracking rock formations (mainly shale) with high pressure water mixed with chemicals to release natural gas and oil deposits trapped inside. The hydrocarbons can then be extracted at low cost. The amount of gas and oil that has become accessible through fracking is impressively large. Reserves of natural gas, which had been falling for most of the last four decades, have increased for the last several years.

Proponents argue that because of fracking natural gas will be the fuel of the future, providing energy to everything from home hot water heaters to power plants to automobiles. It will, they claim, lower consumer energy costs, provide greater energy security while at the same time reducing carbon emissions. In fact, low cost natural gas has replaced coal in some applications and as a result, overall U.S. carbon emissions have fallen to a level not seen since 1992.

But fracking remains controversial.  A documentary film, Gasland, which won various awards, was highly critical of fracking.  It argued that groundwater contamination was a possible, if not likely, result of fracking. In a dramatic moment, a local resident in a natural gas production area lit the water flowing from his kitchen faucet on fire.  The inference was that a fracked well had leaked natural gas into the water supply. Because of publicity of this sort, several states have halted fracking operations pending further study.

Fracking may also lead to emissions of natural gas into the atmosphere. If a well is not carefully controlled, there can be a gas leak.  This gas is a more potent greenhouse gas than carbon dioxide, and one analysis by a team of researchers suggested that gas emissions from fracked wells could actually do more damage to the climate than coal.

All of the purported dangers of fracking have been rebutted by other studies and analyses.  The famous burning faucet was not in an area where fracking had taken place and indeed, commentators noted that methane gas has been found in ground water near natural gas deposits—whether fracked or not.   Also, the leakage problem was challenged by another group of scholars who argued that for a number of reasons natural gas from fracked wells will be, on balance, beneficial to the climate.

Of course there remain uncertainties with respect to hydraulic fracturing and many analysts agree on the need for careful monitoring of emissions and groundwater quality near these wells.  But it is likely that fracking will continue and that in the short run it will reduce carbon emissions and lower some energy costs.  It is important, however, not to expect that fracking or any other technological development will “solve” America’s energy problems.  As my new book U.S. Energy and the Pursuit of Failure shows, policymakers have sought panaceas that would make energy problems go away. Fracking is sometimes touted that way. But fracking is no cure-all; there are no simple answers to the complex questions surrounding energy technology and society.

Peter Grossman is the professor of economics at Butler University. He is author of U.S. Energy Policy and the Pursuit of Failure and co-author of Introduction to Energy and The End of a Natural Monopoly: Deregulation and Competition in the Electric Power Industry. His scholarly articles have appeared in such journals as Energy Policy, Economic Inquiry, The Journal of Legal Studies, and the Journal of Public Policy. For seven years, Grossman was a regular columnist on economic issues for the Indianapolis Star, and he has contributed commentary to many magazines and newspapers, including The Wall Street Journal and The Christian Science Monitor.

The Fourteenth Amendment of the United States Constitution: “[N]or shall any State…deny to any person within its jurisdiction the equal protection of the laws.”

Proposition 8 (Article I, Section 7.5 of the California Constitution): “Only marriage between a man and a woman is valid or recognized in California.”

Moderator: The question presented in Hollingsworth v. Perry is “whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” What does it mean for our country that the same-sex marriage controversy is finally being addressed by the Supreme Court?

Daniel R. Pinello: The same-sex marriage controversy has been a long time coming. Twenty years ago, the Hawaii Supreme Court was the first high tribunal to suggest there might be a constitutionally protected right of lesbian and gay couples to marry. Ten years ago, the Massachusetts Supreme Judicial Court was the first to say unequivocally that indeed there was such a right in the Bay State. All of this judicial activity, however, prompted a significant backlash. Today, at least 30 states have amended their constitutions to limit marriage to the union of one man and one woman. So there’s a great deal riding on the Supreme Court’s decision this year.

Shannon Gilreath: I think this is actually a complicated question. When the Court decided Loving v. Virginia, striking down the country’s remaining antimiscegenation laws, it invoked an explicitly anti-supremacist rationale. But Loving is increasingly irrelevant to the Court’s modern equality jurisprudence. Subsequent decisions on race have been acutely anti-identitarian, pursuing a “color blindness” norm. Decisions have dismantled affirmative action, for example, under an “equality” theory of color blindness. This shift in race jurisprudence has made the 14^th Amendment into a guarantor of majoritarian power. Lawrence v. Texas, striking down anti-sodomy laws, likewise pursued a “blindness” rationale, assimilating the gay litigants into an overwhelming “like-straight” theory. A decision on gay marriage following this kind of formal equality theory is good only as a short-term victory. I think it’s time we started thinking long-term.

Kathleen E. Hull: It seems that this case represents a fork in the road in terms of legal treatment of same-sex relationships in the U.S. If the Court rules California’s ban on same-sex marriage unconstitutional, all of the other state-level bans will most likely be challenged and eventually overturned, clearing the path toward legal same-sex marriage across the nation. But if the Court upholds the California ban, the status quo will reign for the foreseeable future, with the large majority of states continuing to prohibit same-sex marriage by statute or amendment. A few more states will likely add marriage recognition as time goes on, but the nation will remain deeply divided in its legal treatment of same-sex couples.

Marsha Garrison: Equality is an evolving concept. At the time Jefferson declared that all men are created equal, popular notions of equality were not incompatible with the disenfranchisement of women and even slavery. We now take it for granted that equality disallows laws that explicitly discriminate based on characteristics such as race and gender. Since the civil rights movement of the 1960s, equality has expanded to require affirmative action to remedy past wrongs and to forbid facially neutral laws that disproportionately harm a particular group. A victory for the plaintiffs in Perry would build on these developments: it might recognize sexual orientation as a characteristic, like race and gender, that should not determine rights; it might require the state to alter the definition of marriage to avoid that definition’s disproportionate negative impact on same-sex couples.

Michael J. Perry: It is possible—possible—that SCOTUS will rule that the Fourteenth Amendment requires states to provide civil unions for same-sex couples—even civil unions that are fully the equivalent of civil marriage in terms of the attendant benefits and burdens—but that the Amendment does not require states to call such civil unions “marriage.” Under such a ruling, California’s Prop 8 would stand. Nonetheless, the ruling would be anathema to the U.S. Conference of Catholic Bishops and others who oppose civil unions for same-sex couples no less vigorously than they oppose calling such unions “marriage.”

Kathleen E. Hull: That’s a good point. I have been assuming that the justices that are inclined to find a violation of the 14th amendment will take the position that only “marriage” fulfills the guarantee of equal protection, but maybe not.

Evan Gerstmann: We don’t know what it means yet. The Court might only be interested in technical issues such as standing. Or the Court might be interested in process issues such as whether referendums and initiatives can take revoke rights that state courts have found fundamental under state constitutions. Nonetheless, the fact that Court is hearing this argument at all, along with the favorable state votes on same-sex marriage in the 2012 election, and President Obama’s evolution on gay and lesbian equality issues represents enormous progress.

Marsha Garrison: Well put!  But there’s the risk that a strong decision against same-sex marriage could set back legislative progress, just as the Glucksberg decision (1997) set back legislative activity on physician-assisted suicide.  The $64 question is whether the plaintiffs’ lawyers have accurately judged the mood of the Court.

Daniel R. Pinello: Twenty state constitutions prohibit recognition of all forms of relationship rights —marriage, civil unions, domestic partnerships, reciprocal benefits, etc. —for same-sex couples. Dubbed “Super-DOMAs [Defense of Marriage Act],” these measures aspire to insure that lesbian and gay pairs can be nothing other than legal strangers to one another. Super-DOMAs seek to restrict the word “marriage” and all of its attributes to heterosexual couples, which exclusivity creates serious problems for their homosexual counterparts. In 2008, for example, the Michigan Supreme Court interpreted the Michigan Super-DOMA to require the denial of health insurance and other employer-provided benefits to the same-sex partners of all state employees.

Michael J. Perry: I don’t understand the point about setting back legislative progress. A ruling that states are not constitutionally required to do something—e.g., decriminalize physician-assisted suicide or admit same-sex couples to civil marriage—leaves states constitutionally free to do what they are not constitutionally required to do. That for a long time—much too long! —states were not constitutionally required to abandon antimiscegentation laws did not keep a growing number of states from doing just that. Indeed, it may be that sufficiently widespread legislative progress on an issue provides SCOTUS with the cover it sometimes seems to think it needs, or in any event the cover it sometimes seems to want, before ruling that all states are constitutionally required to do what many states have chosen to do.

Marsha Garrison: A strongly negative outcome in SCOTUS can subtly shift public opinion and legislative trends; it’s not a necessary outcome, but it is certainly a possible outcome. An ill-timed lawsuit (like Glucksberg) thus can retard legislative progress on a particular issue. I would guess that the plaintiffs’ lawyers have decided that this is a risk worth taking because most of the legislative activity on same-sex marriage that’s plausible over the short term has already happened. In most of the states that have not legislatively or constitutionally banned same-sex marriage, legislatures have already sanctioned it. And in the 30 or so states that do constitutionally ban same-sex marriage, it could well be decades before these prohibitions are undone if SCOTUS does not declare them unconstitutional. The question still remains as to whether this is the right moment. Once SCOTUS has spoken, it is not likely to revisit the issue soon. It was 17 years before SCOTUS reversed its decision in Bowers v. Hardwick, upholding criminal sodomy prohibitions, and declared such laws unconstitutional.

Daniel R. Pinello: The cause of gay civil rights has advanced recently with breath-taking speed. Congress repealed “Don’t Ask, Don’t Tell” in 2010. Then New York authorized same-sex marriage in the third most populous state. Voters in Maine, Maryland, and Washington approved of marriage equality last year, while Minnesotans defeated a constitutional amendment to ban it — the first plebiscites ever to favor the relationships rights of gay and lesbian pairs. Moreover, legislative leaders in Delaware, Hawaii, Illinois, and Rhode Island are promoting marriage equality this year. Couldn’t conservatives now make a compelling federalism argument to swing justices that SCOTUS ought not to intervene when such political dynamics are in play?

Evan Gerstmann: I agree that one of the conservatives’ best argument to the Court is that they should let the democratic process play out. It would be very frustrating if the Court ruled against marriage equality on this basis since there was no absolutely no reason for the Court to take this case if that is how they see it. The Ninth Circuit took great pains to use reasoning that only applies to California. If the Court truly wants to let the democratic process play out, all they had to do was deny cert.

Daniel R. Pinello: How very true, Evan. I so hoped last fall that SCOTUS would accept just the DOMA challenge (the Windsor case) for this term and leave the Ninth Circuit’s Prop 8 resolution undisturbed. Now, with each additional political advance in marriage equality (such as the state senate’s passage of a SSM bill in Illinois a few days ago), I lie awake at night worrying that Perry will result in another Hardwick setback.

Shannon Gilreath: I completely agree with you on this point. Whatever else may come of it, I think the Perry litigation shows a disturbing lack of solidarity.

Moderator: The Fourteenth Amendment of the United States Constitution decrees that “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” From this constitutional standpoint, should a California state ban on same-sex marriage hold up?

The National Conference of State Legislature’s map of states where marriage rights and civil unions are extended to same-sex couples.

Daniel R. Pinello: For about a decade, California has offered same-sex couples a comprehensive, legislatively created scheme of domestic partnerships that effectively provides them virtually all the tangible rights, benefits, and responsibilities of civil marriage. What the California plan does not supply lesbian and gay pairs and their families is the perceived dignitary value of marriage. The 14th Amendment question for SCOTUS in Perry boils down to the same kind of separate-but-equal analysis that the Court faced in its 20th Century race-relations decisions. Do full domestic partnerships afford California same-sex couples “the equal protection of the laws”? Many of those pairs certainly don’t think so. An interesting empirical question for SCOTUS here is: How many of the couples receiving California domestic partnerships over the last ten years have been opposite-sex? In other words, when pairs may freely choose between civil marriage and domestic partnerships, with what frequencies do they select the former and the latter?

Marsha Garrison: The California law doesn’t permit that sort of empirical comparison as it makes domestic partnership available to heterosexual couples only when one partner is 62 or older. But in France, which offers something like a domestic partnership (pacte civile) to both heterosexual and same-sex couples, 94% of couples becoming pacse (as the French put it), were opposite-sex in 2012.  Moreover, marriage rates in France continue to decline while pacte civile rates continue to increase; at least two-fifths of French heterosexual couples entering into some kind of union are become pacse.  France is not the United States, of course, but there is some irony in the fact that the debate over same-sex marriage is taking place at a time when heterosexual marriage is in decline virtually everywhere. In Perry, SCOTUS could duck the head-on equal protection question by adopting the 9th circuit’s reasoning, which relies on the fact that California offered same-sex marriage and then took it back. This very narrow equal protection analysis would not apply in most other states.

Evan Gerstmann: I strongly believe that the ban on same-sex marriage violates the equal protection clause. No one can articulate a strong reason for the ban so it can only pass the most deferential version of the rational basis test and would fail the even slightly heightened test the Court has applied in various cases. And no one has articulated a reason that Same-sex couples aren’t protected by the fundamental right to marry. Since felons in prison and “dead beat dads” who aren’t supporting their children from previous marriages are explicitly protected by the right to marry, that right can hardly be limited to traditional marriage. I think the reason this issue has gained so much traction is that people are beginning to see that same-sex marriage harms no one and represents government interference with one of the most personal of all decisions.

Daniel R. Pinello: I was unaware that California domestic partnerships were unavailable to all opposite-sex couples. The California legislature apparently stacked the empirical deck. Perhaps it didn’t want the comparison to be made, believing that such scrutiny would put the lie to the political claim of presumptive equality. Have any heterosexual couples (where both are under the age of 62) sued for domestic partnerships in California? That would be a fascinating equal-protection claim.  If there are indeed no heterosexuals storming the barricades for domestic partnerships, isn’t the absence of such litigation at least some indication that California opposite-sex couples don’t value domestic partnerships as much as civil marriage?

Marsha Garrison: What an interesting question! I can’t think of any lawsuits on the unique (as far as I know) and curious 62-&-older requirement in California.

Shannon Gilreath: The answer to the underlying question, which is whether the 14th amendment forbids state bans on same-sex marriage, is an emphatic “yes.” As a question of doctrine, as Evan points out, it isn’t even a difficult question. Far more interesting is the question of leadership that seems to be elided in most of the mainstream discussion. A number of the responses here hint at it. What about domestic partnerships and civil unions? Are they really so inferior an undesirable. Of course, individuals want what they want, and generally they want those things for largely unexamined reasons. Structurally, the issue is more complicated. I think that gay people have missed a great opportunity here to lead—to make progress that is real and concrete. Instead of insisting on a strategy that dovetails perfectly with compulsory marriage, why couldn’t we have supported alternative structures on our own terms? Why couldn’t we have said, “We want something better than what your inherently heterosexual institution allows”? To my mind, a substantive equality decision is one that allows the minority to set the rules and shape the values. Even in the unlikely event that the Court answers the marriage question is the way the doctrine seems to demand, there are still only the old values here. An uncritical (and unexamined) movement isn’t much of a movement.

Daniel R. Pinello: Why should the LGBT minority be any less middle class than everyone else? I’ve conducted in-depth interviews with 170 same-sex couples in six Super-DOMA states (Georgia, Michigan, North Carolina, Ohio, Texas, and Wisconsin) for a new book. I asked them questions such as “Have you had a ceremony to celebrate your relationship?” and “Are you interested in getting married to each other?” The overwhelming majority indicated that marriage is their gold standard for relationship recognition. They aspire to emulate their parents, other relatives, and friends who’ve been married. Civil unions and domestic partnerships are acceptable in a pinch. But none of them said anything like “We want to create a new, unique, innovative institution that will inspire others to follow our trail-blazing example.”

Kathleen E. Hull: The policy goal of marriage seems to align with what many “average” same-sex couples say they want, and indeed in some of my research I have had gay and lesbian people express shock (and occasionally outrage) at the idea that any sexual minority individual would oppose or question the marriage goal. But of course marriage is a fraught institution, carrying a lot of baggage in terms of oppressive gender relations and social control of sexuality. So I don’t think the fact that many or most same-sex couples today report the desire for marriage means we should view that desire uncritically or refrain from speculating on whether there was a lost opportunity here, in terms of moving the law (and society) toward a more expansive and inclusive model of family and relationship recognition. And there is certainly an irony in the fact that gays and lesbians are so eager to gain access to marriage at the very historical moment when straight people are increasingly questioning the institution’s value and viewing it as an optional lifestyle choice rather than an inevitable life course milestone.

Evan Gerstmann: To my mind the issue isn’t whether marriage is a positive or negative institution any more than getting rid of DADT [Don’t Ask, Don’t Tell] is about whether the military is a positive or negative institution. No group of people can be equal and free citizens without access to basic civil institutions such as military service or marriage. Marriage equality no more requires a re-examination of marriage than getting rid of DADT requires a re-examination of American militarism. Of course critical examination of gender stereotypes and militarism are important goals, but equality for all citizens is a separate issue and need not be linked to or subsequent to that.

Daniel R. Pinello: My current project on Super-DOMA states has many objectives. Yet one research inquiry was personal since, a long time ago, I lived in Louisiana and Ohio, which would later adopt these constitutional amendments. The question is: Why don’t same-sex couples leave these places that make them pariahs and go somewhere that welcomes their relationships? After all, the remedy for a complete lack of familial rights is sometimes as simple as crossing a border, such as going from Virginia to Maryland. So why don’t more lesbian and gay pairs just move (as I had, twice)? Interviewing the 170 couples, I learned that most of them regularly struggle with the migration option. Yet they face challenges involving ties to home, job, family, and community that are daunting and profound — and therefore immobilizing. I admit now that I did the couples no service by criticizing their behavior from afar. Others who also implicitly judge them for not meeting unspecified utopian ideals should consider my example.

Michael J. Perry: I argue in my new book—Human Rights in the Constitutional Law of the United States—which Cambridge will publish later this year, that as a federal constitutional matter, the better constitutional argument for requiring states to admit same-sex couples to civil marriage is based not on the right to moral equality—which is internationally recognized as a human right and appears in U.S. constitutional law as the right to equal protection—but on the right to religious and moral freedom—which is also internationally recognized as a human right and a variant of which has emerged in U.S. constitutional law as the right of privacy. It takes me a couple of chapters of my book to explain why (in my judgment) this is so. I submit this post as a promissory note.

Daniel R. Pinello: Can Cambridge send nine advance copies to the Supreme Court soon? We need all the constitutional ammo we can muster!

Moderator: Proposition 8 was a voter initiative in California. Do “we the people” have the right to decide who someone can or cannot marry? From an ethical standpoint, should we?

Evan Gerstmann: “The People” most definitely do NOT have the right to decide who can marry. We have majority rule for most decisions—-tax rates, spending priorities, the speed limit and so forth. But there are certain areas of individual autonomy such as what neighborhood we live in, what religion we practice and where we send our children to school that cannot be subject to majority rule. Whom we marry is one of those areas of individual autonomy. Society can impose limitations of course—one can’t marry a five year old—but those limitations can’t be imposed merely because the majority wants them. They must be based on public policy concerns that can withstand heightened judicial scrutiny.

Shannon Gilreath: I think the answer is a clear, “yes.” It seems entirely ethical for the state to proscribe certain marriages that entail force and victimization, including marriages involving minors, but also other types of relationships; for example, incestuous relationships under certain conditions, and others in which a capacity for meaningful consent is questionable.

Marsha Garrison: I see an interesting debate here! But I think disagreement hinges on question interpretation. First, the very point of a right is that the majority — elected by voters or voters themselves — can’t take it away. But rights are rarely absolute; they may be limited when the restrictions are reasonable and serve important legislative goals. Freedom of speech is guaranteed by the Constitution but today, we all agree that you can restrict the right to yell “Fire!” in a crowded movie theatre. We don’t agree, for example, whether speech rights disallow legislative limits on campaign donations and whether corporations enjoy the same speech rights as private individuals. Access to marriage is a right, and we all agree that a legislature (or voters) could not deny marriage to, say, all persons who have ever divorced. We agree that the state can limit marriage to adults. We haven’t thought much about restrictions on marriage to cousins and adoptive relatives (which many states still have) because it’s so easy to evade these limitations by going to another state that no one has challenged them. The same-sex marriage issue is an easy or hard case depending on what we mean by marriage. If marriage is an important status, then it must be freely available to all citizens. If it is a cultural institution limited to heterosexual couples (as those opposing same-sex marriage argue), then legislatures may maintain its historic definition. Personally, I think the best analogy is to rules that previously granted non-marital children fewer rights than marital children. These were struck down during the 60s. They also had a very long (and virtually worldwide) cultural history. Times change; cultural institutions and our conception of rights must change with them.

Michael J. Perry: And then there are those who are now arguing, in effect, that “marriage” is a “natural kind”—so to speak; not their words—and that a union between two persons of the same sex is no more a “marriage”—can no more be a “marriage”—than, say, lead can be gold. The most prominent and influential version of the argument: What Is Marriage?: Man and Woman: A Defense, by Sherif Girgis, Ryan T. Anderson, and Robert P. George.

Moderator: What are some of the concerns that prompt ProtectMarriage.com to argue that States should be able to define marriage in particular gendered terms?

Michael J. Perry: The particular concern that prompts “ProtectMarriage.com to argue that States should be able to define marriage in particular gendered terms” is the end of Civilization as we have known it. Sorry, couldn’t resist that.

Marsha Garrison: I just checked ProtectMarriage.com’s website and, interestingly, it reveals no names or affiliations. But it is part of a network of organizations that have supported policy initiatives favoring traditional marriage. Many of these organizations and their supporters have religious values that favor traditional marriage. They are also, well, traditionalists! The explicit argument is that marriage is a cultural institution indelibly linked with child-bearing and rearing; to tamper with the definition risks grave harm to these core functions and thus to society. But its context is conservatism in family values and a traditional religious outlook.

Shannon Gilreath: Michael and Marsha are right, of course, that it is all about “civilization” and “values.” It makes the gay conservative argument that marriage is what we (gays) need to civilize us all the more interesting, particularly when one looks around at the world today and marvels at what “civilization” according to straight values has wrought.

Daniel R. Pinello: As a political scientist, I note that conservatives usually favor state action over federal preemption. In theory, federalism (the separation of powers between a national government and sub-national units like states) facilitates states being laboratories of innovation. Moreover, what works for New York may not fit Idaho well. Under federalism, then, states are free to determine what functions best for each, without the national government establishing one-size-fits-all approaches. In short, ProtectMarriage.com, inter alia, is making a pitch to center-right justices like Anthony Kennedy and John Roberts for the Supreme Court—a national institution, after all—to let the states work out the marriage issue for themselves.

Daniel R. Pinello: The media recently covered a friend-of-the-court brief filed with the Supreme Court in the Perry case. A front-page story in the New York Times began “Dozens of prominent Republicans have signed a legal brief . . . ,” while the headline at politico.com was “More than 80 Republican leaders sign pro-gay marriage brief.” Yet only four of the signatories are current officeholders: two members of Congress, a New Hampshire state senator, and a Wyoming state representative. Just 12 others were ever elected to public office. Since the prospective pool of current and former state and federal GOP officials numbers in the thousands, the brief-signing group is truly minuscule. Indeed, rather than demonstrating that marriage equality has significant bipartisan support, the document evidences how unified the Republican Party is against same-sex marriage—which in turn reinforces ProtectMarriage.com’s federalism argument to the justices.

Moderator: With a few prominent Republicans like Meg Whitman and Jon Hunstman actually reversing their positions on the issue to sign a brief in support of same-sex marriage in this case, how might a nascent or suggested political shift on the issue affect legal considerations of the petitioners’ concerns? Does the brief suggest that the debate on same-sex marriage is headed in a new direction regardless of the court’s ruling?

“The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.”—Jon Hunstman

Michael J. Perry: Jon Huntsman’s statement in The American Conservative last week—you can Google it—was quite honest.  Huntsman said that admitting same-sex couples to civil marriage is not only the right thing to do, but that once that issue—and presumably some other “social” issues—are off the political agenda, Republicans will have been liberated to press the issues many Republicans care most about, which are economic, not “social.”  The Koch Brothers are major contributors to “gays rights” causes, including Marriage Equality.  I have no doubt that the Koch Brothers would dearly love to free the Republican Party from the “social” issues now (in their view) holding it back.  Of course, other influential Republicans—not least, Robby George of Princeton—care more about the “social” issues:  same-sex marriage, abortion.  So the Republican Party is, at this time, extremely divided; the civil war, as someone said, has begun.

Marsha Garrison: Jon Huntsman and the Koch brothers may well want to “free” American Republicans from social issues, but the Republican Party has courted evangelical and “traditional social values” voters—who are in no mood for freedom—for a long while, and they don’t really have any place else to go.  Keep in mind that about half of Republican primary voters in 2012 self-identified as evangelical, and the percentage is even higher in some states.    These voters and the organizations to which they belong are going to want to keep the Republican Party tied to their social agenda.  I’m not sure there are enough Republicans who share Huntsman’s values—or who are willing to go public with Huntsman’s values given the likely Republican electorate—to generate any real change or even a real Republican Civil War.

Michael J. Perry: If what Marsha predicts comes true—time will tell—then we will have only one political party capable of winning a national election—assuming that that party does not suffer any disabling self-inflicted wounds.

Daniel R. Pinello: As events in recent years (highlighted in earlier messages) document, the political debate surrounding same-sex marriage has already decisively shifted at the national level. If the Supreme Court strikes down the federal DOMA in the Windsor case—a reasonable assumption—the principal challenge for marriage-equality advocates will be the vitality of state Mini- and Super-DOMAs. If the Perry Court does not announce a federal right of gay couples to marry, then the state amendments will have to be repealed in the same way in which they were added: with statewide popular votes. That will not be easy, because even the modest majorities favoring SSM achieved last November in Maine, Maryland, Minnesota, and Washington will not be replicated soon in places like Georgia, Michigan, Ohio, and Texas. Just last May, for instance, 61 percent of primary voters in North Carolina approved its Super-DOMA. Thus, without decisive Supreme Court action now, there will be no “new direction” on SSM in many states for at least a decade or more. Indeed, my bet on the timing of such DOMA repeals is when the business communities in the respective states reach overwhelming consensus that they can no longer attract and retain skilled workers because of these amendments.

Kathleen E. Hull: I agree with Dan, that this brief by Republicans is more reflective of a political shift on same-sex marriage that was already underway, rather than signaling the start of a shift. I don’t think any of us has directly addressed the first part of Rachel’s question, though, which is whether a brief like this is likely to have any impact on the “legal considertions of the petitioners’ concerns.” I take this to mean: could this brief possibly sway any of the Supreme Court justices? I don’t feel qualified to answer this myself, and I don’t know if it is even answerable, but if anyone has knowledge about the potential of amicus briefs to influence justices, I would be interested to hear their take on this. My suspicion is that, if it has any impact at all (which is dubious), it would be in providing cover for moderate justices like Kennedy (or maybe even Roberts?) to rule in favor of the plaintiffs. And yes, I realize that in general it is probably not accurate to characterize Roberts as a moderate(!), but he did uphold the constitutionality of the health reform law, which at least signals his willingness to depart from “party-line” conservatism on some issues.

Michael J. Perry: I’ve been teaching and writing about Con Law for thirty-eight years. For what it’s worth, I’m concur in Kathy’s judgment on this with respect to Kennedy. (Her “providing cover” judgment.) However, I would be truly shocked if Roberts were to vote in favor of the constitutional challenges, other than the federalism challenge (not the equal protection/due process challenge) to DOMA, which, for all I know, he might support.

Evan Gerstmann: The most significant recent example I know of where an amicus had a big impact on a case was the military brief in support of affirmative action in Grutter. My understanding was that the impact came not from the legal arguments, but from the negative image of largely minority soldiers being commanding by mostly white officers. This is obviously very different but the brief would allow pro-ssm judges from seeming too partisan.

Daniel R. Pinello: Another way to consider whether the Republicans’ amicus brief might “affect legal considerations of the petitioners’ concerns” is to be mindful that about 50 friend-of-the-court briefs have been filed with the Supreme Court in the Perry and Windsor appeals in favor of marriage equality. Indeed, the scope and depth of amicus participation are remarkable. The organizations arguing in favor of same-sex marriage to the Court include the American Academy of Matrimonial Lawyers, the American Anthropological Association, the American Psychological Association, the American Sociological Association, the Cato Institute, the National Education Association, the Organization of American Historians, 14 states, and numerous Fortune 500 companies (such as Morgan Stanley, Apple, AIG, Nike, Facebook, Intel, Verizon, and Google). Thus, in order for the GOP brief to be a singular influence in the resolution of these appeals, it would have to make uniquely compelling arguments to the Court. In light of the extensive and capable amicus involvement, I doubt seriously whether the Republicans can pull that one off.

Kathleen E. Hull: I assume “matrimonial lawyers” is a euphemism for divorce lawyers, in which case their filing of an amicus brief is amusing, if not surprising.

Now that you’ve heard from the experts, weigh in! Respond below or on Twitter using the hashtag #cambridgeideas.

Evan Gerstmann is associate professor of Political Science at Loyola Marymount University and the author of Same-Sex Marriage and the Constitution, 2^nd edition.

Kathleen E. Hull is associate professor of Sociology at the University of Minnesota and the author of Same-Sex Marriage: The Cultural Politics of Love and Law.

Daniel R. Pinello is professor of Political Science at John Jay College of Criminal Justice and the author of America’s Struggle for Same-Sex Marriage and Gay Rights and American Law.

Shannon Gilreath is professor for the Interdisciplinary Study of Law at Wake Forest University School of Law and the author of The End of Straight Supremacy.

Michael J. Perry is professor of Law at Emory Law and the author of Constitutional Rights, Moral Controversy, and the Supreme Court and The Political Morality of Liberal Democracy.

Marsha Garrison is professor of Law at Brooklyn Law School and the co-editor of Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families.

The action by the United Nations General Assembly on November 29, 2012 (Resolution 67/19) to acknowledge Palestine’s status as that of a state has inserted a new element into the on-again off-again effort at peace between Israel and Palestine. The Assembly’s resolution refers to the territory of Palestine as the area occupied by Israel in the 1967 (six-day) war, namely, the Gaza Strip and the West Bank of the Jordan River. To that extent, Resolution 67/19 supports the Palestinian position that those two areas in their entirety form the territory of the State of Palestine, hence that Israel’s pretensions to West Bank sectors where Israel has built settlements are ill-founded.

What Resolution 67/19 avoids is the circumstance under which Israel came into control of the Gaza Strip and West Bank in 1967. The General Assembly is comfortable calling on Israel to forego any pretensions to those two territories, regardless of how it came into control. But if the General Assembly were to broach that issue, greater impetus might be generated towards compelling Israel to withdraw and to forego any such territorial pretensions.

Despite what one occasionally reads, neither the General Assembly nor the Security Council, back in 1967, supported Israel’s claim that it acted in self-defense when it took the Gaza Strip and West Bank. They did not address the issue directly, despite efforts by the USSR to get them to do so. As I point out in The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War, just published by Cambridge University Press, when the USSR tabled resolutions in each of the two UN organs in June 1967 to condemn Israel for aggression, the Western powers diverted attention to proposals for an overall resolution of the Arab-Israeli conflict. Since 1967, the question of legal responsibility for the 1967 war has remained buried in the halls of the United Nations. Israel has never received approbation at the United Nations for its self-defense claim, but neither has it been condemned for aggression.

As I explain in my book, the Western powers were well aware that the story Israel gave the world as to how the war started was pure fiction. The Israeli government said that Egypt had shelled across the frontier from Gaza early in the morning of 5 June 1967, and that the massive invasion Israel launched that morning against Egypt was a defensive response. Documents declassified a few years ago by the United States show that President Lyndon Johnson knew this story to be false. Beyond that, Johnson knew that the troops that Egypt had drawn up near the Israeli frontier were not going to be used to invade Israel. The government of Great Britain had the same information and the same understanding, but both governments kept silent in the Security Council and in the General Assembly as they listened to Israeli Foreign Minister Abba Eban reciting Israel’s concocted story.

When Jordan came to Egypt’s defense in the morning of 5 June 1967, Israel successfully drove the Jordanian army out of the West Bank, leaving Israel in occupation of both the Gaza Strip and the West Bank. It is helpful that the General Assembly in Resolution 67/19 acknowledges the Palestinian claim to these two territories as the territory of the Palestine state. But action to actually secure that territory would gain greater momentum if the UN were to make clear what the declassified documents show, namely, that Israel invaded Egypt without cause, that Jordan came to Egypt’s aid in an unsuccessful act of collective self-defense, hence that Israel’s control of both the Gaza Strip and West Bank is the result of an act of aggression pure and simple.

Editor’s Note: John Quigley was also interviewed on Middle East Week. Listen here.

Lewis Bateman is a senior editor at Cambridge University Press, commissioning titles in political science, history, and Jewish studies. At conferences, he is famous for his distinctive bow ties. We sat down with Lew to discuss the editorial process behind Tested by Zion.

1)     What drew you to the project? How did Elliott Abrams’ book land on your desk?

It came to the Press by accident. I was approached by Rebecca Nagel of the Wiley Agency. Perhaps I am known as an editor who is willing to consider books by individuals with whom I may disagree. Abrams’ voice is an important one that needs to be heard.

2) What distinguishes Abrams’ perspective from other books on George W. Bush’s record on foreign policy in the Middle East?

This is an insider’s account of the formulation of policy in this administration. It will be an important source for historians and policy makers for thirty years when other government documents, which are now classified, will be released. It is a good read with a perspective with which many will disagree.

3)     Why should those who perhaps didn’t support George W. Bush’s administration read this book?

If one disagrees with policy, it’s a good idea to understand why and how it was made. One can be more effective in advancing your own position by knowing the opposition.

After Arafat reasserted his absolute domination of Palestinian politics in late summer 2003, we knew that negotiations between the two parties, Israel and the PLO, were off. President Bush had said there would be no Palestinian while Arafat ruled, employing terrorism vast corruption, and making democracy impossible. Rice began to think about ways to move ahead. 

We need something to break in the region, Rice said to Sharon’s chief of staff Dov Weissglas; we need to shake up the dynamics. What might it be? Anything possible between Israel and Syria?  Knowing that neither he nor Sharon would visit the U.S. soon, Weissglas suggested that Rice send me to see Sharon in Rome, where he would shortly be on a state visit, and we could talk it through. Rice readily agreed. Very few officials knew of the trip in either the Israeli or U.S. government—or the Italian government, for that matter. I made myself a hotel reservation on Expedia, landed on the morning of November 18 and went to my own hotel for a rest and a shower. In the afternoon I walked over to Sharon’s hotel, the Cavalieri Hilton, and one of his closest aides met me in the parking lot and escorted me through Italian and Israeli security and up to Sharon’s suite. The purpose of the trip was to discover Sharon’s plans for dealing with Syria and with the Palestinians. He had made great progress, with full American support, in crushing the intifada. Now what?

As soon as Sharon appeared, he and I and Weissglas sat down in the dining room of Sharon’s suite. I anticipated getting a terrific Italian meal, presumably specially catered for him by the best restaurant on the premises. Instead a Sharon staffer brought us a platter covered by slabs of meat. Sharon immediately dug in, pulling over to his side of the table a large piece of pink meat and cutting a huge slice. It sure looked like ham to me, a food I did not eat and assumed Sharon could not, either. So I asked him: “What meat, exactly, is that?” As he brandished a large fork full, he replied, “Elliott, sometimes it is better not to ask.”

Sharon was, as usual, honest-and blunt. With Syria, there would be no negotiation—no matter what the Americans wanted. To start discussing the border with those murderers, he said—we did it before. It failed. We have to solve the Palestinian problem. We should not turn to another front and leave the Palestinian effort behind. A nation has only a certain ability to face problems. We should stick to the Palestinian issue…Israel cannot take another heavy burden on its shoulders. We cannot take it. It would be a major mistake…Don’t drag Israel now into a new internal struggle. We don’t trust the Palestinians and we are not sure something will happen. But we have to try and do that, he concluded.

I knew many of Israel’s generals favored a negotiation with Syria, but they were not in charge. Sharon was, and the message I was to carry back to President Bush was clear.  Starting some negotiation with Syria would shock Israel, he said, and we have had enough shocks; we don’t need it now.

As to the Palestinians, Sharon had a different view. For the first time, he unveiled his new thinking. We might say that if it is quiet for a time we will dismantle some settlements in Gaza, Sharon told me. But this would not be the product of a negotiation with the Palestinians, he made clear. I will take these new steps as unilateral steps, he said; I don’t want to be in their hands, because they may not perform, or there may be acts of terror. Three months later, Sharon finally went public, suggesting he might order evacuation of some settlements in Gaza. His own Likud Party voted down the proposal in May 2004, the first step in a series that ultimately led Sharon to split Likud and create the new Kadima Party. But this conversation in Rome was the first inkling the United States Government had of what later came to be called “disengagement.” As Sharon reported to the Knesset later, in April 2004, “contacts between us and the U.S. Bush Administration on this ossue…commenced during my visit to Rome, when I communicated to a White House representative my intention to initiate the Disengagement Plan.” We had once asked Weissglas, during a meeting in Rice’s office, whether a withdrawal from Gaza was possible, and he had quickly said no. Sharon had had a significant change of mind.

If the consequences were not so terrible, there has always been something faintly comic about the ways in which the powerful respond to those who challenge and defy them. Their indignation, even rage show that they may be the last to give up belief in the myths of power they have woven around themselves. Those they rule, however, may have other ideas.  During the past couple of years there has been plenty of evidence for this across the Middle East.

As people rose up against the ruling regimes in country after country, disbelief, followed by fury, coupled with the claim that it was all the work of malign “outside forces” have been common responses of those whose grip on power was being challenged. Vivid as the recent images of repression, resistance and the unraveling of political order have been, they should not be seen as unique but as reminders that similar events have marked the modern history of the Middle East.

It was this long and troubled record that had initially drawn my attention to the subject of resistance some four years ago, when I began working on The Power and the People. At the time, violent resistance in Iraq had been claiming lives and dominating headlines, but that only seemed to be part of the story. If resistance to power reflects the nature of that power, then armed resistance to military invasion and occupation was understandable, even if it involved fearful moral choices. But power is not only exercised through coercion, and inequality is not simply maintained by force. Consequently, other aspects of resistance – nonviolent, imaginative, economic and symbolic – can be just as effective. For that reason, they deserve study as much as the more spectacular and bloody acts of violent resistance.

My book examines different forms of resistance, the politics that generate them and the consequences that have followed across the Middle East. It begins by looking at the ways in which violent shifts in power have provoked violent resistance, as with the Iraqi resistance movements after the US-led invasion of the country in 2003, or the initial Palestinian responses to the Israeli military occupation of all of historical Palestine in 1967. It also studies the slower burning movements of resistance that may have taken years to emerge in places where inequality was resented but seemed part of the normal order of things. Illustrated by the long history of Algerian resistance to French colonial rule, culminating in the ferocious war of independence in the 1960s, it is also evident in the very different tactics of the Palestinian intifada of 1987 to disrupt twenty years of occupation.

Such conditions also existed in the “military occupation” by various regimes of their own countries. Here decades of inequality and violence had been presented to their subjects as the norm. Open resistance showed itself when people broke the spell of power, as in the revolution of 1978/9 in Iran, or in the Green Movement some thirty years later. Other recent examples have been the uprisings in the Arab world of 2011/12, where similar inequalities and brutalities galvanized people into action in Tunisia, Libya, Egypt, Syria, Yemen and Bahrain.

The inequalities that provoke resistance do not simply mark the relationship between the citizen and the state. They also exist in economic life, and the book looks at Egypt’s tumultuous industrial relations over the past couple of decades in this light. Similarly, it seeks to understand the resistance to the encroachments of global capitalism that initiated a re-imagination of the economy itself in conformity with Islamic values.

Historically and globally women have experienced inequality and discrimination on the basis of their gender. Women’s resistance to such conditions in the region is examined through the campaign to change the personal status law of Morocco and the struggle in the Islamic Republic of Iran for women’s rights to interpret their Islamic obligations. In other settings, women have used direct action in Morocco and in Iraq to protect women from the violence of men determined to maintain patriarchal power.

In these, as in other struggles, a key strategy of resistance has been to challenge power’s narration of the world. Questioning the myths of power and critically re-examining the telling of history here inform studies of Israel’s radical sociologists and new historians, as well as the determination of the Imazighen/Berbers to write themselves into the national history of Algeria.

Finally, a key site of this battle for the imagination has been the visual arts.  Artists have cast power in a critical light and have given people a sense of themselves and of their own potential. This is examined through the works of a range of artists, Palestinian, Lebanese, Iraqi, Algerian, Turkish and Iranian, each in their particular ways engaged in resisting the acceptance of everyday inequalities and exclusions.

These are the paths of resistance followed by people across the Middle East during previous decades and into the present. They are as relevant now as they were then since they demonstrate the capacity of resistance to disrupt the complacency of power. They also provide a repertoire that can be drawn upon by future generations, as well as lessons to be learned, where the fundamental causes of injustice, discrimination and repression remain.

Many mistakenly believe that the famous Lincoln-Douglas debates of 1858 were the ancestors of the modern Presidential debate. They were not. In 1858 Douglas, the leading Democrat in Congress and an internationally known figure, ran for re-election to the U.S. Senate while Lincoln, unknown outside Illinois, managed to secure that state’s Republican nomination for the Senate and proceeded to stalk Douglas on the campaign trail until he relented and agreed to a series of seven three-hour debates.

What few people realize is that two years later, when Lincoln, thanks mainly to his performance in those debates, became the Republican Party candidate for the Presidency, he did not debate his rival; indeed, he shunned public appearances altogether and refused even to issue a statement laying out his views. His silence had been in fact typical of Presidential candidates since Washington. There was a code against campaigning that had been observed by nearly every Presidential candidate since the beginning of the republic and that Lincoln and two other candidates in 1860 followed. Only Stephen Douglas challenged this code. He undertook what became the prototype of the modern whistle-stop Presidential campaign.

In 1860 both Lincoln and Douglas, the Democrat, were hated in the South, where extremists threatened to take their states out of the Union if the Republican candidate, whose party platform unambiguously opposed slavery, were to win the Presidency. Others hated Douglas for his opposition to an imposition of slavery on federal territory unless the people there wanted it.

Despite appeals to reassure the South that he would not touch slavery in states where it existed, Lincoln stayed home and stayed silent throughout the campaign. In contrast Douglas took his belief in local self-determination across the country, including two trips through the South despite threats against him. Most often with his beautiful young wife at his side, Douglas spent 160 days campaigning in more than 150 towns in twenty-three of the thirty-three states. Several hundred thousand persons saw and (if they could) heard him. He was a national celebrity who was cheered even in the heart of antislavery New England and the pro-slavery South.

Douglas’s Presidential campaign was unprecedented. He continued even after he knew he would not win. He made his second foray into the South in order to persuade its people not to secede from the Union. His consistency was as impressive as his purpose and effort. While he was a master democratic politician who did his homework and knew what rhetorical buttons to press in every locale, he did not trim his message. He believed in local self-government, in the right of local majorities, whether in states or federal territories, to decide domestic issues for themselves – including the question of slavery.

Lincoln of course won the election, kept silent until he was inaugurated four months later, and came into office facing a country that had already split apart. Douglas became a confidante of sorts and important ally in trying to restore the Union. Their relationship in1861 was fascinating because for the first time in the quarter-century they had known each other their roles were now reversed. But in June 1861 Douglas died at age 48, exhausted physically from his grueling campaign, which also straitened his estate.

Modern Presidential campaigns have turned candidates into national celebrities who have been able to parlay their fame into wealth. Douglas’s campaign cost him physically and financially. Why he did it, why he truly believed his message, and why he sacrificed his health and wealth for politics is a story about American democracy as it used to be.

In the decade before the Civil War the press usually was so partisan that individual papers often published stories planted by favored candidates against their opposition. In comparison to newspapers then, mainstream media today are generally models of impartiality.

Despite the intense partisanship, the antebellum press granted politicians a degree of privacy that those today can only envy. Two facets of Stephen Douglas’s private life that both tabloids and broadsheets would investigate today were, in one instance, wholly ignored, and in the other only superficially touched upon. Indeed, what makes the biographer’s task so challenging is the need to unearth from archival sources information that the press then failed to dig up.

The first was his proclivity for sitting on men’s laps. He may well have given up the practice after entering Congress, for all of the documentation is from Illinois politicians or lawyers who observed him doing it there. He was not only short but weighed barely 100 pounds in his twenties, when he rose rapidly to prominence in his adopted state. Later he may have abandoned the habit more because of his expanding girth than because he thought it unseemly. I’ve not found a newspaper report about his lap sitting – only memoirs by contemporaries who found it worthy of note without imputing a pejorative meaning to it. His physicality with men dates at least from his youth when he pleaded in his copybook with a schoolboy whom he loved.

Why did he sit on men’s laps and why was it noteworthy but not revealed in newspapers? An explanation for his behavior is offered in my book, Stephen A. Douglas and Antebellum Democracy. He sat on men’s laps as a sign of his being at one with them, on his complete comfort with the male democracy of his time. Our media and many of us would find such conduct so unbecoming that it would be career-ending. In Antebellum Illinois, however, lap sitting enhanced Douglas’s appeal to the men who sat on juries and who went to the polls.

A second activity should have been more controversial and would have received unrelenting investigative scrutiny today. From the moment his first father-in-law, a North Carolina slave-owner, died in 1848, Douglas became enmeshed in a Mississippi plantation that his wife inherited. He consistently claimed an arm’s length distance from the property, despite a deeper involvement over time. On rare occasions when his personal entanglement with slavery was brought forward, he protested vehemently and self-righteously. He was not hypocritical, but self-deceptive.

During his campaign for the Senate in 1858, his rival never mentioned Douglas’s personal stake in slavery. Lincoln’s silence had more to do with the political code and his own wife’s background than his limited knowledge of Douglas’s Mississippi operation. Despite press coverage that made their debates that year famous, Douglas’s involvement was not an issue until a few weeks before the election when a pro-Lincoln Chicago paper charged that slaves on his plantation were ill-treated.

The press around the country focused less on the truth or falsehood of the charge and more on the alleged source of the story! What no newspaper did was send a reporter to the plantation to investigate conditions. In fact most of the newspaper accounts repeated the same error of locating the plantation in Louisiana. The full story can be told today because of a newly discovered letter that Douglas wrote to his second wife after he personally visited the Mississippi plantation in 1859 in order to check on the conditions of his slaves.

With the Republican National Convention getting underway in Tampa, FL (the usual fanfare tempered by the approach of Tropical Storm and projected Hurricane Isaac), we turn to the introduction to Elizabeth Price Foley’s timely and insightful account, The Tea Party: Three Principles. Curious about the relation between the Republican party and the Tea Party movement? Look no further than the extract below, or download the full text HERE.

The more  one  knows  about  the  Constitution, however, the  more one grows concerned, unless one thinks  the  Constitution has (and should have) no real fixed meaning.  There is an incessant  drumbeat in one’s brain  that  says, “This  is really important,” “You need  to know this,” and “This country won’t survive if you don’t understand this.” Realizing how much the founders  studied and understood the intricacies  of political philosophy and the science of government – and what high hopes  they had for Americans to grasp these  matters  as well – creates  an urgency  about  keeping their  hopes  from being extinguished.

It also, to a great extent, allows one to rise above petty politics. The modern labels “conservative” and “liberal” seem almost irrelevant  in this context.  What matters  is preserving the Constitution, its meaning, and its foundational principles. All else is petty  politics.

View or download the entire preface HERE.