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

Friday, December 02, 2016

Wave Hill

Used my IDNYC card to get a free annual membership to this mini-Botanical Gardens locale of sorts in Riverdale (no, not where Archie lives), which I believe most NYC residents don't know exists. Like a recent trip to Botanical Gardens, this isn't the best time to see it with less in bloom, but still is very nice with a great view. Interesting garden tour.

Wednesday, November 30, 2016


Michael Dorf talks about the "corruption premium" that Trump is at risk of taking advantage of and touches upon the constitutional provision against emoluments. More here. As suggested in the latter link, Congress might provide some safeguards there, including giving judicial standing to challenge. I also would offer disclosure rules and the possibility of relief being connected merely to business in question (such as a perk obtained). Note there is not a total ban; "without the Consent of the Congress." Impeachment is not the only remedy.

Tuesday, November 29, 2016

Geography Club

Found this in the library; it's based on a popular teen novel regarding a club that turns out to be an underground support group for gay and lesbian teens at a high school. Focuses on guy who falls for a football player. Good performances and look at average high school students. Meanwhile, added Death on Hold to the side panel about a death row inmate who finds redemption with help of a conservative white couple. Good inside look.

Monday, November 28, 2016


Figure I'd get a fraction of a cent, but really just trying the ads feature.

Sunday, November 27, 2016

Football Update

Week started on Thanksgiving with Dallas again winning and Lions winning late. Giants offense struggled but scored enough with the defense's help not to be the first team to lose to the Browns. Another close game vs. Pats, Jets following trends by losing a close one in regulation. Oakland wins to stay ahead in the West. Tampa with upset over Seattle.

Update: Enjoyable SNF game with AFC Wild Card implications. KC needed much to go their way to the last second of OT. And, it did. Packers won over Eagles, 27-13.

Creche Time

The photo is of a new "hipster" creche that can be obtained for the low price of over $100. This is germane. For years, one thing I did this time of year is to read (and now listen to) various holiday display related cases, again starting on Thanksgiving.  It is realized that holiday displays are not the biggest problem out there.  But, they do provide a useful case study and raise some important concerns.  Thus, another go around.

It is somewhat interesting that someone who was more conservative regarding many (but not all -- e.g., he went along silently regarding banning a Ten Commandments display in a classroom and briefly noted agreement in a creationist science ruling)  religion cases had an insight that someone more separatist like myself shared on some level:
The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion.
Justice White was the sole dissenter (interesting given Justice Stevens' sentiments overall, including going further than other Court liberals to not deem certain accommodations required on free exercise grounds) in a case turning on "the question whether a state university, which makes its facilities generally available for the activities of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion." And, though I'm not sure about that case, think the principle at the minimum could apply when dealing with elementary schools and the like in various cases. White was no longer on the Court when one of the questions he proposed came the opposite way he appears to deem required.  OTOH, as he sometimes did, perhaps he would have accepted precedent on the point.

The Supreme Court, however, did not agree -- various cases involving such questions treated "religious speech" as basically the same as other sorts of speech.  As Justice White notes, however, state authorized prayers and other matters show that there very well can be separate issues arising out of the Establishment Clause here.  Or, Free Exercise, for that matter.  And, such arises with holiday displays, even an early one eventually disposed of 4-4 [the basic question came once more, though only Justice Stevens fully accepted the stance of the district court judge here] involving a freestanding creche on a public forum along with other types of displays.  Let's look at that earlier case.

As is often the case, the district court has a certain charm by spelling out the factual details, which go back decades before the ultimate mid-1980s Supreme Court conclusion. In fact, it was something of a non-conclusion because there was a debate over the reach of the appellate opinion that was not settled by an evenly divided Court simply affirming the lower court. Something, with laughter, Justice White noted would not occur (that is, the Supreme Court simply saying "we affirm" without saying why).  A 2014 op-ed, ah the wonders of the Internet, provides an update of sorts.  The creche continues to be on public land, with a disclaimer saying it is not an official governmental display. Rather, a prime area of public land, here the "center of Scarsdale's business district," having some specialty of place. If not quite outside a courthouse or similar place specifically governmental.

In the 1970s, the inclusion of a freestanding creche an area of public land in the suburban village of Scarsdale, NY no longer seemed non-controversial.  The board of trustees, by divided vote, eventually decided not to allow it. The bottom line concern was the division it had caused, but the district court probably was right to note that it was a religious division. 1950s cases blocked the government from favoring certain religious groups in such a situation.  A more recent case (see above) generally disallowed singling out religious worship itself in respect to a state university. But, none of those cases dealt with a general rule blocking all religious displays that were freestanding, that is, without someone there who clearly was connected to them. Was a rule regarding freestanding displays and/or religious displays of that type different?  Was there still an illegitimate content based rule in place here, even if general time/place/manner rules are acceptable? Was there a compelling state interest involved?

The compelling interest necessary seemed to be to avoid establishment concerns.  The village in front of the Supreme Court spent much of the time suggesting controversial speech generally could be kept out of the village square here (only Stevens seemed game) but the focus of the lower courts was the Establishment Clause. The later case, in the 1990s, referenced above did ultimately clearly hold that a content based limit was illegitimate on free speech grounds while five votes basically (in various opinions) could be patched together to require some sort of disclaimer to deal with the establishment problems. And, as the court of appeals assumed here, it also held a neutral general policy of no freestanding displays was okay. Just not necessary.
Because when a symbol is implanted on public land that land uniquely becomes the message bearer, and because, concomitantly, there are no persons present to whom the receiver of the religious message can attribute the speech, the possibility that those receiving the message will assume it is supported by the state is particularly present.
The district court recognized a creche was a religious symbol, but held the village set up a public forum open to all types of speech here, so there was a secular purpose involved. Singling out religious displays itself would have First Amendment problems.  Citing the "Lemon test," it also held there wasn't enough "entanglement" to be problematic.  It was easier here than in other cases because the government itself didn't put out the display. The dissent in Lynch v. Donnelly, the display case that was decided by the Supreme Court as this case developed, can be cited for the other side.  OTOH, the district court ultimate decision was in part motivated to avoid "entanglement" of the courts involving secular purpose (e.g., what was necessary to make it not too sectarian or exactly the sort of signage necessary to avoid assumption of governmental endorsement).

The district court did hold the creche "advanced religion" because freestanding symbols could via the reasonable observer (to cite a test that arose later) be understood to be endorsed by the government.  Merely saying the symbol was privately owned and taken care of didn't remove that.  The "public" nature of the land to the judge seemed to be the major reason why the parties wanted the creche there. Finally, it would be different if the person or group was there with the display. As Justice White noted in the other case, in my opinion this was a valid enough Establishment Clause concern to at least give local government the discretion to ban religious displays.

I say this though it seems that Justice White was with the four who upheld the appeals court that overturned the district court judge, in part since by then Lynch [unless one of the dissenters there switched -- seems dubious though guess maybe Blackmun did] was decided.  The difference between the two cases was that in that one the locality actually supported the display, but if that's okay, the Scarsdale case would seem to be an easier one.  This left the village to basically rely on the speech angle, though a sort of "government speech" argument as such wasn't the point.  It was that the locality was trying to avoid controversy.  The point was never really settled at that time. The understanding that court of appeals ruling required them to continue the creche (any attempt not to do so was content based, so the argument went, given they only stopped because a religious display was involved) was one of the two questions taken.  But, a 4-4 result ended that.

The Supreme Court did earlier decide (5-4) that a creche was not inappropriate even when the government itself sponsored it.  A case a few years later clarified things to make sure that one specific religion was not unduly involved.  Then, it clearly held that the government could not single out religious displays in open forum, but as to the Ten Commandments, could not specifically have the purpose to favor religion in sponsoring them.  This all involved closely divided opinions, so there is some lack of clarity on what exactly would be done today though a permanent cross on a City Hall (to cite something Justice Kennedy used) probably is too much. On the other hand, even there, a cross display to honor veterans seems okay.

It seems appropriate to me to allow government to have holiday displays, even if some sort of religious aspect is present. It's hard to completely remove that sort of thing, especially when for some even a "Christmas" tree would taint the whole thing.  Nonetheless, it seems good policy to avoid strongly religious displays, especially when one specific religion dominates.  A large creche, menorah and so forth is problematic. A truly diverse display with various religious symbols in the mix seems different than many of these cases where rather large displays were involved that often with only one or two religions (maybe a creche, menorah and some "secular" stuff that might still in effect favor Christmas but in a less religious fashion) dominating.  There a myriad of religious holidays in the year; it's telling that so many of these cases deal with one season of the year.

I again would give local governments discretion here without it being deemed illegitimate content based discrimination. I'm sympathetic with Justice Stevens' argument: "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property."  This is so even if it is not completely required.

The creche in Scarsdale was particularly a concern because of the large Jewish population of the area.  There were various places to put a creche, even if  "some of the properties were not centrally located, some had topographical problems, and some already had creches." The First Amendment is aptly honored by being particularly careful to avoid unnecessary commingling of church and state, especially if would lead to political disputes. True enough, either way, we would have issues. So, there are no easy answers here.  Discretion when necessary seems appropriate, providing different fits for different situations.

The various opinions helpfully address various sides of the question. 

The Black Cat (1941)

There are various films with the title of the Svengoolie movie last night, but this one is not like the others though something like The Shadow of the Black Cat (scary house, heirs etc.). I was curious what happened but darn this version was annoying, the comic relief annoying and the good guy a boob himself spending much of the time looks moronic. More than one top name, including Bela Lugosi, were basically wasted. Much boring exposition mid-way.

Thursday, November 24, 2016

Happy Thankgiving

The picture is from Pieces of April, concerning a white girl out of sorts with her family (mom sick with cancer) whose oven breaks while trying to cook a Thanksgiving dinner for them. Her Asian and black neighbors help her out. This isn't a great year but happy holidays.

Monday, November 21, 2016

Majority Rule Matters as a Minority Wins Nationally

I don't agree with the whole of Sandy Levinson's analysis (see, e.g., Balkinization Blog and his books) and definitely am wary about some sort of constitutional convention of which he supports, but at some point his overall concern about anti-democratic aspects of the Constitution getting out of control is hard to ignore. You deal with problems, especially when you don't think change can occur, but as the Declaration of Independence notes, at some point it gets a bit much.
"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."
Simply majority rule is not appropriate here. Think small scale. Five friends. They decide where to go to dinner. Given their druthers, three would go to a non-kosher establishment, but one is an observant Jew. They respect this is more important than their preference otherwise, though being friends with such a person influences their preferences in the first place.

Or, maybe one strongly doesn't like a place, perhaps because their ex works there & it was a real bad relationship. They want to go as a unit but the person says "I'm going to 'filibuster' here because I really feel strongly. If four of you still want to go, I'll go along, but you better really want to go." If the other four insist merely because they have the power to do so, things will get uncomfortable. OTOH, if the one uses their filibuster card too much, in an unfair way, it is a problem.

Not in for everything he says, I think it is time -- like Sandy Levinson notes -- to strongly support making clear that when a minority skewers the system too much, especially when the result is President Trump & some of the stuff the Republicans are doing these days (principle is made clearer when consequence can be shown), we need to fix it somehow. At the very least, when a minority is going to have a special leg up, if they go too far, it has to be rejected. The SYSTEM is a problem, not just one or more of its component parts. We saw during the election just criticizing a personality wasn't enough.

So, even though in our system mere majority rule is not the rule, the fact a majority supports the Democrats matters. Surely, if the tides was turned, Republicans would say that. They toss out "popularity" when it suits them, just like when it suits courts etc. that are "undemocratic" (for instance, to protect certain rights that a majority might ignore) are deemed problematic. And, respect of the minority matters in various cases, but that too can be abused.  We need to look big picture as we face our problems.

A final look at numbers.  The popular vote went the Democrats way for the President and the Senate, but not the House of Representatives. It's somewhat hard to tell here since the system in place sets up certain candidates (a safe seat, e.g., will lead to no or token opposition in various cases) etc. that affects the final vote. Gerrymandering does not just lead to certain results of who wins (studies show limited results here in certain states, but if the system is already stacked, every little bit hurts) but affects voting as a whole. And, Republicans are going to have an edge in state races too, since there are more thinly populated red leaning states.  But, yes, Democrats need to correct a very serious unbalanced trend of state control.

Plus, big picture, I think there are two parties: a moderate party (mostly Democrat but has a few Republicans, who can win state-wide offices in blue states) and a conservative one (mostly Republican). This helps Republicans in state races and skewered things nationally, since there is promoted a sense of "both sides" when they are not evenly composed.  Anyway, horrible losses unfortunately are sometimes the only times people "snap out of it" (Moonstruck), but also are opportunities. Republicans looked in control in 1928 and Democrats in the mid-1850s.  Of course, the change -- like labor pains generally -- was unpleasant.