Hey .. You Were in Carolene in the City

Web episodes is the thing these days ... not bad with a good lead.

161 To Go ... Nails Bitten To A Quick Yet?

Paternity leave, aches and flu leads to ailing and key players not playing, but up 4-2. Gee runs out of gas at usual time (7th) and one after another, except once, the pen blows. Takes to 10th, but Game One is a depressing loss. It's but one game, but without more the team is going to be open to this sort of thing day after day. Sorry ... story is already old.

Miracles etc.

The St. Peter book brings up the miracles in historical accounts issue. That is, how do we deal with that sort of thing? Just worry about the mind-set behind them and their influence on history or worry about what actually happened? Bart Ehrman in his books, e.g., appears to mostly do the former. Miracles are subjective faith experiences that a historian cannot objectively determine akin to "natural" facts.

Michael Grant does this mostly, noting that the reader can not believe the miracles or visions happened, of course, that they were delusions or something. But, I recall someone else noting that for many, the "supernatural" is also the "natural." In fact, they can follow certain set rules. Sort of like the rules of horror movies in Scary Movie or something. And, historians do not always look past what "really happened" when mysterious events of a non-religious (or even religion different from one of the main ones) happens in other contexts. So, seems sort of cheating.

To be fair, Grant does somewhat focus on what might have happened here, including that people of the time expected miraculous things to happen. And, often miraculous language was not to be taken literally. And, he offers some suggestions, e.g., how the "empty tomb" might be explained. There is so much that must have seen mysterious to the age in question that use of supernatural explanations would seem almost logical to many people. We should be upfront about this, since it helps understand the works in question. But, and this sort of explains various things, many don't really think things through that much.

A major example is all this demon talk, including them actually talking (in one case, asking Jesus to send them into some swine!). A major aspect of the historical Jesus was likely his supported exorcist skills, so this is no trivial matter. Still, including many who are otherwise believing Christians, it is not really something we like to think about. Exorcism seems um fairy tale, horror movie stuff. It is not like healing leprosy or something. Another thing that is often not known is that Jesus is not truly unique here though from the source material we have it might be the case that he was particularly famous and/or skilled at doing such things. That is, there were others who were believed to have done miracles.

This underlines my sentiments that it would be a good idea to determine what "really" might have been happening. It's a balance of probability, but it is how we deal with other historical events. The psychosomatic possibilities of demon possession is fairly easy to contemplate. Healing some ailments too. Immediate healing, at times using such tricks like putting mud on the eyes? Less so. I take there were some studies on this subject, so why not be address it? Like the recent biography by what's his name of Jesus did not -- is it in bad form, something only for Sam Harris/Hitchens types to do to talk about? Like ruining a magician's tricks?

Now, mind you, some might have done so, particularly in one of the less well known scholarly works. Still, I have read a decent number of books about Jesus and the like, and it seems not to be a thing. In fact, would like to find a good article that in depth covers the topic. Since, again, miracles are not only something Jesus "did." There is also an easier time of it when it happened a long time back in some degree of dimness of time and place. Peter, e.g., is a major figure in Christianity, but we really know very little about the guy. The book, e.g., basically once mentioned his wife and that he was by some accounts said to have a daughter. It determined it happened, but even his martyrdom in Rome is not 100% assured. "Quo vadis?" indeed! People are much less able handle something like the creation stories of the Church of Latter Day Saints. 1820s New York ... "burnt over" district or not, not quite as easy to believe mysterious happenings there.

One more thing for now. I noted yesterday that the Gospel of Matthew, listening it, seems too long. After a good beginning and the Sermon on the Mount (Luke has it on a plain!), it gets pretty tedious. This includes long discourses after you thought the climax was here -- that is, after they reach Jerusalem. But, it does end quickly -- the Passover meal etc. moves almost as fast as things in Mark. The ending also is not much more than the original Markian ending. It also is pretty interesting, especially as you compare the four gospels. The endings clearly developed thusly: Mark-Matthew-Luke-John (Thomas is a sayings gospel, so is a special case; the fraction of the Gospel of Peter is an interesting case -- one can read and decide). It is striking when you look at them closely.

Mark appears to end with the women finding an empty tomb and being told by a man in white to tell the apostles that Jesus is going to meet them in Galilee. Michael Grant notes that it appears that the apostles actually did go back there, thinking Jesus' death was the end of the line. John has them fishing again and then Jesus appears -- there seems to be various "endings" to that gospel, the final version combining them ala the two creation myths in Genesis. Then, when is unclear, Peter et. al. (the earliest account we have is Paul, who "saw" Jesus too, a vision of some sort) believed that they saw the risen Jesus, that he didn't just die -- and so it began.

Mark, written c. 70, ends with the women being told to have the apostles go to Galilee -- so they went back not because were crestfallen that their leader was executed before the kingdom of God came, but because they were told. Problem is that Mark has the women afraid and not telling anyone ... and then it ends! Another ending is tacked on later, but what gives here? Was the original ending lost? Was the ending a sort of hint that you were supposed to now refer back to the beginning (Galilee) where Jesus' true purpose is cited (including at the baptism?). It's something of a mystery.

So the women hurried away from the tomb, afraid yet filled with joy, and ran to tell his disciples. Suddenly Jesus met them. "Greetings," he said. They came to him, clasped his feet and worshiped him. Then Jesus said to them, Do not be afraid. Go and tell my brothers to go to Galilee; there they will see me.

Matthew slightly alters this. We are talking like half a chapter, part of it to insert the story of the bribing of the guards. Now, the women actually do go to tell the apostles, but soon meet Jesus on the way. He greets them, tells them to go to the apostles, who will "see" him. And, there is a very brief account of this, without even that little note of a clearly physical Jesus (i.e., the women "clasped his feet"). This involved a brief commission to them "to go and make disciples of all nations," a vaguely universalist message for a gospel that is particularly Jewish in character (e.g., a lot of "as it was written" ... every other thing apparently was prophesied in the Jewish scriptures). No ascension to heaven ala Luke. And, even there, some "doubted" it was him. The commission is a nice touch, but very brief.

Luke provides us with more, including the road to Emmaus (about seven miles from Jerusalem) account and specific emphasis that this was not a true flesh and blood person (he even ate a piece of bread). This was no mere vision that could have been a delusion! But, perhaps more importantly, Luke is the first one to have Peter himself going to the tomb.* This is basically how many picture it. He also has the apostles stay in Jerusalem until the ascension to heaven. John adds details, but it is generally similar. These are Jerusalem accounts though John ends with a chapter generally thought to be tacked on involving the Sea of Galilee.

No more "appearances" ala Paul, but clear physical events are occurring. This in a fashion brings us back to the beginning -- one reason for such accounts appears to be that there was a felt need for a more "objective" statement of events. Not mere visions, though Jesus in the gospels is reported to have taught that we lose our corporal form in heaven -- e.g., when asked what husband a woman married multiple times (husbands kept on dying on her!) would take in heaven. Other reasons too, partially having to do with beliefs of the nature of resurrection of the dead. Plus, the Galilee to Jerusalem shift of the community of believers. And, probably other things.  Close readings yet again provide interesting insights.

---

* Update: Bart Ehrman in his book on Peter/Paul/Mary (Magdalene) states that Peter going to the tomb was not in early copies of Luke.  Basically, early accounts have women (not trusted at the time to testify) seeing an empty tomb and somewhat curious "appearances," while later ones made them more physical (eating etc.) in nature.  If we are trying to do the best we can, imperfectly, to figure out what we have here, that's interesting.

U.S. MLB Opener

Dodgers already played a game (in Australia), so you'd think one of the teams that went to the World Series or something would play the Sunday Night ESPN opener.

Okay ... Matthew really needs an editor ...

He who made us has so willed, that in mathematics indeed we should arrive at certitude by rigid demonstration, but in religious inquiry we should arrive at certitude by accumulated probabilities.

-- quoted in Michael Grant's biography of St. Peter.

Matter of degree, Cardinal. Anyway, "accumulated probabilities" is also what a historical inquiry of such figures often amounts to, as is the point of Grant's quote. The book is a bit thin (almost an extended essay on other sources), but interesting.

"Reply to McConnell on Hobby Lobby and the Establishment Clause"

It is surprising that Professor McConnell does not address any of these authorities in his post.

By now, it is not, though I respect that reply here is being polite, perhaps to further a point. As noted there, the op-ed basically is trying to push the law, while claiming to be conservative (with a certain holier than thou tone about "those" people concerned about non-legal issues). This is how law develops often, so it's a familiar tactic, but let's be aware of it.

"What’s the Best Way to Execute Someone?"

A Slate piece linked here; I provided a comment.

NSA Proposal -- Significant Step

Geoffrey Stone, a liberal leaning professor that was appointed to be on the panel to investigate the NSA policies, praises Obama's proposals for reform. Congress has to pass them, and on executive power over national security, they have overall wanted to give the executive more power. But, knowing a need to be wary, I am somewhat optimistic. The public concern, helped by reporting and leaks, were of some value.

Rev. Joe: Holy Sex Edition

And [Joseph] knew ]Mary] not till she had brought forth her firstborn son: and he called his name JESUS. -- Matthew 1:25

Note that "until." Even here, they had sex (that is what "knew" means) eventually. Some want a later reference to "brothers and sisters" to be half-brothers or cousins. Until!

... btw, Matthew is too long. The middle portion would be better edited.

Mets Opening Day: Not Enough

The Mets did a few things in the off-season that were good, but did not do enough for fans to be satisfied, especially with Vic Black not yet ready for prime time. The team needs a SS, the 1B is dubious and another reliever (would have been useful even if Black made the team). The drama about Lagares being the CF is stupid too -- he is obviously the guy for CF, his decent March hitting helping. Finally, a young arm should be the fifth starter.

Hobby Lobby Orals

Kennedy is not a lost cause. Corporate standing might have six votes at least. On merits, 5-4 ruling pretty likely. Women justices, particularly Kagan, again impressive. Clement called on his "sensitive" line (the first thing out of his mouth) right away. Toward the end, Alito seemed to suggest vaccines are yet another exception that is not really "substantial." Grand. Think the S.G. did a decent enough job. With all things in balance ... is it baseball season yet?

"5CA Upholds Texas’s War on Roe v. Wade"

For those interested, you can click the Bible link on the side panel and listen to the Genesis chapters related to Noah. The stories, like Homer, were oral tales long before being written. And, even then, most couldn't read them. Meanwhile, sadly expected uphold of the strict Texas abortion regulations. Written by Judge "let's reargue Roe" Jones and two other conservative women. Lovely. Strategically, it is dangerous to have the USSC take the case.

Unwatched Movie Watch

“Cesar was a vegan. He didn’t eat any animal products. He was a vegan because he believed in animal rights but also for his health,” Chavez said. “Growing up I was always surrounded by vegetarians and vegetarian meals were always an option. When Cesar died, I decided to become a vegetarian in honor of him.”

In honor of the movie (NYT says it is clunky but heart in right place) about someone else I should know more about. The Noah movie (NYT finds it intriguing -- I too think the Bible has a lot of promising material for modern drama) also seems interesting.

"Of Course Corporations Like Hobby Lobby Have Rights Of Conscience, And You Probably Shop At One"

Move past the fact that there are no "abortifacients" here and that HL need not supply anything - they are getting a tax break for supplying health insurance.  Having "core values" as a corporate philosophy isn't really the same thing as a "religion" for the purposes here. But, regardless, the examples affect third parties like how refusing coverage does here, how?

Hobby Lobby Orals (Upset Even Before Listening Edition)

A previous comment noted that the Hobby Lobby orals promises another absurd result. Prof. Gans at Balkinization hints why:

RFRA was enacted in 1993 to restore the Court’s free exercise case law as it existed before the Court’s decision in Employment Division v. Smith, a body of case law that mainly rejected claims for religious exemptions from neutral laws. But Chief Justice Roberts seemed to read RFRA as having created a broad right to religious exemptions. When Solicitor General Verrilli began his argument by quoting Justice Jackson’s 1944 statement that limitations on religious freedom kick in when they “collide with the liberty of others,” Chief Justice Roberts snapped back, “[t]hat’s a statement that’s inconsistent with RFRA, isn’t it?”

Accord in respect to U.S. v. Lee, which should make this a pretty easy case. To remind, this is a pre-Smith case "in which the Supreme Court unanimously rejected an Amish business owner’s claim that he was entitled to a religious exemption from having to make Social Security payments on behalf of his employees." Remind me what the hell -- this case pisses me off -- that acronym means. I'll take Justice Kennedy's opinion announcement for City of Boerne v. Flores as a guide here, since Kennedy might have actually taken both sides seriously (Roberts was semi-sane in the last ACA case; Kennedy's turn):

The complaint contained various claims but to this point, the litigation has sent it on the constitutionality of the Religious Freedom Restoration Act of 1993. The Act is abbreviated RFRA and then you supply a vowel to pronounce it RFRA.

It is "restoring" religious freedom to the state before Oregon v. Smith. It should not be some sort of revolutionary expansion of religious liberty (for some). As Justice Kagan noted, the law was remarkably uncontroversial at time. Did they really expect such a broad change of the law? But, the warning signs were there, if we are honest, I guess. Justice Stevens wondered during the Boerne orals if the test set forth in the law was broader than previously applied by the USSC. To make things worse, the USSC (other than a case involving the Amish and a few unemployment benefits cases) really never had to seriously address laws of general applicability. The cases assumed a broad liberty without striking down many laws (some lower courts did, which at times seems to be skipped over by critics) though even with that U.S. v. Lee expressly noted:

When 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.

This "unremarkable" principle now is supposedly controversial. I have quoted this language repeatedly and still don't see what makes this case different. Some people are making this out to be a corporation rights case -- you know, the USSC is in the pockets of corporations these days. And, that might have something to do with it. But, unincorporated businesses have employees too and their rights matter here. There probably are various reasons. Error is as complicated as life. As Paul Clement (sounding like his usual insufferable self -- don't care how much of a freakening genius he is) notes, "abortion" (a word here stretched beyond sensible limits and the argument made in no way is going to be limited to it anyway) is more "sensitive" than let's say vaccines. Jenny McCarthy might disagree, but whatever.

As basically suggested by TalkLeft discussion just linked, that is telling. The general applicability rule (with legislative exemptions with more flexibility than courts might show) is in part in place because it would be hard to neutrally apply things. This will occur whenever there is any religious exemptions, but a law like RFRA that covers EVERYTHING (unless the legislature, which political realities will guard against as a rule, makes an express exception) is much worse. So, "sensitive" beliefs will be a bigger concern than others.  Somewhat "out there" beliefs will be respected there while let's say opinions as to marijuana being a religious sacrament will not be.  See, e.g., Oregon v. Smith itself, where the advocate noted that for Native Americans alcohol, not peyote, would be seen as particularly dangerous.  The Establishment Clause problems etc. don't simply disappear because a statute is at issue, so if Scalia was consistent, he should be worried here too.  Ha. 

[Boerne v. Flores was decided as a federalism case, but half of the argument on the winning side was made by Marci Hamilton, who made a broader argument that would have struck it down in toto. Only Justice Stevens, in a brief concurrence, supported that -- he argued it violated the Establishment Clause. In hindsight, and if it is going to applied this broadly more so, this has more bite than some felt at the time. Those who overall think RFRA is reasonable again should be wary. Life is harder now than when "religion" meant basically Christians, the early 19th Century alone showing the sort of possible claims that might arise.]

This is already done with "abortion."  Harris v. McRae is a blatant case -- of all health care, even when a woman's life is at stake, this is singled out for denial of Medicaid benefits. We are going to stretch this to small statistical chances that fertilized eggs will be prevented to implant? Really? The former rule - the challengers back three decades ago were right to flag it - an Establishment Clause problem (a free exercise claim was also raised -- as I noted last time, that's an important concern too). If we are going to stretch "abortion" this far, so much worse.  And, not only that, but contraceptives broadly speaking is being targeted.  This is absurd really, but there you go.

The particularly annoying thing -- well, there is so much to choose from -- is that we are repeatedly told that a right to choose does not include the government paying for it.  The rule here applied to employees.  Hobby Lobby owners can believe whatever they want, but do not have some right to pass the costs along to its employers and get tax benefits too.  As noted in another case that Roberts et. al. apparently thinks should be ignored by the "restoration" of religious freedom by overturning decades old precedents, "it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions."  Any "indirect burden" is not enough; even this law speaks of "substantial burdens."  (Reminds me of "undue burdens" on abortion rights!) .

Religious exemptions are valid things, but freedom of religion is but one of many things that should be put in the balance.  Besides, the rule demanded by some here hinders religious freedom in various ways, which makes it not surprising that it was not understood to be required to protect it.  Overall, corporations isn't my ultimate concern here. It is the inequity of the possible results generally applied and the way it perverts something -- religious liberty -- that is quite important. The fact some supports of the employees here ridicule religious beliefs should be a red flag, a warning sign that the claims being made are unreasonable. 

Such as  a company with over 600 stores and loads of employees ("closely held" or not) that is not being forced to do anything. 

Rules of Engagement

I'm on the fifth season DVD, catching bits I never saw, and amused/impressed at how good and funny the show can be. A special nod to Megyn Price (fan of hers back in Grounded For Life; she will be in a different sort of role on Lifetime soon), who has perhaps the best reactions shots, including in an episode where they go rug shopping and to an adoption fair. The "did they say that" component popped up to when the double meaning of "rug" came up.

ABC Family Update

I really liked the first 10 episodes of The Fosters; the next ten, not so much, though I like the characters etc. enough to wish for more. The funeral episode was the highlight and there were moments. Brandon simply went off the deep end. Karma finally caught up with him at the very end of Monday's episode. Switched at Birth was mixed of late, tired of the daughter romantic drama. Toby actually had the best subplot of late. Spring hiatus for both.

Product Research

I have taken part in two product testing sessions with this firm recently (breakfast bar/ice tea), both with saltines used for cleansing the palate. Did not have much profound to say in the comment portion of the questionnaire, but the cash and snacks were appreciated.

"Low Point" For Whom Alert (Hobby Lobby Orals)

“Under your view, for-profit corporations can be forced to pay for abortion. Your reasoning would permit that.”

So? Are the moral beliefs that oppose other medical procedures less important? Second, YES!!!!!!!!!!! They pay TAXES that at times (e.g., in case of rape) pay for abortions for the poor, and not the fake "abortions" at issue here either. Or, salaries. They are not being FORCED to be a for-profit corporation. Being one involves doing things some don't like!

Addendum to Daniel (Canonical for Catholics)

An interesting discussion of additions (not included in the Hebrew version) to the Book of Daniel, an important book to New Testament mind-set, partially since it actually was written in the 2nd Century BCE, whatever the alleged date of events. Note the squirrel.

Hobby Lobby Case Orals Tomorrow

And Also: I allude to the recent Arizona bill vetoed by the governor below. It was in part in response to a pending lawsuit, which SCOTUS still might grant cert. to hear, regarding a corporate wedding photographing firm. Prof. Dorf's "can of worms" analysis (Kinkos?) is telling, and when Prof. Volokh blogged about it, I and others noted it. Response? Crickets from his end, though I gather it is dealt in a footnote in one of his articles or something.

Also, in the "let's stretch things too far" area, ML addresses a corporate law argument. Nonetheless, it is possible this will be used as a sort of limited ruling. We shall see how it goes.

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

-- Planned Parenthood v. Casey 

The Declaration of Independence argues that governments are established "to secure" are basic rights (the wording suggests this is the seminal reason, not economic or other reasons). Positive rights and benefits are one way this is done. Liberty is not just a matter of freedom from constraint of the state. This is particular true in the modern welfare ("general welfare" a basic reason for the Constitution as noted by the Preamble) state with a certain social welfare net. Health care is a generally accepted part of this and the PPACA was a major step forward in our country's joining with most countries in the developed world in this area, clearly our fellow "First World" countries. This is the bottom line as the USSC is about to hear the "contraceptive mandate" cases.

In these cases, the shifting of a burden to third parties would involve even more than economics and personal health, as significant as they are. Denying coverage of the most effective methods (or, in some cases, all methods) of contraception leads predictably and directly to unintended pregnancies. Removing the contraceptive coverage guarantee would place some women with religious objections to abortion in what is for them a morally difficult position: they might desire but be unable to afford the most reliable methods of contraception and therefore be at increased risk for confronting an unintended pregnancy and the difficult decisions that ensue. For all women, denying practical access to the method of contraception that is right for their health and life circumstances and the well-being of their families can represent a most serious incursion into their individual moral autonomy and the course of their lives.

Since the federal government has to balance various concerns, including defending RFRA when there are some good arguments that it as a whole is problematic, amici and others are very important to provide the full picture of what is at stake. Thus, e.g., they provide a direct voice for the employees (and in other cases students) who would be harmed without the coverage protected here. An amicus brief by Dawn Johnsen (filibustered when appointed for leadership of the OLC in part for her past reproductive liberty advocacy) and Walter Dellinger (former solicitor general).  It is a good place to get a summary of the to be blunt right side of this debate though I will toss in various other material given the breadth of issues and good analysis.  For instance, Marty Lederman's ongoing Balkanization posts on this issue is cited by the brief itself. 

The brief is written on behalf of a reproductive health organization and personally for an expert in reproductive health and member of the Institute of Medicine. It is off IOM's recommendation regarding "eight recommendations for strengthening preventive health care services" that contraceptives are a necessary aspect of health insurance plans pursuant to the PPACA.  When some people wonder, it is soooooo strange, why this provision is in there, that is a good place to start. And, it is not just some pro-sex or birth control deal either. Again, as seen there, contraceptives are but ONE aspect of preventive health, if of special importance, including its ideological baggage.

To cover the bases, one cheap shot trope is the reference to "free" birth control. As compared to what? Free pregnancy care or any number of other things covered by health insurance?  It is not "free" anyway -- there is no "free lunch" as they say.  This discussion fits the provision within a range of social welfare provisions.  That is one way to look at it -- is social security or child health coverage "free"?  Or, public education?  If so, does that make it bad?  Still, it isn't really free for employees at issue in the two firms at issue here.  I feel like I'm talking to children when pointing this out, if particularly dim ones, but employees are getting compensated for work here.  The birth control is not just being handed out free at the mall or something.

The real "financial windfall" as noted by the brief might be the other way -- getting the tax break in place for providing health insurance (there is no actual "mandate" except when you choose to have coverage) without needing to provide basic aspects of the insurance.  Ditto getting benefits of religious and/or non-profit corporations while acting in most respects like a secular for-profit.  This is a major issue in the case -- RFRA "restores," but the corporate religious liberty being claimed here is a novel claim.  Individuals have religious liberty; corporations have some rights as persons (this confuses some on my side) such as the right to sue and some free speech rights. But, free exercise is a personal right.  Corporations don't pray or take communion. These are not also the special category of religious corporations.  As one of the last two analyses remind us:

The very goal of the corporate form is to separate the person from the entity, shielding the person from obligation and liability and ensuring that the entity focuses on profit maximization. As the Supreme Court has noted, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

As to how "cheap" ($9 is a favorite amount), the lede brief goes into detail on how it is not cheap (though even as low as $50 has been shown to lead some not to use contraceptives, short term needs leading to bad long term decision-making -- shades of Justice Blackmun's "another world" reminder).  An important point here is that certain contraceptive choices are more much more effective, meaning the coverage here is important in respect to many who use some means. These means can be a matter of hundreds of dollars in upfront costs, not even taking into consideration those with special needs.  It is far from "cheap" and the return here furthers not even the health of the employees (and their dependents, be it daughters or spouses etc., so yeah, men's coverage matter too), but also healthier children.  Spacing of children is in a common sense fashion important there.

These are quite significant concerns and denial of coverage can be quite burdensome.  This is why twenty-eight states already have some form of a requirement to provide equal coverage of prescription drugs, which underlines this is not just some "Obama" thing.  The requirement here is  nation-wide and more comprehensive, sort of like a national ban covering employing children as compared to varied state requirements.  Employers are not "mandated" to provide coverage, except to the degree they wish to get the tax break in place, others helping to pay for the benefits of others or the negative costs arising from lack of coverage.  JUST like some opponents argue should be done -- the federal government in various ways do provide reproductive health costs to the nation at large (note how even counseling about usage is rejected here). But, some want to have their cake (tax break) and eat it too (not providing the coverage required). 

Gender equality and reproductive liberty alone are compelling interests, which is not and should not just be a "left" or "feminist" thing.  The law here, however, is particularly concerned about health, and not just for the employees themselves.  As noted by the brief, the USSC has held that accommodations provided for religious reasons might be allowed but "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries."  Denial of basic health care (down to counseling) etc. is such a "substantial" imposition.  The fact it is a benefit does not trump -- government benefits are basic things as noted above and selectively denying them for religious beliefs is trouble.  How about if a minimum wage law was at issue? 

Meanwhile, the employer does not have a "substantial" burden, here not being required to have health insurance and not directly providing the services involved.  It takes some doing to explain how this is different from providing a salary that can be used in ways the employer does not like.  The immediate concern here is a claimed statutory religious exemption (Oregon v. Smith blocking a claim based on the First Amendment, though there is a weaker claim that the provision here is being singled out, others getting exemptions so religious claimants should too ... this falls upon scrutiny).  But, talk of "free birth control" and anti-PPACA language (or companies only now deciding what they have been doing for years is against their faith) suggests one should be wary.  As one article noted cited, an actual evenhanded approach here (mandated by the 1A) is far reaching:

If Hobby Lobby can deny contraception coverage, can a Jehovah Witness corporation refuse to cover blood transfusions, or a Scientology corporation refuse to cover psychiatric services? What about employers with religious objections to homosexuality who want to deny spousal benefits to same-sex married couples?

A religious employer can and does fire people for doing things with their salary that the employer does not like, such as a teacher who has sex out of wedlock or pays for an abortion.  There is a constitutional interest there -- the "ministerial exemption" of a recent case.  But, this is not the "internal" concerns of such a religious institution, but the public marketplace.  There, see U.S. v. Lee, you cannot "impose the religious employer's faith on the employees."  This is the sort of case RFRA is supposed to have "restored" us too.  I remain of the belief that it is nearly on "all fours" and find the argument otherwise specious.  Marty Lederman's analysis underlines this too is a tax case.  If anything, as he noted at one point, the employers here have more discretion. 

Many are scornful that contraceptives are being targeted here because the vast number of people, including Catholics, use them. By their actions, such "values voters" show that one can be "religious" and support birth control.  For instance, some websites can be found that are quite sex friendly, if for the right sort of couples, and contraceptives (especially in certain cases) could further this "God honored" union.  In the 1960s, there was a strong belief even among many Catholic theorists that this would be appropriate.  The two firms here, however, say they are only concerned with abortifacients.  I personally think our current policy about abortion is illegitimately not religiously neutral, certain beliefs on abortion singled out as grounds to deny health coverage (even when pregnancy significantly is harmful to health) and grant special exemptions. Marty Lederman, however, explains that even granting that, the claims here are trying to push things further.  As with religious exemptions generally, some degree of balance is essential here. 

And, putting aside that even counseling is involved here, many of these lawsuits do cover birth control generally.  Even if, dubiously, stretch the word "abortifacient" to cover the drugs here.  The intrusive result of a win is also notable, especially if we provide an evenhanded rule -- employers, even for profit corporations with the special state benefits that entails, would have the right to micromanage your health choices, determining if such and such is "really" for a "moral" reason based on idiosyncratic religious and conscience belief systems.  Repeated attempts to point this out online underline to me that some are more concerned with personal beliefs about certain subjects than truly evenhanded religious liberty. Finally, as noted above, giving the individual employee coverage here furthers their own religious rights:

Removing the contraceptive coverage guarantee would place some women with religious objections to abortion in what is for them a morally difficult position: they might desire but be unable to afford the most reliable methods of contraception and therefore be at increased risk for confronting an unintended pregnancy and the difficult decisions that ensue.

It simply is not typical to consider stopped a fertilized egg implanting (even if, and scientific evidence appears to hold it very unlikely, though it is accepted for purposes of the current lawsuit as possible, this is actually occurring here) an "abortion." The word is tossed out as a sort of scare word and is very misleading.  But, even there, the broader argument on the other side will inhibit usage of the most effective birth control even when there is simply no chance of even that sort of "abortion."  And, at worse, the vast number will see a morning after pill or IUD as a much less immoral alternative to abortion (or bringing to term a child they deem unable to care for etc.).  The contraceptive policy here therefore reduces abortions while furthering religious liberty, the latter in respect to the people much more directly "burdened." 

These are the sorts of things the justices, including Justice Kagan who in the past lacked a certain amount of perspective in respect to RFRA (but a lot of water has flowed under the bridge since the 1990s, including opposition to a broad religious exemption law in Arizona recently), should consider tomorrow.  The compelling interests of the provision and the can of worms if the firms win should make things clear.  Denial of coverage by the likes of Notre Dame is offensive, even if they are something of a special case.  Allowing it here for a for-profit seller of hobby products is absurd.

Romeo and Juliet

One of the most approachable and easiest to read Shakespearean plays had many movie versions, including a somewhat simplified one last year (mixture of prose and poetry, the simplification intentional to attract the modern day teen viewer; WS himself adapting old works for his audience) starring the True Grit star as "Juliet." Overall, I enjoyed it.

Plenty of Time When We Get Home

That is, what the man she eventually married said when she said "in country" that she wanted to have a romantic relationship ... and then he got a brain injury. This is a sequel of sorts of this author's first book, dealing with her time adapting to coming home. Both was good though did not get into the first when I tried to re-read it last year. Oh well.

The Girl by the Lake

The love interest in Hot Shots! continues her career, often in Italian films like this one where she has an important supporting role. VG came to mind because her directorial debut recently came to local theaters. This film is a good murder mystery/character study of a small community. Tried another film with her, but dozed off.

Rev. Joe -- Female Bible Audio

This website with various versions of the Bible has one problem -- all the audio (English at least) is masculine. I found this which includes an option that goes back/forth from a male to female reader, the latter more pleasant to listen to imho. Also, listening/reading them as part of my "A New New Testament" ongoing project, it seems to me that the "real Paul" epistles are easier to read. Ephesians is a bit of a trudge. The pastorals too conservative.

One more thing ...

I was listening to the oral argument in Ambach v. Norwick, which upheld a NY regulation requiring citizenship to be a public school teacher with some exceptions.  The dissent brings to mind Sweet Land, which involved a foreign national being unable to marry given anti-immigrant laws of the early 20th Century. Details change, but ...

Michigan same-sex marriage ban falls

Update: Temporary stay by the 6th Cir., but not before a few hundred people got licenses, around fifty got married.

Indianapolis’ classification involves neither a “fundamental right” nor a “suspect” classification. Its subject matter is local, economic, social, and commercial. It is a tax classification. And no one here claims that Indianapolis has discriminated against out-of-state commerce or new residents. Hence, this case falls directly within the scope of our precedents holding such a law constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” And it falls within the scope of our precedents holding that there is such a plausible reason if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

Justice Breyer wrote this (citations omitted) a few years ago for the Court, and for such regulations, "plausible" is a pretty low bar. It is true that "rational" should have some content and as applied to many barriers applied to same sex individuals and couples, it would be a bit "generous" to say it was met.  But, as various people (including a few justices) have noted, the test is not applied equally in all cases.  As Justice O'Connor noted in her concurring opinion in Lawrence v. Texas:

When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships.

Windsor also spoke of a more strict degree of scrutiny in this area when there is clear evidence of such a desire to harm such a group, particularly when the regulation is of an irregular character.  There might not be a clear doctrinal statement on the point, but the standard applied in the first case is not likely to be applied the exact same way when personal characteristics and fundamental rights (even if strict scrutiny is not applied, as has been when they arise -- see, e.g., Lawrence v. Texas) are involved.  Again, failure to be totally upfront about this shouldn't lead to some feigned "confusion" on the point.  Nor some "shock" that the courts are not fully aboveboard.  Please.

I think there is some value in being upfront about this in the area of sexual orientation, especially with district court after district court rather passionately (maybe not all, but quite a few) stating how SSM is constitutionally protected, even if using somewhat restrained language for the holding given current appellate doctrine.  This case, which is particularly notable for having a full fledged trial and not (yet) granting a stay to its pro-SSM ruling, is a case in point.  The rational basis test ("any conceivable legitimate interest") is used, not "animus" or heightened scrutiny (e.g., as applied to the right to marry), but the "personal sacrifice" of the litigants are noted and "fervent hope" that their children will enjoy equal rights in the future.  And, the "wait and see" rationale is rejected particularly when "constitutional rights are implicated."  Well, such "rights" are "implicated" even in tax cases.

The use of the rational basis test provides the simplest approach in certain respects, including for a lower court judge who has to follow precedent.  Sexual orientation is not given heightened review generally speaking (some states do as did the 9th Cir. and the 2nd Cir. in Windsor) though some limitations here (the seminal case here being Romer v. Evans) are so blatant that "animus" can be shown.  Windsor suggests other concerns can also factor in, there federalism.  The opening case points to others of constitutional dimension that goes beyond run of the mill legislation where much teeth at all will lead to suspect intrusion by the federal courts  -- "discriminated against out-of-state commerce or new residents."  To quote from that Romer:

First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Marriage is not as "undifferentiated," but still covers a lot of ground, plus it has its own independent constitutional importance.  Fully resting on it is a big step for the courts to take, raising questions as to "what is marriage" and so forth. Nonetheless, like O'Connor, its importance is used by the judge here as an important factor in the analysis, even if mere rational basis review is applied.  The "sheer breadth" of the barrier to marriage here also "seems inexplicable" except as "animus" to same sex groups. An honest accounting shows this, I think, but courts often try not to be um so "blunt" about things.  So, the opinion here holds there are no state interests with a constitutional "rational relationship" to "legitimate state interests."  The actual reason "why" is left to implication.

To be fair, "animus" is a strong term that suggests a certain strong intentional motivation, and "no legitimate" purpose provides an alternative that addresses a broad range of cases that are not as strongly problematic as some instances in this area. A federal law, e.g., that singles out a certain kind of marriage for federal benefits even when it was not deemed necessary to "defend" marriage or marriage when interracial couples were involved at the height of Jim Crow is different from a state that has historically and continues to do so not authorize SSM. Or, a state that singles out same sex marriage so that even normal legislative process cannot authorize it (cf. Prop 8 with what Hawaii did). As Justice Kennedy noted in respect to physical and mental impairment:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

A special "malicious ill will" with a certain degree of "purposeful and intentional action" is the sort of thing the USSC was concerned about in various cases where burdens on groups not otherwise enjoying "heightened scrutiny" were at issue. I think there might be some "plausibility" to the rationales given if the test applied is the same used for some run of the mill local business regulation or something.  As shown here and other cases, the arguments are rather weak, yes, but "plausible" is a low bar. I might be being a bit generous here, to be sure, especially in respect to certain arguments that are just plain stupid. The "wait and see" argument, however, a sort of Burkean approach, might be the strongest, again if nothing else but some simple tax law was at issue or something. And, even that, at this point, all things considered, is about run its course.

But, such bare bones rational basis review is not actually applied in cases of this nature, and any teeth will defeat the barriers to same sex marriage found here.  A simple acknowledgement of what is going on would be appreciated, but might not be Justice Kennedy's way.  And, on some level, it might be a good idea, a reflection on the changing mores of the population as applied to federal constitutional action. IOW, a certain higher degree of "blatant" is necessary there before something is deemed not "legitimate" for constitutional purposes. The nuances might be inexact. Maybe, a good concurring opinion. This is only more so if the fundamental right to marry is factored in, the clear animus apparent particularly as applied to some recent regulations (e.g., where even marriage-lite benefits are blocked by state constitutional amendment).  And, though some might not be convinced, gender equality too.

Anyway, yet another ruling on the irrationality of denial of SSM benefits.

Hobby Lobby Part XII -- On Abortion and "Abortifacients" "

Last part of this analysis is particularly on point as to reducing abortions, particularly for those who religious beliefs find that very important. It's so aggravating that even respecting the concerns of the other side that this case is so easy but the wrong side very well might win. It will hurt individual religious freedom writ large. Women's health. Hurt corporate law by confusing the individual with the corporate. Narrow f-up might be the best hope.

Michael Vick Signing

Ugh. First, dragging this out was one last "screw you" move to Mark Sanchez, who you know, did take you to two championship games. Two, the dog stuff still rankles. Three, he has shown to be an iffy person talent-wise. If he was the back-up, maybe, but not sure that is the goal. Surely not his. And, Geno was 8-8 on a subpar team in '13. Not bad!

All The Way

Someone won a couple tickets to the LBJ play that covers Nov. 1963 - Nov. 1964, particularly his attempt to get the Civil Rights Act of 1964 passed and get elected in his own right. So, had a chance to see it. A bit too focused on one man, but even there, the large cast (playing multiple roles) remind it isn't only about him (MLK is sort of secondary lead, also very good). As art, it is very good, though it felt a bit long. Almost worth the real ticket prices.

"What Lies Beneath"

The answer, and it has stuck with me, was that the ultimate meaning of the decision lay in how the lower courts interpreted and applied it.

Latest Greenhouse column considers “how far the Supreme Court should go to acknowledge the real-world context of its decisions.”  Nod to Sotomayor/dissents. And, lower court context too. One more reason the confirmation/filibuster battles are so important.

Two Things I Liked Less .. (First Day of Spring Edition)

All is Lost sounds like a neat film, but watching even a little of it got fairly boring. I think it might have worked better as a short subject. Secret Lives is an early book by Diane Chamberlain (see side panel) that starts pretty well, like the writing style and various aspects. But, one subplot doesn't work well and it simply goes on too long to hold up as a whole. Does lead me along with the other book to try her again.

As Cool as I Am

This is one of those enjoyable indie type films, a drama about a sixteen year old girl with a largely absentee dad and not quite mature mom (Claire Danes), neither quite growing up after having a child in high school. Her best friend moves away, she has various sexual issues (emergency contraception alert) and her mom is having her own growing pains.

"Exam Rooms and Bedrooms: Navigating Queer Sexual Health"

Many have argued that too much research testing is geared to men (if not a certain type) and the "average" might mislead in a range of places. Also, as applied to various forms of testing. This article provides a good analysis of a comparable issue in respect to sexual health.

"Are you so dull?"

Jesus called the crowd to him and said, “Listen to me, everyone, and understand this. Nothing outside a person can defile them by going into them. Rather, it is what comes out of a person that defiles them.” After he had left the crowd and entered the house, his disciples asked him about this parable. “Are you so dull?” he asked. “Don’t you see that nothing that enters a person from the outside can defile them? For it doesn’t go into their heart but into their stomach, and then out of the body.” (In saying this, Jesus declared all foods clean.) He went on: “What comes out of a person is what defiles them. For it is from within, out of a person’s heart, that evil thoughts come—sexual immorality, theft, murder, adultery, greed, malice, deceit, lewdness, envy, slander, arrogance and folly.  All these evils come from inside and defile a person.”

-- Mark 7: 14-23

I was listening to the gospel via a website that not only provides various translations but audio for a few of them and caught this interesting passage. Why so?  Check out that parenthetical, which is serious business -- it appears to do away with kosher rules.  "Jesus" here is saying that all food are clean, a remarkable thing for a Jewish "rabbi" (as he is called more than once, though it sounds Jewish to our ears).  An earlier comment where he said Sabbath is made for man, not man for the Sabbath is also notable.  But, this is particularly so.

Of course, things look a bit different if we realize the parenthetical is a later gloss, not necessarily something Jesus himself said.  Mark, the earliest gospel (it might be the case that parts of the Thomas gospel was collected earlier), still was written long after Jesus' time on earth.  A newspaper article today often has questionable glosses placed on certain facts.  An ideological publication only more so. Imagine if they were talking about things that took place decades ago with only word of mouth and perhaps some true believer notes to rely on?  These asides should be taken with that in mind.

It also is notable to look at how the same concept is dealt with in other places in the New Testament.  Peter had a crisis of faith on the question of eating "impure" foods or eating with Gentiles, Acts holding that a vision led him to decide it okay.  Nonetheless, food along with other matters were still a matter of debate enough to have to be settled in a special council (Acts 15), which decided that "You are to abstain from food sacrificed to idols, from blood, from the meat of strangled animals and from sexual immorality."  Paul, writing earlier, also noted Peter's concerns, noting he was pressured by James (Jesus' brother) not to eat with Gentiles. 

This would all be strange if Jesus himself made clear that all food was clean.  Was even James so "dull" on this matter?  Possibly.  On the other hand, we might have to read between the lines.  (Jesus/actual practice) to Paul to Mark to Luke (the assumed writer of Acts)  acted in different times and contexts.  The first disciples still saw themselves as Jews, following Jewish dietary rules, even if exactly how this should be done was open to debate. In time, "Christianity" became more and more not a Jewish religion.  Mark himself was writing as the fall of the Jewish rebellion was still crisp in the memory of his readers.  James had been martyred at least a decade earlier.  Luke tried to find a middle path -- Peter and Paul in effect on equal footing.  The dietary tidbit is a flag here.

Such things easily can be missed, but make the reading particularly interesting.

"Don't Tell Ruth Ginsburg to Retire"

I think this is a good analysis. The WP profile linked is also well written.

"Hair Makes the Man"

In honor of Wyatt coming back to The Fosters, I offer this discussion of a case of sex discrimination based on hair style. Melissa Harris-Perry had a show about black women's hair and the issue has a lot of complex nuances. Hair length was a major concern in the 1970 era (here as applied in Native Americans) as suggested by the musical. Also, check out this book.

"Yes, Corporations Are People: And that’s why Hobby Lobby should lose at the Supreme Court"

Hobby Lobby’s owners, however, formed a business corporation. By asking the Supreme Court to let them enjoy all the protections of this corporate form, but not all of its duties, Hobby Lobby’s owners want to have their corporate cake and eat it, too.

"The Strange Bedfellows of the Anti-Contraception Alliance"

An interesting discussion that includes some references that underline how even fairly conservative types do not find contraceptives and even abortion violates their faith in various respects. The developments cited also add strength to those who think the "real" story here is not merely faith but cultural, political, gender conflicts and so forth.

Meanwhile on WOR ...

The Mets shifted to a new radio station, no longer on the sports station, now on conservative talk. So, I caught a bit of Granddad Pat B. on Sean Hannity go into non-interventionist, too sane for SH mode on the Ukraine. Hannity shifted to hopes the Republicans will win big in '14 to get on safer ground. Spring Training "B" team baseball is um subpar.

Various

Toby had a chance to shine on Switched At Birth, interrupting daughter boy drama (overdone though Bay's birth mom had a good sex talk with her). Brandon finally got caught on The Fosters, the episode saved by Wyatt returning. Today's JP Day - the day for Irish/Italian mutts in between days for each. The NYC mayor, who married someone who earlier had announced as a lesbian (seriously -- as if the interracial thing isn't enough), did not march in the parade.

TN SSM Case

Seems appropriate to keep up the marriage book on the side panel with a steady stream of SSM rulings, the most recent a limited one with broad dicta (at least assuming how things will go) concerning recognition of out of state marriages. Appellate rulings due within a year.

Then There Were 2

There were various cinemas here when I was growing up, but now there are only two multiplexes. A reference in the report here to the Whitestone (a 1950s drive-in turned multiplex) is mistaken -- it too has closed. Seems a place should be present for a nearby reasonable priced movie in such a neighborhood, perhaps rented out for special occasions.

Amy Winehouse -- Ides of March Edition

The BBC called her "the pre-eminent vocal talent of her generation." But on a stormy December night in 2006, before the world saw her as a superstar, she was simply Amy Winehouse, playing an acoustic set in a tiny church for an Irish TV music series.

I happened to see this program on the Smithsonian Channel (in the 600s range on my Fios package) reviewed in the paper or would have no idea it was on. Particularly without a paper t.v. guide, all these channels seem to be designed for serendipitous watching.

A bit more on the book

The author supports a Millian approach where "self-regarding" conduct is protected. This leads her to argue that Lawrence v. Texas only is so good, since it provides a special place for the home. But, the home IS a special place -- for some reason, Nussbaum fails to note that the Third and Fourth Amendments specifically speak of "houses."

The ruling, as she notes, does say that the liberty at issue is protected beyond the home to some unclear degree. Holding hands in public should not be criminalized. Yes, the ruling only goes so far. But, it goes pretty far, including protecting intimate conduct of a sexual nature that other opinions merely hinted at in breadth. Thus, Carey v. Population Services International left open "the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults," leaving open criminal fornication laws even among heterosexuals. Lawrence basically compels that such things are unconstitutional even if the somewhat opaque language makes upholding laws against selling sex toys somewhat (only somewhat) not risible.

It is appropriate to focus on seclusion and consensual choice, not just the home. Thus, the USSC split but 5-4 on upholding a ban on expressive nude dancing though in time it went down to 6-3 (the book missed Souter's change of heart, but two other votes changed too) -- Justice White noted that even though it was a "public place," the nude dancing should be protected given the presence of consensual adults.  Practice protecting even public sex in secluded portions of parks also is noted.  A misguided view of "private" v. "public" would hold that AA meetings or doctor appointments are purely "public" since they take place in "public" places not in pure secrecy.  See, e.g., Justice Rehnquist's dissent in Roe v. Wade!

Nonetheless, I do think she might go too far in respect to sex clubs. She too blithely notes that even if there is a real risk of STDs, including AIDS, consent should be the test. What about the danger of spreading it to others, such as unknowing spouses and significant others? There are criminal laws for that. That made me say "oh come on!" Such laws are rather unenforceable -- how do you prove (1) the person knew they are infected (2) fraudulently had sex with a partner, who did not knowingly accept the risk? Like anti-prostitution laws, the better argument to me seems to be that the alternative to a regulated sex club is less safe.

[And Also: Another problem with her "solution" (which she very well might not be too serious about, just using it as a means to answer a possible criticism)  is that many who otherwise are sympathetic to her p.o.v. do not like such laws.  On Gay USA recently, e.g., a host made it clear that he opposed a prosecution regarding someone not telling a partner of his HIV status, apparently fearing the negative results of regulating things that way. Such concerns need to at least be referenced if this is put out there as an adequate alternative to a ban. 

The fear would be that criminal law would lead to counterproductive results, including such people not getting health care since they fear criminal sanction for not being fully open to the right parties about their status.  At the very least, a purely for-profit sex club without heavy regulation very well is a tricky case, opening up chance of spreading of sexual diseases given the high volume of anonymous sex, including to third parties who are not told and restraints on that are in practice pretty weak.]

The book does helpfully discuss the complexities of "private" and "public" -- from purely private in the seclusion of one's home to consensual behavior in public places to the sort of truly "nuisance" and generally harmful type behavior that is appropriately regulated or even banned.  SSM is an example of how Lawrence  left open something that the opinion specifically did not decide -- it even said it was not deciding the question. But, like other rulings, the opening was obviously there using the overall logic of the ruling. "Public" behavior of other types will also arise soon enough, if it is not already in various respects. 

It is also interesting that the book does not seem to have dealt with at all with transsexual issues at all. Alternative sexual behavior was dealt with a bit along with nude dancing, but I can see that -- the book is after all about sexual orientation specifically. Nonetheless, the "GLBTQ" acronym alone suggests that transsexual and to some degree "queer" or "questioning" (however one defines the "q") is worth a bit more comment, perhaps. Even in a small book of this sort.  

Disgust and The Value of Multiple Reasons

I am reading Martha Nussbaum's book from Disgust to Humanity: Sexual Orientation and Constitutional Law, which might be seen as an offshoot of an earlier longer work that dealt with the overall subject of disgust in various contexts. Read that book too and recall it was pretty interesting, if a much longer and deeper analysis of the question.  This volume is part of a collection that includes various constitutional issues discussed in quick packages, including guns and interrogations (to name two I read).  It was written a few years ago, so DOMA is still good law and under ten states have SSM, not including California any more. 

Prof. Nussbaum argues that disgust is a problematic emotion that leads to irrational actions and policies.  In a limited fashion, when direct physical disgust such as of noxious odors is involved, it can be a suitable guide. Even here, it is not a purely natural emotion, but one motivated by culture. I sometimes imagine, e.g., how offensive people would find walking around in days without modern day sanitation and so forth. Bluntly put, even the best sorts must have smelled pretty bad without daily showers or the like. Nonetheless, people accepted it as nothing out of the ordinary.

But, more "constructive" cases, such as disgust for homosexuals (or let's say the overweight or generally those deemed unattractive) is truly problematic. Emotions can provide useful means toward justice. Anger, e.g., is appropriate when a wrong is committed. Humans have emotions and are not just machines that just process things purely rationally. Emotions however can mislead, especially when they result in the horror that is disgust. Disgust makes it unpalatable to be in the same room or even within smelling distance of things. It takes a lot to spend even a small amount of time in a smelly bathroom.

When this is the motivation or a major aspect involved when dealing with human beings, the troubling results is apparent. The human on some level does not seem quite human, but a disgusting thing. Thus, an important aspect in Nussbaum's mind is empathy -- a means to see that on some basic level that others are not "other" but are equal. Things that disgust make this harder. There is a visceral dislike and inability to reasonably see connections. See, e.g., Bowers v. Hardwick or same sex marriage -- the indicia of marriage is there clearly enough in a same sex couple, but somehow there is supposedly some difference. The difference, however, seems to bring in many different sex couples as well. The need for empathy here also shows the basic error when there was some horror that President Obama -- among other things -- argued that empathy was is part of judging.

But, considering others, stepping in their shoes, is necessary to judge. How to be a juror trying a case without that? It is not the same thing as "sympathy," though that can be important in the law at times. Anyway, a key difference between the two? Disgust. As is sometimes the case, Prof. Nussbaum's specific focus appears to have clouded to some degree her response to another aspect of the problem. That is, she argues that male fear of "bodily penetrations and vulnerability" is a central reason why homosexuality disgusts -- there does seem to be a main focus on male homosexuality here, historically lesbian behavior often not even addressed (though it was in various cases).

And, thus, does not think the argument that discrimination in this area is a matter of sex discrimination quite works, though realizes that it addresses some of what is going on. This is so even though there is a formalistic logic to things: people are discriminated against for sexual desires or actions for the "wrong sex." As a proponent of the argument, Andrew Koppelman, notes in an article cited in book, however, there are many things wrong here. Sexual discrimination still occurs even if it is not the only thing:

So many things are wrong with laws that discriminate against gay people that it is hard to know where to begin. They intrude on citizens' privacy. They enforce indefensible beliefs about sexual morality. They give the state's imprimatur to a theology, and a dubious one at that. They interfere with matters in which the law has no competence and that are none of the state's business. They oppress a long-suffering minority. Their enforcement typically involves cruelty and hypocrisy. They also discriminate on the basis of sex, and they depend on and reinforce the subordination of women.

And, even take what she brings up. The concern is not "penetration" alone. Women can be penetrated, right? That is what happens in "normal" sex. Also, though it might be a problem, it often is not a problem if women penetrate the man in various ways. As Prof. Nussbaum notes, bodily fluids alone is not a problem for people equally. There are a lot of germs in the mouth, but kissing between men/women is readily accepted. The most homophobic guy is likely to still enjoy oral sex if a woman does it. The sex of the person doing the act is important here. Many homophobes also have anal sex, again, it has to be the 'right' male/female pattern. The male is vulnerable when a male "invades" his body. A male performing oral on another male disgusts though even here some think it inappropriate even if they are asked to perform oral on a woman. There seems to be a specific sex based dynamic going here, even as to disgust.

Note as well Dale Carpenter, who is generally supportive of gay rights (and is gay), though accepts limited exemptions such as the infamous bakery case. Let's go back a couple years to comments he made in response to the 9th Cir. ruling on the Prop. 8 case:

I also noted that it would be hard to draw the line, as the Ninth Circuit panel did in Perry v. Brown. The opinion explicitly limits its holding to California, where full rights and then marriage itself was given to same-sex couples but then marriage was retracted. I see no principled minimalist reason to justify this limitation. Perhaps there’s no rational-basis for granting full rights but not the dignitary status of marriage, because granting the full rights surrenders the core for refusing marriage (procreation and responsible child-rearing). But it seems only judicial fiat further confines the decision only to states where the word marriage was given and then withdrawn. The effort to cabin the case to California, as opposed to the other civil-union states is the most unsatisfying part of the decision. That’s why I called it “judicial minisculism.” I’ve also said repeatedly in these electrons that I think the Perry litigation is likely a loser that may set back the cause. Reinhardt’s opinion seems to be an effort at harm reduction so that even a loss in the Supreme Court will be on narrow grounds. We’ll see, alas.

I don't quite know why it is "unsatisfying" for the Court here to limit itself to what the case was specifically about. This push for activism especially given the cautious nature of the USSC these days is strange to me. There is a certain "give me a break" flavor to this apparent confusion. To belabor a point I have made in various places the last few years. Yes, ultimately, there is no great reason in the long term to draw the line at California. But, like DOMA, it was a particularly blatant case in certain respects. The comment suggests why -- there was a certain gratuitous nature to it. Carpenter isn't quite Cassandra here either. He also did not find the sex equality argument -- which some find basically obvious and wonder why it isn't used more -- convincing either:

It was hardly mentioned in the main attack on the same-sex-only sodomy law in Lawrence v. Texas. Its main problems, very briefly, are that (1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ”real differences” between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple). To the extent courts care about sexist legislative purposes, it’s not obviously clear that the traditional definition of marriage is designed to reinforce the legal subordination of men to women. The law today makes spouses legally equal, regardless of sex. It’s a debate that won’t end, and I recognize others may reasonably disagree.

The sex equality argument actually won out at the intermediate level in state court. Also, Lawrence did not ultimately rely on equal protection at all, though it was discussed as an important aspect of the situation. Plus, Justice O'Connor did rely on it. Anyway, the exclusion of homosexuals -- the class of people harmed the most -- does raise perhaps the core reason why so many don't see it this way. Society sees the people harmed -- women, blacks or gays. Not just the motivation, which many do not want to think too much about, including the controversial religious and moral arguments involved. There is a concern of some that resting on animus is a problem, since it makes people feel bad. Some took the DOMA ruling badly on that front, favoring something more phrased in more neutral language. Trying to use foundational arguments involving sex also doesn't "sell" well and only has received limited support in concurring opinions or the like. Pragmatically alone, it can at times seem like forcing a round peg in a square hole -- might work, but not worth the effort.

Not sure about the second concern -- what "real differences" are truly involved here? The capacity to procreate is not appropriate grounds under past cases and in practice -- people who cannot procreate are allowed to marriage. Who is not? A certain subset that wish to marry the "wrong" sex. The importance of procreation ultimately turns on that. I think the motivation behind this harm is a matter of proper sex roles. As I noted at the time, traditional marriage DID reinforce the legal subordination of women and the changing meanings of marriage in large part is a matter of equalization of the sexes. The arguments against SSM repeatedly have a component that stereotypes sex roles, e.g., it is not "natural" for men to be with men or vice versa. Sex stereotyping, not mere "subordination," is a sex discrimination problem. Like use of privacy without equal protection only gave 1/2 the story in the abortion context, this is important.

The legal equality of the sexes in marriage -- contra to "traditional" marriage -- furthers the cause of same sex marriage. See, e.g., the trial ruling in Prop 8. Sexism is a factor in discrimination in this area. Men and women who are not the "appropriate" gender or do things not appropriately masculine or feminine for the particular culture know this rather well. The animus/disgust against gays and lesbians at the very least is partially a matter of sexual roles. It is hard to fully understand the subject without taking that into consideration. The correlation between advances in sexual and sexual orientation equality is also suggestive.

There is no reason to put things all in one box, of course, and some good reasons that the courts (and society) treats sex and sexual orientation discrimination as separate things in various respects. And, basic equality and justice should not be forgotten in the race for nicety of principle. Still, as we examine the complexity of the situation, including the disgust angle, we should also understand the value of each reason used toward those ends.

The Fosters

The scenes between Callie and her dad were very good and Brandon actually had an endearing moment (hugging Stef).  Overall, episode was okay.  More good subplots in first ten.  Jesus again interrupts Stef/Lena.  The first few episodes of S3 of Switched at Birth were pretty good.  Another "hey I know" moment.

Ernie Chambers

I talked about this term's legislative prayer case. Turns out the plaintiff in the Marsh v. Chambers is (after a term limit mandated break) still in office. Sounds like a good guy. Some audio (from FFRF radio) on the case with him also being involved.

"Mets should make Juan Lagares starting center fielder"

Yes. Along with getting a SS, this should be no-brainer territory. [insert joke]

SSM Update

Interesting use of Windsor's federalism component to promote SSM -- the argument is that "marriage is quintessentially personal, it is quintessentially local." But, the opinion's discussion on marriage itself still is phrased in language that applies to all, "two people," not just men/woman. Meanwhile, the appellate round is approaching on multiple fronts.

MHP on Motherhood

Melissa Harris-Perry on the politics/pratfalls of motherhood here with (finally!) the answer to my question of her new daughter's name (Anna James/"AJ").

Books

It's not really novel, but "Why Do Only White People Get Abducted by Aliens?" is a good read about a young teacher's experiences at a nearby (to me) high school with a cameo reference of someone I know (she wasn't quite pleased). Kitty Genovese, a recent book on the infamous case, is decent, but too concerned with local/topical color (filling up paragraphs of a short book) and somewhat unsatisfactory though you learn a few new things. Unsurprisingly, the "thirty eight look on" bit was rather exaggerated. Ends with an "it happened like this."

"Can We Learn About Privacy From Porn Stars?"

Interesting op-ed from one.

Rev. Joe: Gospel of Mary

Today's reading from A New New Testament on this early "spring forward" day is this fragment of a work that seems to have been written in the early years of the 2nd Century. The trip of the soul to a final resting spot is my favorite part. The only gospel we have written in the name of a woman (the assumption is it is Mary Magdalene).

Mets Spring Training (now on WOR)

It is early, but this is what one can see -- some promising young arms, questionable but probably workable relief arms, some (given past experience) troubling injuries and a glaring need for a new SS. I'm not really gung ho on 1B, but the SS is "if you don't get one, fucking asshole" territory. There are options and it's doable, especially with the Seattle option that can be done via a trade of one of the minor league arms (or maybe someone like Gee).

"Shelby County and the Illusion of Minimalism"

Rick Hasen provides a harsh criticism of Shelby v. Holder here without letting the other side totally off the hook -- it might have been wrong & the dissent still was correct, but Congress was on notice that changes in federalism jurisprudence made the renewal of the VRA without updating some things was taking a big chance. The dissent papered over that. I was a bit naïve on what would happen, but yes, his concern was warranted and more might be coming.

ULC Mariage Update

As noted in the past, officially being married by an internet minister (often cited in NYT wedding announcements) can be tricky. (Becoming one while in prison might be too!) An intermediate court back in the 1980s covering 3/5 of NYC rejected it though the city later on handed out marriage registrant certificates to such ministers. A separate court last year refreshingly didn't go along and remanded the matter for clarification.

Switched At Birth

Before The Fosters, this show is on, and I finally caught the first few episodes on DVD. Starts off well, another show that is teen focused but has room for the adults too. Also, well acted. Some familiar faces -- hey, it's the girl from Back to the Future and the "bad" coach from FNL! The deaf character and her vantage point of the world seems to be handled well.

Update: I did not really like the last few episodes of the first 10. The characters still appealed, but not the plots.

Scandal and More on the "travesty"

Interesting discussion on the nature of a "scandal" using "Bridgegate" as a case study. The "travesty" mentioned earlier concerned some Dems not voting for person a top civil rights slot basically because some law enforcement types don't like his defense of a cause celebre cop killer. This is not good, but as a realpolitik matter, it happens. It is not because he supports civil rights or defended any murderer. Let's be clear on what is going on.

Update: To be clear, the action here [his statement] is a "travesty," since there should be a blanket rule that this should not matter. See the video here. But, let's be clear on the specific problem. And, in Ted Cruz is a b.s.-ing asshole news.

"Three generations of imbeciles are enough"

Or, none, apparently. Diane Chamberlain's Necessary Lies is a fictional account that reminds that forced sterilization continued long after Buck v. Bell via a young social worker and some goings on at a rural tobacco farm in 1960 North Carolina. Powerful page turner that is mostly told thru the eyes of the social worker and a fifteen year old poor white girl.

"a travesty based on wildly unfair character attacks against a good and qualified public servant"

Debo P. Adegbile was blocked at least so far with the help of eight Democrats for the Assistant Attorney General for the Civil Rights Division position because the law enforcement community opposed someone who defended a cop killer. Lawyers do that sort of thing.

Amusing Brief Reading

Seriously -- with an assist of satirist/commentator P.J. O’ROURKE.

TV

A comment today at Balkinization led me to find out that there is a new season/series of Doc Martin. The second half of the first season of The Fosters hasn't been as good, but still enjoy it overall if not all the subplots. Watching Wonderful Town-- a rather laid back but pretty good so far Thai film (some ending!). And, reading a good novel, Necessary Lies.

"In New York City, Making Strip Clubs Go Dry, Then Go Away"

The USSC provided the strategy -- talk about "secondary effects," which is not ("not") targeting the speech as such. So, you can cite "crime, noise or other quality-of-life issues, or highlight a club owner’s lack of qualifications or possible criminal ties" but also do so when targeting liquor licenses. The licenses can turn on content too -- total nudity, no liquor, pasties/G-strings liquor. That seems lame, but the former can work, if open to abuse.

Oscars

I didn't see many of the nominees, but did see two of the animated ones. Frozen (winner) and The Croods (nominated) are worthwhile, but the two foreign ones look like hidden gems too. Despicable Me 2 is sort of "we have to nominate" something material.

Rev. Joe: Holy Spirit

This general Wikipedia entry provides various links on this concept, entity and "person." As noted, though there are many references to the "spirit" (think wind/breath) of God in the Hebrew Scriptures, a "holy spirit" is rarely cited as such. Since Jesus was believed to be the entry point of God's presence for us all, it is unsurprisingly popular in the Christian Scriptures. The concept of a "holy spirit" as a sort of conscience was even cited by Seneca.

Rev. Joe: "Odes of Solomon"

But to spray paint them in the colors of the Gospels is a travesty of restoration which effectively buries what glimmer of meaning we might derive from these golden, subtle poems.

Count this in the non-Christian camp. Note how it is listed both in "early Jewish" and "early Christian" writings in that collection. A bit of modern musical accompaniment. A New New Testament cites it as part of "some Christ movement," but that doesn't make it non-Jewish.

Lee Lorch, RIP (Died February 28)

H/t. A hero and martyr (his wife was no slouch) in the battle for racial equality and academic freedom in NYC and beyond. A query in comments was made to how specifically as a math scholar does him being an "irritant" matter, but I think being a scholar isn't just about a specific field. It is being part of academia generally, part of the whole.