Ross Douthat Does It Again: His Very Messy Analysis Blames Liberal Policies for Failing Economies

Ross Douthat argues in a New York Times column that President Obama should follow the Texas model, and abandon "liberal" economic policies. According to Douthat, conservative Texas is thriving, while liberal California is failing. Ergo liberalism is bad, while conservatism is good. Wow, if life really operated so simplistically, we could take a perpetual vacation from thinking.

Ezra Klein has obliterated Douthat's utterly sloppy analysis in a Washington Post column. Earlier this year, I went after a similar assault on California and liberalism. See: Has the Left Destroyed California? Um, No! Last month, Douthat published another sci-fi column in the New York Times, which provoked a substantial response from Dissenting Justice. See: Racial Exhaustion in the New York Times. Thanks, Klein for disposing of Douthat's recent article and for allowing me to take a break.

Update:

Nate Silver of 538.Com also makes good points.

Princeton economist and New York Times columnist Paul Krugman makes the absolutely obvious -- but ignored -- point that Texas is not the only red state and that other red states are experiencing painful economic decline.

And over at The Atlantic, Derek Thompson demonstrates the cost of the Texas-style economy. The state ranks last or near the bottom with respect to many important measures of social health. While Douthat would likely argue that these are costly liberal policies, the majority of Americans support public education and medical care for indigent children. On these issues, Texas is indeed another country.

Update II

Zandar Versus the Stupid (great blog title) makes this interesting (and brutally sarcastic - just the way I like it) contribution to the discussion: Blind Squirrel Still Unable To Locate Nuts.

Texas Restaurant Ejects Gay Diners After Two of Them Kiss

As a group of five gay males placed their food orders at a Chico's Tacos in El Paso, Texas, two of them shared a kiss. That kiss prompted security guards to eject them from the restaurant. During the encounter with the guards, one of the patrons called the police, but when officer friendly arrived, he told them to leave as well. According to the El Paso Times, the officer said it was unlawful for "two men or two women to kiss in public" and that he could arrest them for engaging in "homosexual conduct." After the police threatened to arrest the diners, they left.

Can a Restaurant Refuse to Serve Anyone at Will?
The reports of this incident indicate that the local police are either ignorant of or grossly indifferent to the relevant law. First, the El Paso Times article quotes a local police officer (without indicating whether he responded to the call), who states that police could have charged the men with "criminal trespass" because:

Every business has the right to refuse service. They have the right to refuse service to whoever they don't want there. That's their prerogative.

This comment, however, is grossly misleading. While places of public accommodation can decline to serve or host individuals, they cannot do so in a manner that violates antidiscrimination laws. For example, the restaurant could not have lawfully turned away black, white or Asian-American diners because of race (ask Denny's).

Although federal laws and the laws in most states do not prohibit places of public accommodation from discriminating on the basis of "sexual orientation" or "gender identity," an El Paso civil rights ordinance does. Accordingly, restaurants in the city cannot lawfully discriminate against GLBT customers. Therefore, unless Chico's Tacos bans kissing by all diners -- which is highly unlikely -- then it has discriminated on the basis of sexual orientation and violated the ordinance.

The fact that the restaurant ejected all of the gay males -- even the three who did not kiss -- only bolsters the evidence that this incident was purely about discrimination. Also, the guards' alleged use of anti-gay epithets and the police officer's false assertion that homosexual conduct is illegal (see below) prove discriminatory motivation as well.

Does Texas Law Ban Gay and Lesbian Kissing?
Another police distortion surrounds the responding officer's statement that he could arrest the men because Texas law bans "homosexual conduct." Most of reports correctly indicate that in 2003, the Supreme Court invalidated a Texas statute that prohibited homosexual conduct (see Lawrence v. Texas). That law, however, only prohibited oral or anal sex -- not kissing -- between two people of the same sex. Accordingly, the police officer was wrong to threaten the individuals with arrest for two reasons. First, Texas law does not ban same-sex kissing, and six years ago, the Supreme Court invalidated a state law that banned gay and lesbian sex.

Conclusion: Sue the restaurant and the police for clear violations of the law. The end.

Earth to Congress: Keep Your Hands Off of College Football and Pay Attention to Real Issues!

Earlier this week, Senator Orrin Hatch (Republican, Utah) whined in an opinion essay (for Real Clear Politics) that the Senate needed more time to review the "large and complex record" of Supreme Court nominee Sonia Sotomayor. Perhaps Hatch and the other members of the Judiciary Committee could devote more attention to Sotomayor if they canceled a hearing, scheduled for next week, to investigate the College Bowl Champion Series (BCS). The upcoming hearing is a colossal waste of time.

Hatch, who sits on the Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, sought the hearing to determine whether the BCS violates any antitrust laws. Keep in mind that the Judiciary Committee must first approve Sotomayor before the process moves to the full Senate.

Although reviewing Sotomayor's record has supposedly stymied Hatch, he found time to write yet another essay (published in Sports Illustrated), which explains his theory of the possible antitrust issues related to the BCS. Hatch believes the automatic bid for the major NCAA conferences might violate the law. This sounds preposterous to me, but I am not an antitrust scholar. Neither is Orrin Hatch.

BCS Is the New Wasteful Obsession for Congress
Next week's BCS hearing is the second to take place in Congress this year. In May, Representative Joe Barton (Republican, Texas) hauled BCS officials into the House to testify before the Committee on Commerce, Trade and Consumer Protection.

Barton has sponsored legislation that would prohibit "the marketing, promotion, and advertising of a post-season game as a 'national championship' football game" unless the victor was chosen through a playoff system. And if the NCCA fails to comply, Barton's proposal would allow the Federal Trade Commission to prosecute the organization for an "unfair or deceptive act or practice."

Apparently, the First Amendment means nothing to Barton. Neither does the need for serious legislation. Also, calling the victor of the BCS Championship game the "national champion" cannot deceive the public when the public already knows that the BCS does not utilize a playoff system. Barton, however, says that calling the victor the national champion is "patently deceptive" because a computer chooses the competitors. Barton's statement distorts the selection process that the BCS utilizes.

Furthermore, under Barton's logic, Major League Baseball violates consumer protection laws because it sponsors the World Series and calls the victor the "world champion." Many professional baseball teams exist outside of the United States, but the MLB world champions do not compete with any of them (except for the one Canadian team that remains a part of MLB). Even if baseball only existed in the United States, the MLB champion cannot accurately claim a "world" title for a geographically localized sport. In fact, doing so seems far more deceptive than picking a national champion under the BCS system.

Conservatives Sponsoring "Big Government"
Despite the economic crisis, Barton apparently believes that the FTC should expend resources forcing the NCAA to select a champion in a way that the federal government deems appropriate. Perhaps Congress could hold hearings next year to redesign the uniforms worn by NCAA football teams as well.

The BCS hearings demonstrate that Congress continues to have an unhealthy fascination with sports figures and athletic organizations. Every year, some athlete makes the trek to Washington to deny (or fail to recall) using steroids. Steroid use by wealthy athletes is hardly a vital national issue that warrants intense congressional scrutiny. The manner that the NCAA picks its championship team also fails to warrant a hearing in Congress.

Finally, it seems extremely contradictory that Barton and Hatch, two "limited government" conservative Republicans, would support this wasteful and invasive process. But if hypocrisy disqualified people from politics, Washington would become a ghost town. Also, Barton and Hatch are lawmakers from Texas and Utah. The University of Texas and the University of Utah both believe that they received a raw deal from the BCS this year because they were not selected to play in the highly profitable and prestigious championship game. Barton and Hatch have discarded their purported conservative values in order to gain points with the folks back home and, possibly, to direct some cash to their states. Apparently, big government is not a problem for Barton and Hatch if it can win them some votes. Great!

PS: Earlier this year, President Obama foolishly placed his voice in this debate as well, calling explicitly for a playoff system.

Gators Brutalize Georgia: 49-10!

I truly felt sorry for Georgia fans at one point during the game. Every time the Bulldogs approached or entered the "red zone," Florida took the ball and scored. Georgia became the latest victim of the Gators, who continue to punish Ole Miss indirectly by slaughtering other SEC opponents. Next year, the Gators will probably pulverize Ole Miss on the latter team's home turf.

As a BCS chaser, I also enjoyed watching Texas Tech's thrilling upset victory over the Texas Longhorns. That was quite an amazing game that went down to the final seconds. The Gators, by contrast, outscored Georgia before halftime. Still, seeing all of those touchdowns was really fascinating.

In order to help set up the Gators' next BCS championship showdown, Penn State and Texas Tech need to lose. We will take care of Alabama in the SEC championship game (knock on wood), but maybe LSU will help us out next week. If USC, with its pitiful schedule, ranks higher than UF in the BCS standings at the end of the season, then the BCS will lose the little remaining credibility it currently has.

"Don't Mess With Texas!": Dancing Coach Jailed for Teaching the Cha Cha

A Texas judge sentenced a dance instructor to a 30-day sentence for violating a court order that enjoined him from teaching dance classes within 25 miles of his former place of employment -- the Arthur Murray Dance Studios in Plano, Texas (a Dallas suburb). This case involved a very standard contract dispute. The former employer argued that the instructor, Eric Rush, violated the terms of a "non-compete" clause in his employment contract, by competing for the dance company's client-base. According to an article in the Dallas Morning News, the court held that Rush violated the agreement by "creating a Web site advertising his work, posting Craigslist notices offering his services and contacting Arthur Murray students." The court ruled for the employer and ordered Rush to "to discontinue any Web sites, quit soliciting Arthur Murray customers and refrain from working with area dance studios until the end of 2009." Rush apparently violated the injunction by teaching the "cha cha" to a client at another local dance company.



My take: Non-compete clauses are standard fair, but many courts and employee advocates believe they can go too far in restraining the liberty of workers. Several states will refuse to enforce the clauses if they are unreasonable as to scope or duration. I have not seen the particular contract, so it is impossible for me to analyze it thoroughly, but based on the news articles, it seemed reasonable enough -- at least on the apparent requirement that Rush not solicit clients of his former employer. That's the essence of non-competition.



But even if the contract itself were reasonable, the court's injunction and its contempt ruling might go too far. Restraining internet usage raises First Amendment issues and basic concerns with practicality. Even if the 25-mile restriction is a fair reading of the contract (or even an explicit term in the contract), preventing Rush from advertising on the web probably makes it nearly impossible for Rush to establish an independent client base, not to mention a client base that does not live within the geographic scope of the injunction.



The 30-day jail sentence for contempt seems a bit over-the-top as well. Many judges would have simply fined Rush. Perhaps the court could have required him to turn over the proceeds he earned while violating the injunction. The stakes just do not seem high enough to warrant such a harsh penalty. I am inclined to agree with Rush's lawyer who analogizes the sentence to "killing a fly with a bazooka." But as a former Texas resident, I remember seeing sentences that seemed excessive to me quite frequently -- thus proving the old saying: "Don't Mess With Texas" (which actually originated as a slogan for an anti-littering campaign, not a statement of raw Texas toughness).



[Hutchinson: Sorry, I am now guilty of using the slightly misleading headline technique, but I hope you enjoyed reading the essay.]