The Lost Art of Congressional Oversight

Most people probably didn't notice, or it may have passed most people's radar even if they are relatively diligent Congressional watchers, but on Wednesday, something interesting happened on Capitol Hill--a Congressman announced that he would begin doing his job--overseeing the executive agency his committee is supposed to manage.  Florida Rep.Jeff Miller (R), chairman of the House Veteran's Affairs Committee announced that he is ready to up his and his committee's oversight of the Department of Veterans' Affairs.  According to a committee press release:

“Lengthy delays or not responding to requests at all has become the norm,” stated Rep. Jeff Miller, Chairman of the House Committee on Veterans’ Affairs. “First we were told $20 million was spent in FY2011 on conferences; then we were told it was a little over $100 million; finally we were told that no accurate, reliable figure on conference expenditures exists. Because of these discrepancies, Ranking Member Filner and I asked for clarification of VA’s total conference spending for that year and prior years, as well as a breakdown of all individual conferences, and still have yet to receive any information.”

Miller's specific context is recently provided and widely divergent statemetns of spending on departmental conferenes, which ranged from $20 million, to over $100 million and on Wednesday, the Committee was told that the figure was $86 million.   Mark Tapscott of the Washington Examiner, calling Miller an MVP wrote:

The third VA figure of $86 million was presented at Wednesday's hearing. Miller's exasperation was clearly evident when VA's No. 2 official, W. Scott Gould, couldn't explain the variation among the estimates.

Instead of merely venting his anger, Miller responded to the VA obstacles by declaring, "The truce is over. Expect much more oversight from this committee."

Miller was still fuming after the hearing, telling The Washington Examiner's Mark Flatten that the committee "got the same old crap that VA has been giving us for two years, and I am tired of it." 

Perhaps to remove any doubt about his intention, Miller added that the committee "will be digging in every possible corner that we can for issues that are not being served for the veterans. If you have leadership within the VA that have arrogant attitudes, the veterans are not being well-served."

Tapscott goes on to note that the current VA Secretary, retired Army General Eric Shinseki, seemed like a man who could clean up the VA, a department that seems rife with mismanagement apparent by its inability to quantify even a basic budget line item of internal conferences.  But even the effective Shinseki seems to have not made a dent.  

You could lay the blame on many different places and Shinseki and his predecessors do indeed to shoulder some of the blame.  But ultimately, the real failing is at the Congressional level.  Almost by necessity (and probably not fully necessary--but that is a subject for another post) Congress has to delegate a lot of detail work to the executive  branch to flesh out the details of legislation.  This process, known as rulemaking, means that Congress needs to be active--truly active-- in their oversight duty to make sure that Congressional intent is carried out.  Of course, Congressional intent may be hard to discern from the actual legislation, which makes oversight even more important.  When rules and regulations are proposed by various executive branch agencies, those rules are subject to review and rejection by Congress under the Administrative Procedures Act.  However, such rejection almost never happens.

Similarly, management of the federal budget--a task clearly and Constitutionally delegated to Congress--is hardly ever exercises after an appropriations bill is passed.  Rep. Miller is responding to an obvious problem, that agency officials cannot even answer basic questions about their budget and as a result Miller is now proposing greater oversight of the VA by his Committee.  While Miller is to be applauded for this, what is truly troubling is that his vow is making news.  

Increased Congressional oversight is not and should not be news.  It is an art and a duty that should be exercised as diligently as possible and as often as possible.  Congressional oversight, if it means that senior executive branch officials are spending twenty, thirty or even fifty percent of their time responding to Congressional inquiries, is not simply "a duty" of Congress, but arguably is "the" duty of Congress.  Take the example of a typical household budget.  That budget and the expenditures made under it have to be reviewed regularly, scrutinized, refined if necessary and certainly altered to fit that actual reality of the situation.  A private company has budgetary review all the time, no matter how big the company is.  However, in the regular effort to be reelected, and the constant campaigning that accompanies that, the lost art of Congressional oversight gets dismissed in the shuffle of campaign events, other duties, and the apparent feeling of trust of executive branch bureaucrats.  

While we want to be trusting of government officials, members of Congress and their staff don't have that luxury.  Congress must be skeptical of every dollar spent.  In the end, only vigilance will save the tax payer money, and only vigilance will keep the government on task.

New Satellite Will Be Space Mechanic, Gas Station - Yahoo! News

Innovation in private commercial is just stunning.  If only the government would get out of the way of other industries, we would be leaping forward in the economy.  So Cool:

New Satellite Will Be Space Mechanic, Gas Station.

A young spaceflight company is building what it hopes will be the ultimate space handyman, a combination repair droid and orbital gas station to serve ailing satellites around Earth.

The company, called ViviSat, is planning to launch a fleet of specially built spacecraft that will be able to attach to other vehicles in Earth orbit that need a pick-me-up.

"We call them Mission Extension Vehicles," ViviSat chief operating officer Bryan McGuirk said Nov. 15 at the 2012 Satellite and Content Delivery Conference and Expo here. "Our job will be to dock with commercial satellites to extend their lives."

Brilliant.  I have a few logistical questions, but this is someone thinking with their head and being creative.  If they can deliver this product and service, they could make a killing.

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Juxtaposition

I am sitting this Thanksgiving morning watching the Macy's Thanksgiving Day Parade with my daughters and perusing the news, when I came across this story about New York City sending health inspectors to disaster relief food tents.  Aside from the inanity of this story, you have to wonder, what the heck is going on with New York City that they still need these tents.  But onto the story:  

The New York City Department of Health has been dispatching workers to storm-ravaged areas across the five boroughs as part of an outreach to ensure that volunteers are informed on proper food-handling and other safety issues. 

But the presence of health officials has caused some confusion as to where the city is drawing the line between advisement and enforcement. 

Bobby Eustace, an 11-year veteran with the city's fire department tells FoxNews.com that on Sunday he and his fellow firefighters from Ladder 27 in the Bronx were issued a notice of violation for not maintaining restaurant standards in a tent set up in Breezy Point, Queens, to feed victims and first responders. 

“It’s just a little ridiculous. The inspector came up and asked if we were wearing hairnets. I told him, ‘We have helmets. This is a disaster area,’” Eustace told FoxNews.com. “Then he asked is we had gloves and thermometers [for food]. I said, “Yeah, we have rectal and oral. Which one do you want?’ He wasn’t amused.” 

Eustace says that the Health Department worker then checked off a list of violations at the relief tent, including not having an HVAC system and fire extinguisher. 

“He told us that he might come back to see if we fixed the violations. But what can we do? We are just going to keep going until a professional catering company can help take over,” Eustace said, adding that firefighters across the city together have been contributing about $800 a day out of their own pockets to feeding victims in areas hit hard by Sandy.

So firefighters are clearly volunteering their time and money to help victims and Mayor Bloomberg's Nanny State Corps has to go out and get in the way.  That is so blatantly stupid I welcome the mocking that surely must follow.

Read more: http://www.foxnews.com/us/2012/11/21/allegations-surface-nyc-health-inspectors-handing-out-code-violations-to-sandy/#ixzz2Cxs8SzUJ

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"Hawaii Five-O" Kono is a cop, a good looking one, but a cop--treat her like that.

Okay, I love Hawaii-Five-O, I think it is a great show, beautifully shot, with interesting characters.  This and this week, according to Big Hollywood, Hawaii-Five-0' Bucks Entertainment Trend and Tackles Terrorism.  I am looking forward to this episode (which I will have to watch on-demand since I have a soccer game tonight.

But, I see this picture and I wonder...whaaaaa?


I love Grace Park, I loved her in Battlestar Galactica and I love her on this show.  I think she has a decent character and last season and early this season, there was a story line of her love for the son of a known Yakuza warlord could have been an interesting piece, but we haven't seen much of it.

Yes, Park is very easy on the eyes and her back story of a budding professional surfing career cut short by injury was also promising (although often given the short shrift).  But I think the producers need to do more than just make her some eye candy.  That is what this pic seems to say, that the role of Kono is just eye candy.  Here are three cops, wearing Kevlar and then there is Kono, also a cop, not wearing Kevlar in order for us to see her curves.  See, Kevlar is not sexy--necessary--but not sexy.

So while it is nice to see Kono in a bikini surfing in Hawaii, when she is a cop, we need to see her as a cop--in cop gear like her colleagues.

Stepford Educators and Poor Education

WatchDogWire - Michigan via Instapundit

Every teacher and principal in the Hazel Park School District’s four elementary schools, junior high and high school were given “highly effective” ratings in 2011-12 by administrators despite district-wide failing grades for student achievement. 

The state of Michigan gave Hazel Park High School an “F” for student achievement in 2011-12 in all four of the measured subjects — reading, science, social studies and math. Yet every teacher was given the highest rating in the new state-mandated evaluation of teachers. 

snip 

A state law in 2011 ordered schools to rate teachers and administrators by using one of four ratings: highly effective, effective, minimally effective and ineffective. 

Every teacher and principal in the Hazel Park district received the highest evaluation despite student achievement getting an “F” from the state in 10 of the 16 measured categories in the four elementary schools and in the junior high and high schools.

How in the world can a school district and as state reconcile that.  I know that assessments of teachers are a sensitive subject, filled with conflicts over the role of test scores, subjective assessments by principals, the role of various credentials, etc.  I also know that even assessments of schools are notoriously squishy if not based on some nationally recognized test like NEAP.  

But really, how in the world does this happen? "Across the state, 97 percent of the estimated 95,000 teachers were rated 'effective' or 'highly effective.'" 

It seems a statistical impossibility.  I know we want to hold teachers in high esteem, but we do not live in a Stepford world.  

Isolated Incident or Sign of Things to Come.

This piece talks about Ohio http://tiny.iavian.net/erq, but you have to ask if Ohio food stamp recipients are getting $50 less per month and that amounts to $27 million for one county then what about other "cuts" or change in the calculation to save money. 

Is It Time for a Legal Challenge to the Electoral College?

Leading up to the Election night, I saw a couple of comments on the Electoral College.  There were the usual comments, i.e., why did we still have such an antiquated system? How do you explain it to kids?  How do you explain it to adults sometimes?

Of course, the Electoral College is here to stay at least until such time as a Constitutional Amendment is proposed, passed by 2/3 of Congress and then ratified by 3/4 of the states.  That is a tall order and I am not sure it would pass the first hurdle.  Of course, the states could hold constitutional conventions and propose the change themselves, then get ratification.  But that is not likely to happen.  However, there could be a mechanism to blunt some of what people see as the worst features of how the Electoral College works.

I saw a comment on my Facebook feed about how the population centers dominate the results in so many states.  Florida is a prime example.  The major population centers in Tampa, Miami, Jacksonville and Orlando (and to a lesser extent Tallahassee) were deeply Democratic in their voting.  But if you look at the remainder of the state, it is Republican or at least leans Republican.  The same goes for states like Ohio, where the margin of victory by President Obama in a few counties drove a state that looks very red in most places into a win for the President (see this map by the Washington Post which does a good job of showing how counties voted as well as giving a rough approximation of how big the margin of victories per county were).  As you can see, the country, county by county, is pretty red.  But the population centers are pretty blue.  So that leads to an interesting problem, is the Electoral College too skewed to the population centers? the answer would appear to be yes, because the population centers counteract the remainder of the state, particularly if the statewide, rural/urban areas do not contain massive numbers of voters where an urban county could number in the millions and even a 10 percent margin can completely wipe out any collective margin in the rest of the state.  Again, Florida, indeed most battleground states are like that.

The manner in which Electoral College votes are won and divided up is a matter of state law.  In most states, it is a winner take all system.  For example, Virginia is like most states.  In 2012 the President won Virginia with 50.8% of the vote to Governor Romeny's 47.8%.  Virginia has 13 electoral votes.  By the rules, the President gets all 13 electoral votes, despite winning just over 50% of the vote.  Florida is even more difficult, with neither candidate actually winning a majority of the votes, yet because the President won more popular votes, 46,039 more out of 8,283,630 cast, a margin of victory of 0.5%.  Yet, because of the fact that President Obama won more votes, even just one more than Governor Romney, he gets all 29 electoral votes and Governor Romney gets 0.

In a society in which we, at least nominally believe in fairness, how is that fair?  (Disclosure, I voted for Governor Romney, but live in Maryland which is so heavily Democratic that it is almost pointless to cast a vote for a Republican candidate).

But not every state has a winner take all system.  Maine and Nebraska do things differently.  Instead of a system where the state wide winner gets all the Electoral votes, in those two states, the candidate who wins the statewide race gets two electoral votes (for the state's two electoral votes from Senate representation) and then the candidate who wins teh popular vote in each Congressional District gets the electoral vote for that electoral district.  Thus, in Nebraska it would have been possible for one candidate to get three electoral votes (statewide electoral votes and one Congressional district).  Maine has a similar procedure as Nebraska, but while Nebraska is reliably Republican in over all state voting patterns, Maine is reliably Democratic (or at least left-leaning independents).

So the question most people might ask is why are Nebraska and Maine different that the rest of the country, save for those states with just three electoral votes.  Well, the answer is, they choose to be and it is up to each state to determine how electoral votes would be won in the presidential election.  A state could say, "we are going to divide the electoral votes up in a manner in proportion to the vote."  So if, a candidate won say 55% of the popular vote, that person would get 55% of the electoral votes.  In the case of a divided electoral vote, the state could round up to the winner.  So if a state like New York, which has 29 Electoral Votes was won by a candidate with 55% of the vote, which if you do the math, 55% of 29 is 15.95, so the results would round up to 16 electoral votes for the winner and 13 for the loser(s).

Alternatively, states could adopt a system like Maine and Nebraska.

But how to make that happen.  Well, there is some precedent for it in case law from the Supreme Court to be found in the reapportionment cases of the early 1960's.  In 1962, the Supreme Court decided the case of Baker v. Carr, 369 U.S. 186, in which the Supreme Court stated that reapportionment and redistricting cases could be decided by the courts (previously they were considered a "political question" which the courts could not decide).  In essence, what was happening prior to Baker v. Carr is that rural districts tended to be over represented because the populations of the Congressional districts tended to be quite unequal in terms of population.  The Plaintiff, Baker, noted that Tennessee had not changed its districts in 60 years and that the county he live in, Shelby which is home to Memphis, was now 10 times as populated as it was 60 years ago.  As a result the rural districts carried more weight politically.  Baker argued that he was being denied equal protection of the laws.

Baker v. Carr laid down the test for political questions.  Cases that are political in nature are marked by:

1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, "[Justice] Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions"
2. "A lack of judicially discoverable and manageable standards for resolving it;"
3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"
4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"
5. "An unusual need for unquestioning adherence to a political decision already made;"
6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Baker v. Carr, did not actually lead to a decision about redistricting, but it set the stage, saying that plaintiffs could challenge the law.  Baker did lead to the case of Reynolds v. Simms, 377 U.S. 533, in which the Court dealing with state legislative districts found that urban areas (similar to the charge made by Baker) were seriously underrepresented in the legislatures.  The solution from the court was the doctrine of equipopulation, the standard best summarized as "one person, one vote," although such a summary is somewhat inaccurate.  Of course each person had only one vote, but under equipopulation, the goals was to make the weight of each vote as equal as possible.  Before the standard of equipopulation, a rural district with 20,000 voters had as much sway as a urban district with 200,000 voters.  With this example, a rural voter had 10 times more weight than an urban voter.  So, the Supreme Court ruled that in order to obviate the threat to the republican form of government, all state legislative districts had to have populations that were as equal as practicable.  Reynolds applied only to state legislative districts.  A different case, Westberry v. Sanders, 376 U.S. 1 (1964), extended the equipopulation principle to congressional districts.

So why all this jibberish about Supreme Court cases and equal population?  Well, I believe that it would form the basis for a very good legal challenge to the system of winner take all electoral votes allocation.  Take for example, Ohio (with a Congressional District Map located here) where in most of the state apparently voted for Governor Romney.  A comparison of the district map with the voting pattern map of the Washington Post shows that the urban areas around Lake Erie and around Cincinnati which voted heavily for the President resulted in a victory for the President in that state by less than a percentage point.  It can be easily argued that the current Electoral College system in most states concentrate the Electoral power into a few densely populated cities in each state.  Even a state as heavily Democratic as New York (with 27 electoral votes) is not uniformly in favor of President Obama (62.6%) as the electoral vote count would suggest.  

I have already described the two most likely alternatives, a Congressional district based system similar to Nebraska and Maine, or a proportional allocation discussed above.

So a legal challenge to the winner take all Electoral College system would have to proceed along the lines of the equal protection argument that was posited in Baker v. Carr, that the current system effectively disenfranchises voters in rural areas.  One of the more interesting likely benefits would that candidates would not longer be able to take certain big states for granted.  States like California (which is now assumed to be a Democratic stronghold) would become competitive again because at least some Electoral votes could be had.  The importance of battleground states would be diminished a little.  The division of the electorate in states like Florida would not lead to heated division or likely accusations of vote tampering, etc.

As far as the psychology of the electorate, that is of course, hard to define.  But for me, I believe that at least there is a genuine belief among voters today that distrust the manner in which our President is elected.  They see far too much importance on just a few key battleground states.  This in turn leads to a suppressive effect in non-battleground states (like my own Maryland or say Utah) in which voters of the minority party and some of the majority party are not likely to vote because effectively, their vote has little effect.  But in breaking down the competition to a lower level, to the Congressional district level, it is possible to recognize that individual votes do matter.  They would have a far greater impact.  

Of course, the concern would be that gerrymandering would be employed to make certain Congressional districts and therefore certain electoral votes, solidly one party of the other.  Of course, this is a concern, but frankly it happens now, and despite the gerrymandering that has occurred in the past, control of the House of Representatives does change, and thus, the impact of gerrymandering would change as well every 10 years.

The trouble with the current system in 48 states and the District of Columbia is that the winner take all system greatly skews both the Electoral College and the candidate's behavior.  If we all want to have a say in choosing the President (which I think is true of most voters), and the Electoral College is here to stay (which it is) then challenging the winner take all system in Court is probably the only way to do it.

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Show Your Work Congress

Last night, I had a long conversation with the Peanut, my oldest daughter, about her math homework.  She had gotten a failing grade, 55%, on a math homework assignment, despite she whined, getting all the answers right (which I have no doubt she did).  What was the reason she failed?  Well, she failed to follow the instructions and show her work, which was spelled out in the instructions.

That was what was running through my head when I read this brilliant idea via Mark Tapscott:

Few things are more characteristic of business as usual in Washington, D.C., than closed doors. Nothing will do more to end business as usual than opening them to C-SPAN cameras.

With the "fiscal cliff" of sequestration approaching, now is the perfect time to establish a precedent: The bigger the deal, the more important it is that negotiations be done in public.

It took about 12 seconds after the 2012 campaign winners were declared for the maneuvering toward a "grand bargain" to begin among President Obama, Senate Majority Leader Harry Reid and House Speaker John Boehner.

Everybody professes to favor compromise, but without open negotiations there is no way to know who actually offers concrete compromises and who merely talks about them.The essential antidote is to let C-SPAN's cameras cover the negotiations gavel to gavel, with open news conferences after every bargaining session.

The only reasonable alternative to the cameras would be making public a complete transcript of every word said during the talks, with no opportunities for participants to "revise and extend" their remarks.

Of course, the participants will say they can't deal in candor if their work is made public.  Well, tough noogie chuckleheads, you are elected representatives and we as you employers have a right to see your work.  Just like the instructions on my daughter's math homework, she has to show her work, our representatives and elected officials need to show their work.

The only way they can ever hope to get out of the 10-20% approval rating doldrums is to engender faith in their work, and start doing it out in the open.

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On Gay Marriage and Where the Arguments Against It Fail

"Gay marriage threatens our freedom."  "Gay marriage is unnatural and can't produce children."  "Gay  marriage will destroy the foundation of American society."  "Gay marriage will lead to polygamy, incest or worse."  I am not sure how many more dire and vile threats have been uttered about gay marriage in this country.  This particular article, Gay Marriage Threatens Our Freedom, seems to capture a great many of them.

After lambasting advocates for gay marriage, or a redefinition of the term marriage as writer James Miliken, Jr. puts it, Miliken proceeds to make many of the same "parade of horribles" that I mention above.  However, what Miliken has failed to do, which a great many people on both sides of the debate have failed to do, is recognize that marriage is actually has two different meanings, one secular and one parochial.  What gay marriage advocates are starting to do (as with Question 6 in Maryland) is recognize that there is a separation between the secular, legal aspects of marriage and the religious sacrament aspect of marriage.

The religious sacrament of marriage is of course older than this country.  Marriage is, for example, one of the sacred sacraments of Catholicism.  Most western religions acknowledge marriage between a man and a woman as a sacred bond.  However, not all religions hold that idea.  Islam, for example, acknowledges that a man may have more than one wife, but that man must support all of his wives and their offspring.  Marriage as a religious institution predates this country's founding and thus is, as Miliken puts it, a pre-existing institution.

Yet marriage in a legal sense exists outside of the religious foundations.  One need not get married in a church or by any member of the clergy (however loosely you choose to define clergy).  The legal institution of marriage may be conferred by a Justice of the Peace or a Judge or in some places, the Clerk of the Court at a county courthouse. These are not so-called civil unions either, they are legal and state sanctioned marriages just like those performed in a church.  Yet, those couples married by a civil (read secular) officer of the law receive the same legal benefits, i.e. rights of survivorship, contractual benefits, tax benefits, etc. of a couple married by a church (again loosely defined).  Let's not even discuss the legal effects of common law marriage that still exist in many states, where a ceremony need not happen at all. What most opponents of gay marriage cite as the moral foundation of traditional marriage is actually a religious foundation and does not apply to a significant percentage of marriages that legally exist in this country.

The biggest mistake this country ever made with regard to the institution of marriage is by allowing members to the clergy to bestow upon a couple the legal, secular rights of marriage at the same time as performing a religious rite.  In no other aspect of civil, secular society do we allow a religious rite to confer legal rights upon people.  For example, simply having a bar or bat mitzvah does not entitle the young man or woman with the legal, secular rights of adulthood such as voting or contract rights, even though a young teenage boy or girl may be thought of as adults within the Jewish community.  Marriage, alone among all the religious rites, has been able to cross that divide between religious rite and legal concepts.

Having said that, let's start with the fundamental basis of Miliken's argument:

The redefinition of marriage by the state would not only mean a violation of the freedom of those who disagree: it would be a giant step closer to a government that is genuinely totalitarian. Now, I know some of you are thinking that "totalitarian" in an overblown, sensationalistic term, but consider the following: laws concerning marriage have always been descriptive, describing and recognizing a pre-existent reality.  Even laws regulating certain aspects of marriage (the ban on polygamy, for instance, or laws against incest) have served to protect marriage from those who would warp its traditional contours. A law that redefines marriage to mean something completely different, something it has never been, is a prescriptive law, one that prescribes or creates a new reality. This is a power that few governments, and certainly not our constitutional republic, have ever claimed in regard to marriage. It is to treat something that the state has always recognized as pre-existent, above and beyond itself, as if it were a creation of the state, to be manipulated, redefined, and at some point (why not, after all?) even abolished at the whim of the ruling power. This is why the protester's question "When did I get to vote on your marriage?" is so off-base. Marriage has never been subject to any vote; it was here before this or any other government, and is the creation of no human government.

But parsing Mr. Miliken's statement we find not only a parade of horribles but a fundamental lack of understanding of the legal underpinnings behind the civil, secular recognition of marriages. Mr. Miliken, by calling it a redefinition of marriage, argues that the state has no business re-defining marriage as he or perhaps even a majority of Americans define it.  But marriage has to have a legal definition and we have laws in this country that protect against the disparate treatment of individuals.  But because people, including me, believe that the law, it.e the secular basis of our society, should not deny people the equal protection of their life choices,  does not make me or the government totalitarian.  Indeed, denying legal secular rights to someone simply because the love of their life has the same biological plumbing is totalitarian.    

If Mr. Miliken's logic is premised upon the notion that because marriage pre-existed the country then it is somehow above the oversight of us mere mortals that comprise the electorate or the approval and oversight of the legislature.  If Mr. Miliken is right, then what we have really is a historical accident or oversight.  However, in fact, the "marriage laws" in this country have been subject to a vote of sorts.  The laws that recognize the religious and secular institution of marriage have been subject to votes of some sort of legislative body, if not in terms of active vote, at least in terms of a vote not to abolish or amend the regulations that allow for the variety of legal rights attendant to marriage.  Certainly the provision of services to provide civil marriages ceremonies is something that has been subject to the power of the legislature to review.

But gay marriage is not actually infringing on any one's rights.  So far, not one opponent of gay marriage has been able to describe how exactly their freedom, or their marriage, or their freedom to marry will be impacted at all, positively or negatively, by allowing two gay people to marry.  Let's assume for a moment that Mr. Miliken is right, that the government recognizes that marriage "is an essential prerequisite for stable, healthy families," what about that recognition is limited to heterosexual marriage?  Fundamentally, does the government truly have a legitimate interest in promoting "stable, healthy families?"  If so, how should the government go about promoting that interest?  Should the government require everyone to get married by age 30?  How does that further the interests of the Framers of "Life, Liberty and the Pursuit of Happiness?"  If men (and women) are endowed by their Creator with these rights--these natural rights--then by those very words, government has no right to take those rights away without due process of the law.  What is the due process that was followed to deny homosexuals the right to marry?  Is it not their natural life, liberty and pursuit of happiness they are attempting to follow?  And assuming a vote took place to deny them their right (which has not happened everywhere), do they not have the right to attempt to change the minds of the voting electorate?

Mr. Miliken cites what is the favorite line among religious conservatives:  "The real question is whether then union of a man and women is different from that of two men or two women (hint: the answer has something to do with babies)."  Pray tell, Mr. Miliken, what is the government's interest in procreation? We have procreation all the time outside the "union" of a man and woman (which I am neither condoning or condeming, merely stating a "pre-existing reality.")  By this logic any man or woman who, whether by biology or accident or choice, are unable to have children should not be permitted to marry.  Widows and widowers would not be allowed to remarry if the woman has passed menopause.  I that what Mr. Miliken is really advocating?  

But returning to the legal and "moral" foundation of Mr. Miliken's argument, the government, which derives its just powers from the consent of the governed, has a duty to provide equal protection of the laws, particularly when it comes to the freedom of expression (i.e. speech, association, etc.).  We may not like all the forms of the consequences of that legal protection.  For example, I am not a big fan of people who burn flags, but as a veteran I defended and will continue to defend their right to burn the flag.  That is freedom of expression.  But what opponents of gay marriage are saying is that the expression of love, through the legal institution of marriage, by two men or two women is not an expression that should be permitted.  Where is the moral foundation for that prohibition?  The mere reason that marriage existed before the United States does not lend it any more protection under the laws.

I close with a admonition from Phi Sigma Pi, my fraternity, "Merely because a practice is prevalent may be the poorest reason for continuing it."