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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, July 28, 2014

4CA Strikes Down SSM Ban

See here with the ruling provided here. A summary of same sex marriage in the United States and (since -- like the 10CA -- it rests on the fundamental right to marry, not addressed here as such) the Obama Administration's argument that sexual orientation warrants heightened scrutiny.

Looking at the summary, the dominoes in the federal appellate courts are even more quickly falling than one might imagine. First, the 9CA (following the 2CA below in Windsor)  held that sexual orientation warrants heightened scrutiny.*  It is basically pro forma -- as basically recognized by a judge who dissented from denying en banc on the question -- to move from that to SSM being protected.  Nevada, e.g., gave up the fight once that happened.  Also, given state action in states in the first three circuits, don't see how the question will even arise.  SSM is already protected, in NJ and CT via state court action (PA decided not to appeal a district court ruling).  Perhaps, the scrutiny issue could arise.

So, that's basically half of the circuits (1-4CA, 9/10CA) and probably should toss in D.C. (where SSM was passed by popular vote) though I guess some issue might arise in which it comes up (I don't know how at first blush; also there are specialty courts too).  The 7CA might be the next up and it seems doubtful that it would not recognize SSM as being protected.  Odds, I think, the 6CA won't be the first either.  I think if there was a circuit split, it would arise via action in the 5th or 11th -- the South. Guess, to be careful, there might be an en banc ruling in the 4CA.

I personally thought the dissent in the 10CA rather weak, it partially based on the holding action idea Baker v. Nelson is still good law. This dissent is a tad more well written but basically as lame.  The same old lines are brought up, including "traditional marriage," ignoring that institution involved various things that are patently rejected -- including as a matter of constitutional law -- today.** A variety of "new" things developed over the years.  The dissent even recognizes SSM meets the terms of "marriage" in a variety of ways (I appreciate the majority being the second appellate court to cite Turner v. Safley to show the complexities of marriage, including beyond the procreation angle).  
Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.
The judge doesn't appear to be aware of the idea of IVF or adoption here. The "union" that does this is not merely marriage, but sex or even fertilization via the test tube.  And, yet again, sadly, marriage is seen as small. Marriage has a variety of aspects and is not just there for those willing or able to have children.  As to society regulating the "family unit," yeah, including the "family units" involved in these cases. As to "no language" protecting same sex marriage, the whole "equal protection of law" stuff seems suggestive at least. The attempt to make the ban "rational" is perhaps the least wrong aspect of the whole affair, the fundamental right to marry and an appropriate heightened scrutiny of sexual orientation (or recognition of sex discrimination) just easing things along there.

The ruling itself was rather short -- don't be fooled by the page count, in part because the main text only begins at page twenty, and a sizable portion is spent on standing and such issues. Also, note the big fonts. Surely, the battle is not over, but it does seem as applied to SSM itself just a matter of time now.  Will legalization of marijuana eventually seem this obvious?


* The opinion here continues a semi-trend in noting Windsor did not provide clarity on scrutiny, but it did in a limited way:
In determining whether a law is motivated by an improper animus or purpose, discriminations of an unusual character especially require careful consideration. [punctuation cleaned up]
The general trend is not to rest on that when striking down SSM though I think (as that article suggests) the facts would justify it. Anyway, Lawrence v. Texas didn't rest on special animus alone and nor should this. Plus, whatever that ruling held, the right to marry is clearly fundamental and warrants strict scrutiny. So, as applied here, the matter is somewhat moot.

**  ETA: In Bowers, we had the same idea that "traditional" rights to privacy did not include the same sex couples involved.  Lawrence v. Texas was not specifically about marriage, but its principles apply if we are consistent. Its opposition to narrow respect of rights applies here too.

This is part of the "it's new" argument's problems -- line-drawing.  Same sex marriage is basically the completion of a series of recognitions of same sex intimate association rights over the years. Bit by bit, the parts were recognized (right to associate, to have sex, to cohabit, have government jobs while doing so, right to form families recognized by the state etc. etc.). Toss in religious and other beliefs on the subject, just how "new" is the whole thing, exactly? And, once the foundations of not recognizing marriage falls, how much does it matter? 

The Fosters

I feel this show jumped the rails after the first ten episodes, but when it was flagged the latest episode had an abortion sub-plot, checked it out. It was covered well but the episode as a whole was excellent -- like the good episodes of yore. The various characters had time to shine and it had just a bit of comic relief. And, I'm even starting to like Mariana's hair!

Sunday, July 27, 2014

"Language Clarity Above All"

The concern over the word "accident" here brings to mind my own concern about misuse of language such as use of "murder" to apply to drone attacks (why not just call abortion "murder" then, if we are going to moralize legal terms?). A potshot at my concern for small family owned restaurants also lead to a "you mean Hobby Lobby?" No, I did not, and in context the comment was a cheap shot that suggests failure to care to try to understand.

Mary Jane Policies

Some interesting thoughts on marijuana here. I got in a bit of trouble voicing my sentiment against a total ban on smoking in restaurants. Find that a bit extreme. Agree with a comment about how quickly it developed. NYT article referenced here too.

“Supremacies and the Southern Manifesto”

Interesting extended discussion of this important document.

Vegan Friendly Legal Blog

Dorf on Law has multiple vegan members though I disagree with some of their sentiments (e.g., certain opposition to attempts to relieve animal cruelty since in their view it [net] encourages the wrong). One thing discussed in the thread are "meat analogues." For reasons cited, I am okay with them, though one thing that should be noted is many aren't even vegan. Me personally, I want to go the whole way, if I'm going to take the effort. Boca is a brand with some good vegan products. Gardenburger has them, but don't like it that much.

Saturday, July 26, 2014

Carrying Arms Upheld Outside Home

I think, like the opinion cited here, a sound application of current 2A doctrine would protect some sort of right to keep and bear arms outside of the home. It's due time that the USSC clarifies a bit more on how. There appears to be some conflict on the circuits as well. Also, I'd hope at least one liberal of the four accepts Heller to some degree by now. More.

What a tool

Cuomo is obviously going to win but this sort of thing (against a colorfully named challenger who has done good work on campaign finance and other issues) only advances discontent from the base. You got my primary vote, sister.

The Silkworm

Never got into Harry Potter, but liked/liking "her" two mysteries overall. The first ended with too much exegesis -- "Robert Galbraith" needed editing there. The old-timey quotes at the start of each chapter this time is getting a bit much. Do like the book itself, including the female assistant "Robin." British, but is that a Batman reference?

"Catching Meals Across America: Anthony's Recker-mendations"

I realize as a player, he's replacement level, but like this guy. Many fans on Twitter too, particularly women. Sorry girls, he's married. No NYC citation though.

Friday, July 25, 2014

Bel Kaufman

I read Up the Down Staircase a while back. Liked it. Author had an interesting life.

Frozen Is Not Her Only Animated Work ...

Kristen Bell as Mary Poppins. The dignity of workers to me is the most basic concern here.  New York is slowly raising the minimum wage but only up to $9.

Wednesday, July 23, 2014

"After stays vacated, Arizona needs two hours to complete another ugly execution"

Oh well. After a short lived state court stay.

Update: State assures us he was just snoring & not in pain, but when Sen. McCain brings up "torture," you might have a problem. Appearances matter, adding to concern with secrecy. Meanwhile, yes, the victims' family were not sympathetic. We don't just follow their wishes when applying the law or we wouldn't execute when they are against it.

Belle: The Slave Daughter and the Lord Chief Justice

The film version of the mixed race girl raised by the great Lord Mansfield is largely fictional. This is a good account that notes the little we know about the real Belle, mostly informed by Mansfield's story and background around her. A useful enterprise well told for the general reader. From what I can tell, sound history. Intriguing Jane Austen cameo.

Tuesday, July 22, 2014

More ACA fun

It's July, yeah, both you know ... lower courts. Think Sisyphus at this point.

Rev. Joe -- Religious Instruction

"John Oliver covers the realities of incarceration nation"

They have long form commentary like this on non-satirical shows these days, right?

Monday, July 21, 2014

"Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns"

Yeah, I don't really buy it either, though think secrecy has due process problems. (More here on challenge overall -- valuable stuff but still don't think the 1A claims work) As to Judge Kozinksi's dissent, the problem is people don't want to "stomach" the firing squad. I'd add it is probably a bit too direct for some people. If we execute, it very well might be better than lethal injection for the condemned. But, various things go into acceptance of a punishment.

Update: The USSC didn't buy it either though multiple justices voiced concerned earlier on other grounds. Meanwhile, a footnote among the summer orders.

The World According to Bob

I'm a cat person, but the added charm to the two (main) "Bob" books is the author's story, including being an addict, homeless and trying to live busking/selling Big Issue papers.

"Crisis Pregnancy Center Ads Are Back — And More Deceptive Than Ever"

One troubling notice is how attempts to provide disclosure have been repeatedly struck down in the courts. I'll accept possible 1A claims and the like if slanted required scripts with at best misleading information included in various cases were dealt like pre-Casey. These groups act like medical providers and warrant more regulations than those that don't.