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

Friday, January 30, 2015

The Jet Sex: Airline Stewardesses and the Making of an American Icon

This is a good historical account the reaches from the 1930s to 1970s with a personal connection since the author's mom was a stewardess. We get a variety of issues such as airline history, gender and race dynamics, Cold War (chapter on Russian stewardesses) and feminism. Has lots of notes, but is a mostly crisp two hundred pages with photos.

Thursday, January 29, 2015

Originalism and Same Sex Marriage

"Shag" near the bottom of this thread talks about another blog's discussion of same sex marriage and originalism, the latter an ongoing concern for both authors. Not being as interested in originalism as Shag, summaries like this and five page "nutshells" are more up my speed than some longer works on originalism. But, scholasticism can be interesting, especially when the monks run things.  I use the "s" word advisedly -- use of history, including original understanding or whatever (there are so many threads here) is an aspect of constitutional interpretation.  That's all. 

As Prof. Solum notes: "Different theorists want to draw the line at different places."  Indeed.  There is no real clarity there, even if (and I don't) we rely on originalism as our guide here. The author here is agnostic about the right path on various questions, which is probably a major reason why Shag (an eighty something ex-practicing lawyer who provides insights mixed with spleen and humor at various blogs) appreciates him. Those that rely on history here provide some interesting coverage of various topics such as over fifty pages on what one person thinks about the first section of the Fourteenth Amendment.  Of which someone else will have a different take. Agnosticism at best is a useful trait, especially when reading someone like Justice Thomas selectively looking at history to get where he wants to go. 

Solum also notes the role of social norms on how people and judges in particular will interpret and apply text and so forth. As to social norms, I earlier provided two links to 2003 (Lawrence v. Texas) and 2005 (same sex marriage deemed not yet clearly protected by the Constitution via reasoning I found at the time weak) by Prof. Balkin. Someone who claims to be some sort of originalist (Shag has his own take; I suspect satire), Balkin's view of "due process" itself doesn't only recognize application is "influenced by changes in social norms" but argues that they directly change over time the liberty protected. Rights here develop in part by social recognition such as the right to have sex outside of marriage. Much has changed here even since 2005.  Prof. Balkin therefore is due for an update. Maybe soon.

There is also a discussion on how changing facts can provide an "originalist" take that applies basic rules in a different way given new knowledge.  Changing "facts" also is important here -- the facts on the ground, in our scientific knowledge etc. all affect the rights of same sex couples and GLBTQ individuals. Scalia's question to Ted Olson about "when" same sex marriage became a right comes off as simplistic at best.

Also, there are various reasons offered to why originalism is the best (or least worst) interpretative scheme. They tend to go beyond the "four corners" of the text of the Constitution and provide hidden biases.  Take the idea that it will "constrain."  In the real world, the "constraint" function of originalism has been shown to be dubious. A few cases will be cited, but the same can be applied to those using some other technique. What if the "fixed" text and meaning is not constraining? What if it is not really fixed? What if original understanding requires "due process" etc. to develop over time? If this gives "too much power" to the judges, is it their job to resist it? The policy is set by the document -- it is not their job to resist it, right?

Finally, as to "require" vs. "can be affirmed," the reality is the latter. That is, Prof. Solum argues that we need to determine if the case for same sex marriage has to reasonably "required" by originalism or if it "can" be so affirmed.  Realistically, on a range of complicated questions, there are reasonable grounds here for various conclusions. This is especially the case with changing facts and restraints like precedent or whatever. Also, you have some who don't care much about originalism. So, the determining factor will be those in the middle who need it to be originalist friendly enough to work.  Factoring in the text, overall principles and changing facts, same sex marriage works here as some have pointed out.* The fact Ben Franklin or something would be surprised is not the determinant here.

"Don't know" remains a useful bit of humility.


* For instance, some have argued that framers of the 14A provided a basic "anti-caste" principle and this applies across the board, including to sex and sexual orientation.  We would then add things like changing facts as to our knowledge of sexual orientation and same sex families. Those who merely quote 19th Century understandings of such things in effect do it wrong. 


Sanity: in the latest move to destroy PPACA, it isn't just for blue states.

Wednesday, January 28, 2015

Dialogue 101

Basic reasoning and dialogue has to be instilled as a value young and often. Repeatedly, e.g., someone online thinks I say something wrong and they just say it's wrong. Why? Who knows. Another nifty rejoinder -- uh no, read it again. Read it the first time. We view things differently or at most I missed something. Help me out dude or dudette, okay? Finally, harping on religious belief or something. Focus on the specific thing being claimed.

Tuesday, January 27, 2015

SCOTUS Watch (Warren Hill Executed etc.)

Lawyer discipline information will be more open over at SCOTUS; update also on this curious discipline investigation. Warren Hill executed, Breyer/Sotomayor dissenting without opinion. His capital offense was a murder while in prison; claim rested on Georgia's strict rules for showing mental retardation. Recent case seemed applicable. Also, patent case update.

Two approaches to respect religion

First, from the oral argument in an abortion case:
If she would prefer that the fetus undergo demise before the extraction begins, some women may feel better about that. The testimony was also that other women absolutely don't want that. And you know, feel that they... you know, it's a very personal question that really goes to the heart of this case. It's a very personal decision how the woman who has made this very difficult moral/religious decision to end her pregnancy, often for very tragic reasons, how does she want the fetus to undergo demise? Different people will have different views about this. But here Congress has legislated that for the woman and done so previability, when the state interests really are insufficient to require the woman to undergo a procedure that is not marginally safer but significantly safer for her.
Next, a letter -- on official letterhead -- from Chief Justice Roy Moore (yes, the Ten Commandments guy) to the governor regarding same sex marriage. Citing century old or older materials, we are told how the state recognized marriage as a "divine institution" that honored biblical (per his version) demands for one man to marry one woman (biblical recognition of polygamy not noted).  Should we look into how they thought about interracial marriage or gender roles in marriage c. 1900?

The "tyranny" of federal courts interfering here must be dealt with, quoting a 1825 letter to Jefferson on the point. Jefferson's sentiments about the separation of church and state is left unreferenced. An oversight, surely.

Raiders of the Lost Ark

Watched and mostly enjoyed this last night (watched it straight thru) but don't take it as fully historically accurate. The ark was not taken by the Egyptians in the 10th Century B.C.!

Snow? In Northeast?

Monday, January 26, 2015

A truly inclusive meaning of religious liberty

Justice Kagan's dissent in the Town of Greece v. Galloway town meeting legislative prayer case received some criticism from those supporting its result for not going far enough.  I found it naive and misguided to expect the four dissenters there to attack legislative prayer across the board, even if Marsh v. Chambers as a first matter was wrongly decided.  

A somewhat better argument is that the dissent is concerned with nonconforming theists. I think this was a somewhat sensible approach -- it underlines the breadth of the problem of the majority -- but the most problematic thing there is that it disregards the atheist who was part of the lawsuit. This was also done by her own lawyer (or supposedly her lawyer) at oral argument when justices tried to flag the problem with a sort of "not blatantly sectarian test," one loyal to dicta (if dicta the swing justice here didn't join).  A secular group  suggested a different way:
“Recognizing that absent reconsideration of Marsh, this Court is going to allow prayer, it’s clear that if we want everyone to feel part of the political community, at a minimum, three things must happen: one, the local government must take explicit steps to ensure that citizens know the views expressed in the prayer are not a reflection of the government’s position; two, citizens must know there’s no requirement to participate in the prayer; and three, opportunities to open the business meeting must be offered to all, including to nonbelievers who are willing to deliver a solemn secular opening.”
And, there have been cases where "nonbelievers" (find the word misleading -- nonbelievers in God or some similar supernatural concept, apparently) who have submitted such openings. The assumption, stated by some justices in the past, that solemnizing proceedings required deistic invocations alone is mistaken. The core problem, according to the appellate court below, was that the practice here was too sectarian.  At the very least, and the majority opinion at least says the opening should be there, a more inclusive approach was possible. This includes non-deists.

The dissent provided a chance to truly respect the diversity of religious belief in this country. It sadly did not fully take advantage of this, especially sadly because in the process -- again -- one of the very plaintiffs was thrown under the bus.  The focus on Jews, Muslims or Hindus might be more appealing, but as one reference shows, underinclusive:
These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.” P. Tillich, The Shaking of the Foundations 57 (1948). If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different—and, I think, poorer—place to live.
This definition covers the average atheist in some fashion, I'd think, and it underlines why I find concern "religion" alone is a discriminatory governmental interest is somewhat tedious. The concern is more appropriate, and the dissent shows the critics have some reason to be wary, if the term "religion" is given a more limited meaning.  Some belief in the supernatural of "magic genies" to cite one scornful comment.  So, I wrote a letter to Justice Kagan expressing the basics of the above. FWIW.

A broad view of religion, or even a more average view, also provides insight in major controversies of the day.  The case of Harris v. McCrae continues to be of special relevance when the House of Representatives votes to make permanent the ban on funds for abortion -- even when a woman's health is at stake.  As it just did.  I continue to share the arguments of the dissents in that case that this is an unconstitutional policy.

But, the opinion below added another wrinkle -- religious liberty.  The court below provided an extended discussion on the religious beliefs of various mainstream (that is, major religions -- Jews, Catholics etc.) groups and the influence of some on the ban in question. It summarized the "divergence in views among religious leaders" and that "the major religions whose views were presented all regard abortion as presenting religiously framed questions of moral right, moral duty and conscience, that they are in disagreement on the appropriate rules of conduct but in agreement that abortion is a morally grave undertaking in any circumstances, and that their sharpest disagreement concerns the role of civil government."  Of particular interest, given later conservative strains having an important role:
The Baptist Church has a long history about the family and responsible parenthood, and of persons electing this for themselves; these matters involve a decision-making process and require the exercise of conscience. There is no history of teaching that marriage necessarily requires children, that procreation is essential or a divine obligation of all people. It is for the people themselves to decide on the number of their children, because that is a value judgment. Conscience means moral awareness, and liberty of conscience means the exercise of one's moral awareness. Abortion presents a matter for individual moral decision, in a matter of ultimate concern respecting bringing a life into the world.
The opinion even provided a statement of the the General Board of American Baptist Churches in the USA against Catholic bishops that it believed were trying via public policy "to coerce the conscience and personal freedom of our citizens through the power of public law in matters of human reproduction constitutes a serious threat to that moral and religious liberty so highly prized by Baptists and so long protected for all people under the nation's policy of the separation of church and state."  The opinion found the ban on funds for medically necessary abortions unconstitutional in part because it unduly burdened* those making private religious choices in this area.  A free exercise problem.

For instance, the opinion stated that various Jewish faiths put the woman above the fetus, which was not deemed a "person." And, the positions of Christians were diverse here, not limited to the Catholic position:
The United Methodist Church affirms the principle of responsible parenthood and takes account, in the abortion context, of the threat of the pregnancy to the physical, mental and emotional health of the pregnant woman and her family; in that belief continuance of the pregnancy is not a moral necessity if the pregnancy endangers the life or health of the woman or poses other serious problems concerning the life, health, or mental capability of the child to be.
The opinion also provided a broad definition of "religion," one that reflects the one cited above.  The law was challenged as favoring one religion over another in breach of the Establishment Clause. The opinion here argued that opposition to legal abortion was a traditional secular position, one not in breach of the clause.  The Supreme Court also noted that there was no religious purpose here.  Both are somewhat weak in truly examining the mind-set behind the law, especially since it burdens women's health.  The dissents did not address the religious arguments. Unfortunately.

The Supreme Court did not refute the free exercise argument, which was stronger before Oregon v. Smith.  It held that there was no proper litigant truly making it.  This is rather weak -- if pressed, it is hard to imagine there wasn't lots of women involved who was deeply influenced by religious beliefs in choosing an abortion in such and such a case. It is most definitely the case that religious or if you wish moral beliefs motivate many here. Since the claim is left open, did anyone try it later on? I know of no attempt, which is admittedly somewhat unlikely to win. Still, it very well might if the merits are taken seriously.  As seen in the Hobby Lobby case, many did not -- in effect, it is the wrong sort of religious belief.

Religious belief is a major factor in human society, so it is not surprising that many controversies involve it as a major factor.  The right to privacy or some similar analogue in effect has a free exercise component here -- for instance, Lawrence v. Texas rejected mere personal moral opposition as a legitimate state interest to ban same sex sodomy.  Some "public" purpose in necessary here, even if it might be phrased in some value-laden terms (we can call this "public morality")  such as harm to others.  "Moral" here is full of religious content in these debates. It seems useful to take this into consideration, especially since by some accounts favoring one side is apparently necessary to honor "values"  or "religion." 

True freedom, including religious freedom, true equality, requires more. It requires a broad freedom to make decisions in these areas pursuant both to personal needs and personal "religious" beliefs as well. If one wishes, though it is unnecessary, this can be said to include doing so without one. And, examining practices in First Amendment contexts without a truly inclusive approach in problematic. It risks not recognizing many people.


* The term "undue burden" was not merely an invention of the Court later in Planned Parenthood v. Casey.  In the Medicaid funding rulings, "undue burdens" were cited, apparently since this is ultimately a test of substantive due process. The test need not in that fashion be a reflection of some intermediate protection between "strict scrutiny" and rational basis.

Joy in the Morning

This is a sort of follow-up to the better known A Tree Grows in Brooklyn, both semi-autobiographical accounts. This one about a young couple (she's 18, he's 20) who get married [in 1927] and have a busy/stressful first year as he goes to law school. It is a charming "simple" story that has some pretty earthy (sex, menstruation etc.) asides that I wonder about even in 1963 might be controversial. Good for young adults and everyone else.

Saturday, January 24, 2015

Same-Sex Couples Able To Marry In Alabama Under Federal Court Ruling

Didn't even take ten pages this time. There are [three!] left without such a ruling and/or SSM (a handful of inequality was upheld by the 6CA in the cases the USSC will hear).

Friday, January 23, 2015

USSC Takes A Lethal Injection Challenge (with some confusion)

And More: See here for an account about problems a few years back, showing this issue has been going on for some time. It is about time for a follow-up to Baze though this is a bit of a cock-eyed way of doing it. Update: The state thinks a stay makes sense, for now, though depends on further developments. Seems better to let the USSC decide, which provides more clarity on what procedures are correct. Further Update: Stay granted as to "using midazolam" until final deposition of case.  

After some justices dissented without comment (or in one case by referencing a dissent below) in related cases, four justices joined an opinion dissenting from a refusal to stay an execution because of concerns with the lethal protocol used. Shortage of drugs led to new techniques that were called into question* and controversy over the lack of openness regarding the source of drugs and so forth (e.g., a reduction of witnesses to the execution itself).  The man, convicted of rape and baby murder, was soon after executed. Four justices are needed to hear a case for oral argument, but five are needed to grant a stay.  

The lack of a "courtesy fifth" has received some criticism in the past -- back to the 1980s -- and continues to be a concern today.  "Today" can be taken quite literally, since the Supreme Court just granted a case from a petitioner from the same group that included the man just executed.  Now, it shouldn't matter (it's a drug protocol argument), but one thing that is a flag for me is that the crime committed by this person appears somewhat less heinous, there even might be some sort of doubt involved.  Overall, he seems to be -- for a murderer mind you -- a much more sympathetic candidate.  A bit from that article:
Justin Sneed, a young contract handyman who worked and lived at the Best Budget Inn that Glossip managed in Oklahoma City, confessed to beating motel owner Barry Van Treese to death with a baseball bat on Jan. 7, 1997. Prosecutors said Glossip feared losing his job and recruited Sneed to kill his boss. Sneed would later testify that Glossip promised him $10,000 to commit the crime. Both men were convicted of first-degree murder. In exchange for his testimony, Sneed received a life sentence without parole; Glossip received a death sentence.

A judge told Glossip that if he admitted his involvement in Van Treese's death, he would be sentenced to life in prison and eligible for parole in 20 years. Glossip said he refused to perjure himself by admitting to something he didn't do.
This is a tad more palatable than a person who was convicted of rape and murder of a baby.  I'm sure someone will also note that he's white, the person executed (Charles Warner) was black.  There is also the fact that the state can cite an execution being done without a hitch though here appears to be some lack of clarity on that point.  Meanwhile, for now, the USSC has not formally granted a stay even here and why this one defendant of four (due to die next week) was singled out is unclear.  More here.

[Update: Glossip is the lead here, but there are "et. al." -- that is, this petition is in the name of three defendants. So, the above might be largely besides the point, though to me it is notable. This guy has a "story" so to speak a lot more relatable than the guy executed.  I have not looked into the other two.  Anyway, looking at the file number of the dissent to the refusal to stay his execution and to this grant of cert., it's the same.  So, "et. al." would seem to include him though it is largely shall we say moot now.  I guess, in theory, his survivors or something might have  a civil case or something if wrongdoing is found.]

There has been a busy time of it as to cases refused for cert. (not limited to SSM), per curiams, dissents from denials etc, often without opinion or much clarification. The Supreme Court didn't quite show their work that well in various cases.  This is troubling, especially when a person's life is at stake.  It is somewhat amazing that so few opinions are provided by the USSC in a country this size, but not explaining yourself does help.

As with last Friday's SSM rulings, late week activity from the Court can be of special interest. Last year, there even was an early Saturday morning dissent from Justice Ginsburg in an election case. For good or ill, interesting times for court watchers.


* SCOTUSBlog summarizes:
The Oklahoma case focuses on one of the three drugs that Oklahoma uses in execution procedures — the sedative, midazolam.  The first drug in an execution by lethal injection is supposed to make the inmate unconscious so that the two other drugs can then be injected without causing excruciating pain.  The three inmates contend that midazolam is not supposed to be used as an anesthetic, and is not reliable in achieving a coma-like unconsciousness. Lower courts, however, rejected the inmates’ challenges.
As noted, shortages, significantly influenced by foreign sources closed off because of opposition to the death penalty, aggravated (in a matter of speaking) the situation.  This opposition also led certain states to increase secrecy, raising First Amendment and due process concerns, the latter because if you don't provide enough information, how do you know the drugs and procedures are safe and will work properly?