Monday, December 28, 2015

The Pistorius Case VI: Not Done Yet

The South African Constitutional Court

A  few weeks ago, on December 3rd, the Supreme Court of Appeals in South Africa (or, to use the common abbreviation, the SCA) struck down the High Court ruling in the case against Oscar Pistorius.

Pistorius shouldn't have been convicted of culpable homicide, the SCA stated. Instead, Pistorius had intentionally and unlawfully killed his girlfriend, and in doing so, he had committed murder.

In giving its ruling, the SCA first decided to ignore the so-called Seekoei barrier, which makes it difficult for the prosecution to lodge an appeal at all in such a case. The barrier the Seekoei case raises is mo longer good law, the SCA stated; hence, the appeal could be heard.

The SCA then did what many considered to be the only right thing to do in this matter. It dismissed the High Court's odd and quite illogical reasoning, which was based  on  the notion that if Pistorius believed there was someone in the toilet cubicle when he fired four shots into it, but did not know exactly who that person was, he couldn't have intended to kill that person.

What is interesting about the Supreme Court's ruling is not just its rejection of the High Court's interpretation of intent (or "dolus"), but also what it then proceeded to do.

You see, simply establishing that Pistorius had acted intentionally isn't sufficient to convict him of murder. Pistorius (deliberately, perhaps) made a bit of a muddle of his defence, but it must be assumed that he also tried to convince the High Court that he believed that his life was in danger and that he was therefore justified in shooting. (In fact, this was what many thought was going to be his only defence. It wasn't until Pistorius claimed that he hadn't meant to kill anyone at all that things got complicated and the concept of dolus - and, more precisely, dolus eventualis - became relevant).

What this means is that once it is accepted that Pistorius had the intent to kill, the question must be answered whether or not he could claim to have acted in (putative) self defence.

The SCA could have decided not to deal with this issue at all. It could have chosen to send the case back to another High Court and it would then have been that court's task to deal with this defence. The SCA, however, chose not to do this, pointing out that such a course of action would be "wholly impractical" and that neither the prosecution nor the defence had "pressed" for such an outcome. The SCA then took up the matter itself, which led to the court dismissing Pistorius's stated "genuine belief", and, ultimately, convicting Pistorius of murder.  

The question that now arises, however, is whether, in doing so, the SCA exceeded its jurisdiction. The  validity of the court's grounds for rejecting Pistorius's claim of (putative) self defence is not directly at issue here; what is at stake is whether it was the court's role to decide on the matter at all.

There are essentially two possible problems here. The first is that  the SCA explicitly dealt with the question of whether Pistorius had or had not genuinely believed there to have been a threat. This is obviously a question with important legal ramifications, but it might well be argued that the question itself is a factual one. And if that is so, then it might also be argued that the SCA had no business dealing with it, since the SCA, as an appeal court, must restrict itself to matters of law.

The second problem is that, in reaching its decision, the court denied Pistorius the right to appeal against it. It is, after all, impossible to appeal a decision handed down by an appeal court.  

Given these issues, it is perhaps not too surprising that Pistorius will lodge a separate case with South Africa's Constitutional Court, where he will attempt to establish that his constitutional rights have been violated by the SCA. We know this because that's what he says in an affidavit brought before a court in a recent bail hearing. Because of the affidavit we also know that Pistorius isn't restricting himself to the two problems mentioned above; it is clear that he has further grievances to bring before the Constitutional Court.    

I honestly do not know what the chances are of such a case being successful (at present, it is not even clear that the Constitutional Court will decide to hear the case at all). However, it does seem clear that Pistorius's legal battle will continue for some time to come.

Having said that, I certainly believe that the SCA was essentially right in its decision. Pistorius is, simply put, a murderer. 

Wednesday, November 4, 2015

The Pistorius Case V: The Seekoei Barrier


This is a seekoei. Now, how do you get past it?

It's been over a year since my last posting on the Pistorius trial.

Back then (on September 11th 2014, to be exact), the judge was busy reading her verdict. And whilst she wasn't done yet, a few things were obvious.

The first was that Pistorius would not be found guilty of murder (he was, in fact, convicted of culpable homicide the next day). The second was that the judge's reasoning seemed, from a legal (and logical) point of view, to make little sense.

I said then that I would return to the case once I got my head unbefuddled. Well, I suppose it's as unbefuddled now as it will ever be. Besides, there are good reasons to look at the case again now, since yesterday the prosecution's appeal was heard by the Supreme Court of Appeal (the SCA). The question the court will have to answer is whether the earlier verdict should be upheld, or whether it must be struck down.

Now I've already said that the verdict makes little sense. Back in 2014, I pointed out a few flaws; I'll mention a few more later on. The thing is, though, that even if one were correct in assuming that the ruling is simply wrong, this does not mean that it can and will be quashed.

There is, firstly, a technical hurdle to be surmounted.

It is this: under South African law, it can be argued that in a case handled by a High Court (as opposed to a lower court), the prosecution can only appeal if the accused is acquitted. In fact, this was exactly the argument accepted by the SCA (or Appellate Division, as it was known then) back in 1982, in a case known as the State v. Seekoei. That decision has been widely criticised, and the prosecution in the Pistorius case has stated that it can no longer be considered valid. Nevertheless, the SCA has not (yet) retracted it.

What this means is that, when it comes to the possibility of an appeal, there is at present such a thing as the Seekoei barrrier, and the Pistorius ruling runs right into it. After all, the Pistorius decision was handed down by a High Court; furthermore, Pistorius may not have been found guilty of murder, but he was convicted of culpable homicide and therefore not  granted a (full) acquittal. In short, if Seekoei still stands, the prosecution's appeal will fail, regardless of the errors in the Pistorius ruling.

To make matters a little more complicated, even if the SCA were to decide that the Seekoei rule was no longer applicable, it might still decide that an appeal is not permissible. The Seekoei rule is based on a particular interpretation of Section 322 of the South African Criminal Procedure Act. The SCA could, in theory, decide that that interpretation is no longer valid, but then accept an interpretation that nevertheless rules out the possibility of an appeal in this particular case.  

The prosecution's first hurdle is, in other words, quite daunting. Having said that, though, I should immediately add that the comments made by the judges in court yesterday did seem to indicate a certain willingness on their part to consider an appeal.

Even if that were to happen, though, there are further obstacles. Foremost among these is the question as to whether the judge's ruling erred on matters of fact, or whether she stumbled on matters of law. If it is the former, an appeal is again ruled out, since you can only appeal against matters of law.

Now in this case the judge certainly erred on the facts - or, to be a little more precise, she erred in her reasoning on factual matters. Last year I already commented on this, pointing out, for example, that she seemed to believe that the fact that a window was found open after Reeva Steenkamp was shot indicated that "it was not [Pistorius's] imagination at work when he thought he heard the window slide open". This is clearly a non-sequitor; it makes no sense whatsoever.

However, in appeal, such errors can not be touched. They are factual and therefore impervious, so to speak.

Thankfully for the prosecution, however, the judge seems to have erred on the law as well. In particular, she seems to have quite confused the legal criteria applying to the various questions of the case. 

Nowhere is this more prominent than in the following part of her ruling:

            "I now deal with dolus eventualis or legal intent.  The question is:

            1. Did the accused subjectively foresee that it could be the deceased behind
                the toilet door and
            2. Notwithstanding the foresight did he then fire the shots, thereby reconciling
                himself to the possibility that it could be the deceased in the toilet."

However, when it comes to dolus eventualis, those are not the questions. Specifically, when dealing with the question as to whether  the required intent did or did not exist, it is not relevant whether Pistorius foresaw that the deceased (Reeva Steenkamp) was in the toilet cubicle. What is required is the foresight that someone was in the cubicle.

In fact, the whole notion of whether the intent required by dolus eventualis was or was not present is given by the (un)likelihood that firing shots through a closed door into a small cubicle will kill (or at least severely harm) the person inside that cubicle. It has nothing to do with the identity of that person at all.

Now, you might think that the judge, in mentioning "the deceased", simply misspoke, and that she meant "the person in the cubicle". However, it is clear she did not, since she goes on to substantiate her reasoning by pointing out that Pistorius could not have foreseen Reeva's presence since he thought she was still in the bedroom. In other words, it is clear she is thinking specifically about Reeva. As a result, it is also clear that she is applying the wrong yardstick.

But guess what? Having come to this conclusion, one still cannot say that the judgement can and will be struck down. Even establishing that there were (serious) errors in law need not be enough. The reason for this is that it is quite possible to have an erroneous ruling that nevertheless gets its outcome - the decision that Pistorius was guilty only of culpable homicide - right. 

In this case, this means, among other things, that one must again pose, and then answer, the question of whether the intent required by dolus eventualis was present. In other words, one must ask whether Pistorius foresaw that firing his gun could kill someone.

Interestingly enough, the judge, in her ruling, has gone some way towards answering that question herself. When talking about culpable homicide, she asks herself the question whether "a reasonable man would have foreseen the reasonable possibility that if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result".  Her answer is a simple "yes".

It should be noted, however, that when dealing with the issue of culpable homicide, one should apply an objective norm (the question becoming not whether Pistorius foresaw the consequences of his action, but whether "a reasonable man" would have foreseen them).  Nevertheless, I personally can't really see how, in this case, the foreseeability of "the reasonable man" would be very different from the foreseeability of Pistorius. It is true that, during the trial, it appeared that Pistorius might suffer from some sort of anxiety disorder and that, as a result of his handicap, he had had a "fight" instead of a "flight" response to perceived threats. Whilst these issues may explain why Pistorius would be quicker to shoot than an average man, they do not seem to be relevant to the question of foreseeability.

So, when all's said and done, what are we left with? Well, nothing quite yet. The Supreme Court has "reserved" its judgement. In other words, we'll simply have to wait and see when it decides to decide.

Thursday, October 29, 2015

The Fight for the White House: Beating around the Bush

So, the third debate in the Republican race.

What did we learn?

Well, firstly we learned that the moderators were pretty lousy. They tried to control the candidates by asking  an implausible number of quite ridiculous questions and then seemed stumped when those candidates refused to listen to them. If anything, the debate proved how wrong it is to try to turn such an event into prime time television entertainment. Was it all down to media bias? No, not at all. It was, instead, down to the fact that the media wants high ratings and really can't care less for actual policies.

Still, they were all there, onstage, the most important Republican candidates, so they could at least try to make the most of things. Did they?

Well, here are some of things that stood out.

Firstly - and most importantly - there was the Bush v Rubio clash. A clash that Rubio won handsomely. When attacked by a clearly awkward Bush on his voting record in the Senate, Rubio pointed out the obvious: "Someone has convinced you that attacking me is going to help you". And then Rubio simply turned to the camera to talk about "the future of America", leaving Bush gasping like a fish out of water. 

The most interesting moment of the debate, however, was offered by Ted Cruz. When asked about the national debt, he decided to totally sidestep the question and instead did a Gringrich, using all of his time to attack the media. "How about talking about the substantive issues?" Cruz asked rhetorically, thereby ignoring the obvious fact that he had been invited to do just that. And then, without so much a pause, he went on to complain that he didn't actually get to answer the original question.

It was, frankly, a rather extraordinary display, but one that sat well with the audience, who cheered him on loudly. It seems to have turned him into a "winner" of the debate in the eyes of quite a few pundits, but to be frank, I very much doubt that it will get him anywhere. The whole thing was unoriginal and clearly quite contrived. It was also, at heart, little more than whining.

As for the rest, well, Carson managed to stay awake. He may even have understood a few of the questions posed to him, although it's difficult to say. Trump started fairly Trumpish by attacking Kaisich, but then settled into what I surmise must be his "presidential mode". Since he doesn't actually have a presidential mode, that meant that he was quiet for a surprisingly long time. 

So, who won? In my book, probably Rubio, but not by all that much. Who lost? Easier to answer: the now-not-so-joyful turtle, Jeb¡.

It will be interesting to see what happens next. Where will we be when the next debate comes along (November 10th)? For Bush, the real question is whether he will be able to shore up (or at the very least hold onto) his establishment backing, or whether the donors will quietly start to sneak off to the likes of Rubio, Christie or even Kasich. 

Even now, I feel that Bush is a strong contender, but I must admit there is a real possibility of him not even making it to Iowa or New Hampshire.

It is perhaps this which best describes him, a clip of Bush talking about something he'll never ever forget, and then forgetting what it actually was:

(Thanks to Alexandra Petri for pointing that one out to me!)


Sunday, September 20, 2015

The Fight for the White House: The Beast's Tale


The Beast

Ages ago, when the world was still very young, the First Debate came and shook the world. I am old now and my time has almost come, but I seem to recall that moment nevertheless. I remember how shocked I was at the coming of The Beast, that thick-headed and bullying Animal of Many Insults, that roared its way into the very pits of  palaver with its huge mouth gaping hotly and hungrily.

Ah yes, I remember it clearly. But where is the Avatar of Awesomeness now, I ask myself? Where now is the Golem of Greatness?

It has been so long, so long. I grow weary when I even think about it, the passing of all this time. And truly, The Beast itself is no longer; the fire has died in its eyes. It is alive, surely, but it has become a mere shade. Its shape is but the hint of fog in the distance, and its whisper not enough to startle a mouse.


Hmm, no. Trump has not faded away quite yet. But I do believe that Thursday's second Republican debate showed why he will. And I also believe that it showed why the GOP should nevertheless be quite cautious about getting its hopes up too high.

A while back, I wrote that Trump's appeal to Republican voters did not seem to be that he trumpeted all conservative things in an all-conservative way. Instead, I said, he appealed to them because he was loud,  forceful and promised to actually act on his stated beliefs. Those beliefs might not be the gospel truth according to some Republicans, but that wasn't the issue: the issue was getting things done. And there was Trump, proclaiming as strongly as he could that he was the man to do it. He was, he himself stated, the non-politician to sweep all those weakling politicians out of the temple.

Except, of course, that his promises became hollower the more he repeated them.

You cannot, for example, promise to deport 11 million aliens just like that. To do so would require (a) lots and lotsa government money, and (b) lots and lotsa government officials and (c) lots and lotsa of buses, too. Oh, and you'd also have to tag the cretins in advance, so that you can catch them if they have the temerity to make a run for it before getting thrown out of the country (you never know with cretins, right?).

In short, it would require the very sort of federal government (an almost all-encompassing police state) that absolutely no Republican voter would ever think of condoning. It's not just undoable; its very contemplation is absurd.

So, where does that leave Trump's message? Well, where it ought to be. At first glance it's delicious. It's nice and shiny and it's got da muscle. But when you hear it for the second time, and then the third, you begin to realise you're watching ice cream in the desert sun.


So, no Trump? He seemed up for a while; now he seems down. 

Good news for the GOP, surely?

Nope, not really.

Just before the second debate, CNN released a poll showing that about 32% of likely Republican voters supported Trump. 19% supported Ben Carson. A rather measly 3% were prepared to support Carly Fiorina.

Just after the debate, CNN released another poll. Trump's support had dropped to 24%. Carson had gone down to 14%. But Fiorina had escalated; she was up to 15%.

Now, what does this show? In terms of individual politicians, not much. You might think that the poll clearly confirms my own opinions, as stated above, but it doesn't really. If anything, the poll confirms that some cracks are appearing in the Trump monolith, but not more than that.

What it does show, though, is this.

Before the second debate, a total of 54% of likely voters supported a non-politician. After the second debate, that figure had not really changed at all: it was 53%. 

It has been remarked upon by some how wildly the polls have swung recently. I would say the exact opposite: look at what has remained the same, and there you should find a fairly accurate measure of the voters' mood.

The voters aren't all too committed to either Trump, Carson or Fiorina. They might like some of them or even all of them, but in the end, they will happily hop from one to the other. Their goal is not to support the individual; their goal is to oppose the establishment. And they're doing it in spades.

Good news form the GOP? No, not really.


And now the night is falling. It has been so long, so long. Tell me, where is the boy to bring me my tea? Where is he?

Ah, there you are, Trumpsy. Yes, put it done there. A sugar, please, that's a good boy.

Tell me, Trumpsy, have you heard the tale of The Beast? Let me tell you the story, for it's a good tale. 

Sunday, September 6, 2015

The Fight for the White House: Religious Liberty Revisited


The Trumpster? Who cares? Here's The Kimster!

A little while ago, I wrote about the Odgaards.

Now, we suddenly have Kim Davis, a county clerk in Kentucky who has been jailed because she refuses to issue marriage licenses to gay couples (indeed, to all couples, because these couples would include gay ones).

And it seems that, in doing so, Davis has rather confounded a lot of people on the issue of what is euphemistically known as "religious liberty".

This is from an article posted on The Washington Post's website:

"Kentucky county clerk Kim ­Davis’s assertion that she answers to a higher authority won her no reprieve from a federal judge this week. But the question of whether people must obey the law when they say it violates their religious beliefs is being debated in state legislatures and the nation’s courts and has become a galvanizing issue in the Republican presidential nomination campaign."

Well yes, perhaps in a case such as the Odgaards'. But surely not here, right?

After all, the first time you read about this case, you might well think that it's not about what Davis can or cannot believe. You may well think that it's just about her duty, as a county clerk, to issue marriage licenses in accordance with the law of the state of Kentucky.

And yes, it is true that Davis is and remains perfectly free to have objections against same-sex marriages, and that issuing licenses to gay couples in no way infringes that liberty. She could hand out licenses to gay couples all day long, and still go home happily believing in all the horrors that God has in store for gays tying the knot. Not a single license she issues need have any influence whatsoever on that belief.

It is also true that Davis, believing (as it seems she does) that gays must not to be allowed to marry, finds herself in a position (that of county clerk) where she can actually act on this belief. She is, in other words, in a position where she can superimpose her will on those who think differently. Such action has nothing whatsoever to do with "liberty"; such action constitutes the exact opposite.   

So, in this line of reasoning, you might easily reach the conclusion that this is a fairly simple matter.

However, there are at least two aspects involved which could change your mind. Let me briefly address both of them.  

The first is this: Davis has been incarcerated. And that, frankly, might be considered odd.

Davis happens to be the county clerk, and as such she has a duty when it comes to issuing licenses. It is questionable whether the authority to issue such licenses can be taken from her and, against her will, bestowed on others (specifically her deputies). However, the judge ruling on the case clearly thought so: in fact, he ordered that her deputies can and must now issue licenses without her consent. And that's exactly what happened: after the judge gave his ruling, Davis's deputies began issuing licenses to gay couples.

The problem with this, though, is that it renders Davis's own non-compliance almost moot. After all, if the judge's view is correct, same-sex couples wanting to get married in the county can get (and some have by now indeed gotten) their licenses, and it doesn't really matter what Davis herself thinks on the issue.

But the question then rises: why jail her? If such a step cannot be seen as a reasonable and necessary measure to protect the rights of gays, what other reasons might there be? 

Well, the first answer to this is very simple: Davis was jailed because she refuses to abide by court orders to comply with the law. She is therefore in contempt of court. As such, she could be fined, but the judge (rightly, I would assume) thought that doing so would not be a sufficient inducement. The alternative is imprisonment.

From a purely legal perspective, the judge's decision makes total sense; from any other perspective, however, not so much. If fines should be eschewed because they wouldn't work, the same can be said of incarceration. It was clear from the outset that this would not force Davis to start issuing licenses to gay couples, and so it has turned out.

The second way to answer the question would be to point out that she refuses to do (part of) her job. That's true, but since when does such a situation justify jailing the person involved? It may well justify other steps - it might ultimately justify dismissing an employee, for example, or (as in Davis's case) a process of impeachment (*) - but incarceration? Surely not. 

The third way to answer the question, however, is even worse. That would be to argue that Davis should be jailed because her religious beliefs conflict with the law of Kentucky (and, indeed, with federal law). That, however, implies that her imprisonment is a direct consequence of her belief that gays should not be allowed to marry and, as such, could be considered an acceptable infringement of her "religious liberty".

So jailing Davis is, to my mind, problematic. It effectively makes her a martyr, and that is unfortunate, given the (unappealing) particulars of her stance. 

So much for the first aspect. The second one is this.

During the legal proceedings so far, she has argued that one of her main objections is the fact that her name is on the licenses that are issued. As such, she argues that she is being forced to in some way "condone" gay marriages. To my mind, this argument should fail simply by virtue of the fact that the mention of her name does not imply any personal endorsement or condonement (it is there because Kentucky law requires the license to be issued by a county clerk and Davis happens to be that clerk). However, I could well be wrong, and in that case, the argument becomes quite clever and potentially hugely complicating. Dealing with it would mean that you would have to investigate what changing the documents would actually imply. How hard would it be, for example, to change them so that they only mention "the clerk', and not the clerk's name? Is such a document still legal? If it isn't, what steps could be taken to legalise it? Before you know it, you are up to your chin in a skew of legal tangles, each and every one of which takes you further away from what you thought the case is actually about.   

These two aspects make this case much more complex than it at first seems. Ultimately, I think the writers of the article quoted above are quite right. Issues such as these are galvanising. Moreover, they are often also just damned difficult.

Meanwhile, various candidates for the Republican nomination have come out to support Davis. These include people such as Mike Huckabee, Ted Cruz, and (rather surprisingly) Rand Paul. None of them seem to appreciate the complexities of the case; all of them appear, instead, to want to capitalise on what is a fairly difficult situation. Gosh - who would have thought?   


ADDENDUM: The above article was written on Sunday, September 6th. Today, August 8th, Davis was released from prison. The judge stated that he was satisfied that the County Clerk's Office was complying with the law and issuing licenses to everyone who requested them (including the original gay couple who has been turned away by Davis). If, the judge stated, Davis were to interfere in any way with the issuing of such licenses, he would take further steps.  

If nothing else, the judge's action today has shown that putting Davis in jail in the first place was not such a good idea.


(*) Why impeachment? Because Davis is not an ordinary employee of the state of Kentucky. Instead, she's an elected offical. As such, she can't be fired; she can, however, be impeached. 

Wednesday, September 2, 2015

The Fight for the White House: Trump's Up


We are legion!

A few days ago, I wrote and briefly posted a short article on Jeb Bush. It wasn't quite right. I then replaced it with a somewhat longer article dealing with Trump (or, rather, on how he might lose the Republican primary race). And that wasn't quite right either.

Hmm. Why am I struggling?

I've given it a bit of thought, and I think the simple reason is that, like many others, I wasn't really sure why Trump is doing so well, or why Bush is doing so badly.

In the last few days, though, I do feel that some things have become a little clearer.

So let me try again.


The first Republican debate was held in the beginning of August. Just about everybody expected it to be, in some shape or form, a Trump show. And of course,  that's just what it was.

However, I, for one, hadn't expected Trump to do so badly. I thought then (and still do) that he preformed horrendously. I don't believe he gave a single answer (or made a single comment) which was in any way factually correct or, if it was, which was in any way appealing. 

And yet, from that moment on, the Trump machine has kept rolling. His popularity has kept growing. To the surprise of many, his favourability rating have increased tremendously. He has, quite simply, gone from strength to strength.

Before the August debate, very few pundits were talking Trump seriously at all. By now, everybody is. Most will still tell you that Trump has little or no chance of actually winning the nomination, but that's a different story. Trump is in this race, he's ahead, and he's not going anywhere soon. He's not some amusing distraction; he's real.

But why? He's not a true conservative at all. He's not Cruz, fighting for "religious liberty". He's not Santorum, with his extraordinarily odd views on abortion and women's rights. He's not Huckabee; he's not Perry. He's not Walker or Bush. In fact, in many ways, he shouldn't really be in this race at all. If you look at what the GOP has, in the years since Reagan, become, you realise that Trump just doesn't fit at all.

Yes, he is a loud-mouthed populist, but that just doesn't seem to explain all that much. As I said earlier, voters might at first find that refreshing, but after a little while, they'll realise it isn't enough. Once they start listening to what he says, and not how he says it, they'll scratch their heads and walk away.

Except that they're not doing that. Why?

Well, I'm beginning to think that the current views the GOP has - on conservatism, on religion and on just about every other "holy" aspect of Republicanism - aren't quite right. I'm beginning to think that the GOP may, in fact, be barking up the wrong tree. And I feel that Trump is making this apparent.

And it's not just Trump, either. You might wish to add Ben Carson to the mix, or Carly Fiorina.

Take, for example, a recent Iowa poll. Trump came in at 23%. But so did Carson. And Fiorina came third with a very respectably 10%. What does that mean? Well, it simply means that no less than 56% of those polled did not  support a Republican politician; instead, they supported a non-politician. And just to be clear, the people polled were "likely Republican caucus voters". The people polled were, essentially, the Republican electorate in that state.  

And the majority of them did not back their own politicians.

In another poll, again conducted in Iowa recently, 75% of likely Republican voters also said that they didn't like  the way Republicans were handling Congress. Republicans politicians hold majorities in both the House and the Senate, but three out of four likely Republican voters just don't like what they're doing.

Now of course these are just polls; they're more or less spur-of-the-moment things. In six months time, in a year's time, all the polls will have changed.

Nevertheless, what these two polls show is that the GOP is doing a terrible job. There's no other way to put it.  And what they also show is that voters - Republican voters - aren't all too happy to hop onto any of the readily available "conservative" bandwagons available. They're not rushing to any of the "real" conservative candidates out there, no matter how vehemently those candidates all profess to pray at the conservative altar. Instead, these voters are reaching out to outsiders, to people like the brash Trump, or, alternatively, the seemingly mild-mannered Carson.

And the reason for this is, it seems to me,  ultimately simple. The current conservative message of the GOP might well be of some importance, but it's not what voters are looking for. What voters are looking for, is someone who will Get Things Done. It doesn't matter if those things are all honest-to-God truly conservative; it doesn't matter if they are all religiously conformist; it doesn't even matter if taxes will never be raised again or if the size of the federal government is drastically reduced. All these things are secondary (or tertiary) at best. 

What matters first and foremost is that Things Get Done. What matters is Thomas Jefferson, and Reagan, and Eisenhower. And not so much Walker, or Perry, or Cruz. 

Republican voters are looking for a real and strong answer to the Democratic challenge. What they're not looking for is some sort of distorted and distasteful version of their own message, thrown in their face in the name of endless Grover Norquist tax pledges, or an ultimately suffocating concept of "religious liberty". 

To advance a conservative message, you don't have to be a radical conservative. In fact, radical conservatism is not advancing anything; it is, instead, self-destructive.

If the GOP doesn't recognise this, and if their politicians do not recognise this, they are in very real trouble indeed. They're going to get trumped big time.

Having said this, I do realise that what I'm saying goes against the grain of just about every other pundit's comments out there. 

Hmm. Perhaps that's why I was struggling.


Sunday, August 23, 2015

The Fight For the White House: The Gortz Haus Controversy


Have a look at this:

The couple Ted Cruz is talking to in this video are Betty and Richard Odgaard. The Odgaards are (or perhaps I should say: were) proprietors of Görtz Haus.

Görtz Haus was a bistro, art gallery and event venue in a suburb of Des Moines, Iowa. When it came to events, it mainly "hosted weddings", an activity it was well suited to, given that the building had been (and still retained a lot of the characteristics of) a church.   

In 2013, the Odgaards were approached by Lee Stafford and Jared Ellers, who wanted to hire the venue. The Odgaards, however, turned them down on the grounds that Stafford and Ellers were a same-sex couple and that, given their Mennonite faith, they had objections to gay marriages.

Stafford and Ellers promptly filed a complaint with the Iowa Civil Rights Commission. Not to be outdone, the Odgaards in turn filed a petition with a district court in Iowa, requesting the court to declare that they had not violated the Iowan Civil Rights Act and had not discriminated against Stafford and Ellers on the basis of sexual orientation.

The court dismissed their petition, stating that the Commission would have to give its ruling before the court could be involved. The Odgaards appealed against this with the Iowa Supreme Court, but before that court could rule on the matter the case was settled out of court. The settlement effectively meant that the Odgaards paid out $ 5,000 to Stafford and Ellers; in turn, the complaint lodged with the Civil Rights Commission was withdrawn.

In 2007, the Iowa Civil Rights Act was passed, which meant that from that moment on discrimination on the grounds of sexual orientation was prohibited. In 2009, same-sex marriages became legal in Iowa.

Back to the video.

In it, Cruz refers to Görtz Haus as a "church". He also refers to the Odgaards actions as "refusing to allow to host a gay wedding" at this church.

The first claim is certainly false. Görtz Haus was not a church. It used to be, but when the Odgaards bought the property, it had lost its religious function. It was a privately owned but publicly accessible property that the Odgaards used for their own commercial endeavours; these endeavours were, however, to a certain extent shaped by their personal religious beliefs. 

The second claim is misleading at the least. After all, what does "hosting a wedding" actually mean? Well, in this case, we know what it didn't mean. We know, more specifically, that Stafford and Ellers did not wish to be married at Görtz Haus. They had, in fact, already wed elsewhere before they contacted the Odgaards. In other words, their desire was merely to host a party or ceremony to celebrate that fact.

This immediately makes the case very different to what Cruz is insinuating in the video. If, after all, Görtz had still been a church (a Mennonite church, say), it could of course have refused to conduct a gay wedding based on the principles of that church's faith. I do not believe that anyone would wish to dispute that.

If, alternatively, Görtz was simply a commercial enterprise open to the public (which indeed it  was), but had been requested to host the actual wedding (a wedding that would therefore be conducted on the premises), the question that arises is whether the Odgaards could be required to facilitate or accommodate that wedding in spite of the fact that it was contrary to their religious beliefs.

That question is, frankly, not an easy one to answer, since there are clearly two strong principles involved which clash. Furthermore it's basically an issue which would have to be decided on the basis of Iowan law, so that even if a clear answer could be given, its impact would be limited to that state.

Nonetheless, a few comments can be made. Firstly, the fact that same-sex marriages are legal in Iowa (and have been since 2009) obviously means that the Odgaards could not have refused to host a gay wedding simply on the grounds that such weddings were prohibited under the law.

More complicated are the provisions of the Civil Rights Act, as amended in 2007. The Act states that it is a discriminatory practice "for any proprietor (...) of any public accommodation (...) [t]o refuse or deny to any person because of (...) sexual orientation, the accommodations, advantages, facilities, services or privileges thereof". That seems reasonably clear, but it should be understood that, at the same time as this clause was added (2007) the Act also  stated that nothing in it could be construed as allowing same-sex marriage. (Remember: at that time same-sex marriages were not yet allowed; that only changed in 2009.)

So the argument could be made (and was in fact made by the Odgaards' lawyers) that the Act's intent must be that the refusal to participate in or accommodate a same-sex marriage cannot on its own constitute a sexual orientation discrimination.

Such an argument (and there are others) might be plausible. I am not at all certain the Odgaards would have prevailed, but it seems to me that they would, at the least, have had a reasonable case. And even if it's still rather iffy from a legal standpoint, it seems morally acceptable to me.

The thing is, though, we'll never know. As I said, the Odgaards weren't asked to actually facilitate in or accommodate a same-sex marriage; they were only asked to rent their property to a gay couple who had already gotten married and now wanted to hold a party (or ceremony) for friends and family. And in any case, the Odgaards withdrew their lawsuit and settled the matter before the courts could give a substantive ruling on the issues.  

So, what are we left with here? Well, fairly little, really. We are left with a fledgling lawsuit that never hatched and a very modest settlement that couldn't really have hurt anyone, including the Odgaards. We are hardly left with, as Cruz states portentously, "an incredible journey fighting to defend religious liberty".


A few final words. In the video, the Odgaards are clearly depicted as victims. They stood up for their religious beliefs, and now, the video suggests, they have had to close down their business.

One wonders, however, whether the Odgaards are perhaps playing the victim card too vigorously.

Firstly, it seems they view themselves a little too optimistically. "I would never discriminate in any area", Betty Odgaard at one point told a local TV station, "that's not who I am". But clearly they had done just that against Stafford and Ellers. The question is not whether their actions were discriminatory, the question is whether such discriminatory action should in some instances be accepted on the grounds of religious conviction. Either the Odgaards do not quite understand this, or they are being purposefully abstruse.

Secondly, their decision to close down the "hosting of weddings" was a decision they made themselves, and it was one they made surprisingly readily. As I understand it, they had had just this one single complaint lodged against them in the period from 2009 through 2013, and no more. And that complaint never reached fruition, since neither the Civil Rights Commission nor the courts gave final substantive rulings. Nevertheless, they still decided to stop hosting all weddings and then decided to close Görtz Haus altogether. 

It is, of course, possible that public opinion had turned against them to such an extent that they simply didn't have enough costumers left; if that, however, was the case, then it clearly shows that it was time they started doing something else anyway; their "incredible journey" is nothing more than evidence of a failing business model. 

If, alternatively, that were not the case, their course of action seems to be a rather odd rush to victimhood.