Gay marriage in New York State is "a BFD because a Republican-led State Senate passed this law."

Writes Andrew Sullivan:

Going outside traditional Democratic party lobbies to appeal to those on the other side who are open to our arguments was essential.... Governor Cuomo, by all accounts was magnificent at the politics and Mayor Bloomberg and critical Republicans and Democrats and all factions and groups in the gay movement - even HRC! - pulled together. That the most passionate opponent was a Democrat and the most powerful were Republicans helps scramble the attempt by the Christianist right to coopt conservatism for their reactionary theology.

It's a BFD because it also insists on maximal religious liberty for those who conscientiously oppose marriage equality. A gay rights movement that seeks to restrict any religious freedom is not worthy of the name. And it makes me glad that we largely avoided anything that looks like that strategy, and that last-minute negotiations were flexible enough to strengthen the protections for religious groups, churches, mosques, synagogues and the like. The gay rights movement is about expanding the boundaries of human freedom - and that must include religious freedom if it is to mean anything....

I don't know the details about the religious freedom protection in the bill, but I agree with Sullivan that's extremely important. I put up a quick post last night when the NY vote came in, and I read the comments this morning and saw a lot of fretting about government interference with religion. (For example, what happened to Catholic Charities in Massachusetts.)

How foolish do these Miss USA contestants sound responding to the question whether evolution should be taught in schools?

This video clip is making the rounds on some lefty blogs:



These women don't seem to realize how well-established the theory of evolution is and how central it is to the study of science. Of course, it should be taught in school. The more lively present-day issue is whether intelligent design may also be taught alongside evolution, but that isn't what the women were asked. The question prompts them to think of evolution as something that perhaps ought not to be taught in schools. From the bizarre similarity of the answers, I would extrapolate standard beauty-contest advice: Look for the prompt in the question and echo it back with some embellishment that makes you sound thoughtful, caring, and respectful of diversity.

But maybe, as Nicolle Belle at Crooks and Liars says:

The way that the majority of these women express their view that there are multiple and equally scientifically valid arguments truly shows the success of the religious right to muddy the waters and dumb down the populace by introducing skepticism over scientific theory.

By the same token, these answers may show how fundamental it is in America to believe in gathering information, listening to the argument about what might be true, and developing your powers of judgment. So, to some extent, what these women are saying aligns with the scientific method.

More than anything else, however, what I hear in these answers is a deep instinct toward freedom of choice. I felt moved to transcribe Miss New Jersey's remark because it was so perfectly typical of what they all seemed to be saying:

"I think everything should be taught in schools, every single aspect of evolution and anything you can think of. I think they should have the option of learning everything that there is to learn and then kind of choose what they like to believe."

Now, there is something absurd about that.  You don't want to teach kids everything you can think of, and they shouldn't be choosing what to believe based on what they like, but there's something beautiful and quintessentially American about that commitment to the free flow of information and the freedom of belief. It's not that far from the statement on the "sifting and winnowing" plaque here at the University of Wisconsin... about which I once said:

I would like to see some "continual and fearless" judgment about who should be given the opportunity to amass the pile of material that students are assigned to sift and winnow.

That is, you don't just throw anything you can think of at the students and leave it to them to find the truth. And some things are so well-established that it's a good idea to teach them quickly and simply as facts and save the "sifting and winnowing" activity for some other set of material. That brings us back to evolution: Should schools teach it as a fact — this is the theory — or use this subject as an occasion for teaching students how to look at evidence and judge it critically? I think that is the interesting question, and it is not at all obvious which approach is more supportive of science/religion.

They say that 20-foot cross that the ACLU objects to was a gift from Woody Allen.

What a funny world we live in!

The ACLU of New Jersey threatened legal action against the Neptune school district after an attendee at last year’s graduation ceremony took offense to the building’s religious symbols and Christian-based references -- among them a 20-foot white cross above the auditorium’s entrance. The ACLU asked the school to remove or cover up the cross and three other religious signs, arguing their visibility during a public school event is a First Amendment violation....

The Camp Association said it could not cover the cross, said to have been a gift from movie director Woody Allen, who used the auditorium during shooting for the 1980 film "Stardust Memories."

Interestingly, if this case goes to court, the key Supreme Court precedent will be Van Orden v. Perry, the case about the 10 Commandments monument on the Texas State Capitol grounds, and that monument supposedly originated as a promotion for the Cecil B. de Mille movie "The Ten Commandments." From the oral argument in Van Orden:

Justice O'Connor: How did this monument get there? Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.

And the cross is only said to be a gift from Woody Allen.

Where do all the religious stories come from? If there were movies back in Biblical times, what movie directors would be wandering around in those old Judeo-Christian stories? Anyway, I tried to find a YouTube clip showing the cross in "Stardust Memories," but I can't remember that movie well enough to know what scene it's in. I did run across this clip from Woody's "New York Stories" that has a little Larry David performance in it. And here's Larry David saying "Religion should be made fun of, it's quite ridiculous, isn't it?... If I really believed that stuff, I'd keep it to myself, lest somebody think I was out of my mind":

What Rick Santorum said about the "truce" on moral issues make me think he could accept a truce on homosexuality.

I didn't watch the GOP debate the other night, but I did listen to the podcast of Rush Limbaugh's Friday show and heard the snippets he played. Rush's theme was: "GOP Debaters Rip Into the Regime... Every one of them took it to Obama." This snippet caught my attention:

RUSH: Sounds like Rick Santorum took it right to him. Sounding like me. This is what Mitch Daniels said that he's not ready to do yet. Santorum did it. 

Mitch Daniels was not one of the debaters. He wasn't there to not take it to Obama. But Santorum was, and Rush is into Santorum, because Santorum sounds like Rush Santorum took it to Obama.

Here's more Santorum. Shannon Bream later: "Senator Santorum, you're often characterized as the most socially conservative in the GOP field, a man who may join you at some point in the primary, Indiana governor Mitch Daniels, says Republican candidates should, quote, 'Declare a truce, close quote on social issues in the next election.' Is he right? Are you willing to tone down your positions on abortion and homosexuality in an effort to reach more voters and to help the GOP coalesce behind a more fiscally focused platform?"

SANTORUM: Anybody that would suggest that we "call a truce on the moral issues" doesn't understand what America is all about. America... America is a country that is based on this concept and the Declaration of Independence that we are "endowed by our Creator with certain inalienable rights." Rights come from God and the first of which is "life," the second of which is "liberty." 

And the third of which is "the pursuit of happiness." Why leave that out?

Those two concepts really transformed the world...

And so did the third one!

... because it said that government was gonna be limited, allow people to be free and to pursue their own dreams....

Happiness!

.... to serve...

The dream is service?

... their God to serve their family and community -- and if we have a respect for human life, because we're all created equal... 

All right. I see where you're going trying to go there. The right to life. The unborn are also human beings and they have rights too. (If that's supposed to connect to limited government, it's incoherent, because the argument for protecting the unborn demands more government, in the form of regulating abortion. But my point here is not about Santorum sticking to his long-held anti-abortion position. It's about what he doesn't say.)

And so those founding concepts, what transformed the world in this United States of America was a belief in family, a belief in life and the belief of dignity of every person. If we abandon that, we have given up on Americ [sic]

RUSH: So Santorum is not for a "truce on the social issues." 

Ah, but Santorum only said why he had to keep fighting abortion. The question asked about a "truce" on abortion and homosexuality. Not only did Santorum fail to address homosexuality (unless Rush elided that), but he left out the "happiness" part of the unalienable rights. Santorum knows from past experience that those who reject his antagonism to homosexuality will jump on that phrase — "the pursuit of happiness" — and say that for gay people that includes gay sex.

So, a truce on homosexuality, right, Mr. Santorum?

"Mr. Obama looked 'stone faced'.... Vice President Joseph R. Biden Jr. fingered his rosary beads."

From a NYT description of the scene in the Situation Room of the White House during the mission to kill Osama bin Laden. They were watching a video screen. On it was Leon E. Panetta, narrating, from CIA headquarters:

“They’ve reached the target,” he said.

Minutes passed.

“We have a visual on Geronimo,” he said.

A few minutes later: “Geronimo EKIA.”

Enemy Killed In Action. There was silence in the Situation Room.

Finally, the president spoke up.

“We got him.”

ADDED: Anyone want to take offense at that code name?

Apparently the code namers thought of bin Laden as a 21st century equivalent of the Chiricahua Apache leader....

Like bin Laden, Geronimo proved to be an elusive target. More than 5,000 soldiers were deployed to capture him in around 1885.

Geronimo was fighting for his land, and committed what U.S officials at the time might have called acts of terrorism, conducting raids on white settlers in Apache territory. U.S. officials said they could convict Geronimo and his fighters of murder, and exiled the outlaw Apache to Florida as a prisoner of war, never to return to his homeland.

"People are free to discriminate based on sex, religion, race, and so on in their wills..."

... but what if, instead of specifying how much specific individuals get, the will says to divide things up according to religious law? Is the court supposed to figure out what the religious law requires? Eugene Volokh has a very interesting post about a case in which the court decided that the sons should get twice as much as the daughters because the will said to follow "Islamic Laws and Sharia." Looking at a Supreme Court case from 1968, Volokh thinks the Establishment Clause requires the court to refuse to make such a religious decision. Volokh also thinks "this rule is right..."

...  even though it does make things difficult for religious people who want the religious terms of their wills and contracts enforced. The alternative, after all, is for courts to take sides in deciding which rival religious view — say, which understanding of Islamic law — is right and which is wrong...

Fortunately, religious observers who want their disputes settled according to religious law generally have a simple solution: They can provide for arbitration by some religious tribunal that they choose, and courts will generally then enforce the result of that arbitration. Civil courts will no longer be called to decide what Islamic/Jewish/etc. law “really” requires, yet religious believers can have their disputes adjudicated under religious principles.

ADDED: Here's a hypothetical with religion taken out of it. A man has 2 children by 2 different women, who are of 2 different races. The will says that his estate shall go to the child who is racially superior.

"On Wisconsin! On Wisconsin!/Champion of the Right!/'Forward!' our motto/God will give thee might!"

At the Capitol today, does anyone have a good voice? Can anyone get the national anthem started? And if everyone sings the national anthem, will anyone sing the state song?



There's some nice camaraderie in this video, a flashback to a slip-and-fall, and a discussion of the morality of capitalism. It begins with "Power to the Peaceful" and a man in the middle of leading a prayer for peace in all the countries in the world. He prayed for each, separately, by name, in alphabetical order, and — before that — for each of the states, by name, in alphabetical order. Edited down, appropriately, I hope, by me. Video by Meade.

(Presumably, now, anyone who ever wants to stand in the middle of the rotunda and lead a long prayer, will be completely free to do so.)

AND: The "he" that talked about commerce and morality was Gandhi.

At the Capitol today... there were signs taped up everywhere..

"Dick move."



Signs and junk...



... and even some people sleeping (at midday)...



Many signs depicted Jesus. Jesus says, "Tax the rich," and Scott Walker ignores our Lord:



The displays at the mezzanine level had become — like all the walls and pillars — places to tape signs. Here's the bust of Robert M. LaFollette:



I don't know if you can see it. Look closely: that is the replica of the Liberty Bell under all those signs:



This is the back of the Veteran's Memorial, with all sorts of notices taped onto it and junk piled up against it.



Meade and I confronted the protesters who maintained what they called their "information station." That's Meade in the baseball cap during the confrontation:



I'll have video of the Veterans Memorial confrontation on YouTube and this blog very soon. The video includes a protester telling me that Meade and I are the first — "literally the first" — persons to object to their treatment of the memorial.

ADDED: Here's the post with the video up now.

"4 Reasons Why Egypt’s Revolution Is Not Islamic."

By Haroon Moghul:

1) The political Islamism that ended up triumphing in Iran was a much more authoritarian interpretation of Islam....

2) Iran’s Islamist opposition to the Shah was shaped by the peculiarities of Shi’a Islam and Iranian history....

3) People who study Iran know how vexed the relationship is, and has been, between Persian cultural identity and Islam. While many Iranians before the revolution were religious in a non-political way, the country’s elite tended to see Islam and Persianness as mutually incompatible. On the other hand, Egypt is a proudly Arab society... which has never seen Islam as incompatible with their specific ethnic and national project....

4) Egypt’s revolution doesn’t have to be Islamic because Islam isn’t at the heart of the problem on the ground.... Egypt’s society is a deeply Muslim one, and the very success of this non-political religious project has negated the need for a confrontational Islam. Egyptians know their religious identity is not under threat....

As an aside, I might also add that Muslim societies often have flourishing religious institutions and practices, organic and varied. But in the case of Iran, the regime paradoxically undermined that popular and organic religiosity when they sought to enforce faith through the state. This is an argument for keeping religion and politics separate in the Muslim world: in the interest of defending both from the negative effects of the other....

Interesting. I hope it's true. That last insight — valuing the separation of religion and politics  to defend each from the negative effects of the other — has been fundamental to the separation of religion and government in American history. (Read James Madison, Roger Williams, and all the rest.)

"While witches enjoy popular support in Romania..."

"... many in the government view them as swindlers whose presence makes their country seem superstitious and backwards.... It seems that tensions will diffuse when witches feel respected by their government and Romania feels respected by the West."

I talk with Glenn Loury about the Arizona massacre.

This goes for about 48 minutes. I think it's pretty good. I'll listen to it myself now and pick out some high spots.




ADDED: I reject the distraction that is Jared Lougher:



We talk about Jeremiah Wright as an exemplar of edgy speech on the left:



Glenn is rubbed the wrong way by news commentators, after the memorial, dwelling on the topic of "Obama's got his mojo back":



The use of Native American religion in the memorial — I call it patronizing:



Glenn pushes for gun control, I push back (a bit) and do a quick lecture on federalism and the Second Amendment at one point:

"It's the nature of the house churches that worries Iran. It's all about possible converts."

"It's a very specific and pinpoint strike by Iran."

A 45-year-old woman in Pakistan is sentenced to death for blasphemy.

This happened in the world we live in now:

[S]he had been working as a farmhand in fields with other women, when she was asked to fetch drinking water.

Some of the other women – all Muslims – refused to drink the water as it had been brought by a Christian and was therefore "unclean"...

The incident was forgotten until a few days later when [Asia] Bibi said she was set upon by a mob. The police were called and took her to a police station for her own safety.

Shahzad Kamran, of the Sharing Life Ministry Pakistan, said: "The police were under pressure from this Muslim mob, including clerics, asking for Asia to be killed because she had spoken ill of the Prophet Mohammed.

"So after the police saved her life they then registered a blasphemy case against her." He added that she had been held in isolation for more than a year before being sentenced to death on Monday.

"He asked if he could be a part of our religion for a day, just so he could see my face, just so he could go back (to the police station) and say, 'no it wasn't Elizabeth Smart.'"

Elizabeth Smart testified about the time a police officer, deferential to religion, missed saving her.

If the government gives tax credits for donations that may go to religion, is that essentially the same as government spending on religion?

Lyle Denniston reports on the oral argument today in Arizona Christian School Tuition Organization v. Winn. This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. Denniston begins his description with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state.

The lawyer defending the Arizona program said it was like tax deductions. People take tax deductions for their contributions to religious organizations all the time. What's different about tax credits? The lawyer arguing against the program "said that the money that is involved in the Arizona program is money raised by a tax; without a tax, there would be no tax credit."

If we view the tax credit as coming from the state's money, amassed by taxing, then the taxpayers who brought the suit probably have standing. But does that also answer the Establishment Clause question? Private citizens decide whether to contribute to a fund and pick from the qualified funds, not all of which exclusively fund religious schools, and the children getting the grants are choosing which school they want to go to. So there are 2 levels of private choice. And the definition of the funds is neutral and not religion-based.

Here's the complete transcript of today's argument.

UPDATE, April 4, 2011: The Supreme Court held that the plaintiffs lack standing. 

What media characters are repositioning out in front of today's elections?

Well, there's Chris Matthews, who suddenly finds Obama to be a big old "elitist"....



... and Bill "Proud Westerner" Maher:



("[I'm] someone who believes in the values that Western people believe in that a lot of the Muslim world does not.")

Brian Beutler takes a cheap shot at Sarah Palin: "Sarah Palin Calls Joe Miller A Lost Cause, Quotes Scopes Monkey Trial Attorney."

Beutler is either shameless or ignorant:

There are probably better ways to inspire confidence in a candidate's prospects when he's in free fall than to call him a lost cause. But that's exactly what Sarah Palin did to one of her favorite tea partiers last night.

"Joe Miller - do not give up. It's you against the machine. This is it. 'Lost causes' are the only ones worth fighting for,'" Palin tweeted, quoting famed Scopes Monkey Trial attorney Clarence Darrow.

It seems unlikely that Palin is aware that Darrow was a big wig at the American Civil Liberties Union given her penchant for scoffing at...civil liberties. And one wonders whether Palin knows that, in the Scopes trial, Darrow defended John Scopes, who violated Tennessee law by teaching evolution. But there you have it.

Is there any evidence, anywhere, that Sarah Palin would like to criminalize the teaching of evolution? Is there any evidence, anywhere, that Sarah Palin doesn't love our constitutional free expression rights? Is there evidence, anywhere, that Sarah Palin would not admire a lawyer who fought to defend free speech rights against the oppressive government use of criminal law against a science teacher?

In her memoir, Palin explains her views on evolution. Confronted with the statement "science proves evolution," she said: "Parts of evolution... But I believe that God created us and also that He can create an evolutionary process that allows species to change and adapt." That is what an awful lot of people think, and I think most American politicians if pressed on the question, would interweave God with the theory of evolution.

In any case, you don't even have to accept evolution to oppose criminalizing the teaching of evolution. The issue about evolution today isn't about barring teaching evolution. It's only about whether creationism or "intelligent design" can be taught alongside evolution if that's what schools want to do. The restriction on freedom of expression, then, is pro-evolution. Not anti-evolution. And who knows what Clarence Darrow would think about that?

But even assuming Clarence Darrow should be anathema to Sarah Palin, the quote — " 'Lost causes' are the only ones worth fighting for" — isn't from Clarence Darrow. It's from the book that became the movie "Mr. Smith Goes to Washington." Here:



ADDED: Sarah Palin does name Clarence Darrow in her tweet, so clearly she had the wrong source for the quote too.

AND: "The restriction on freedom of expression, then, is pro-evolution. Not anti-evolution." Is that too concise to understand easily? I usually resist verbosity, but let me expand. Let's assume someone — Palin, Beutler, the ACLU, whoever — cares about freedom of expression and would like to oppose restrictions on it. Now, they look at the current issues that have to do with the teaching and evolution. They will not see a restriction on teaching the theory of evolution, which is generally required. The restrictions that exist today limit a public school teacher who would like to introduce alternate theories like creationism and intelligent design. The key case is Edwards v. Aguillard (1987):

[Louisiana's "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction" Act] is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught. The Establishment Clause, however, "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma." Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.

Slate and Stupid: William Saletan's cocky ignorance of the First Amendment.

I'm turning William Saletan's headline back on him.

.... The key exchange begins just after the 17-minute mark. Here's my transcription:

Coons: The First Amendment establishes the separation, the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many, many decades—

O'Donnell: The First Amendment does?

... In expressing her disbelief, she clearly emphasizes the word first.  She seems incredulous not just at Coons' position against government-established religion, but that he bases it on the First Amendment. It's the citation that surprises her.

Perhaps she emphasized "First" because the discussion had been about what local school boards could do, and restrictions on them would need to come out of the 14th Amendment.* Now, Coons does properly restrict his assertion to the federal government at that point, but:

A minute later, O'Donnell brings the discussion back to this question:

O'Donnell: Let me just clarify: You're telling me that the separation of church and state is found in the First Amendment?

Coons: Government shall make no establishment of religion.

O'Donnell: That's in the First Amendment.

Again, you need the audio, and in this case full-screen video, to get her meaning. As she says, "That's in the First Amendment," she stares at Coons with a look of contemptuous amusement. (You can see her expression more clearly in this video, about 7 minutes in.) Then she grins knowingly at somebody in the audience. She thinks Coons has just embarrassed himself.

"Government shall make no establishment of religion" is a blatant misstatement of the Establishment Clause of the First Amendment. ("Congress shall make no law respecting an establishment of religion...") Now, I'm not trying to skewer Coons for saying that. Coons is doing well enough for speaking purposes. This isn't scholarly writing. But he's open to questioning, and O'Donnell might have pursued the point. Maybe she grinned because she knew he'd said something wrong.

Saletan proceeds, on this scanty evidence, to insist that the real problem with O'Donnell is that she is too confident when she speaks. Supposedly, that makes her "impervious" to new information and arguments, and that would be bad. Yeah, it would be bad. But this is a political debate! It's not the time to make a show of uncertainty and doubt. It's a time to state clear positions so voters can make a choice. I'm sure if O'Donnell had seemed uncertain about what to think, Saletan would have attacked her for her weakness. Instead, he's left criticizing her for "imperviousness." That's really lame. It reminds me of the way people of the left were always calling George Bush "incurious." It might make some sense if an ever-searching, ever-questioning intelligence was demanded of every candidate, across the political spectrum, but it is not.

My working theory is that it's Saletan who is impervious — and incurious. But I will continue, as ever, to search and question (and be, as ever, completely ill-suited to run for political office).

________________________

* The 14th Amendment — the Supreme Court has held — incorporates the Establishment Clause and makes it applicable to state and local government. There is, by the way, an impressive argument that the incorporation of the Establishment Clause was a mistake. Justice Thomas makes that argument here. I would not be surprised if O'Donnell would, as Senator, enthusiastically vote to confirm more federal judges who think like Clarence Thomas. And that's certainly something Delaware voters should take into account.

"Once you understand that to the credentialed-instead-of-educated, the Constitution is a wish-fulfillment device..."

"... rather than, you know, an authoritative text, it all makes sense. And there’s no real need to know or care about the words in the text, since it means whatever you want it to mean at the moment."

Says Glenn Reynolds, linking to my post on Coons, O’Donnell, and the Separation of Church and State.

A word needs to be said about the mocking laughter that instantly erupted from the law students in the audience. Presumably, that sound meant we are smart and you are dumb. Where did they learn to treat a guest at their law school — Widener Law School — with such disrespect? They hooted O'Donnell down, and she never got a chance to explain her point. What does that say about the climate for debate in law schools? Not only did they feel energized to squelch the guest they politically opposed, but they felt sure of their own understanding of the law.

I've been studying law myself since 1978, and I still puzzle over things and try to work my way through problems. If a speaker at my school makes a statement that sounds outlandish to me — me with 32 years of studying law — I may display a puzzled expression or a smile, but I hear the person out and entertain the possibility that he has a point and that even if the point is wrong, I will have learned some new perspective on the ways of being wrong or how another human being's mind works. I try to create that atmosphere in the classroom.

What is the atmosphere at Widener? Is there no intellectual curiosity? No love of debate? No grasp of how complex constitutional law problems can be?

ADDED: Here's the video:

O'Donnell and Coons on the separation of church and state.

Somehow, I can't escape the feeling of obligation to post about this. It's a bit annoying to me, because I cannot stand when people jump to the conclusion that someone they want to believe is stupid is being stupid when they say something that seems wrong. Think first. Is it wrong?

And I hate the converse — the assumption that the supposedly smart person has said something smart. Stop. Slow down. Read/listen closely. It's often the case that what we have is a banal political disagreement. And that's what I think this O'Donnell/Coons thing is.

I really wish I had the verbatim transcript of the colloquy, and that's the main reason I've been dragging my feet posting on this. The reporters aren't presenting the quotes in a reliable fashion. And we need to begin with stark clarity that the text of the Establishment Clause is: "Congress shall make no law respecting an establishment of religion."

So let's look at the reporting:

"Where in the Constitution is separation of church and state?" O'Donnell asked while Democrat Chris Coons, an attorney, sat a few feet away.

Plainly, the Constitution does not say "separation of church and state," so there's nothing stupid there. It's provocative, because many people like that gloss on the text.

Coons responded that O'Donnell's question "reveals her fundamental misunderstanding of what our Constitution is. ... The First Amendment establishes a separation."

He's talking about interpretations of the text, and she was talking about the text. What we're hearing is 2 individuals talking past each other.

She interrupted to say, "The First Amendment does? ... So you're telling me that the separation of church and state, the phrase 'separation of church and state,' is in the First Amendment?"

She's telling him to pay attention to her limited point about the text.

He noted again the First Amendment's ban on establishment of religion.

Ah, here's where I hate reporters. Give me the quote. I don't think Coons quite gets it. Ah. Here. He says: "Government shall make no establishment of religion."

O'Donnell reacts: "That's in the First Amendment?" And, in fact, it's not. The First Amendment doesn't say "government." It says "Congress." And since the discussion is about what local school boards can do, the difference is highly significant.

Also, it isn't "shall make no establishment of religion." It's "shall make no law respecting an establishment of religion." There's a lot one could say about the difference between those 2 phrases, and I won't belabor it here. Suffice it to say that it was not stupid for O'Donnell to say "That's in the First Amendment?" — because it's not. Coons was presenting a version of what's in the cases interpreting the text, not the text itself.

The 2 were talking past each other, trying to look good and make the other look bad. It is a disagreement about law between 2 individuals who are not running for judge. It's not detailed legal analysis. It's a political debate and this is a political disagreement. An important one, no doubt. But it can't be resolved by laughing at one person and calling her an idiot, something I find quite repellent.