Masterpiece Cakes case and freedom of and establishment of religion

Opening clarification: I have not the slightest objection to same-sex marriage and hope to attend one, co-starring my daughter, someday.

Reading live blog accounts of the Masterpiece Cakes argument at the U.S. Supreme Court, it seemed (though not having attended, I could certainly be wrong) that there was insufficient exploration of two First Amendment issues other than free speech: freedom of religion and, especially, establishment of religion.

If the state may say that only those whose religion accepts same-sex marriage may practice certain professions, isn't that not only an infringement of the freedom to practice some religions, but a broad-brush state establishment of religion via exclusion of some religions?

Those arguing on the baker's behalf, I got the impression, did not defend the right of a makeup artist or hair stylist to decline same-sex wedding business. But, as Justice Kennedy suggested out in a complex-cake hypothetical, actually needing to be present at a service is different from selling a product or providing a service months and miles away. Would Oregon allow a makeup artist or hair stylist to say, "I am not available for on-site services for same-sex weddings -- you must come to my shop and then travel to the wedding venue"? I have my doubts.

What about a Muslim hair stylist who believes that no woman, or at least no woman claiming to be Muslim, should appear in public in front of men outside her family with her hair showing? Can she be compelled to provide her services to a woman self-identifying as Muslim who intends to be married in the middle of Harvard Square with her husband's frat buddies as his attendants and all sorts of male strangers walking past? If so, is the state infringing on her freedom of religion and/or establishing less restrictive forms of Islam over more restrictive ones?

Feel free to discuss these issues in the comments.

Book release! -- and the book's dedication

As promised, here's my It's Here! post about The Link, my fourth near-future and first YA novel. (I'm posting it a few hours early after an Internet connection scare.)

First, the back cover copy.

-----

Kayla knows whatever her dog knows -- but neither knows enough.

The neural connection between Kayla and her dog seems unimportant, until her father's cryptic message.

Your mother and I are in danger, and I'm afraid that means you are too. I've gone into hiding. Don't try to find me unless I contact you, and don't let Saffi find me. You and Saffi should go too. Go and hide together.

Kayla doesn't really trust her father. After all, he left her mother and dragged Kayla off to live in the country. And when Kayla's mother gave her Saffi, her father somehow won the dog's loyalty.

But Kayla can't reach her mother. She has to decide, on her own, what to do. Should she hide in the forest with Saffi? Should she try to find her father? And what danger threatens?

-----

I posted the cover yesterday, but I'm quite fond of it, so here it is again.

You can find two excerpts from The Link via links in yesterday's post on this blog.

This book arose directly from my dog-walking duties. I'm usually the one walking our dog, a "Heinz 57" mutt. Here's a photo of her.

Of course, she sniffs one spot after another after another. And of course, I have no idea what she's learning from all those sniffs. At some point, I wished I could see a digital readout of what she's smelling, floating in the air above her. Well, that isn't exactly what happens in my book, but the idea inspired the technology involved.

Finally, I wanted to address the dedication and the publication date, which are related.

I published several earlier books on my older daughter's birthday, October 15th, in recognition of the fact that her participation in National Novel Writing Month led to my finally writing a novel, some decades after I gave up on that ambition. I decided to release this book on October 30th, my late father's birthday. The book isn't autobiographical, and my amazing father (about whom I posted yesterday) isn't much like my protagonist Kayla's father; but he's a father, and he made me think about mine. This is my dad's first birthday since he died last April, and I wanted to mark the occasion and to honor him. So the book is coming out on his birthday and is dedicated to him as well.

I love you, Charley Wyle.

You can find the ebook on Amazon, iTunes, Google Play, and eventually at other retailers including Kobo and the Nook Store. The paperback is on Amazon and Barnes & Noble (where, as of 10-29-17, it was marked down quite a bit!).

Happy reading, all!

About my dad, who would have been 95 tomorrow

I thought I'd blogged about my father before, but I can't find any such post. So I'm posting what I said at his memorial last April.

--------
All of you know that my dad was a remarkable man. And for a little guy, he leaves an enormous hole.

The difference between his physical size and the size of his impact on those around him can be illustrated by what happened when he started to cut back on his workaholic schedule, before the illness that forced him to retire at age 80. Ismeca, the Swiss company for which he was a consultant, started looking for someone to perform some of the many tasks they’d been relying on Dad to perform. They said they were looking for a “little Charley.”

My dad’s combination of intelligence, resourcefulness, courage, and self-discipline made him particularly good in a crisis. Some crises required more of one quality, some more of another. One that required his courage and self-discipline occurred when he was in Basic Training in the Army. They were camping in or near Death Valley, with sleeping bags in the desert – no tents. He awoke quite a while before reveille one morning to discover that a rattlesnake had cuddled up to him for warmth during the night. He knew that if he moved in a way that startled the snake, he might get bitten. So he lay motionless for two hours until someone noticed that Carl Weihrauch was late getting up.

I remember another crisis that called on different qualities. Many of you know that my brother David had serious psychiatric problems at times. One day when David was living on his own in Berkeley, he called my folks in L.A., or they called him, and it quickly became clear that something was seriously wrong, that he had suffered a psychotic break. Calmly and casually, without missing a beat, Dad said, “You know, I’m going to be in Berkeley this afternoon. Should I stop by?” Then he flew north and got David the psychiatric care he needed.

Another of Dad’s defining qualities was his special brand of determined optimism. He used to tell an anecdote about a man who somehow offended a king and was sentenced to death for it. The man, apparently glib of tongue, managed to convince the king that if he were only spared, he could teach the king’s horse to talk. The king postponed the sentence for a year to allow for these lessons. Afterward, a friend asked the man what good this postponement would do. The man replied: “A year is a long time! Anything can happen in a year. I may die; or the king may die; or the horse may talk!” Another example: one of Dad’s favorite books was the children’s picture book Ferdinand. Ferdinand was a bull who had no interest in fighting and just liked to sit and smell the flowers. When he sat on a bee, his reaction appeared so ferocious that he was chosen for a major bullfight. When he arrived in the ring, surrounded by finely dressed ladies with flowers in their hair, he sat down and smelled, refusing all efforts to make them home. In the improbable conclusion my father loved,
“they had to take Ferdinand home.
And for all I know he is sitting there still, under his favorite
cork tree, smelling the flowers just quietly.”

I could go on for far too long telling Charley stories, from his boyhood in Berlin to his Army days during the invasion of Europe to his business career to his many years of political involvement. You’ll hear a few of those stories from others.

Dad changed over the years, of course, in obvious and unimportant ways. He stopped dancing the kazatska. His vision, never great, got worse. And instead of striding along briskly, arms swinging, head tilted a little to one side, he moved slowly, bent over, with a cane. But he never lost his sense of humor, his generosity, his commitment to civil liberties and social justice, his good cheer, or his indomitable spirit.

I count myself as exceptionally fortunate to have had this stalwart, honest, forthright, moral, modest, bright, funny, loving man as a parent and role model – and to have had him, not long enough, but for so long.

Did I somehow miss posting a cover reveal for tomorrow's book release?

Well, let me remedy that omission forthwith! Here is the cover of the near-future YA novel coming out on Monday, October 30th.

Cover designer David Leek and I collaborated on the cover, but the principal design work was all his.

I've already posted two excerpts (here and here).

Expect another post tomorrow, including the back cover copy and how the book came to exist (hint: I'm the one who walks our dog).

When a Change in Routine Proves Deadly: Children Left in Hot Cars

I'm not writing this post to gratuitously share my horror that children are sometimes accidentally left to die in closed cars on warm or hot days. I write, rather, in the hope that by sharing what I've read about how these tragedies occur, I just might reduce the chance of another.

Parents who leave children in cars for prolonged periods aren't necessarily thoughtless, irresponsible, neglectful, or uncaring parents. But like the rest of us, they are creatures of habit. Few of us drive to work consciously keeping track of the distance to the first right turn, or reminding ourselves to drive 3 and a half miles past the bridge before crossing the railroad tracks. We do these things automatically, as part of our daily routine. Working parents with children in day care include dropping off the child as part of such a routine. A common thread in many heartrending accounts is the departure from the usual way of delivering a child to the day care center, or Grandma's house, or wherever the child is supposed to spend the day. A parent who routinely drives straight to work is instead assigned the task of taking the child somewhere first.

The problem, the terrible stumbling block, is that making the single decision to do something differently may not be enough to overcome the force of routine. A few minutes after the child has been tucked into a car seat, the parent can fall back into the automatic sequence of usual events. If the child falls asleep or is otherwise quiet, and especially if the parent has work-related matters on his or her mind, s/he may drive to work, lock the car, and head on in without remembering the child was ever in the car. It may take a frantic phone call to flood the parent's mind with recollection. And that call may come too late.

What can a parent do to prevent such an irrevocable mistake? There are a few approaches that might help. Don't reassign the job of taking the child to day care from one parent to the other unless absolutely necessary. See if someone reliable with no morning routine is available to step in instead. If not, tape a prominent note to the dashboard near the steering wheel, a potentially lifesaving variant on "Baby on Board." If feasible, arrange for someone to call the parent who's taking the child as soon as that parent gets to work, confirming that all went as planned -- and then the parent should go back to the car and make sure.

It may be too much to hope that we've heard the last such story. But we can hope not to hear as many, or as soon.

Another excerpt from early in The Link

        One more excerpt, which I'll cruelly (or kindly, if you hate spoilers) cut off just before revealing crucial information.

        ---------

Dad left it up to Kayla whether to stay home sick. He knew she had no great objection to going to school, given how little else there was to do hereabouts during school hours. So when she woke up with a scratchy throat, or rather, failed to wake up very thoroughly, her head foggy and her arms and legs heavy, she fumbled to her father’s desk and scrawled a note on the edge of the paper with the strange haiku. Making her way back to bed, she noted Saffi’s absence. Her guess must be correct: Saffi must make her way, or be summoned, to Dad’s side while Saffi slept. It would be easy, either way: Kayla slept with her door closed and the dog outside it. Before crawling back into bed, she connected with Saffi, expecting to confirm her guess; but Saffi was noticing only the high-pitched squeal of mice in the walls, communicating beyond the range of human hearing. She would have to remember to tell Dad about the mice.

When Kayla woke up again, a good deal better and very hungry, she saw by the light outside her window that she had slept through half the afternoon. She checked in with Saffi and found her restless and unhappy. Had Dad ignored her while Kayla slept?

Now that Kayla was awake, Saffi wanted her to do something. Saffi wanted Dad, even more than usual, and Kayla was supposed to make him appear, apparently. Kayla disconnected. “Sorry, mutt. Not until I eat something.”

Dad had gone shopping before he headed off wherever. The pantry and refrigerator were as full as she had ever seen them, and a loaf of bread — the good stuff with seeds in it — and a bag of apples sat on the kitchen counter. She rooted around in the fridge and freezer, putting together something of a feast, and dug in.

When she had made her way through all the food and done some minimal cleanup, she connected to Kayla and headed out back. “All right, let’s see if he’s out in the workshop.” Though the dog would have looked for him there — but she may as well rule it out.

As she expected, the workshop was empty. Saffi nosed around, whining. She stopped and sniffed closer at the low bench by the door, identifying traces of metal and cloth and dirt. What did that add up to?

Saffi did not want to leave the workshop — at least, not to go back to the house. She pointed toward the woods, whining again. The urge filling her was so specific it was almost verbal. She wanted to Find.

“No, Saffi. I’m not feeling that much better. This is not the time for a trek through the woods, chasing Dad. Come!”

Back at the house, she went back to bed with a pile of books, the childhood favorites with which she indulged herself when under the weather, and called Jean. “Yeah, I felt like crud and took the day off. . . . I might be contagious, but if I am, you’re already doomed. . . . Of course we have homework. No, I don’t want to see it, but I’d better. Thanks. See you soon.” She’d left the door unlocked; Jean could let herself in. Kayla picked up Where the Wild Things Are, then hesitated. Dad had read that book to her, often. So had Mom, sometimes. She looked at the next book in the pile, then shook her head a little, opened the book in her hand, and settled back in bed to read.

She awoke from a doze to Jean’s cheerful greeting and Saffi’s surge of recognition. Apparently Kayla’s sleeping hadn’t kept Saffi from staying somewhat alert. Kayla hauled herself back out of bed and waved Jean toward the kitchen. “We’ve got tons of food for a change. Grab something.”

Jean picked up an apple, dug in her backpack for the homework sheet, and tossed it to Kayla. (They used paper for homework assignments here. Her classmates back home would have died laughing.)

What was Saffi going on about? She was nosing Jean’s backpack, looking back toward the back door and the workshop and back at the backpack. Kayla could sense nothing clearer than a contradictory sense of “same/not same.”

Jean’s backpack, more of a knapsack, was made of a sturdy canvas, not too different from the fabric of Dad’s backpack. But Dad’s had a frame, with a place to fasten a sleeping bag.

Saffi barked, almost a yelp, just as Kayla pictured the backpack. Jean looked baffled; Kayla looked into Saffi’s eyes. “That’s what you were smelling? Dad’s backpack?”

What had Dad been doing with it? And where was it now?

And where was he?

Saffi’s nervousness, her insistence that something was wrong, would have infected Kayla even without the link. Connected, it was close to unbearable. Kayla disconnected, but now Jean was in league with the dog. “What’s wrong, sweetie? Can you show us?”

“Now you’ve done it,” Kayla muttered. As if seizing Jean’s suggestion, Saffi headed to the back door and butted it with her nose. “All right, all right, we’ll go out there! Maybe you’ll find something.”

Saffi shot out the door and headed for a patch of dirt, rough as if recently disturbed. At once she started digging, the dark dirt flying to both sides behind her. Kayla looked into the rapidly growing hole and saw something off-white about half a meter down.

Fetch! But Saffi had already seized the edge of the object in her teeth and was tugging it gently, pulling it loose. As soon as she had freed it, she hustled over to Kayla and held it up near Kayla’s hand. It was a piece of paper, the paper Dad used to print his woodcut proofs, folded over and over, folded small.

Kayla took the paper and hid it in her hand, feeling foolish and frightened at the same time. “Let’s go back in the house.”

As soon as the three of them, girls and dog, had crossed the threshold, Kayla locked the door and threw the bolt. She made her way shakily to the kitchen and sank into a chair, silently waving Jean to another. Then she opened the paper. It was crammed with writing, writing smaller than her father liked to write, squeezed in and hard to read.

Don’t tell anyone what I tell you here, unless you must.

-----------

For the rest of the message, you'll have to wait until the book comes out in October. :-)

An excerpt from Chapter 1 of my upcoming YA near-future novel, The Link

Appropriately enough, I'm posting an excerpt from The Link in order to have a link to share with prospective reviewers. . . .

But first, the cover!

Here's the beginning of Chapter 1.

        -----

Saffi snored, her side rising and falling with the rhythm of the soft snorts, her tail draped over the end of the couch. Kayla, perched on the other end, dug away at the chunk of wood in her hand, trying to copy the way the dog flowed into the furniture.

Kayla’s friend Jean sat back in the armchair, feet up on the handmade table. She waved a hand at Saffi and asked, “Can you link to her when she’s sleeping?”

“I’ve done that.” Kayla’s mouth twitched. “It’s hard to stay awake.”

“What’s it like when she dreams?”

Kayla shrugged. “It’s not as cool as you might think. Her dreams are pretty — ordinary. She’s smelling stuff, or she’s running in the woods, or whatever.” Though all those smells, so many all around, and so strong — that was still a long way from ordinary.

“There she goes!” Jean pointed. Kayla craned over to look. Sure enough, Saffi’s eyelids were twitching with the motions of REM sleep. Jean looked up at Kayla with big, pretty-please eyes. Kayla shrugged again, but gave the subvocal command that opened her neural connection to the dog.

There were, of course, no words; not even what she would call thoughts. Instead, Kayla sensed curiosity, then growing interest and concentration on a familiar scent. Slow-moving prey.

Kayla laughed. “A possum! She’s dreaming she found a possum out back.” She broke the connection and went back to her carving.

Jean leaned forward and studied the carving, the dog, and the carving again. “That’s pretty good. How did you learn to whittle, anyway?”

“Dad taught me. I guess he learned from someone around here — a neighbor, I think.”

“He taught you other stuff, didn’t he? I mean —” Jean grinned. “You’re not half as clueless as most city kids.”

Kayla suppressed a sigh. How could she sum up all those hours in the woods with Dad, learning survival skills and woodcraft because that was what he had to teach and it gave them more time together? “Yeah. He showed me how to do a few things. Make a fire, tie knots, shoot, set traps, come in out of the rain.”

Jean mock-gasped. “Shoot, set traps? You mean you eat meat? And you from the city!”

Kayla smirked back. “Yup, even before we got this ferocious carnivore here.”

Jean got out of the chair and wandered over to the mantle over the fireplace, picking up the wooden bust in its center and running a finger along the short carved beard. “Did you do this one too? That’s your dad, right? It really looks like him.”

“Thanks.” Kayla could hear that she sounded sulky. That was hardly fair to Jean, who hadn’t meant to poke a sore spot. But Kayla remembered working long and hard on that carving, starting over twice, doing her best to capture her dad’s expression and the tilt of his head. And Dad had acted so happy and grateful. . . . The girl who had cared that much, who had put so much work into pleasing her father, seemed a stranger now.

She didn’t want to remember that girl. And she really didn’t want to miss her.

Jean might have picked up on Kayla’s mood; at least, she changed the subject, turning back toward Saffi and pointing back and forth between the dog and Kayla. “It’s a pretty sweet setup you have. At least, it seems that way to me. Your mom helped come up with the human-dog connection tech, didn’t she?”

“Yeah. My dad did too. He’s just as good at that tech stuff as Mom is, even if he ditched it to move back here.” Ditched his job at Edenar Corporation; and ditched Mom while he was at it.

“Was Saffi one of the first dogs to get hooked up? Did you get her as a puppy?”

Kayla shook her head to both questions. “She was already a year old or so. She had months of special training before we got her. Besides, they don’t want the customers having to deal with puppy craziness.” She found herself grinning. “What if they chewed their own shoes?”

Jean guffawed; Kayla went on. “We didn’t get her until Dad — decided to move. Mom thought having her would make the move easier on me. Not that it’s exactly worked out that way.”

Jean wrinkled her forehead as if to ask the obvious question. As if answering it, Saffi stirred, lifted her head, jumped to her feet on the couch, then started barking frantically. Jean stared at the dog. “What’s she on about?”

Kayla reconnected, then winced at the flood of excitement, the total joy, so much stronger and simpler than how she felt. “My dad’s home.”

Saffi leaped down from the couch and ran toward the door, then back a few steps toward Kayla, then toward the door again, over and over as if trying to pull Kayla along with her. But Kayla’s own feelings must be passing through the link: Saffi’s delight faded away, and she paused, her tail falling low.

Why spoil things for Saffi? Kayla disconnected; the dog looked at her for a moment, then ran off toward the door.

Soon Saffi was wriggling and whining in eagerness, her tail whirling in circles like a propeller, as Kayla’s father opened the door carrying a large wooden crate easily under one arm, a sack of groceries in the other.

------

A process peek from a writing workshop

I attended a workshop in world-building yesterday, and thought folks might be interested in my second-guessing as to how I came up with the contents of a writing exercise.

The author leading the workshop posited a world where the threat of frequent, serious flooding had been solved in some novel technological way, and what societal problems our chosen solution might pose. She gave us around fifteen minutes to write.

Here's what I wrote (very slightly tweaked for consistency and flow). After, I'll share my thoughts on where it came from.

-----

Jan slammed her Tiny Terry doll into the floor, then kicked it across the floor. The doll bounced off the wall, narrowly missing the baby's playpen. "I'm TIRED of staying inside! I want to go OUT!"

The baby started to wail. Robin scooped him up and carried him over to the wall. "Let's see what's going by! There's an eel -- that long wavy thing. See how it wiggles? And there, that's a scooter! Someone got careless, didn't they, honey?"

Jan, ignored, upped her volume. "I want to ride MY scooter! I want to go OUT!"

Robin clamped down on her urge to out-shriek her child, waiting for a gap between syllables to say at a reasonable volume, "You know it's going to be at least a week before we can go outside, even in our wetsuits. Too many big, pointy objects will be bobbing around. We just have to be patient--"

"I HATE being patient! I hate everything in this house! I hate how it smells! I hate Jake!!" She glared at the baby, who fortunately didn't notice, absorbed in watching the debris being carried past the house. Jan stomped on the floor, managing to produce only a dull thud, and opened her mouth for the coup de grace.

Robin sighed, answering what she knew came next. "But I love you, sweetie." And you can't possibly miss the smell of plants and earth more than I do.

Thwarted, Jan plopped down on the floor in a sullen huddle. The flotsam and jetsam continued to flow past, gliding smoothly over and around the ceiling and walls.

------

Someone else at the workshop had mentioned the idea of submerged dwellings, so I built on that, not being good at technological invention in less than a minute. I made my house out of resilient, waterproof, transparent material. Then I moved on to the societal problem -- cabin fever -- and ways to describe the setting and show the problem without too much of an infodump.

For the characters, I drew on my own experience as a mother of two, and in particular on the way parents have to put their own desires and emotions to one side in order to cope with those of their children. (Any parent who's afraid of spiders and has children similarly afflicted is likely to know just what I mean.) I also, though I only realized it later, borrowed the overwhelmed feelings of a mother with three young children (and two equally difficult cats) in a Lois McMaster Bujold short story, "Barter."

So there it is, for what it's worth: a glimpse at how one writer produced a short and insignificant bit of writing.

How I Spent My Summer Vacation, Part 6 (Or Whatever): Concussion

Alternate title: the dangers of a clean house (well, if someone else cleans it).

My mother moved in with us recently. This not only brings a loved family member into the household, but inspires us to eat better (fewer frozen dinners); to eat together (as opposed to separately, one reading and one watching TV); and to clean the house more often. Or rather, to have it cleaned, as I'm both lazy and somewhat arthritic.

So Friday afternoon, the cleaners finished up, allegedly, and asked if I wished to inspect. We live in a ranch with partially finished basement. I trundled downstairs to the lower floor and stepped into the room we somewhat grandiloquently call our library, a walkout basement room lined with bookshelves and filled with overflow belongings stacked on top of what I vaguely recall to be furniture.

Did it take one step or two? I don't remember, but my feet slid swiftly out in front of me. In that slow-motion way that accidents seem to occur, I had time to think: I'm falling backward. Well, it's not that far. But that's cement down there. CLONK.

I made it to all fours, then slowly up the rest of the way. I got out of the room without further mishap and went up to report to family and cleaners.

Cleaners: "Oh, no! Are you all right?"

KAW, grimly: "I hope so."

I knew a little about severe concussions, having written one into the book I'm now editing, but had the mistaken impression that all concussions leave one with pupils of uneven size. I had also read about the late, lamented Natasha Richardson, who fell on a ski slope, disdained medical attention, and died a few hours later of a brain bleed. So I tried to monitor myself pretty closely over the next couple of hours. When I noticed a faint feeling of pressure in my forehead, coupled with the odd feeling that my skull was a couple of inches lower than usual over my right eyebrow, I asked my husband to drive me to the ER.

The nurse who first processed me ordered a CAT scan. The doctor, however, opined that I had very little risk of bleeding, but most likely did have a mild concussion. Fine. And that I should refrain for at least 24 hours from driving, intellectual work, looking at screens -- TV, computer, and cell phone -- and reading.

NOT fine. I haggled for a bit about the reading, being, as I confessed, addicted to it. She explained that one had to rest the brain after an injury, just as one rests any other injured body part, and that lighted screens, reading, and concentration did not add up to rest. Oh, and don't drink alcohol for 24 hours either.

How do I shut down my overactive brain and get to sleep at night? Well, the ritual includes reading and a glass of sherry. . . .

I still don't know whether bathing my brain in a neurotoxin (my husband's vivid description of my glass of sherry) would have been worse than insufficient sleep. But my husband did what he could by reading to me. He hadn't done that since I was in labor with our older daughter. (I was in labor for 46-1/2 hours, and he got through a good deal of Jurassic Park. Which my daughter says "explains a lot.")

My plans for the next day included Drum Corps International finals. For those not initiated into the world of drum corps, that means hours of magnificent, LOUD live music, while corps members wearing a wild variety of uniforms and costumes march in inventive formations and toss around giant flags, wooden rifles, and not-entirely-blunt sabres . I had asked the ER doctor whether I could still attend. For good or ill, she was a drum corps enthusiast. "Sure!" The noise might seem (even) louder than usual, but I could wear ear plugs if necessary. . . . I didn't think to tell her what good seats we had. In fact, it didn't occur to me until after the first hour or so that I had a stadium's width of bright lights glaring down across the top of my peripheral vision. Oh, well. By the last hour, I alternated holding up my hand as a visor and closing my eyes -- which made the music even more impressive (at least where, as for most corps, it was impressive already).

So how am I? Not, I think, entirely recovered. But after a little online checking, I've decided to cut back somewhat on the reading and screen time (and abstain from booze at our anniversary dinner out tonight), rather than resume the complete fast. Hence this account.

Now to sit in a room with a view for a while, with neither book nor phone in my hand. Adieu.

The Framers Didn't Think "Advise and Consent" re Confirmations Needed a Supermajority

I'm reading a book about the American presidents and how they rate when judged by constitutional standards. It wasn't long before I needed to refresh my recollection of Article II of the U.S. Constitution, which establishes the executive branch. In reviewing it, I noticed some pretty solid evidence that the Framers of that Constitution would not have thought a super-majority of the Senate -- such as a 60-vote threshold -- necessary for confirmation of presidential nominations.

Section 2 of Article II  is one long sentence. The first clause (or whatever the appropriate grammatical term), up to the first semicolon, gives the president "the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . ." Note the "two thirds." That's a supermajority. Any time more than a majority is required in a vote, you have a supermajority.

Next comes the power to appoint various officers: "and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law . . . ." Same "Advice and Consent" language -- but no two thirds threshold. No supermajority. Evidently the Framers thought Treaties so important that the super-majority safeguard was necessary, but weren't as concerned about presidential appointments.

So the Democrats were well within the constitutional comfort zone when they amended Senate rules to drop the 60-vote requirement for cutting off debate on almost all presidential nominations. (The first version of that rule, by the way, dates from 1917 -- not from the Framers' era. For some background on Senate debate, filibusters, and the cloture rule, follow this link.) And the Republicans will, likewise, be doing no violence to the constitutional framework if (or, per most expectations, when) they eliminate the last vestige of that requirement in order to allow confirmation of Judge Gorsuch to the U.S. Supreme Court.

A terrible bill in the Arkansas General Assembly

Many years ago, a trial lawyer pulled me into an appeal -- and I ended up something of an expert in an area of the law I'd hardly known existed.

Many, perhaps most, parents don't know that in most states, at least under some circumstances (such as a parent's being widowed, separated, divorced, or unmarried), a parent's decision that a particular grandparent (or sometimes, great-grandparent) should not be allowed to supervise and/or transport and/or care for and/or spend time with a child may be challenged in court. Such a decision is usually reached after years of painful experience -- and not every parent is well equipped, personally or financially, to defend that position in an extended legal proceeding. In June 2000, the U.S. Supreme Court held that at least, trial courts must start out presuming that a fit custodial parent's decision to limit or deny nonparent visitation is in the child's best interest, and giving that decision special weight. Some state supreme courts, including that of Arkansas, have gone further, holding that only if the decision is likely to harm the child may the court override it. Arkansas's current statute governing grandparent and great-grandparent visitation accords with these rulings. But now, a bill has sped through the Arkansas House and will soon be heard in an Arkansas Senate committee that would flout this precedent and make it extremely difficult for Arkansas parents to fend off visitation they believe to be unwise.

HB 1773 would place the burden of proof on many parents seeking to limit or deny grandparent or great-grandparent visitation (specifically, single, divorced, or separated parents -- or married parents, if a judge considers that their decisions lack a "justifiable purpose"). Not only that, but the bill is so drafted that a parent would not satisfy his or her burden simply by proving that the petitioner seeks visitation that would not be in the child's best interest. The parent would ALSO have to prove that the petitioner does not have a “significant and viable” relationship with the child. Under this standard, visitation that is clearly not in the child’s best interest – for example, overnight or out-of-state visits with a sensitive toddler, or visitation with an asthmatic child in the petitioner’s smoke-filled home – may, and perhaps must, still be granted. Similarly, the parent must prove that the petitioner doesn’t have the capacity to give the child love, affection, and guidance – even if the parent has already proved that the petitioner is unwilling to cooperate with the parent, and that the parent’s decision is unlikely to distress or harm the child. As I've already mentioned, HB 1773 would also allow grandparents and great-grandparents to sue married parents peacefully raising their children, with no prior involvement in the judicial system, so long as they were able to convince a judge that the parents’ constitutionally protected decision to limit or deny visitation did not have a “justifiable purpose.” This judicial second-guessing has the potential to drag many families into the prolonged purgatory of family law litigation.

Nonparent visitation cases can be every bit as ugly, financially devastating, emotionally disruptive, and prolonged as divorce and post-divorce litigation. The resources that should go toward the child’s education, enrichment, and future are instead spent on legal fees. The ultimate victims, deprived of not only these resources but of the parents’ time and attention, and caught in an emotional cross-fire that may endure for many years: the children whose best interests are supposed to be the motive for the melee. Visitation orders also reduce the time the children can spend with other extended family members whose relationship to the parents is more harmonious. It is for these reasons that the family law bar in Indiana, despite the obvious financial incentive to back such litigation, has consistently opposed bills with effects similar to HB 1773 -- though those bills did not go as far as HB 1773 in contradicting constitutional requirements.

If anyone reading this post lives in Arkansas or has acquaintances who do, I hope you will bring this bill to their attention -- and soon. The Arkansas Senate Judiciary Committee will be hearing this bill any day now -- and if it passes out of committee, it will go to the Senate floor within two days. The committee's members' contact information may be found at this link.