The Paperboy

A lot of talent here regarding a late 1960s Southern melodrama, but the net result is pretty bad, particularly in that the story is pretty boring and clunky.  So bored, it took extras to catch the homosexual subtext though I guess would have saw if I was paying attention. Meanwhile, another promising topic, found Congressman Lincoln boring.

Easter Didn't Fix This: Fraud!!!

Someone Appears To Be Missing

Chris Hayes is moving to nights ["All in" is a stupid name], but had a "best of" today that included some of the leading Democratic mayoral candidates, though somehow the frontrunner had time conflict issues. Important election in November: post-Bloomberg time, unless he finds a reason to change his mind again and runs for a fourth time.

James Moore Wayne: Southern Unionist

It is interesting to read about people, particularly lesser known figures, from another time. Old books are charming on their own. This book from the 1940s (someone obtained it for me from a college library) is a workable biography of a workmanlike justice of the mid-19th Century. He staid on during the Civil War, but a son joined the Confederacy.

Now pitching, Jeremy Hefner

It's sad on both a personal and team level that Santana appears to have re-torn his shoulder and might be done.  The thir... omg ... that will be paid for him to be on the DL is rather depressing alone.  So, was it all worth it, even if he was in effect health for around half his time?  Guess, but I'm less sure as the author of that piece. Thanks for the memories.

More Specious Claims

Shocker: supporter of Prop 8 thinks it "highly improbable" that standing will be rejected and "likely" Kennedy will uphold the law.  I'm not totally free from doubt, though leaning toward a standing solution, but you know, not really surprising.  Ditto that he puts forth rank stereotyping of positions:

The view of some is that marriage is only about satisfying the emotional fulfillment of adults, and has little or nothing to do with encouraging a legal attachment between children and their natural parents. Others believe that sexual identity is inconsequential, rendering mothers and fathers entirely interchangeable.  Some communities disagree with both views.

Strangely, we are not reminded of Kennedy's question about the tens of thousands of children harmed by Prop 8 is same sex families, where "emotional fulfillment of adults" is not the "only" thing cited. 

And, we need not believe sexual identity is "inconsequential" (a strange thing to purport here anyhow, since it is part of why being allowed to marry your own sex is deemed so important) or mothers/fathers "entirely interchangeable."  In California, however, it is not the basis otherwise of disfavoring same sex families, particularly in ways that harm the children in question.  Benefits are not denied to single mothers regarding child care needs because it is better to have two parents in varous cases either.

But, bad argument is prevalent in the promotion of invidious discrimination.  See, for instance, another supporter suggesting somehow of the "grave damage to religious freedom which same-sex marriage portends."  What?  Notre Dame Law School should know a bit about this. Divorce laws, e.g, clash with Catholic doctrine, so does that too inflict grave damage to religious freedom? How does denying marriage to people whose religious beliefs support it do that?  SSM repeatedly are performed in religious ceremonies.  Catholics should respect religious diversity more given the history they suffered int hat respect, not less.  Morality on such questions should be decided by people themselves, individually. 

Can't promise anything, but that's probably enough on this subject for now. More with further developments or in June. 

Skim Milk Marriage?

Kaplan (Windsor's Atty) and Kagan: Sisters?

DOMA Orals

And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. 

One SCOTUSBlog included this tidbit among its discussion of the orals, adding that Ms Winsor's attorney"seemingly missed several opportunities, in answering some of the conservative Justices’ tough questioning, to the apparent consternation of gay rights lawyers in the attorney section." Don't know what that means exactly -- she was a bit rough, first timer and all, but seemed to me do a good enough job. 

The first hour went to standing, including Grandpa Scalia "back in my day" comment that refusing to defend while enforcing as the matter is appealed was just not done. Earlier, I linked to a discussion suggesting that it is sound policy.  I assume letting a single district judge decide DOMA is better?  Strange to me, but anyhow, doubtful five justices will refuse standing.  Took an hour to deal with the issue anyhow.

Next, we had the merits. Ah, Paul D. Clement, super-genius.  Yes, talented in promotion of such things as torture, constitution-lite hellholes, denying people health insurance and marriage rights .... oh, and an intermediate approach in Heller regarding gun rights, just to make him a tool to some fellow conservative/(kinda)libertarian sorts. I guess someone has to defend b.s. His at times hectoring and/or smartest guy in the room tone didn't help my dislike, nor his repeated totally specious arguments.

One that stood out was the total b.s. that DOMA was important to protect states from recognizing SSM.  People would get married in Hawaii (mind you, though this never was noted, SSM never actually got there) and go back to their home states and demand marriage rights. It is as if he is some random person who is not aware of the public policy exception where a state need not recognize a foreign marriage that violates local policy.  Why in the hell no justice pointed this out is unclear to me.  Guess Ginsburg was tired of pointing out the problems, including the "skim milk" [a fitting metaphor for a case ripe for FN4 review] version of marriage DOMA leaves in place.

Another dickish move was noting that Congress (why one house of Congress should have standing here is unclear to me; apparently, part of its, rather ONE house of Congress' powers is to ensure effective enforcement of its laws, which you know, had rather broad implications)  repeatedly asked the Clinton Administration if DOMA was constitutional. Mind you, this was before Lawrence v. Texas or even Romer v. Evans.  How could they have an animus?!  Why DOMA of all the other big changes in marriages over the years required special action is also unclear. Finally, when asked by Alito (as usual, had some good questions), the particular background of the tax law in question doesn't really suggest a reasonable reason to single out same sex couples. 

Kennedy thought the federalism argument at issue in a myriad of posts at Volokh Conspiracy made DOMA suspect, but the SG and Windsor's own lawyer wanted to focus on equal protection.  Probably don't have five votes and it is unfortunate the SG didn't do more to take the federalism argument Kennedy wanted to give him. It makes sense the Administration wanted to protect federal discretion here given where federalism arguments go in other contexts, but there was a middle way here. As Kagan, next to Ginsburg perhaps the best for the side of sanity here, noted, the weaker federal claim over marriage than states' have at least goes to the strength of the valid federal interest. Its heightened scrutiny campaign is appreciated, but probably won't have a Court.  Even Kagan and Breyer spoke of a "rational basis plus" and that probably will do it when necessary usually.

Alito raised an interesting question -- could the government instead of doing it this way (via a "defense" of marriage that "protects" a certain form of marriage), remove the word "marriage" and apply benefits and so forth some other fashion?  Hedging a bit, Kaplan did suggest that though federalism might make a federal "marriage" law dubious, this could be done, particularly to redress discrimination. This provides a way to give federal benefits to couples in states without SSM. A sort of "beyond marriage" approach that some want in the first place. She, somewhat surprisingly, also noted that federal benefits might be limited by residency. If one resides in a non-SSM state, you might lose out, even if you got married in a place with same sex marriage. 

Scalia was his usual dick self, Alito was suspicious of pressing a new form of marriage "newer than cell phones," but Roberts wasn't free from problems. Though not as much of a dick, Roberts can be a tool.  He repeatedly does not seem a big fan of the S.G. and it is curious to me why (except to play gotcha when the SG didn't want to rely on it) federalism concerns didn't seem to matter to him at all.  In the ACA case, some vague not proper problem was present even in an area where clear interstate commerce and tax matters was at stake.  I'm not as open as some to the argument, but someone like him should be.  Some think the ruling will be 6-3, written by him, based on federalism.  But, he isn't showing much there, while he did show some interest in the tax argument in ACA.

I predict DOMA will fall, federalism will play a big part and even if somewhat indirect and limited, same sex equality will advance.  Just how it will breakdown is a bit unclear, though five votes seems pretty apparent. At least here, just how Prop 8 falls is debatable, don't see Kennedy not being the fifth vote.  Interested to see how the others fall, including if a concurring opinion deals with the equal protection issue directly. 

Update: Rachel Maddow ended her first segment with a back/forth between Kaplan and Roberts on the political strength  of gays/lesbians, which brings to mind Scalia and his powerful gay movement brigade.  Implication is that they don't need special protection since they aren't politically powerless. (1) As she explains, that is a tad exaggerated. (2) Heightened scrutiny involves various factors, including immutability and the irrelevancy of the classification to legitimate interests (see Sotomayor entry) so that black or women getting power doesn't mean race and sex shouldn't receive that treatment. In effect, more b.s.

Prop 8 Supporter For Heightened Scrutiny?

All three of the female justices were pretty good, Sotomayer here basically getting the Prop 8 advocate to admit that sexual orientation is normally not a grounds for discrimination.  If so, "rational basis" seems a tad off -- something so rarely relevant warrants more than that.

Supreme Court Watch

One striking aspect to me is how opponents of SSM has reduced marriage as seen by this back/forth with Kagan/Cooper yesterday: 

Kagan: In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I -- Your Honor, that's the essential thrust of our -- our position

Meanwhile, Ted Olson noted Prop 8 removes:

the right of privacy, liberty, association, spirituality, and identity that -­ that marriage gives them

In return, again why is this so hard?, CJ Roberts wonders how this is clear, how do we not know that procreation is what makes marriage a fundamental right?  Because the ability to procreate is not and never was a grounds to not being able to marry (in a few states, age requirements for close relatives, like cousins, in fact go the other way) and marriage is fully honored and special even when procreation is not involved?

As a child, and this doesn't make me special or anything, my grandmother re-married after my grandfather died (before my time).  My grandmother was past menopause. Procreating wasn't why she married or was given a marriage license.  It is simply inane to focus so much on procreation. Even old cases like Meyer v. Nebraska citing raising a family, not just procreation, since even then that sort of thing took place too.

Oh well. Two opinions handed down before the DOMA cases were heard, one unanimous, another a class action matter split 5-4 with Justice Ginsburg and Breyer writing a joint dissent (curious) joined by Sotomayor and Kagan (not joined in a judicial union).  The dissent in part argued that the majority reached out to decide a question.  I'm inclined to believe Ginsburg over Scalia, though have not tried to delve into the merits, but this underlines that a degree of choice is involved in these things.

Before listening or reading about the DOMA arguments, quick looks at Twitter and such suggested Scalia and Roberts were annoyed at how the Obama Administration handled this case. The path taken is not new and we see here that refusing to defend was done by both political persuasions, at least one case involving one John Roberts. Sure there was something different there or something. Noises are that Kennedy is sympathetic to the federalism argument here, good chance DOMA falls.

I'll take it.

Viola Liuzzo

MHP tweeted concerning the anniversary of the murder of this "Unitarian Universalist committed to work for education and economic justice, gave her life for the cause of civil rights." Have I noted recently I think UUs are pretty kewl? Seriously, RIP. HB Jackie.

Prop 8

SCOTUSBlog provides analysis and linkage to today's oral arguments, the audio released at around 1 P.M. The general sentiment is that Justice Kennedy doesn't want to decide the case, but would support some sort of dismissal on standing or other grounds.  I'm okay with that.  Not a big fan (at least on the record, neither did the couples, who won below) of taking the case, since it was narrow and seemed prudential to let it lie.

To my ear, there wasn't that much heat in the orals, though various arguments were handled (it was a running joke that each party didn't really want to talk about jurisdiction/standing, but the justices did). The liberals as much as Justice Kennedy seemed to wary about giving the Prop 8 side standing when state officials did not offer it though there (fwiw) they didn't all seem closed to the idea standing might be warranted.

The libs did sound supportive of giving protection based on sexual orientation.  Conservatives didn't really press the issue too much.  Let's see how things go on that front tomorrow regarding DOMA.  Scalia did raise the trope of  "when" same sex marriage was protected but Olson (rightly) noted these things develop over time. Brown didn't say segregation in public schools were unconstitutional such and such a day.  And, the idea Loving was merely one hundred years too late is lame.

The Obama Administration's position is that heightened scrutiny is warranted here and that once full civil union / domestic partnership rights are applied, it is unconstitutional not to go all the way.  Justices, on both sides, wondered why it made sense since this would pressure states that go almost all the way more than those that did deny all rights to such couples.*  This was granted, but focus should be placed on the strength of the state's claimed interests [Kagan had them admit "responsible procreation" was their basic argument], and at least here, they did not hold up when civil unions were protected.  The federal SG also noted something that I have repeatedly when appeals were made to reversing state judicial rulings on SSM on a sort of "go it slow" argument: 

California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It's in the Constitution. It's supposed to take this issue out from the [normal] legislative process.

 There are different people at Balkinization, Concurring Opinions and Volokh Conspiracy, some of whom I generally take as "reasonable conservatives," who basically scorn the 9CA ruling.  I disagree.  Alito et. al. believe SSM is novel and it is too soon to decide the question across the board.  But, that ruling did not and Prop 8 need not be decided, should not probably, be decided on such broad grounds. Roe v. Wade dealt with a law that banned abortion in almost all cases and Doe v. Bolton a somewhat less restricted one.  This covers a narrow question. 

But, if they want to decide it by punting, fine.  On another blog, someone noted there are cases in the pipeline that will require facing up the question.  The cases cover various grounds and the immediate ones to my knowledge actually does not need to address the full question, like if SSM should be protected where even civil unions are not. Take a question about adoption that Scalia posed.  Just one state doesn't allow gays to adopt [edit: actually, gays can adopt; Mississippi has on its book a law against two parent adoptions for same sex couples] though different ones apply things differently.  Striking down a law that denies a gay to adopt or a same sex couple is just one of a myriad of lesser questions that can be addressed.  Let them.

Some rather the matter just be decided. That might be best on some level, but it doesn't seem to be likely to happen.  So be it.

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* It was a tad ironic, or something, that the SG's attempt to cabin the relief here by drawing this line, instead of taking an "all or nothing" approach was rejected by conservative justices.  We can't go so fast so soon, but you aren't asking us to go fast enough! In some other case, this sort of thing would not be done.  The Roberts Court, when they wish, has been known to rather artificially limit the reach of rulings. NOW, this is a problem?

And, the line in California makes sense -- the Prop 8 proponents want to limit rights for a specific reason.  They have to show a strong enough purpose to do this. Ted Olson noted this as well. If it is lacking, the fact that the result is in some fashion ironic ("almost" enough is not enough) does not erase the problem. Equal protection can sometimes lead to less, such as an exemption being removed to avoid giving it out to someone.

This really isn't that hard.

Dog Sniffs: Home

Justice Scalia's property based (curtilage) ruling for five (the ladies agreed but noted privacy would have done the trick) is as fine as it was short. Still, note how "social understandings" were involved with a modern day flavor which are not quite as "easy" as he might wish. Justice "Centrist" Breyer joined Kennedy, Alito (opinion) and Roberts in dissent.

RIP Anthony Lewis

Happened upon his death via Twitter. How 21st Century. His widow wrote the first (state) supreme court opinion protecting the right of people of the same sex to marry.

Something Like Normal

This first novel concerns a nineteen year old (written by a woman, but the narrator is a guy) on leave dealing with family issues, a new girlfriend and PTSD. Overall, a good novel about a real sounding character (seems to be based on someone). The girls are a bit too stereotypical but the characters as a whole are well written as is the book itself. Recommended.

Rev. Joe: Religious animus?

As noted here, religious belief can entail "animus" against gays, even if it is just about the actions. If you hate the sin, you will hate core actions of the sinner. Or, at least, have "animus" against them. This cannot be a reason for laws unless the "morality" at issue reflects republican principles. Doesn't necessarily make you a bad person though.

"Yankee White"

NCIS marathons are on weekends and by chance caught the first episode. We see how Kate came on and this was pre-McGee and Jimmy but we did see FBI Agent Fornell. Abby seemed a bit calm -- no energy drink (someone on IMDB tells me she did have them in the JAG preview of the series). GIBBS was excited about a movie while DiNozzo was not. Some other previews of regular stuff came out. Plot was a bit weak, but Air Force One setting was well done.

House at the End of the Street

Like the female leads (Elizabeth Shue and Jennifer Lawrence) but this thriller isn't very good. Actually, putting aside Silver Linings Playbook (itself a bit too Hollywood), her movies have been a bit off. Hunger Games bored me as did Winter's Bone (her best character role), where she seemed to play a Katniss type. The t.v. show was okay. Guess who will hook up again?

LA Ruling on Felons with Guns

It deals with an explicitly strict state constitutional provision, but I'm game. Heller's "felon," full stop, rule is problematic. First, what about violent misdemeanors such as domestic violence? Second, lots of non-violent felons would lose gun rights for a span of time long after they finished their sentence. Not sane for voting, not sane (if maybe a bit more) here.

Why We Love Dogs Eat Pigs and Wear Cows: An Introduction to Carnism

Carnism is the invisible belief system, or ideology, that conditions people to eat certain animals. Carnism is essentially the opposite of veganism; “carn” means “flesh” or “of the flesh” and “ism” denotes a belief system. Most people view eating animals as a given, rather than a choice; in meat-eating cultures around the world people typically don’t think about why they find the flesh of some animals disgusting and the flesh of other animals appetizing, or why they eat any animals at all. But when eating animals is not a necessity for survival, as is the case in much of the world today, it is a choice - and choices always stem from beliefs.

I talked about this author a couple weeks ago, after listening to her basic presentation.  Her opening is imaging yourself at a dinner party and eating a delicious stew.  You ask for the recipe and it turns out it is dog meat.  This horrifies you, but then the host laughs and says she was just kidding.  It's "only" beef.  Well, that's fine.  Let's eat!

Not really.  The small volume [about 150 pages plus resource section and notes] itself grew out of her doctorate work and is one half typical facts on how animals deserve our respect, the harm of the current system, a resource section and so on -- the now typical thing for someone familiar with the literature -- half her own specific focus.  As one bio notes:

Melanie Joy, Ph.D. is a social psychologist and professor of psychology and sociology at the University of Massachusetts, Boston. She researches carnism, the ideology of meat production and consumption.

The general idea is that humans form certain ideas (schema) to frame reality and in various ways this has led to a fictional view of animals. This is helped by re-enforcing an optional (and suboptimal) way of doing things, including by making it seem necessary, natural and normal.  Once upon a time, someone like Descartes could imagine dogs were mere machines. Now, things are a bit better, but we do have the somewhat strange reality of concern for let's say whales, while millions of animals are mass produced (telling choice of word -- they are things, in "factory" farms)  in horrible conditions that are hidden away for a reason. 

She ends with a sense of optimism, one less prevalent by some at the blog where a few years later I first saw a reference to the book.  Like myself, the blog is vegan (seems the three main contributors, two married to each other, are vegan -- they surely all are vegetarians), while generally talking about other matters.  I referenced the work of Temple Grandin, an autistic animal expert, who used her special view of the world to reduce stress in animals being led to slaughter.  She has written her belief that animals deserve our respect and has been honored by PETA. But, at least then, her efforts did not impress the bloggers.  Easing the welfare of animals may make us feel better, but the evil of animal production continues.

As I noted there, found that a rather extremist and unrealistic view, change coming over time.  Dr. Joy (some name!) seems to be more open to reform as part of our "witnessing," which has an individual and social character. A "witness" is someone who sees something and also someone who tells others about it -- like in court. "Witnessing" has a religious connotation (e.g., Jehovah Witness), a matter of spreading the word, including by example.  It is hard, as she says, when the system fortifies the alternative, it hurts to face injustice, we feel powerless to change and it compels us to see need for change ... often hard to do. 

The importance of seeing things are they truly are is not only to me a more interesting and fulfilling means of doing things, but is necessary to truly reform and change things.  As noted in the book, imperfect schema and so forth (including disassociating oneself from bad things as we go about our daily tasks)  is on some level truly normal, necessary and natural.  Still, at some point, we go off the rails. 

Recently, e.g., I was reading about Prigg v. Pennsylvania, an important antebellum case involving fugitive slaves. A telling point here is that "Prigg" was the slave catcher.  The putative slave [Margaret Morgan] and her children (one born while she was in free territory) is already somewhat off-screen.  The opinion itself by Justice Story, a nationalist Northerner, spoke about "property" in slaves being at stake. The actual clause in question (as Lincoln might note) references "persons." The "personal liberty" law deemed unconstitutional given the supremacy of national law and the rights of slave-owners looks a lot less problematic if the concerns of free Northern blacks were taken into consideration:

If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretense, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, to any other place or places whatsoever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony.

The law was not intended to block lawful retrieval of fugitive slaves, but to prevent the wrongful seizure of free individuals. The "problem" was that there was a federal law in place that provided a simpler means to retrieve slaves and also it was felt that the fugitive slave provision itself provided a means to so oneself.  In effect, it provided a "self-executing" right to retrieve slaves, which is a possible, but not necessary reading.  The comparison that comes to mind are treaty obligations. They might set forth obligations, but they need not be self-executing.  This is more so the case when other concerns, including those involving the "home" states or nations in question.  The Bill of Rights adds further complications.

The various justices split on the specifics here though even Justice Taney accepted (explicitly in Kentucky v. Dennison, overruled by Puerto Rico v. Branstad) that forcing states to act was not something the federal government could do, even if the states had a duty to act.  This still left opened the idea that states might unconstitutionally get involved in the process, such as nationalist slave state Justice Wayne arguing the clause should be interpreted to make the matter exclusively a federal matter. Justice McLean was alone in suggesting (scholars have noted it is somewhat unclear just what the bottom line of all the opinions were) the law might be acceptable if it did not block the owner from separately going to federal officials to get certificate of ownership.

The law reflected a reality that limited federal resources left the matter largely up to states and local officials.  Such officials might not want to get involved or (as time showed) actively were against the efforts of retrieving fugitives.  This is understandable, but early efforts showed that the North was fairly supportive of the efforts, including courts building a fiction that the late in the day add-on fugitive slave provision was a "historical necessity" to passing the Constitution and though "persons" were involved here, slip-shod proceedings that would not even allow the putative slave to testify passed constitutional muster. 

Bottom line, some degree of good faith was there and it was reasonable to have laws to protect the wrongful kidnapping of non-slaves.  It helped, however, if Margaret Morgan (the Wikipedia entry tells us she was in a weak form of slavery even before running away, the problem arising when heirs wanted her back ... she eventually was sold and lost from history, according to the Oxford Guide to the Supreme Court entry by Paul Finkelman), especially the child born on free soil, is kept out of the picture.  If we just worry about "property," even though the Constitution speaks of slaves as "persons," and ignore the possible wrongful seizures that would horrify if white people were involved, things go down better.

The book made a few too many references to Nazi Germany -- Godwin's Law comes to mind, even if it is not violated when the references are legitimate -- but the mentality behind such evils does come up in carnism too.  The matter is skewered even by those who are horrified by slavery and speak from current times. The book itself confuses the 3/5 Compromise to mean that slaves were considered 3/5 persons, not just in the context of allotting representatives.  Imagine a white father in 1839.  By "self-help," some "agent" of a "property" owner comes and seizes his wife (a light skinned black that could pass as white) and children, including one born in Ohio.  He might wonder how a state anti-kidnapping law that merely required some basic safeguards was unconstitutional.

Being told this was impossible, that it was "indispensable" in fact to the security of the union and slavery would not help much.  He might suggest that it really was not. Putting aside that quite few slaves actually fled, maybe hundreds a year, into the North. Assuming the slavery was acceptable, or at least the law of the land accepted its presence.  He would wonder why it was not possible to provide a means to retrieve "property" but still prevent the wrongful seizure of "persons."  He might also wonder why the laws of the other state as to the "slavery follows the mother" rule would even apply when the child in question was born on free territory.

Of course, he had a somewhat different perception of things. Likewise, the set-up leads to a certain new normal, including making certain things a problem.  If we went down this path, we might wonder about the treatment of slave "persons" overall.  An open examination, an open "witnessing" of things after all did lead to many, even some in slave areas, to turn against the practice.  It was basically dangerous to open this door.  Some did, however, some was able to view things differently.  The personal liberty laws themselves, limited as they might have been in practice, was an important step in the process.  A matter of principle.

At around this time, animal welfare was also beginning to come into force, including in Great Britain.  Jeremy Bentham, for instance, suggested:

“The question is not, "Can they reason?" nor, "Can they talk?" but "Can they suffer?”

This book makes it clear they do and helps explain how we avoid thinking about the implications.

Will Kurt Russell Be In The Movie?

Along with "the other case" involving voting rights -- a citizenship ID case out of Arizona (they just love asking for papers there) -- and Takings claim involving raisins, we had Dan's City Used Cars, Inc. v. Pelkey. The law might deal with a matter only Breyer could love (he wrote a book on a related matter), but SCOTUSBlog said this about the facts:

There’s no denying that the facts of Pelkey’s case are sympathetic. While Pelkey was confined to bed with a serious medical condition, petitioner Dan’s City Used Cars towed his car away because he failed to move it before a snowstorm, as the rules of his apartment complex required. Soon after, Pelkey was admitted to the hospital, had his foot amputated, and suffered a heart attack. While Pelkey was in the hospital, Dan’s City sought permission from the state to sell his car at auction. This required Dan’s City to certify that the car – a fully operational 2004 Honda Civic with less than eight thousand miles on the odometer – was worth less than five hundred dollars and wasn’t fit for use.

It wasn’t until Pelkey left the hospital two months later that he discovered his car was missing. Pelkey’s attorney asked Dan’s City to give the car back, but the company went ahead with a scheduled auction, at which the car failed to sell. There’s a dispute about what happened next: the lower courts found, and Pelkey claims, that Dan’s City falsely informed him that the car had been sold at public auction; Dan’s City denies that. But nobody disputes that the company (which runs a used-car lot) traded the car to a third party without compensating Pelkey.

(These facts may remind some readers of the Steve Goodman song, “Lincoln Park Pirates,” written about a Chicago company known for its towing practices. You can watch Goodman perform the song here.)

I only listened to some of it -- kinda boring -- but Breyer didn't seem to ask as many questions as the preview writer suggested.  Another "car seizure" sort of case with colorful facts.  [Update: Re-cap here.]

Oyez SSM Files

It does get to be a bit much after awhile, but Oyez.com has a very good SSM page, including video. It also references Linda Greenhouse's column talking about Baker v. Nelson, including a state job offer lost because of bringing the claim.  An appellate ruling upholding this treatment of an "activist" shows yet again Baker itself is no longer good law.

Wayback Machine

My recent post on fiction brings to mind an old letter to the editor, which is in the system, though for some reason, could not find the original article. 

To the Editor:

I agree with Caryn James's concerns in her essay "The Politics of Paying a Visit to Prime Time" [March 16], but only up to a point. She unfairly degrades the value that fictional programs have in informing us about political matters of the day.

For example, the main problem with Vice President Dan Quayle's criticism of Murphy Brown was the content of his message, not his target alone. He and others are justified in criticizing matters that are important to our culture. Should excessive violence or the lack of complex minority roles on television not be criticized because the programs are fictional?

Likewise, limited involvement of public officials on fictional programs has some merit; "Chicago Hope" and other programs provide educational as well entertainment value.

Ms. James is right to be concerned about the possible effects of such exposure. But Senator Kennedy's message when he "speaks eloquently about the 10 million children of hard-working families without health insurance, children who suffer recurring illnesses without ever seeing doctors" is still powerful, even when spoken on a fictional program.

The reference suggests this was written in the 1990s -- there is a certain "same old" feel to so many things. We are left with interesting arguments and phraseology, along with new examples and details:

This provision displays the sober, good judgment of a congressional initiative to ward off vampires.

Things like that, from a piece* on DOMA by Andrew Koppelman, who shows that truth of the statement by citing a sex equality argument of his from 1989. It is somewhat depressing, but life goes on. And, I will continue to talk about the stuff. 

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* The reference is to the redundant nature of Sec. 2 of DOMA, aside from the application to judgments, which would open up a can of worms if applied strictly.  The article also notes the changing nature of determining the rationality of laws, that is legitimate public purposes.

The article also in passing appears to reject the "necessary and proper" argument favored here, which leads to [crickets] when the person is cited the problem of SSM in D.C.  I think there is some sort of federalism concern here though it is somewhat opaque and is best seen as reason to avoid if possible such marriage laws and a sort of "and also" add on to a red flag that should rest more on equal protection grounds.

A couple legal things ...

A reference was made to a federal appeals ruling that struck down "granting funeral homes an exclusive right to sell caskets." Not just the usual suspects found it okay, but not me. There is a rational basis to trusting such sales to funeral homes, even if it's overbroad and special interests laden. So it goes. This is not the same as "anything goes." At best, let state courts have a stricter rule, don't nationalize the requirement.

The thread goes into how "rational basis" is applied, including (ugh) "by the left."  Yes, the test is applied differently in various cases, the "public meaning" or "legitimate basis" principles factoring in various things:

The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

So, more concern is applied to targeting certain groups, even if the groups are not amount those treated with "heightened scrutiny," but such matters might be applied in ways with a certain economic component.  So, it is wrong to say, imperfect at best, that "economic" matters alone are treated differently.  Still, there is a reason that is assumed and regulating funeral homes or such would be treated differently.  Sometimes, like in a case involve laundries, such regulations might have a specific unreasonable character.  Or, have some other problem, like violating the Contract Clause or some procedural due process concern. 

The court of appeals here seemed more concerned, however, with economic favoritism. And, spent rather little time on the possible reasonableness of the law. The opinion noted that coffins are generally not regulated, so why was it necessary for this specific monopoly to be in place?  The item was not treated as particularly dangerous generally.  We were assured that this was not "Lochner," but there seemed to be some special rules for those businesses deemed in the public interest idea there all the same.  [See what they did there alert: The reference to the Skrupa concurrence by Justice Harlan (more of a brief comment on his position, there being no actual opinion) was neat too -- the point of his concurring separately was that he would leave open more substantive due process review in this area than the majority opinion.]

This seems ironic to me -- the state here arguably assumed funeral homes showed traditionally an ability to handle the item, at least if selling them was made a business.  A person could build one for their own use or some institution.  But, if it was going to be a business, something like shoddy coffins (handle might break etc.) is more of a concern. And, it was reasonable to entrust it to this business, without spelling out a bunch of rules. Similarly, maybe a fast food company can be entrusted to sell hamburgers more than anyone under the sun. 

The whole enterprise here is seen as consistently libertarian and the group here repeatedly finds appealing clients, like low income hairdressers who lose out because of restrictive state requirements or something.  On some level, buy that and all, but wary of such broad review by the federal courts. Federal courts might from time to time treat certain economic actors too arbitrarily, even basic rules of fairness not followed.  It is a bit different to strike down laws of this nature as not really having a legitimate public interest when there actually is one. 

Yes, though a few seem unable to see it, Romer v. Evans can be differentiated somehow. There is a reason for the various lines that do not result in the consistent libertarian rules sought for here.  One is that there is a valid reason to apply a stricter test when personal qualities are targeted or fundamental rights with a less public purpose than regulation of such public accommodations are involved.  Second is the reality that courts have limited power and influence. The power is used more in certain cases for a reason. The broader use of power here is not only dubious on the merits, but likely to lead to looser rules in places that matter more.  Thus, we replace Roe with Casey.

Talking about judicial power and abilities, interesting discussion of so-called "Auer deference" where courts defer to agency interpretations of statutes.  The concern is that this is in effect law-making and not by legislative actors, but executive (or independent agencies) officials with less democratic checks on them. On the other hand, they have the expertise and just want "reasonable" means is debatable, especially if generalist judges are doing the deciding.  After all, "deference" doesn't mean judges are potted plants, especially if bad faith is shown. 

It seems to me that the whole thing is or might if a few justices have their way and the matter is re-examined lead to some sort of rational basis with teeth regime, where agencies are deferred to, except when they are not.  The difference a matter of taking various things into account, a stricter test in practice used (even if not expressly stated) in various cases. 

The Americans

Last night's episode had lots of sex -- four sex scenes, three couples, more butt. This show favors butt, both male and female. It was a bit much really. Things ended on a somber note, a mission tragically not quite as successful as thought. Like the show but still seems still a bit rough, not quite great all around. Is striking so many good dramas involved here.

That Girl in Yellow Boots

A young British woman, working in a massage parlor, seeks out her father in India. A good lead (herself born in India) and overall well made, but thought it dragged a bit. Her search has a sort of, I guess, existential symbolism, basically all alone in a foreign land, trying to find someone who cares, something with meaning.

GG is a tool, Iraq War Edition

Since the 10th anniversary of the Republican + 1/2 Senate Dems (Dems in House voted against it) Iraq War is in the news, and gave up on him after respecting his research etc. until his bully boy advocate tone (and 'yes sir' comments) got to me, this is appreciated.

And more on SSM ...

Same day audio will be provided on argument day, SCOTUS therefore implying certain subjects are more worthwhile than others on that front. It would be loathe to admit this. Somewhat ill advised and not consistently done even for high interest cases.

Please No ...

There is a fighting chance the Prop 8 litigation will be disposed of on standing grounds, Art. III standing denied being the likely option there. SCOTUSBlog has a hint of another way to punt, which cwould just delay the litigation still longer. Please no. This thing has gone on long enough. Sigh. I can see it happening. The merits arguments are by now typically lame.

"First Sale" Applied Overseas

The result in today's copyright ruling seems logical, though as policy, it might make sense if making $100K this way was too much. I'm inclined to apply copyright rules narrowly when possible. The line-up is a bit different, Alito might be the switch from when the issue was decided 4-4 (see Kagan's concurrence). The "it is so clear" bit is probably a legal fiction.

Wizards Return: Two Alexes, No Justin

The last season of the show was fairly tired so perhaps we can consider this on a sort of curve. Since it is an extended Disney event (if only an hour), it had to be "meaningful."  Kinda 'eh' though fans of Superman II and Star Trek might recognize motifs like the never seen before (and low tech) Crystals of Justice.  Meanwhile, Selena is "bad" in the movies too!

Fictional Musings

Someone asked me to pick up a romance novel and another one caught my eye with a catchy title and all.  It amazes me on some level that there are so many books out there, so many television programs and so forth.  More so since there is so much overlap.  Like there are a ton of shows that are basically mystery related.  There might be a hook of some sort (Hawaii, spy, goofball, legal, medical thriller etc.), but that is basically what a ton of stuff out there amounts to.  Toss in reality, really, it must be over a third.

So, you know, a great mixture of value and on some level, an ironic limited range. This is unfortunate -- it's like the Star Trek series.  There is just so much to examine there, and they did (not even going into the novels) cover a lot of ground.  But, the whole thing tended to amount to a sort of space western format. The future looked not that different in various away, except apparently the lack of seat-belts.  A major point of sci fi is to examine various perspectives that really tend to address current concerns though another world is purported to be involved. See, e.g., 1984.

I have seen every episode of the original series and all the movies up to the seventh (and the first second go around of Star Trek ... didn't really like it), so lest there be misunderstanding, realize these shows DID cover some good ground. I'm all for that sort of thing.  In the 1990s, e.g., Reboot, then on the cusp of computer animation, was a cartoon program that had some pretty serious themes. It has been noted that soap operas have covered lots of ground as have romance novels overall.

The one I picked up, e.g., concerned a rape victim. Among the overall typical romance plot (small town sheriffs seem a typical archetype), that is a pretty serious matter. In fact, the book had another incident of sexual violence, to me in a somewhat gratuitous fashion (a bit of what I call "not earning" the upsetting material). Toss in teen issues, family issues and some other material, rather busy really.  The most common bit of fiction probably has various interesting subtexts, if not always intentional.  Various people have covered this ground, which is not only appropriate to interpreting literature or something.  I find it overall pretty interesting.

Anyway, the book was decent, nothing special. So, won't name it, leaving this to be a generic discussion. It was part of a (book) series of loosely interconnected plots, written by different authors. [I only read this one.] Probably a typical deal (Star Trek fiction has many authors) and it's interesting to look how the various characters and such are handled differently in each case.

Edge of Heaven

First, Happy JP Day, the day for Irish/Italian mutts, or all mutts. I am one, so it is a compliment! Mutts tend to be the best sorts -- bit of everything. Second, this is a good German/Turkish drama about some people whose lives interconnect, not always in ways they are fully aware of. One out of three rentals borrowed were worth noting ... not bad.

Steubenville rape trial

I was surprised to see an extended account in my local paper [not the article] on the Steubenville rape trail in the sports section, but see it is getting a lot of national attention. MHP covered the case today. Brings to mind U.S. v. Morrison. BTW, good fill-in by Chris Hayes last night. He's great, but still, think he's best in his current role.

The Magic of Ordinary Days

Her work in Waitress and The Americans led me to Keri Russell's role in this WWII era Hallmark film. I liked it overall, including a subplot involving two Japanese women (interned) working on the farm. The edge to the chippy sounding sister was a nice touch. Amazon reviews of the book suggests the husband is more interesting here.

A Counter-Argument?

But legal, commercialized pot is a whole other issue, and once the cat is out of the bag, there is no going back.

The claim that marijuana is more addictive than alcohol to my understanding is pretty debatable, but anyways, if you support allowing use, how are they going to do it? You think medicinal pot will be supplied for free? We need not quite go the "Joe Camel" route either.

March Days

Yesterday, we had "Pi Day." Today is the "Ides of March," Hail Caesar! [right Cleopatra?] Then, there is St. Patrick's Day (3/17), JP Day (3/18) and St. Joseph's Day (3/19).

"She Cheats, He Knows, Life Goes On"

Something about “I Want to Show You More” makes me want to remove copies of it from the “new fiction” table in bookstores and scatter them through the religion and running and illness and sex sections. There’s so much in these stories that’s shocking. Yet there’s so much solace.

A review that makes me want to read the book.

"Repudiating the Japanese Internment Decisions"

Prof. Irons has worked toward getting the actual litigants some justice and his article is interesting. But, as noted in comments, the USSC sort of did it already. If a case comes up when it is relevant, sure, there is something to be said for clearly repudiating it.

Chris Hayes Daily

I'm not really gung ho about this move -- his current format allows for extended preparation and time for a different sort of broadcast which is less possible (or likely) on a daily show.

The Wise Minority

This is a book from the Vietnam Era in which Leon Friedman first provides some examples of civil disobedience and then focuses on draft protests of that time. The latter drags on a bit but my beef is more that such accounts need to provide negative examples -- it is circular to say this is moral when it promotes good. Guess ultimately it is a test of time thing.

Pope Francis

Good luck.

NY/NJ Jets Get A Back-Up

The excitement level (seems serious) here is a bit much, but Garrard is a credible back-up and/or short term solution. But, what about Mr. Tebow?!

Carnism and Other Things

Michael Dorf cited her work [a long video of her presentation] recently to explain how we are able to treat certain animals differently, particularly for purposes of consumption. His blog is generally vegan friendly, Prof. Colb in fact his wife.

I might read her book -- it is short -- but generally the basic sentiments seems standard enough. We are socialized to treat certain types of animals, a few kinds, as having special roles.  The result is that we mistreat others and various negative results occur. Ultimately, though again I have not read the book but the presentation suggested as much, the principles seems to be widely applicable. We also are socialized to treat certain human groups as different, at times arbitrarily so.  How this is done is rather informative, which helps explain Dr. Joy's research.

The general reason I became a vegetarian was a matter of consistency.* Why should I care about the treatment of cats and dogs, if the treatment of cows, pigs and so forth are given so much less respect?  Because they might be yummy or something?  They are not so very different from humans to warrant such a great different level of treatment.  Thus, it was on some level an equal protection matter to me.  The question of research can be tricky as some other matters (animal management has no easy answers overall) but mistreatment of so many animals in the mass production of our food is not really a hard call. This even if there is some debate over hunting as compared to the hard to the environment nature of some sorts of farming.

Anyway, not here to give an extended discussion, mostly to provide a link to the person in question.  Might say more if I read her book. One other thing though in connection to the recent post on religion.  I'm a vegetarian mostly as a means of practicing my beliefs. Compassion: The Ultimate Ethic is a good introduction to what might be understood as the "vegan ethic" -- an overall principle of non-violence and concern for others that is not just a matter of consumption of food.  The daily act of eating is a daily expression of how we handle it. Like eating kosher, such a diet is a means of connecting to a higher purpose or principle.

The idea has a broad application.  It is like an act of kindness. It might seem trivial, especially if it in the midst of unkindness.  But, we can do certain things and ultimately they do add up.  Millions are vegetarians and vegans, a small percentage, but over the years, it is a much more acceptable path.  Also, other things are furthered along the way, including better treatment of animals, even by fast food giants.  The greater cause is advanced, even if fewer people go all the way. Thus, veal is seen as wrong, even by many meat eaters.  Justice is a long journey.

It's good to try to do what you can along the way.

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* I do not claim to be perfect here, just like a "good Christian" or whatever can be so without being 100% consistent.  I am not a full vegan, for one thing, though clearly it's possible to be so.  But, as with any number of things, going a good way in one direction is rather significant.  Likewise, as seen by me not saying much about it here, I am not really an evangelist on the topic.  I have been a vegetarian since the mid-1990s, but do not proclaim it or anything to everyone.  One is not a reprobate if one is not.

Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment

There was a debate that the title book was the "true" main source for the film Lincoln, but regardless, it is a good political history of the ratification of the 13A.  It isn't a legal history of the amendment as such though provides a good reply to originalist (or at least some forms) interpretation regarding how the text was actually crafted and applied over time.

Rev. Joe: Religion Beyond Conscience

More from Andrew Koppelman on "religion," including that it should go beyond conscience:

Many and perhaps most people engage in religious practice out of habit, adherence to custom, a need to cope with misfortune, injustice, temptation, and guilt, curiosity about religious truth, a desire to feel connected to God, or happy religious enthusiasm, rather than a sense of duty prescribed by sacred texts or fear of divine punishment. Core religious practices often have nothing to do with conscience.

This is true enough though these things are probably "often have" something to do with conscience. "Religion" as the linked article notes is a somewhat imperfect means to handle a number of things, part of which is to address a basic aspect of humanity, matters of conscience. A means of doing this is to use specific doctrine or institutions, since doing so all by oneself is so hard, if even possible. This is an example of accepting basically what someone is saying while thinking it goes somewhat too far.

So, having a big enough meeting space (church) does have something to do with conscience though I would hope there was some way to protect some inner core of conscience more is possible even if Boerne is good law.* Giving local discretion to building standards is not quite the same thing as forcing individual people to do certain acts that violate their conscience or totally block some specific religious exercise. "Free exercise" might entail both, but ultimately, there is a "personal" core that we protect more.  So, there is something there.

Yet neither of the claimants in Smith was motivated to use peyote by religious conscience. Al Smith was motivated primarily by interest in exploring his Native American racial identity, and Galen Black was merely curious about the Church.

I read the in depth account of the case cited (entitled "To an Unknown God") and don't really agree.  One way to approach it is that "his Native American racial identity" here was expressed in a religious fashion, one closely entwined with the culture in question.  Justice Blackmun's dissent noted that the holding was particularly a problem in the context of Native American affairs, given federal policy protecting their rights.  But, Smith didn't "explore" his identity here in any old way.  He did so specifically via a religious ritual.  As to Black, "curiosity" about what?  Anyway, the fact that protection of religious freedom will entail some "penumbra" that goes beyond the express terms is a true as well. See, e.g., Justice Douglas' dissent here.

Also, appreciated that the article is against overly focusing on extreme cases here as well as how the path taken works as a whole. Some complaints of messiness in court opinions come to mind:

The meaning of any legal standard can only be understood by reviewing the actual cases in which it is applied. For that reason, I discount both Justice Scalia's comments on past descriptions of the standard, see post, at 11-12 (opinion of Scalia, J.), and the attempt to give it crystal clarity in the joint opinion.

The result might not be "a fully adequate framework" in all respects, but it is probably the best we can realistically accept. 

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* It is striking, to me at least, given where you usually think of her on federalism issues, that Justice Ginsburg joined the majority. Stevens had a special separatist concern; she concurred without comment.

Also, it is unclear that "no atheist or agnostic can obtain" the protections of RFRA, especially if "religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views” are included.  This goes back to a broad definition of "religion," which at least for legal and constitutional purposes, would entail things not defined "religious" by some. 

Jump Ahead

Or maybe not?

"How a U.S. Citizen Came to Be in America’s Cross Hairs"

NYT has a good extended article on the drone attack on an American citizen with important details like the fact of OLC memoranda that actually provides a real extended argument for its legality. As Jack Goldsmith (and I) have noted, there is no reason why the general public lacks the chance to see that. In the long run, it's counterproductive.

NCIS

Another pretty good episode with a not great denouement to the mystery. The various parts, including Abby, were fun (or enjoyable) though. The Americans was pretty good too, including a nerve racking experience involving the kids. I can't believe a Russian spy could get away with beating up her superior and how the mole was protected seemed a bit off. Could they be tricked so easily? Wouldn't he be suspicious of her?

Only 18?

Same old, Same old

Myths about SSM.  Lochner stereotypes. Stock replies. Saves a lot of time.

Moving Past Theater ...

The budget theater and Paul theater etc. crowds out more substantive matters worth our time. For instance, Sally Jewell's nomination to the Interior.

Veganism and "Religion"

The specific case and broader discussion here is quite interesting and raises themes I have at times (less eloquently) made here. "Religion" might in some sense be non-rational (there seems to be an emotional aspect to it), but only so much.

Paul the Freebooter?

[Update: Paul was ultimately satisfied while Leahy (D) was not.]

The filibuster has been part of parliamentary strategy in this country for over a hundred and fifty years. Now, the reason we weren't sweating Stackhouse is that Stackhouse isn't someone you sweat. He's been around forever, but he has little influence, little power, and few friends. So, Dad would want me to tell you where the word 'filibuster' comes from. It's from the Dutch "vrijbuiter," which translated literally means "freebooter." But what they meant was, "buccaneer."

-- Josh (West Wing)

Jack Goldsmith, though his gratuitous shot at AG Holder is not appreciated, has some good things to say about Sen. Paul's filibuster and concerns about drone usage and other "principled concerns about the implications of the endless “war on terrorism,” not just at home." This includes various confused and downright wrong statements he is making along the way, statements on par really with various ones out there.

Paul's "speaking filibuster" of the Brennan nomination, a nomination that received a lopsided endorsement in committee, is a principled means of using that device.  He is on the floor, making his case, with help from some other conservatives though not all of them likely to be as concerned with executive power if a Republican was in the White House. If we are going to have some misguided party members in the legislature, at least let's make them somewhat principled and interesting about it.  Paul fits the bill.  It would be so charming if Ashley Judd, who some deem a long-shot but trollish comments only suggest the right is really concerned, was the other senator from Kentucky.  Some two-some!

The nomination as a whole, which at some point will be confirmed probably, helped to bring some sunlight to the drone program. In fact, Rachel Maddow noted last night that there is some implication that  drones will be more of a military matter -- as it should be.  I do wish there was someone other than Rand Paul out there doing this sort of thing, joined by the likes of Ted "I have some names in my pocket" Cruz and so on.  It's better than two of the three stooges (they are seeking a third) Graham/McCain using it again to bring up Libya.  Still. Talking earlier, e.g., how he doesn't expect there to be "due process" during "wartime," underlines the confusion.  Is he not aware of Hamdi v. U.S.? 

Meanwhile, there is various talk about the less principled type of filibuster, especially after "only" 51 senators voted for Caitlin Halligan, far from a "Goodwin Liu" type for D.C. Circuit. The "extraordinary circumstance" for the remaining "Gang of 14" Republicans must be "Obama nominated."  Talking Posts Memo has a few discussions about some peeved off Dems, some making noises about restarting filibuster reform, even you know, though it isn't the beginning of the session (or the first legislative day or whatever via parliamentary magic). When Durbin makes noises about how upset he is, doesn't impress me much -- actually DO something. It is not just "Harry" Reid's fault. 

Anyway, this is a lot better than the budget theater going on.

Beers With Senator Kirsten Gillibrand

One of the few good things that came from Gov. Spitzer resigning was his successor appointing this somewhat dark horse candidate to Hillary Clinton's seat. 

Various

Kathleen Sebelius explains some benefits from ACA. An interesting review of one of various liberal defenses of judicial review from the duo who earlier argued for pragmatism as compared to any one view, be it Bork or Dworkin. When DB calls you uncivil ...

Rules of Engagement

The show was always junk food in content but some seasons were satisfying enough. After a period of dullness, and a hiatus, the new episodes are pretty good. Still, I wish they would find more for "Jen" to do. Last night's episode was middle of the road.

More "Torture Being Illegal Is So Complicated" Stuff

I find his overall federalist theory of the 8A annoyingly reductionist and a bit too precious, especially if he seriously doesn't realize the evidence at best suggests it as a possibility, but really now. It is depressing that torture being fundamentally illicit is so hard for some people. The potshot that I was saying all "very bad" things are unconstitutional is tiresome.

"This Day in Labor History"

The latest of an excellent series of labor history posts concerns Oncale v. Sundowner Offshore Services (written by Scalia!), decided fifteen years ago, and showing the connection between sex and sexual orientation discrimination. Now, if EL limited himself to such subjects.... Meanwhile, more orals time for Windsor, given the jurisdiction issues etc.

The Different Girl

I found this book after in effect reading about the idea in a non-fiction book that was a trudge. It concerns how a new girl changes things for four girls on an island. Interesting perspective. Some things are left unanswered but I was okay with that. There is a secret here, soon discovered by the discerning reader, but I'll leave it to the reader to find it out.

She Also Finished The Entry for "God"!

English may be a shifty whore, but she’s our shifty whore. Please, this National Grammar Day, don’t turn her into a bully, too.

-- Kory Stamper

Rev. Joe: "Defending American Religious Neutrality"

Don't agree with (or try to parse) all of it, but Koppelman's views here (including the intro) has some good stuff, including the broad view of "religion."  See, e.g., opinions citing "questions of ultimate value and the contours of a good or meaningful life" and "matters of conscience as life and death, good and evil, being and nonbeing, right and wrong."

DC Isn't Much More Sensible

Waitress

Checked this charming film again, getting some DVD extras too.  KR is now on The Americans, this film perhaps showing she can do somewhat dark roles  and kinky sex (getting to be a thing on the show; the spitting out of the tea by the Soviet mole and then letting us know it was after oral was a good touch).  The Adrienne Shelly Foundation continues. 

"Calif. Lawmaker, Scholars Say Proposition 8 Violates Equal Protection, Limits Representation"

First thing, if I will go insane, it will be because of a little thing. Well, maybe not, but damn, those things are muy annoying.

I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

Thus, Justice Harlan thought state mandated segregation on public accommodations was in part a violation of a republican form of government. Slavery was no more, but a part of the political community were being treated like second class citizens.  Federalist No. 39 set forth the basics of a "republican" form of government as "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." There is not to be a "favored class of it."  This is the ideal, one we have are closer to than in 1787, but not there yet.

This brief argues that Prop 8 is problematic in part for the same reason. This is not a novel argument -- the ruling below used Romer v. Evans as a guide and some argued then (though ultimately the ruling rested on equal protection principles, but these things are related) that the proposition there was unconstitutional because it burdened a certain class of citizens from obtaining relief by the normal legislative process. The brief argues that Prop 8 too is an illicit form of legislation, it too burdening a certain group, resulting in a "favored class" having power to obtain legislative relief (without obtaining a constitutional amendment) in the process.  Same sex couples alone cannot obtain marriage legislatively. SSM is not protected in Hawaii, but there the power was left in the hands of the legislature, not giving a "favored group" illegitimately more power there.* Just as in Romer, certain groups in California have to obtain a state amendment first. 

I have wrote a lot about this issue, but as someone noted elsewhere, there is a particularly broad group of people (a chunk of Congress, the President, football players, Walter Dellinger, etc. etc.) wishing to provide their .02 here.  It is not surprising -- basic things are at stake here, not limited (though it is pretty important) the institution of marriage as well as equal respect for the GLBTQ community. Like abortion, this issue opens up a slew of issues, such as religion, morality, republican government, federalism, equality and so on. It is quite likely (I'm led to say, knock on wood) that the USSC will deal with this issue by denying standing in the Prop 8 case, but even beyond DOMA as well, the issues still are there.

Not that I need much to provide my .02. 

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* Some find it confusing to understand how Prop 8 is not a legitimate means for the people of the state to determine the state supreme court was wrong regarding a specific matter.  But, the people of Hawaii managed to do this without the particularly harsh means done here. This does not mean that the method used there is 100% valid. It does mean it is less offensive.  Thus, the so-called "one state" solution ruling possibility.

Anti-Prop 8: Football Players and Humanists

Though I have at times (see Valentine's Day post), don't really have much of a desire to directly respond here to tired anti-same sex marriage arguments/briefs, especially the tiresome assuming the premise arguments of the sort found in the book cited earlier (see, e.g., a two star review at Amazon; the one star reviews at this time are lazy refutations that don't do the right side much favors).  SCOTUSBlog lists various briefs on both sides, a list of the sign of the sane here, including by two football players!  One is the product of an interracial family, so is particularly concerned about equality, the other a punter that has received some press for his views. 

It's appreciated that there is sanity in the sports universe, including many media voices. The morning show (the duo is a former football player and the usual macho sort) on the local WFAN station, e.g., was offended by various reports of asking players their sexuality or their opinions on various pro-gay/lesbian issues.  You just know that many of the listeners, including some not overly enlightened guys, aren't quite as idealistic.

The brief is short and though written by a law professor and lawyer, it is largely a down to earth statement about equality and the importance of sports to culture.  As an aside, this is why it annoyed me when someone in another forum diminished the importance of sports (the national past-time?!) in a discussion of steroids. At one point, e.g., it notes that even a fifth grader can see the problem with Prop 8.  It also reminds the Supreme Court of its broad influence, yes, even to football players:

This Court, incredibly enough, has a central role in that process. Your stance, your legal reasoning, will be used by countless people, including athletes, to justify their actions. People are not wholly unplugged. They pay attention to what is going on in the world, what is going on in politics, and what is going on in the law. Professional athletes are citizens of this country just like everyone else, and just like everyone else, the decisions of the Supreme Court are powerful indicators of acceptable behavior.

I think this partially why it is not likely a majority will just bluntly uphold the Prop 8 and DOMA laws though standing mechanisms might be used to dispose of at least one of them. Prop 8 just has too much baggage, unlike let's say when same sex couples went to state court to obtain same sex marriage rights, full stop. We shall see. The humanist brief is important because it both gets to the heart of the matter and addresses something largely ignored (if touched upon at times) by other top briefs.

This is not simply a case about gay rights.  It is a case about human rights, which find their compelling moral imperative in a consideration of our common humanity.  Empathy for our fellow man and woman, grounded in the recognition that each of us could be him or her, is the force that compels the just among us to insist on upholding the ideal of legal equality for all.  Nor is this case, properly considered, merely about the civil institution of marriage, the right to build a committed and stable life with the one you love on the same legal basis as any other human being. The denial of any civil right on the basis of traits that make up the core identity of another human, absent a compelling justification, violates our most foundational constitutional values.

The brief also -- this is fairly typical -- notes that the laws cannot just have a moral basis, but address "concrete harms."  This is the "Lawrence" rule and ultimately addresses the circular nature of merely upholding laws, especially those that target groups or invade constitutional liberties, because they are immoral. The brief is particularly concerned with the principle since there is often a religious aspect here, particularly if you do not define the term narrowly.  It adds a bit of honesty:

Of course, not all Christians read these portions of the Bible as compelling them to discriminate against African Americans, women and gays and lesbians, but it is clear that sufficiently large portions of the Christian-majority electorate have voted to discriminate on the basis of sexual orientation in approving the myriad of anti-marriage equality measures that have been enacted in recent years, often as constitutional amendments requiring a super majority vote. As a counterpoint, amici AHA, AEU and SHJ would like to state that their humanist beliefs require them to respect and honor the wishes of those gay or lesbian individuals seeking to be married in ceremonies involving their organizations.

As with abortion rights, those who oppose equality and liberty here ultimately are repeatedly motivated by sectarian religious concerns.  Meanwhile, the brief does a good job facing up a major concern of the other side, the idea that SSM will hinder free exercise of religion.  It is unclear why it would specifically, since various religions already oppose some aspects of marriage, such as easy divorce and gender equality.  Nonetheless, this is a major concern and it does merit amici focus.

The brief notes that neutral laws that regulate public accommodations and  government benefits does not violate free exercise rights.* If the groups wish to obtain exemptions, the proper place is the legislature, not the courts in this fashion. Such exemptions are not [at least, I might add, generally speaking] constitutionally necessary. As we have seen in the contraception mandate wars, this general rule had force for some time:

Even pre-Smith [written by Scalia], this Court found that when religious believers enter into commerce, they must comply with the law and cannot justify law-breaking that infringes the legal rights of others by claiming some special religious privilege. The Court held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” U.S. v. Lee.

Religions can still control their message, limit marriages to their own members, control internal church decisions (e.g., not hire teachers who violate their bigoted views as to marriage) and believe what they wish.  They cannot "have their religious views written into law so that others may be compelled to follow them" except to the degree such views have secular legitimacy (e.g., equality in marriage in a religious view of many).  This sort of "religious liberty" is not protected by the First Amendment.

As Romer v. Evans notes, even taking their concerns somewhat seriously, Prop 8 is a bad fit to address their specific needs as seen by states that have protected SSM along with citing religious exemptions and such.  Nonetheless, at some point, religious institutions have to follow the rules like the rest of us, especially when they move past purely private realms.  If they want to rent property, e.g., not just to their fellow believers, they need to follow civil rights laws, especially if parks and such are involved.  The same would apply to general employee benefits. Anyway, there is nothing special about SSM here -- see, e.g., Catholics/divorce.

Anyway, that football brief is recommended. 

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* The brief here hangs the opponents by their own petard, in a fashion, by citing the Solomon Amendment case.

I am not a quite a fan, but as with Smith, it does provide a reminder of current doctrine. It is one thing to keep people out of the Boy Scouts because they are gay; it is another to not serve them in public accommodations without needing to endorse their beliefs in the process. The right to association, expressive or otherwise, does not reach that far. 

Charlie Savage on Overturning Section 5 of VRA

Good article.

Doom and Gloom

I'm tired of this sort of thing with the usual caveats down to the dig at Obama apparently having a fantasy idea about Republicans. The point that the sequester furthers a nefarious anti-government sentiment is fine, but then (sadly typical) he has to take it one more step. Yeah. We have "voter protections." Not enough, but we have them. etc.

Talking About What Is Wrong About the Catholic Church ...

“What Is Marriage? There is the question. Thanks to these three eloquent authors for so cogently reminding us of that, and for showing us how reflective reason answers it.”

- Cardinal Timothy Dolan, Archbishop of New York

Yeah, okay.  BTW, the third author repeatedly has come off as an asshole (including here -- no comments!), taking a no holds bar stance in promotion of error. Always charming.