I'm Not in a New York State of Mind, Thanks to 38 State Senators

[This article also appears on Huffingtonpost.com. You can access it from my author page here.]

But now I need a little give and take/The New York Times, The Daily News/It comes down to reality And it's fine with me 'cause I've let it slide/Don't care if it's Chinatown or on Riverside/I don't have any reasons I've left them all behind/I'm in a New York state of mind
- Billy Joel, "New York State of Mind," 1976

I am often in a New York state of mind. After living most of my life in New York, I recently moved to Madison, Wisconsin, to go back to graduate school. But being a New Yorker is a strong part of my identity. Which only made it harder to accept the New York State Senate voting down a gay marriage bill on Wednesday (my birthday of all days). Eight Democrats joined all 30 Republicans in shamefully telling millions of New Yorkers that they are less deserving of rights in the State of New York.

There is a viral video making the rounds in which a man, speaking directly to the camera, attempts to shoot down the arguments against gay marriage. While, obviously, I agree with the bulk of what he has to say, the issue is far, far simpler to me.

I look at the issue in legal and constitutional terms. (I may not practice law anymore, but I can't seem to put my legal education and short time practicing completely behind me. I guess it doesn't help that my wife is also an attorney, so the law is always buzzing around me.) And when you look at the gay marriage question through this lens, it is easy to see the anti-gay marriage folks for what they are: religiously fueled bigots.

Marriage has two essential elements to it. First, it is a union recognized by most of the world's major religions as being between a man and a woman. Second, and completely separate from the issue of religion, marriage is a contract between two individuals recognized by the 50 states. You will note that I identify the second element as completely separate from the first one because of a nifty little amendment to the U.S. Constitution (the first one, in fact) that reads, in relevant part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Thanks to more than a century of U.S. Supreme Court decisions, we can safely conclude that, among other things, the First Amendment prevents the government (states are bound by the First Amendment via the Fourteenth Amendment, ratified after the Civil War) from enforcing religious decisions in carrying out its business. As such, it is not incumbent on the states to enforce religious laws on marriage, nor may the states force religious leaders to carry out certain policies that violate their faiths.

So there is religious marriage (based on the rules of a couple's faith) and state marriage (essentially a civil contract under which certain rights and responsibilities become enforceable under state law).

Now, there is no doubt that many American religious leaders feel that the marriage of two men or two women violates the rules of their faiths. While I can't support their bigoted views, I would be quick to defend their right not to marry two men or two women. That is a decision the state has no place getting involved in. And religions are not bound by any responsibility to treat their followers fairly or to extend them equal rights. If Catholics do not want to let women become priests, or if Orthodox Jews do not want to allow women onto the bimah (altar) during services, or if any other religion chooses to extend fewer rights under the rules of the faith to one group or another, that is the right of those religious institutions to do so. It's up to the members of the religious institutions to decide if they want to be part of a religion that discriminates in these manners.

But the government doesn't enjoy the same leeway as the religions. In fact, the Constitution, federal law and state law are filled with provisions that assure just the opposite, that every American should be treated equally under the law. So if a state decides to grant the right of two men or two women to marry, that is the state regulating state business (and I would argue it's both the legal and moral obligation of the state not to pick and choose to whom it extends these rights and responsibilities). The state isn't telling any priest, reverend, rabbi or imam to marry two men or two women, nor is it requiring the religions to accept the couples as being married under their faiths (in the same way that if a Jew and a Baptist are married by the state, the state doesn't require Orthodox rabbis or Baptist ministers to recognize the marriage in their faiths).

In other words, religious marriage is the domain of the religions, and state marriage is the domain of the states. And under the First Amendment, the states are not supposed to force religious rules on its people, nor are they to interfere in the beliefs of the religions. Seems simple enough.

In light of the understanding of the two elements of marriage, what can be a rationale for opposing gay marriage? You can't say it violates your religious beliefs, because nobody is asking you to change, in any way, your religious beliefs. Nobody is asking you to accept the gay marriages in your church, or for your religious officials to perform same-sex marriages. No, the only reason to oppose same-sex marriage is because you believe that gay men and lesbians do not deserve the same rights as heterosexuals. It's really that simple. Everything else is just a smoke screen, a way of diverting attention from the bigotry at the heart of those who oppose same-sex marriage.

The only senator to have the balls to stand up in the New York Senate and speak against the same-sex marriage bill (which had overwhelmingly passed in the New York Assembly), even though 38 of them eventually voted against it, was Ruben Diaz Sr. of the Bronx, and his remarks made clear how intellectually bankrupt the anti-same-sex-marriage position is. After Sen. Eric Adams of Brooklyn, noting the secular job of legislators, said that when he walks into the senate chamber, "my bible stays out," Diaz, a pastor, declared in response, "That's the wrong statement. You should carry your Bible all the time."

(Some of Diaz's exploits include being sentenced to probation in the 1960s after being arrested for possessing heroin and marijuana and getting investigated by the FBI for corruption in 2007. He serves as a nice reminder that being religious does not necessarily mean that you behave ethically and morally.)

In other words, Diaz was happy to impose his religion-based belief that homosexuals were not entitled to the same rights as heterosexuals under the law on all New Yorkers as part of his duties as a New York State senator. Note, he didn't reference state law. He referenced the bible.

What is it to be an American if you do not support equal rights under the law? And when you clear away baseless threats that legalizing same-sex marriage somehow has an effect on how religions handle marriages in their faiths, all that's left for those opposed to same-sex marriage is bigotry. It's really that simple.

One of the few bright spots of the debate was the remarks of Sen. Diane Savino of Staten Island, who told a funny story about the explanation she gave a pedicab driver of why she supports same-sex marriage. She explained to him they could go to City Hall and get a marriage license, even though they just met and were in no way ready for such a serious commitment. She then offered what I think is as elegant and simple a point as anyone has made about same-sex marriage:

“We in government don’t determine the quality or worthiness of people’s relationships. If we did, we would not issue three-quarters of the marriage licenses we do.”

Again, there are two marriages: one recognized by religion and one recognized by the state. I'm not asking the religions to open their minds, but I am demanding that the states (or at least, in this case, New York State) provide all of their citizens with equal rights. Because as Sen. Savino makes clear, the state has no business in judging the two people that step forward to ask for a license to marry and avail themselves of the rights and responsibilities the state offers to married couples.

As much as Senators Adams and Savino make me proud to be a New Yorker, legislators like Diaz make me wonder what has happened to my beloved state. I think it's time for New Yorkers to stand up and tell the 38 senators that voted to deny equal rights to millions of New York citizens that they don't represent the beliefs of true New Yorkers. That would put me back in a New York state of mind.

It's Too Early to Celebrate the Senate Health Care Vote

[This article also appears on Huffingtonpost.com. You can access it from my author page here.]

I swear, I find no no joy in being Debbie Downer. I really wish I could celebrate the Senate's 60-39 vote to begin the debate on health care legislation, narrowly holding off the blocking tactic of the Republicans. I am 100 percent in favor of health care reform (I'm a fan of Rep. Anthony Weiner's proposal to extend Medicare to everyone). But a realistic view of what happened (and what has happened leading up to the vote) reveals far more things to be concerned about than to cheer for.

For starters, to get to an up-or-down vote on the final bill in the Senate, this 60-vote procedural hurdle will have to be jumped over again to close debate, and Sen. Joe Lieberman has already promised to join the Republicans in filibustering any bill that contains a public option. There are also several other centrist Democrats in the Senate who may not vote for cloture if there is a public option in the bill. Since the Democrats were only able to secure the minimum 60 votes to get past the Republicans this time, without Lieberman's vote (and all of the centrists'), if no Republican jumps ship, a bill containing a public option cannot get to the floor.

Also, it is easy to forget that a health care bill only barely made it through the House (220-215), and did so only after Democrats agreed to pass the bill despite the inclusion of the anti-abortion Stupak Amendment, which wouldn't just prevent the government from funding abortions, but would actually have the effect of making it harder for many women to exercise their constitutional right to choose under health care reform than it is today. True, the Senate's version has a less onerous anti-abortion provision, but if the House anti-choice Democrats stand firm again, even if a bill gets through the Senate, when it comes out of conference, the House will have two options, neither of which is good: pass the bill with the odious Stupak Amendment intact, or watch the bill go down to defeat at the hands of the anti-choice Democrats.

So what am I supposed to celebrate, exactly? That a health care bill will be debated? Even though, to get past a 60-vote cloture motion, it will have to be gutted even beyond the shadow of a bill it is now (the current bill has a weak public option, no other mechanism to really cut costs, and hands billions of dollars to the insurance companies who are a big part of the original problem)? I'm not saying I don't support this weak bill (it's better than nothing), but if it gets any weaker and cuts into the constitutional right of women to choose, really, does the good still outweigh the bad?

And the whole notion that there will be a debate is really hard to take seriously. There has been no honest health care debate up to this point. There has be a flood of outright lies from the right (two words for you: "death panels"), and if you think it's getting any better, as the vote neared, Sen. Kit Bond compared health care reform to one of the biggest Ponzi schemes ever: "Move over, Bernie Madoff. Tip your hat to a trillion-dollar scheme." This is the level of debate. Paranoid ramblings about government takeovers and hidden agendas of doing the bidding for insurance companies, hospitals and pharmaceutical companies that line the pockets of those opposing reform. The nonpartisan Congressional Budget Office can report that the Senate health care bill will cut the deficit by $130 billion over the next ten years without raising taxes on the middle class, but Republicans will still scream about expanding deficits and massive tax increases. Some debate.

You know, there is one thing I really like about the health care legislation that will now be debated in the Senate, and, oddly enough, it's something that most of my fellow progressives oppose: the ability of states to opt out of the public option. Honestly, I think this part of the bill is spectacularly brilliant. Why? It's simple, actually. It's democracy at work.

Consider that in the last months since the health care debate took off, we have been treated to the following:

- Rep. Joe Wilson of South Carolina screamed "You lie!" during President Obama's health care address to a joint session of Congress.

- Sen. Mitch McConnell of Kentucky said that passing health care reform with a public option could "cost you your life."

- Rep. Paul Broun of Georgia, who, by the way, is a physician, said that health care reform with a public option "is gonna kill people."

- Sen. James Inhofe of Oklahoma said, regarding the health care bill: "I don't have to read it or know what's in it. I'm going to oppose it anyways."

- Sen. Richard Shelby wrote to one of his constituents that health care legislation would "directly subsidize abortion-on-demand," "rations health care so that our citizens are withheld important and potentially life-saving treatments," and "requires taxpayer dollars to fund health benefits for illegal immigrants," all scare tactics that he knew (or, as a U.S. senator, should have known) is patently false.

Unfortunately, I could go on a lot longer, but you get the point. All of these politicians have many things in common, but there are two I would like to point out here: 1) They represent states that would likely opt out of a public option, and 2) they were duly elected by their constituents to serve in Congress.

Item 2 is really something important to remember. These men did not stage coups d'etat. No, they were elected by the majority of the voters of their states or districts. They were chosen by their constituents in democratic elections. And now it's time for democracy to do its job, so that the citizens of these states get exactly what they voted for. Why should we, as a country, spend taxpayer money to improve the health care of citizens who would send to Congress men capable of uttering baldfaced lies, all in the name of politics (trying to prevent the president from getting a "win") or protecting the special interests that fill their campaign accounts? And if they are telling their lies in defense of some kind of pure ideology that abhors the government's involvement in anything (except the bedrooms of its citizens, of course, but that's another issue for another day ...), well, then, let's give their constituents what they want. Hell, Shelby went after Medicare in his constituent letter, so I would be happy to let the states opt out of Medicare and Medicaid, too

In Shelby's state, Blue Cross Blue Shield controls 83 percent of the health insurance market, with more than 600,000 people living without health insurance and another more than 175,000 who cannot obtain group coverage and are forced to buy insurance on their own. Under health care reform, most would have access to health care, more than 400,000 Alabama residents would be eligible for government subsidies to help pay for health insurance, and the 175,000 plus not on group plans could get more affordable insurance. But these people also voted for Shelby. I respect the democratic process, and the people of the good state of Alabama should be free to get exactly what they voted for. I wouldn't dream of standing in their way. And the same can be said for the folks in South Carolina, Kentucky, Georgia, Oklahoma and all the other states who have sent representatives to Washington to obstruct health care reform.

This is the country in which we live now. This is what passes for debate. So you will forgive me if I am not optimistic that a worthwhile health care reform bill will make its way past another cloture vote in the Senate, past an up-down vote in Senate, through a post-conference vote in the House, through yet another cloture vote in the Senate, and finally through a final up-down vote in the Senate, all while the Stupaks, Liebermans, and Lincolns of the world are standing in the way, not to mention the stop-at-nothing lies and scare tactics employed by the right. I am sorry, but I am firmly in I'll-believe-it-when-I-see-it mode.

The bottom line is that I don't want to be the messenger of doom. I would love to celebrate a health care reform victory. And when a real one arrives, I will.

Candidate Obama Might Have Some Questions for President Obama

[I was invited by the editors of HuffingtonPost.com to write a reaction to Arianna Huffington's article comparing President Obama to Candidate Obama, after she read David Plouffe's new book. This is what I came up with. You can access it from my author page here.]

As Barack Obama stood in Grant Park a year ago tonight and gave his victory speech, it was a galvanizing moment, one I (and millions of others) will never forget. A year later, many of the president's supporters are expressing concern as to whether he has kept faithful to the vision he laid out in his campaign.

Today, Arianna argued that candidate Obama might not be so thrilled with the job President Obama is doing. She wrote: "Would he look at what the White House is doing and say, 'that's what I and my supporters worked so hard for?'"

I understand the dismay some, like Arianna, are expressing. It's hard to read headlines on HuffPo like "Obama Administration Helps House Gut Post-Enron Reforms" and not wonder where the "change" we were promised is hiding.

I find myself torn between two points of view I find compelling. On the one hand, it would have been virtually impossible for a president to come in and undo decades of corruption and inertia in Washington politics in one year. The mountain the president had to climb in this regard was immense. To me, though, the biggest problem has been that Obama lacks a necessary partner in this epic struggle: Congress. As I wrote in September in the context of the health care debate, it seems to me that the Democrats in Congress have forgotten that the president won 365 electoral votes last November, and that the American people handed 59 seats in the Senate (before Arlen Specter's defection made it 60) and 256 seats in the House to the Democrats. From the fight over the stimulus legislation, through the battle over the budget, and careening right into the war over health care reform, Congressional Democrats seem to have forgotten that the American people bestowed a mandate on them to enact the president's agenda. For some inexplicable reason, they've been scared of the Republicans, who retain the ability to be obstructionist, but don't have any power to actually do anything. (Making the Republicans filibuster something is not a bad thing.)

If Obama has been timid, the Democrats in Congress have been straight-out terrified.

And despite the Democrats on Capitol Hill not pulling their share of the "change" weight, Obama did manage to get through stimulus legislation and important programs in the budget, and health care reform has gotten further along in the process than it ever has before. Not to mention the general competency and positive world view that Obama has brought to the White House, a huge change from his bumbling, toxic and disastrous predecessor.

At the same time, I would be lying if said I wasn't disappointed with Obama's leadership. I applauded his early efforts at bipartisanship, but once the Republicans revealed themselves to be completely uninterested in any kind of cooperation, only focused on blocking the president at every turn, his attempts to come up with bipartisan solutions morphed from being admirable to being naive and counterproductive. (I agree with Arianna that I couldn't care less what Olympia Snowe does or does not want in health care reform legislation.) I appreciated Obama's desire to learn from past mistakes and allow Congress to generate legislation, rather than imposing solutions on the legislators (after the Clinton administration's failed attempt at health care reform). But coming off the election, the president had enormous political capital (really a blank check to move forward with anything he campaigned for), and I can't help thinking that he didn't make enough use of it. Some more outspoken leadership was necessary (and missed).

And most of all, the president hasn't done enough to foster the idea that his is an administration of change, just like he promised. Arianna is unhappy that Larry Summers has an influential position in the Obama White House, and such an objection is understandable, given his close ties to the kind of deregulation, anything-goes attitude that contributed to creating the economic mess the administration now has to try and clean up. But to me, the problem isn't who the president does and doesn't hire. It all comes down to him. When he spoke to a joint session of Congress about health care, it re-ignited action on reform and turned the mood around. It was an important speech and an important show of leadership from the president. I'd like to see more moments like that one.

During the campaign, every time writers (and I was one of them, on occasion) groused that Obama wasn't hitting back hard enough when his opponents attacked, his strategy always seemed to pay off in the end, making the pundits look bad. So I can't help feeling like he must know what he is doing now, that there is a strategy behind his less-than-assertive public approach to his presidency. But as each day goes by, it becomes harder to have faith. As Arianna noted, the ability to make pitch-perfect course corrections during the campaign was a key to Obama's success. Hopefully, he will continue that trend in the second year of his presidency.

Just over 10 months ago Obama took the oath of office with unfair expectations hovering ominously over his head, so I am inclined to give him the benefit of the doubt. But, as Arianna's article shows, that benefit is not extended by all, and it is not available indefinitely. One thing I think we can all agree on is that President Obama would benefit from a little infusion of Candidate Obama. The future of his presidency may depend on it.