Virginia is for Loving

This article reporting that Virginia is likely to amend its Bill of Rights (originally drafted by George Mason) to include a ban on gay marriage immediately prompts the thought - what do you expect from the state (excuse me, commonwealth) that gave us massive resistance and Loving v. Virginia? It might be best to begin with a few quotes from the Washington Post article:

The state Senate all but guaranteed on Wednesday that Virginia will hold a November referendum on whether to amend its 230-year-old Bill of Rights to bar same-sex marriages.

"The family is the foundation of our society, and it's been based on a union of a man and a woman since the inception of marriage," said Del. John A. Cosgrove (R-Chesapeake). "A constitutional amendment . . . will protect that."

The Bill of Rights was written by George Mason, a founding father of Virginia and the United States. "It's essentially the same document it was in 1776 in body and spirit," said A.E. Dick Howard, a professor of constitutional law at the University of Virginia, who led a commission responsible for writing the state's current constitution.

The amendment barring same-sex marriage would be added to Section 15, which begins by saying, "That no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue . . . "
The Virginia Bill of Rights served as a model for other states and for the first 10 amendments to the U.S. Constitution.

The marriage amendment would say in part, "That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."

According to a column published in the Post in June 2004, Virginia has already outlawed not only gay marriage but civil unions:

When gay marriage came up, Virginia was among the first states to preemptively ban it, in 1997. Moreover, Virginia is the only state to forbid even private companies, unless self-insured, from extending health insurance benefits to unmarried couples. That provision affects cohabiting straights but works a far greater hardship on gay couples, who cannot marry.

Opponents of the gay marriage ban have, of course, drawn a parallel to the commonwealth's statutes barring interracial marriage which were struck down by the U.S. Supreme Court in Loving v. Virginia. Advocates of the proposed constitutional ban on gay marriage decry the analogy. This is from a Baptist website:

The interracial marriage ban was clearly built on a history of preserving the idea of racial purity and racial superiority of one race over another,” she told BP. “The requirement that a man and a woman be the applicants for a marriage license is not built on a history that men are superior to women or that women are superior to men.”Instead, Collett said, the traditional definition of marriage is “built on the history” that when a man and a woman come together in marriage, they do something that is “unique throughout all human activities” -- creating new life.

The same website contains the following arguments against gay marriage:

Evangelicals say that homosexual relationships will never bring satisfaction because, at the core, they involve rebellion against God.

The arguments against gay marriage appear to be as follows - gay marriage violates the traditional notion of marriage and is either profoundly unnatural or violates God's commandments as they relate to sexual activity and marriage. Because the traditional limitation on marriage to heterosexual unions has been accepted without question over the generations by lawmakers and courts, only activist judges who usurp the role of the legislature can declare these limitations unconstitutional.

To what extent are these views similar to those advanced by the supporters of Virginia's ban on interracial marriage in 1967?

The trial judge in the Loving case clearly viewed interracial marriage as unnatural and contrary to God's commandments. He stated;

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

The commonwealth argued the issue in a more restrained way before the Supreme Court. It merely contended that the Virginia legislature could reasonably conclude that sound public policy supported a ban on interracial marriage. Its brief argued that the Supreme Court should not inquire into the desirability of a ban on interracial marriage but if it did so:

it would quickly find itself mired in a veritable Serbonian bog of conflicting scientific opinion upon the effects of interracial marriage, and the desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view.

The brief went on to cite "scientific" authority for the proposition that interracial "breeding" would lead to undesirable consequences and would tend to extinguish the inherent "qualities" of each race:

Prof. U. G. Weatherly writes: 'It is an unquestionable fact that the yellow, as well as the negroid peoples possess many desirable qualities in which the whites are deficient. From this it has been argued that it would be advantageous if all races were blended into a universal type embodying the excellencies of each. But scientific breeders have long ago demonstrated that the most desirable results are secured by specializing types rather than by merging them. "'The color line is evidence of an attempt, based on instinctive choice, to preserve those distinctive values which a racial group has come to regard as of the highest moment to itself.'

However, in its decision in the Naim case, decided in 1955 just twelve years before Loving, the Virginia Supreme Court had been considerably less abashed in defending the commonwealth's ban on interracial marriage:

'Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.'

In this State marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. * * * The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power. It was said . . . that the question was one of difference between the races, not of superiority or inferiority, and that the natural law which forbids their intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.

However, by 1967, the Commonwealth brief's chief argument before the Supreme Court was simply that the Fourteenth Amendment's legislative history clearly indicated that its drafters had no intention to strike down "anti-miscegenation" statutes:

an analysis of the legislative history of the Fourteenth Amendment conclusively establishes the clear understanding--both of the legislators who framed and adopted the Amendment and the legislatures which ratified it--that the Fourteenth Amendment had no application whatever to the anti-miscegenation statutes of the various States and did not interfere in any way with the power of the States to adopt such statutes. The precise question was specifically considered by the framers of the Amendment, and a clear intent to exclude such statutes from the scope of the Fourteenth Amendment was repeatedly made manifest.

Therefore, it followed inexorably that only "activist" judges could overturn the Virginia statute barring interracial marriage:

Such arguments [in favor of interracial marriage on "policy" grounds] are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate.

The commonwealth may well have had the best of this argument. The Supreme Court itself acknowledged that:

As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[at] best, they are inconclusive.["]

In fact, the Loving case seems to me to illuminate the essential problem with an originalist view of constitutional interpretation that relies heavily on the intentions of the founders or the drafters of the Fourteenth Amendment. That Amendment and the Bill of Rights articulate fundamental principles of human rights and republican government in sweeping terms but their authors clearly intended their application to be limited in ways we now find offensive and untenable. Take, for example, Virginia's own Declaration of Rights, which is widely acknowledged as the model for the Bill of Rights. Article One of the Declaration reads as follows:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety

This principle strikes us as utterly incompatible with chattel, race-based slavery. But its authors, in accord with their self-interest and racial views, did not regard it as emancipating slaves (or women). Today, many would regard these same principles as incompatible with efforts to deny gays the full scope of civil rights. The Virginia legislature apparently disagrees.

Perhaps it is best to close with an excerpt from a friend of the court brief courageously filed by the Catholic Bishop of Richmond, Virginia in the Loving case:

It should be emphasized that we are concerned here with personal liberty, personal rights. It is the individual's free exercise of religion that is safeguarded by the United States Constitution. Meyer v. Nebraska, 262 U.S. 390, 399 (1923), in describing the area of personal liberty protected by the due process clause of the Fourteenth Amendment, speaks of the "right of the individual . . . to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience. . . ."

Fayard Nicholas

Fayard Nicholas died on Tuesday. Seventy years ago, the Nicholas brothers were among the stars of the Ziegfeld Follies of 1936 which opened on January 30, 1936 at the Winter Garden theater. The show featured what can only be considered an all-star cast including Fanny Brice, Josephine Baker, Bob Hope (his Broadway debut had occurred in 1933 when he starred in Roberta), and Eve Arden.

Time gave the show a lukewarm review which failed to mention the Nicholas brothers.

None of its comedy is funny enough to make anyone wear himself out laughing. On the other hand, Vincente Minnelli's diverting surrealist decor, the arts of a half-dozen stars and the blandishments of 48 show girls are likely to keep most spectators from going to sleep.

The magazine saved its harshest comments for the performance (and character) of Josephine Baker. The criticism is typical of the casual racism which characterized Time in this period.

Josephine Baker is a St. Louis wash woman's daughter who stepped out of a Negro burlesque show into a life of adulation and luxury in Paris during the booming 1920's. In sex appeal to jaded Europeans of the jazz-loving type, a Negro wench always has a head start. The particular tawny tint of tall and stringy Josephine Baker's bare skin stirred French pulses. But to Manhattan theatre-goers last week she was just a slightly buck-toothed young Negro woman whose figure might be matched in any night club show, whose dancing & singing could be topped practically anywhere outside France.

According to Josephine Baker's "official" web site, Time's criticism was typical of the reception Baker received for her performance:

A 1936 return to the United States to star in the Ziegfield Follies proved disastrous, despite the fact that she was a major celebrity in Europe. American audiences rejected the idea of a black woman with so much sophistication and power, newspaper reviews were equally cruel (The New York Times called her a "Negro wench"), and Josephine returned to Europe heartbroken.

Vernon Duke and Ira Gershwin collaborated on the songs for the show which included "I Can't Get Started" - sung by Bob Hope to Eve Arden - and "He Hasn't a Thing Except Me."

The New Yorker (Robert Benchley) was considerably kinder to Ms. Baker and the show:

There is no sense in listing the good and bad things here, although the Surrealist Ballet, arranged by [George] Balanchine and danced by Harriet Hoctor [remember her from Show Girl], is something to see twice, as is the "Maharanee" number, in which Josephine Baker is featured. There is also Gertrude Niesen's singing and the dancing of the Nicholas Brothers . . ..

According to Constance Valis Hill's Brotherhood in Rhythm, the "Maharanee" number featured the Nicholas Brothers:

Baker strutted and sang in French . . .. Then she danced a one-step tango and waltz with the Varsity Eight, an all-male chorus dressed in top hats and tails. As Baker danced, one glimpsed the small and sleek figures of Fayard and Harold Nicholas moving swiftly and smoothly around and behind her, shifting the panels of her sari.

This was followed by Harold Nicholas performing an imitation of Josephine Baker, followed by the Brothers dancing "their own tap dance specialty." Hill quotes Brooks Atkinson (writing in the New York Times) as praising the Nicholas Brothers dance virtuosity:

After her cylonic career abroad, Miss Baker has become a celebrity who offers her presence instead of her talent . . . When the two Nicholas Brothers follow her with some excellent Harlem hoofing out of the Bill [Bojangles] Robinson curriculum, they restore your faith in dusky revelry.

In short, the Nicholas Brothers stole the show.

Show Girl

This show night have been fun to see. It was produced by Florenz Ziegfeld, the score was by Gershwin, the Duke Ellington band played the music (it had beaten out Louis Armstrong's band for the honor) and it starred Ruby Keeler, Jimmy Durante and Harriet Hoctor. (Hoctor dances with Fred Astaire in Shall We Dance). The score featured the song "Liza" and Hoctor danced in a ballet sequence featuring music from An American in Paris which was choreographed by Albertina Rasch. Gershwin was given just two weeks to write the score so he evidently decided to recycle this piece. On several nights, Al Jolson sang "Liza" from the audience in an effort to calm down Ruby Keeler - whom he had recently married.

Nonetheless, according to Gerald Bordman , the show was "heavy and slow" and closed after 111 performances. In its review Time liked several aspects of the show. It praised Keeler and Durante:

Dixie Dugan is played by pert, agile Ruby Keeler ("Mrs. Al") Jolson, whose reedy little voice blends naturally with familiar Broadway trebles. . . .

[W]ith happy frequency there does reappear a property man, impersonated by Jimmie Durante (pronounce the final e), who is one of the funniest things that ever happened in Manhattan. Night-club experts have been Durante-conscious for many a season. He is a tousled, electric fellow whose frothing utterances combine lunacy with bad grammar. His nose ("Schnoz-zola") puts Cyrano's to shame. His history includes private entertaining in his father's barber shop and at East Side parties and weddings; public appearances in Harlem, at Coney Island, circuit vaudeville.

Among the numbers Durante performed were "Who Will Be with You When I'm Far Away (Far Out in Far Rockaway)". Time even liked (at least in part) the Hoctor ballet:

Best of the new Gershwiniana are "Liza" and "So Are You"; most ambitious is the new Gershwin ballet, "An American in Paris." [Gershwin had composed the piece in 1928 and performed it at Lewisohn stadium in the summer of 1929 with the New York Philharmonic. It was his debut as a conductor]. The latter, embellished by the grace of Danseuse Harriet Hoctor, is marred by patriotic excitement at the finish in which a picture of President Hoover is momentarily expected to appear. Chief motif of the music is the shrill bark of Paris taxicab horns.

However, Time conceded that the show "inclines at intervals to be burdensome." The New Yorker called it "an uninspired stage-Cinderella story." But the magazine conceded that audiences would probably enjoy it because of Keeler, Jolson and the "Ziegfeld trimmings."

Despite its flaws, the show well illustrates the magnitude of talent at work in New York in 1929: Gershwin, Ellington, Keeler, Durante and Rasch. Remember this was a show with so much talent at its disposal that it could afford to turn Louis Armstrong down! Who knows, though, maybe Louis would have provided the spark the show clearly needed.

Great Horned Owl

The great horned owl that's been hanging around the Ramble in Central Park may have moved away - either to the north of the park or to seek a mate. There are great pictures of the bird here, here and here.

Every winter Central Park seems to produce one or more birding specials. Last year a boreal owl showed up on the Christmas bird count - as did the great horned owl this year. That small owl was a true rarity - some of the park's long-time veteran birders had never seen one. The boreal showed up shortly after a yellow breasted chat hung around for a week or so near Strawberry Fields. (In Prospect Park, we had a ring-necked pheasant that hung around most of the winter).

The wonderful thing about this great horned owl was that instead of hiding in the top of a dense conifer where you could just about barely see it, the bird roosted right out in the open - on the bare branches of lindens, oaks and other deciduous trees. As a result, it attracted the attention of squirrels, crows (which have almost disappeared from Central Park apparently due to west nile virus) and even red tailed hawks (note the crow in the background of this photo).

When I first saw this owl, I could not believe its size. The great horned owl is 22 inches long - a red tail hawk is just 19 inches long. (The red tail has a longer wingspan - 49 inches to 44 inches - but weighs much less. A great horned owl weighs just over three pounds. A red tail weighs less than 2.5 pounds).

About two weeks ago, I went to the Ramble to see the owl "fly out" at dusk. It was an awesome experience - the first time I had ever seen a great horned owl fly. It eventually headed off for the Lake - where it's rumored to have fed on mallards. In fact, it's apparently a threat to the park's beloved red tails as well.

In any event, I have to confess that I was a little sad when I didn't see the great horned owl today in the Ramble. Later, I took a walk in Prospect Park and I did see a long eared owl there - it was high up in a pine, carefully concealed, and you could just about barely see it. As a final tribute to the great horned - here's some of Audubon's characteristically vivid account of this bird:

Early in February the Great Horned Owls are seen to pair. The curious evolutions of the male in the air, or his motions when he has alighted near his beloved, it is impossible to describe. His bowings, and the snappings of his bill, are extremely ludicrous; and no sooner is the female assured that the attentions paid her by the beau are the result of a sincere affection, than she joins in the motions of her future mate.

This species is very powerful, and equally spirited. It attacks Wild Turkeys when half grown, and often masters them. Mallards, Guinea-fowls, and common barn fowls, prove an easy prey, and on seizing them it carries them off in its talons from the farm-yards to the interior of the woods. When wounded, it exhibits a revengeful tenacity of spirit, scarcely surpassed by any of the noblest of the Eagle tribe, disdaining to scramble away like the Barred Owl but facing its enemy with undaunted courage, protruding its powerful talons, and snapping its bill, as long as he continues in its presence. On these occasions, its large goggle eyes are seen to open and close in quick succession, and the feathers of its body, being raised, swell out its apparent bulk to nearly double the natural size.

By the way, I've linked to quite a few sites about this owl. The sites created and maintained by Marie Winn and Bruce Yolton's new site are particularly wonderful.

Georgetown 87, Duke 84

The yell of all the yells . . . The yell that saves the day . . . Is the Hoya, Hoya Saxa . . . Of the dear old Blue and Gray!!!!!

Muslim Christian Understanding

My alma mater - Georgetown University - recently announced receipt of a large grant for its Center for Christian Muslim Understanding from a Saudi Prince named Alwaleed Bin Talal. Here's a bit of the official press release:

Georgetown University has received a $20 million dollar gift from HRH Prince Alwaleed Bin Talal, an internationally renowned businessman and global investor, to support and expand its Center for Muslim-Christian Understanding.

The Center will be renamed The HRH Prince Alwaleed Bin Talal Center for Muslim-Christian Understanding. This endowed fund is the second largest single gift in Georgetown University history.

"I am pleased to support the Center for Muslim-Christian Understanding. It is vital for the monotheistic religions to reach a common ground of understanding and to gain knowledge about what unites our civilizations," said Prince Alwaleed. "We are determined to build a bridge between Islam and Christianity for tolerance that transcends cultural and geographical boundaries."

This donation has already drawn criticism from the right. Prince Alwaleed is best known for his rejected gift to New York City in the immediate aftermath of 9/11. Former Mayor Giuliani sent back the Prince's check for $10 million after the Prince commented that the United States

"should re-examine its policies in the Middle East and adopt a more balanced stand toward the Palestinian cause. While the U.N. passed clear resolutions numbered 242 and 338 calling for the Israeli withdrawal from the West Bank and Gaza Strip decades ago, our Palestinian brethren continue to be slaughtered at the hands of Israelis while the world turns the other cheek."

Georgetown describes the mission of the Prince Alwaleed Center as follows:

The Center plays a pivotal role in working to erase stereotypes and fears that lead to predictions of Islam as the next global threat or of a clash of civilizations between the Muslim world and the West.

I am not qualified to assess how competently the Center performs its task. But it does seem to me that at the center of "understanding" between Christians and Muslims is mutual respect for the right to practice one's faith. While this right is not universally honored in the United States and Europe, there is little official repression of the right of Muslims to practice their faith. For example, the U.S. government does not routinely close mosques or sanction Muslims for their religious expression.

What is the situation in the homeland of Prince Alawalad Bin Talal? According to the U.S. Department of State:

The [Saudi] Government does not provide legal protection for freedom of religion, and such protection does not exist in practice. The public practice of non-Muslim religions is prohibited. The Government recognizes the right of non-Muslims to worship in private; however, it does not always respect this right in practice and does not define this right in law.

The Government prohibits public non-Muslim religious activities. Non-Muslim worshippers risk arrest, imprisonment, lashing, deportation, and sometimes torture for engaging in religious activity that attracts official attention. The Government continues to state publicly that its policy is to allow non-Muslim foreigners to worship privately. However, the Government does not provide explicit guidelines--such as the number of persons permitted to attend private services and acceptable locations--for determining what constitutes private worship, thereby leaving the distinction between public and private worship unclear. This lack of clarity and instances of inconsistent enforcement led many non-Muslims to worship in fear of harassment and in such a way as to avoid discovery by police or Mutawwa'in. The Government often deported those detained for visible non-Muslim worship, sometimes after lengthy periods of arrest during investigation. In some cases, those convicted were also sentenced to receive lashes prior to deportation. In contrast to previous years, there was a decrease in both long-term detentions and deportations of non-Muslims for religious reasons; however, there was a marked increase in harassment by Mutawwa'in and in overall arrests and short-term detentions of non-Muslims. Some former detainees reported occasional government harassment and surveillance following their release.

In other words, a Christian who practices her faith in Saudi Arabia risks arrest, deportation and lashing.

The policies of the Saudi government are not unique in this regard. In Iran, where Islam is the official religion, the government "restricts the freedom of religion," according to the U.S. Department of State. The State Department's Report on International Religious Freedom notes that:

The [Iranian] Government vigilantly enforces its prohibition on proselytizing activities by evangelical Christians by closing their churches and arresting Christian converts. Members of evangelical congregations have been required to carry membership cards, photocopies of which must be provided to the authorities. Worshippers are subject to identity checks by authorities posted outside congregation centers. The Government has restricted meetings for evangelical services to Sundays, and church officials have been ordered to inform the Ministry of Information and Islamic Guidance before admitting new members to their congregations.

Conversion of a Muslim to a non-Muslim religion is considered apostasy under the law and is punishable by the death penalty, although it is unclear whether this punishment has been enforced in recent years. Similarly, non-Muslims may not proselytize Muslims without putting their own lives at risk. Evangelical church leaders are subject to pressure from authorities to sign pledges that they will not evangelize Muslims or allow Muslims to attend church services.
Georgetown is a Catholic university. According to its official website:

Georgetown University began with the vision of John Carroll, an American-born, European-educated Jesuit priest who returned to the United States in 1773 with the goal of securing the future of American Catholicism through education -- in particular, through the establishment of a preeminent Catholic place of higher learning.

The vision of John Carroll continues to be realized today in a distinctive educational institution -- a national University rooted in the Catholic faith and Jesuit tradition, committed to spiritual inquiry, engaged in the public sphere, and invigorated by religious and cultural pluralism.

Georgetown University is a product of our country's long tradition of religious tolerance. American Catholics can attend Mass each Sunday without any fear of official sanction. Our co-religionists in Saudi Arabia and Iran can not do the same. So this is my point of view. The "dialogue" about Christian-Muslim understanding should begin with an unequivocal demand by American Catholics that our co-religionists - our brothers and sisters in faith - be given the same freedom to worship that we enjoy. And by the way, the same freedom of worship that Muslims enjoy in this country. Unceasing advocacy for respect of religious freedom would be the best use for Prince Alwaleed's $20 million.