Occasional comments about business and politics in Portland, Oregon, mixed in with stories from our city's colorful if not always compliant past.
"The more pity, that fools may not speak wisely what wise men do foolishly." -- Touchstone
It's instructive to compare the reaction of the other county commissioners to Jeff Cogen's affair with the impeachment of President Clinton. Both involved a leader having a consensual affair with an indirect subordinate who worked in the White House, though Mr. Clinton was impeached not for his involvement with Monica Lewinsky but for lying about it under oath. A mostly party-line vote in the Senate acquitted Mr. Clinton, with the Democrats arguing that Mr. Clinton's private involvement with a subordinate did not reflect on his fitness to hold office, and the Republicans maintaining that it did. One oddity of the current situation in Multnomah County is that the four other commissioners, all Democrats, want Mr. Cogen to resign for conduct eerily similar to President Clinton's. This implies that if they had been Senators in 1999 they would, under the same principles, have all voted to convict President Clinton and remove him from office. That's going to make for some interesting conversation if Hillary Clinton should ask for the commissioners' support in the 2016 presidential primary.
The Oregonian reports this afternoon that Portland City Commissioner Amanda Fritz has asked the same question I posed this morning: who at Multnomah County gave the order for Sonia Manhas to be fired? As written by Brad Schmidt: "Fritz declined to comment on Cogen's decision to reject calls from the Board of County Commissioners for his resignation. But Fritz did say the county should explain why Manhas was forced to resign Wednesday and who in the county pushed for it."
Who indeed pushed for Ms. Manhas to leave the county, making some say that the county has a double standard, one for women and one, much more lax, for men? I believe that with one exception, everyone above Ms. Manhas in the county hierarchy -- every one of the suspects -- is female: her supervisor, the county attorney, the deputy county attorney, and the four commissioners. Mr. Cogen himself is the lone exception, leading to the Homeric conclusion that unless Mr. Cogen himself ordered her to lose her job, Ms. Manhas became the victim of a double standard applied not by the male establishment, but by other women.
I followed this morning's hearing at Multnomah County with great interest. The commissioners listened to public testimony on a resolution, introduced by Judy Shiprack, that calls on county chair Jeff Cogen to resign because of his affair with Sonia Manhas, a manager in the county's public health department. Ms. Manhas has resigned her position, saying that unnamed county officials forced her to quit. The commissioners voted 4 to 1 for the resolution, with Mr. Cogen understandably voting against it.
One argument that Mr. Cogen's detractors are making is that since the other person in the affair was forced to resign over this issue, in fairness Mr. Cogen should resign also. Let's assume that unnamed county officials in fact forced Ms. Manhas to resign. Consider the possibilities.
First, Ms. Manhas may have violated county policies so egregiously that she deserved to be fired. In that case the question should be whether Mr. Cogen also violated county policies so egregiously that he should resign. The public evidence so far indicates that he didn't.
Second, Ms. Manhas may not have violated county policies sufficiently to merit being fired. In that case the question the commissioners should be asking is not whether Mr. Cogen should resign, but who at the county unjustly pushed Ms. Manhas out. The number of suspects is limited: the five commissioners, Ms. Manhas's supervisor, and the county attorney. It strikes me as very odd that the county has not disclosed who decided to fire Ms. Manhas.
Third, it's possible that Ms. Manhas did not tell the truth when she said that county officials forced her to resign, but in that case the county would have promptly denied her statement and said that she resigned of her own free will and not under pressure from her employer. The county hasn't said so, so I rule this out.
Thus, it's wrong to say "Ms. Manhas had to leave, so Mr. Cogen should also," unless both of them violated county policy to the same egregious degree. If the other commissioners believe that Ms. Manhas was unjustly terminated, then they should find out who ordered her to leave. There's time enough to look into what Mr. Cogen did.
I think people were saving up their scandals waiting for Professor Bogdanski to start his blog sabbatical, including perhaps the one involving Multnomah County chair Jeff Cogen and county health department manager Sonia Manhas, who had a workplace affair that recently ended. It's a story with all the elements of the genre: rising political star, attractive employee, out-of-town trips, flirtatious e-mails, and so on. The crescendo of disclosures led the Oregonian to call on Monday for Mr. Cogen to resign.
Much as I'd instinctively like to join the chorus to "throw the rascal out," I've been searching through all of the smoke looking for the fire, and I haven't found it. The suspicion that their relationship brought Ms. Manhas preferential treatment doesn't so far have any facts behind it. Her push to work two days a week in his office was an idea that Mr. Cogen said he liked, but so far as has been reported, did nothing to bring about. The only county money he expended on their affair, at least as reported so far, is $50 on a hotel room upgrade in Atlanta. (At that modest rate, one Rudy Crew is worth dozens of Jeff Cogens.) Notably absent from the smokestorm is any allegation that Mr. Cogen and Ms. Manhas broke a law or a county policy.
Mr. Cogen and Ms. Manhas have brought shame on themselves and embarrassment to his wife, her husband, and their children. But merely being the object of derision is not, even in politically correct Portland, a firing offense. I'd like to see Mr. Cogen stay in his job and let the voters judge him in the next election based on his performance in the boardroom. I do predict that he won't be going to many out-of-state conferences between now and then.
Last week I wrote about the Supreme Court's decision in United States v. Windsor, in which the Supreme Court held unconstitutional the provision of the Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman. Justice Kennedy, writing for the court majority, decided the case on federalism grounds: the definition of marriage has traditionally been left to the states, some states have defined marriage to be between one man and one woman, others have defined marriage to be between two adults without regard to gender, and it isn't really the federal government's business to impose its own definition of marriage that disqualifies certain state-recognized marriages from being recognized by the federal government. In the particular case, two female New York residents were legally married in Canada. After DOMA was adopted, New York passed al law that recognized same-sex marriages that were legal where made as being legal in New York. One spouse died and left her estate to Windsor, the surviving spouse. Windsor claimed the marital estate tax deduction, the IRS denied the deduction based on DOMA, and the Supreme Court eventually held that the one-man-one-woman portion of DOMA was unconstitutional. Rights that New York chose to recognize, Justice Kennedy wrote, could not be taken away by the federal government.
The same day, the Supreme Court issued its opinion in Hollingsworth v. Perry, the Proposition 8 case from California. The voters of California passed the Proposition 8 initiative, basically a mini-DOMA that forbade same-sex marriage in California. A same-sex couple challenged the initiative. The state declined to defend Proposition 8, and a federal trial court held that Proposition 8 unconstitutionally discriminated against same-sex couples. The chief petitioners of Proposition 8 asked to intervene in the case, on the ground that the state wasn't defending their initiative. The California supreme court said that under California law, the chief petitioners of an initiative have standing to defend their ballot measure if the government won't, and allowed them into the case. The petitioners appealed the trial decision to the court of appeals, which affirmed the trial court and held that Proposition 8 was unconstitutional. The petitioners then appealed to the Supreme Court. The Supreme Court vacated (cancelled) the decision of the court of appeals, holding that because the chief petitioners, who didn't want to marry persons of the same sex, would be in the same position whether Proposition 8 is upheld or struck down, they had no standing to defend the measure. Even though California law (the court said) gives the petitioners special standing to defend their measure, the federal government doesn't have to recognize the special rights that the state court grants. This, of course, is contrary to the Court's decision of a few minutes earlier, in which it insisted that the federal government must recognize rights granted by the state on matters of state concern, such as marriage; apparently in the Supreme Court's view state legislation is not as important to the states as marriage is.
The kicker comes in the clever way that Chief Justice Roberts, writing for the Hollingsworth majority, disposed of the case. If he and the Court had affirmed the ruling of the court of appeals, then it would be the law of the land that Proposition 8, and by extension similar measures in other states, are unconstitutional: that is, states could not constitutionally prohibit same-sex marriage. He didn't do that; instead, he and the Court vacated the Ninth Circuit ruling on the ground that the petitioners didn't have standing to defend Proposition 8, and therefore the Ninth Circuit should not have heard their appeal. That means that the Ninth Circuit's ruling that Proposition 8 is unconstitutional is not the law any more. The decision of the trial court is still in place, I think, but that decision applies only to California and doesn't bind any other state or federal court. That's pretty clever.
But wait -- there's more. The really clever, or possibly diabolical, thing is what will happen if the case gets back to the California federal trial court. Unlike when it heard Hollingsworth v. Perry several years ago, that court is now bound by the Supreme Court's decision in Windsor, which holds that as a matter of constitutional law, the states can regulate marraige and decide who can get married. (The Windsor court majority very carefully did not say that states were required to recognize same-sex marriages.) The upshot? The Windsor court in effect said that Proposition 8 is constitutional, and the Hollingsworth court kept the California decision from preventing the other 49 states from banning same-sex marriage.
Chief Justice Roberts pulled off an amazing bit of legal legerdemain: the result of the two victories for proponents of same-sex marriage is that 49 states can now constitutionally ban it.
Yesterday the Supreme Court issued its decisions in two cases connected with same-sex marriage, one involving a challenge to the Defense of Marriage Act (the Clinton administration's law that defined marriage, for all federal purposes, as between one man and one woman), and the other involving California's Proposition 8, a voter-approved initiative that defined marriage in California as between one man and one woman. The results of both cases will go down as landmarks, but the opinions themselves suggest that the Justices would benefit from some graduate courses in constitutional law and legal writing.
The first case, United States v. Windsor (opinion here, in PDF), is a tax case. Edith Windsor and Thea Spyer, both women and residents of New York, were married in Ontario, Canada in 2007, where same-sex marriage was legal. Ms. Spyer died in 2009 and left her entire estate to Ms. Windsor. Legacies to spouses are exempt from federal estate tax. Ms. Windsor paid $363,053 of estate tax and then sued for a refund, asserting that as Ms. Spyer's surviving spouse, the gift to her was exempt from the federal estate tax. The IRS asserted that under Section 3 of the Defense of Marriage Act, Ms. Windsor had not been married to Ms. Spyer within the meaning of the estate tax laws, even if New York considered them to have been married. A trial court held Section 3 unconstitutional and ordered a refund. The United States appealed, sort of, and the Second Circuit Court of Appeals upheld the District Court. The United States appealed that decision to the Supreme Court, sort of (I say "sort of" because in its appeal the United States asked the Supreme Court not to reverse the Second Circuit, but to affirm the decision and hold that Section 3 of DOMA was unconstitutional.)
In his opinion for the Windsor majority, Justice Kennedy gives a good analysis of whether the Court can hear the case at all: is there a real case or controversy if the United States and Ms. Windsor are advocating the same position? When he gets to the merits of the case, he wanders afield from the legal principles, and loses track of time. For instance, he describes New York's marriage law as follows:
By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples whowished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.
Justice Kennedy then continues:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. * * * The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
Justice Kennedy recognized earlier in his opinion, but forgot it here, that Congress passed DOMA before New York or any other state permitted same-sex marriage. That is, using his reasoning, DOMA sought to injure a class that didn't yet exist.
I predict that legal scholars will mostly celebrate the result of the Windsor case even as they tactfully gloss over the argument the Court used to get to that result. What saves Justice Kennedy's opinion from being considered bad (as a piece of legal writing) is that Justice Scalia's dissent is even worse. I'll have more to say about that in another post.
I welcome New York's approval of same-sex marriage for several reasons, one of which is my long-held (if slightly tongue-in-cheek) opposition to special rights. New York is taking away the privilege of gay couples to separate without judicial intervention; they'll now have to go through the divorce courts just like their heterosexual neighbors.
In the 1940s, De Beers recommended that the groom should spend two months of his salary on the ring for his betrothed. (De Beers, which controls much of the diamond industry, didn't discourage grooms from paying more.) Today De Beers is more circumspect, saying only that the groom should establish his budget based on his income and what he wants to spend. Meghan O'Rourke, writing in Slate in 2007, brought economics into the picture, and argued that the tradition of the man giving his fiancee an expensive ring as evidence of his commitment to marry her replaced her right to sue him for breach of promise of marriage. She made a Galbraith-style economic argument: lots of policy, but no equations.
Roger Staiger, a noted real estate consultant, lecturer at Georgetown University, and adjunct professor in the graduate school of Johns Hopkins University, has now introduced mathematics into the question. Writing in the current issue of Live Valuation, a magazine for the appraisal industry, Professor Staiger suggests treating the cost of the engagement ring as equivalent to payment for an option to enter into a transaction at a fixed future date, and then applying the Black-Scholes theory of option pricing to compare the price of the ring to the present value of the bride's expected future earnings. (Black-Scholes is the most common method of valuing options, and used by public corporations to assign values to their outstanding grants of stock options.) He used Jessie, one of his students, newly married to Tom, as an example. His surprising result: De Beers would recommend that Tom pay $18,300 for Jessie's engagement ring, but the Black-Scholes valuation method sets a fair economic value for the option to marry Jessie at $140,000. Tom got a bargain, and Jessie now has the evidence to prove it.
Our Man in New Mexico sends a story from today's Albuquerque Journal about two 18-year-olds who went to a nightclub and enjoyed lap dances for two hours each (82 dances between them), then were shocked to find out that each dance cost $30 and that their total bill was $2,460. They had $50 in cash and a $500 credit card limit, and couldn't pay. The club filed a complaint, and the local police arrested them on felony charges of obtaining services valued at over $250 on false pretenses.
Our M. in N.M. asks a number of legal questions, and some picturesque factual questions, about how this situation came to pass. The author of the news story, not being interested in the philosophical questions that engage our M. in N.M., simply says that the two youths should have paid more attention in math class. I noted that, based on the numbers in the news story, each dancer provided about one dance every three minutes, or 20 dances per hour, for a gross fee of about $600 per hour. (That's considerably more than what I charge for my time, but then I don't dance and I take longer than three minutes per customer.)
Then it struck me ("Oh, no," says Mrs. Laquedem). The Oregon pattern is to forbid immoral activity, then to grudgingly tolerate it (in the past with the help of la mordida), then to convert it into a source of revenue for the state,as with alcohol, racetrack betting, and video slots. ("Oh, no," says Mrs. Laquedem again, seeing where this is headed.) Consider: a person playing video poker at moderate speed might play 5 hands per minute, or 300 hands per hour. If each hand costs 25 cents, then the machine grosses $75 per hour. Out of this $75, perhaps $30 is paid back in prizes and some more in commissions to the landlord. Maybe the state makes $20 per hour per machine after paying its other costs.
When I worked out that the lap dancers of Albuquerque were grossing $600 per hour -- as much as eight video poker machines -- it occurred to me that the State of Oregon has at hand a potential revenue source which offers a number of social benefits at least equal to those provided by video poker. The Oregon supreme court has recognized that exotic dancing is a form of speech protected under the Oregon constitution, and the state could provide safe places in which this form of speech could be practiced, unlike the disreputable venues which currently serve as marketplaces for these ideas. The job creation would disproportionately benefit younger people with little work experience. And the revenue is not to be overlooked, as it could easily restore our public schools to full funding. Some cooperation between the regulators of this new revenue source and the Oregon Liquor Control Commission would increase alcohol sales and the concomitant state revenues.
Farfetched? The state has already made the decision to profit from the weaknesses of its citizens, whom it simultaneously protects and exploits. And collectively we're not willing to go back to honest taxation.
A meeting yesterday after work with Pablo (author of the worldwide pablo blog, one of my favorites) led to our engaging discussion about a number of topics, including in particular contrasts between how the Democrats and Republicans have pushed their views in Congress and in the state legislature, and the so-far fruitless efforts of Basic Rights Oregon and others to advance a civil unions bill in Oregon. (For background, please read Pablo's open letter to Roey Thorpe of Basic Rights Oregon criticizing BRO's strategy this session, and her response, also posted on his blog.) My sense is that they both dislike on principle obtaining civil rights for same-sex couples a little bit at a time, but that one is willing to accept and push for incremental gains, figuring that more can be obtained later, and the other favors an all-or-nothing approach: full equality now.
I compared this debate to how the Democratic and Republican parties treat their nominees. Nationally, Republicans who don't like their presidential nominee tend to support the candidate anyway, or at least to be quiet about not liking the guy. For example, in 1988 I rarely heard a conservative Republican say that he hoped Governor Dukakis would win because he didn't think Vice President Bush was truly conservative enough for his taste. The Republican stalwarts recognized that even if Mr. Bush didn't agree with them on many issues, philosophically he was a lot closer to them than Mr. Dukakis was, and they would vote for Mr. Bush. By contrast, I heard liberal Democrats say that because Mr. Dukakis wasn't in their camp on Issue X, they would rather see Mr. Bush win than have an imperfect Democrat in the Oval Office. (They got their wish.)
I think incrementalism is the better route. Gains once achieved are rarely taken away. And with the cause of civil unions and same-sex marriage apparently dead for this session, I offer a modest marketing suggestion to the proponents for the next session: instead of pitching civil unions as a step toward equality, fair treatment, and equal rights (values not historically associated with the State of Oregon; see the continuation below) for same-sex couples, advertise the disadvantages. Why should gay couples be able to dissolve their relationship without going to court, when straight married couples can't? It's not fair, the proponents could argue (with tongue firmly in cheek) for gays to be exempt from a burden imposed on straight couples. "No special rights!" the proponents could argue, twisting the opponents into knots. The proponents can't do any worse than they did this session, and -- who knows? -- they might pick up enough votes to get the measure through the 2007 session. After that, introduce bills to inflict on same-sex couples the other burdens of marriage, a few at a time. It's worth a try.