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

Friday, January 30, 2015

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

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

Thursday, January 29, 2015

Originalism and Same Sex Marriage

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

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

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

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

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

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

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


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


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

Wednesday, January 28, 2015

Dialogue 101

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

Tuesday, January 27, 2015

SCOTUS Watch (Warren Hill Executed etc.)

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

Two approaches to respect religion

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

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

Raiders of the Lost Ark

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

Snow? In Northeast?

Monday, January 26, 2015

A truly inclusive meaning of religious liberty

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

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

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

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

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

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

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

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

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


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

Joy in the Morning

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

Saturday, January 24, 2015

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

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

Friday, January 23, 2015

USSC Takes A Lethal Injection Challenge (with some confusion)

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

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

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

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

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

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

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


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

Thursday, January 22, 2015

The We Don't Care About Women's Health Act

Jon Stewart provided the classic case of showing where this "can't taint government" with abortion logic takes us. In the real world, the House passed an attempt to make permanent a restriction of federal funds for health care, even when necessary for women's health, when abortion (will morning after pills factor in?) is involved. But, what does the rape exception (which for now knocked down the twenty week ban) mean? A sworn statement? Will women be second-guessed? Seems like a major loophole for those crafty feminists.

Baptist Response to Roe

As noted by Gov. Cuomo (the other one) at his famous speech at Notre Dame, religions have a broad range of views on abortion, so "values voters" are all over the place on this issue. It is particularly interesting to look at the original Baptist response, a key player on Roe side having a significant Baptist connection. To me, this is in large part a religious freedom issue.

Women’s Health Protection Act (WHPA)

not singled out for medically unwarranted restrictions that harm women by preventing them from accessing safe abortion service
A key phrase in the Women’s Health Protection Act (WHPA), not likely to pass in this Congress, but a very appropriate bill for these times of TRAP laws that target women's reproductive care while (by now poorly) disguised as neutral health laws.

Happy Anniversary! (Roe v. Wade Edition)

In honor of the 42nd anniversary of the abortion rulings, I offer this past post that looks at things from the dissents' p.o.v.  Later dissents were more detailed, but the basic problems continued, including the open-ended nature of the logic of the opinion. The key differential would be the "life" or "personhood" of the embryo/fetus, but that too is rather broad if we apply it to the early months of pregnancy. And, most abortions occur then, while those later tend to be "special cases" in various ways.  

Roe v. Wade and its companion case Doe v. Bolton together took over eighty pages. Then, there were about twenty pages of concurrences, Douglas and Stewart giving a thumbnail sketch of the issues in a helpful way given the breadth of the majority opinions (and summary nature of the core privacy rights discussion), Burger briefly noting the right to choose an abortion is not absolute.

Then, there are the dissents, which amount to about ten pages, pretty thin and not greatly responsive to the opinions themselves though sadly basically of a piece with how things are often handled on that end to this day.  Justice Rehnquist starts by noting it is not clear that "Roe" was early enough in her pregnancy to really get any benefit from the ruling but the opinion made clear (putting aside that it was a class action) that the particular nature of pregnancy made it prudent to decide the case given otherwise the matter never might be decided.  Litigation could always take longer than the short period of pregnancy and anyway there is a good of enough chance for the same issue to arise once again in a woman's life  Rehnquist simply did not respond to this section of the opinion.

Next, he is confused how an abortion involves a matter of "privacy" as if the term has some narrow definition that could not cover such a medical procedure, though in fact the average person would not find it strange at all.  The various opinions explain just what the "right to privacy" means, including a range of personal subjects and decisions that ultimately is left to a person or persons, particularly matters involving one's body or family life.  As Douglas notes, the "right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship."  Again, why is this so hard?

Rehnquist next agrees that a "liberty" interest is involved, but without more, this does not require much in way of a governmental interest.  So, if a law didn't have an exception for an abortion to save a woman's life, yes, the law very well would be so arbitrary to violate the Due Process Clause.  But, what about a woman's health?  Justice White strangely separately says that "the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health," but in fact the statute does not do that.  It does not have a "health" exception.  We are left wondering how they would rule upon a narrow "as applied" challenge.*

The various opinions underline that an open-ended "liberty" interest is not involved here, but a fundamental right honored by various precedents. Rehnquist might not like the test used in that context, including the compelling state interest rule, but there is nothing novel in applying it outside the Equal Protection Clause area.  Not addressing the fundamental rights at stake, he then notes the long history of abortion regulation, if ones that began some time after the ratification of the Constitution. This shows to him that the states could "legislate with respect to this matter."

The majority doesn't dispute the ability to pass abortion legislation but its long history section underlines the state's interests in the area changed over time.  Again, the short dissent does not actually face this matter head on at all.  The trimester scheme that is criticized as judicial legislation, for instance, is a means to provide clear judicial lines arising from changing state interests throughout the pregnancy.  There can be a debate on how best to deal with such things, but you have to at least address just what is at hand.  The last section of the dissent that would for the stake of argument would only strike down part of the statute does not really explain how to manage it in this case.

Justice White takes a somewhat different approach, particularly given his support of other substantive due process rulings such as Griswold though he too is particularly upset by breadth of the ruling: 
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
This reflects the belittling of some on just what is at stake here as if any abortion is likely to have "no reason at all" or will not in some serious way be a result of some threat to the life or health (particularly in the broad understanding of that term in a recent ruling**) of the woman.  The sneering tone of the dissent is striking -- the majority "values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus." Compare the majority approach:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Such a broad understanding of "health" interests was also expressed in defining the terms of the abortion statute in U.S. v. Vuitch, "psychological as well as physical wellbeing." What woman trying to avoid nine months of pregnancy and the resulting effects would not meet this test?  If one seriously looked at the matter, there is a fundamental right at stake here, a strong compelling interest for the woman to have a choice. How does potential life, life that no justice denied was not a constitutional person or one which past cases would hold overrides the fundamental rights of actual constitutional persons win out?  Particularly given how states still allowed abortions, even Texas as a matter of practice, in a range of cases?

Update: Let me underline this -- no justice has argued there is a "right to life" here for the embryo or fetus based in the Constitution that overrides the right to choose an abortion.  Some of them (Rehnquist is notable for his lack of passion here) show their hand regarding personal beliefs as to abortion, but unlike those that appeal to Dred Scott v. Sandford and the like, no justice has rested on the constitutional rights of persons. This is notable -- as I have noted in the past, the states in these two cases themselves in oral argument in part appealed to such rights.  

In a later case, Justice Stevens called White to task on the point, noting that taking everything into consideration, part of the point of all of Blackmun's verbiage (Douglas covered the point in more summary fashion, as was his wont), it was not sensible to so broadly deny privacy rights at the point of conception. White himself perhaps knew this, leading him to exaggerate and belittle the interests at stake.  The same continues to this day, including those who try to explain how a woman "chooses" to risk pregnancy and how "unfair" it is that the man does not have equal rights in this area.  The skewered view of reality continues.

Others have done a better job dealing with the hard questions at issue here, though personally I find many of them (including John Hart Ely's famous "Crying Wolf" criticism from the left)  somewhat lacking.  But, in a fashion, the talking past each other (even Douglas and Stewart, the former seeing "substantive due process" more as a sort of bad word than anything else, an ugly reminder of Lochner) was there from the beginning. No wonder that the same old themes seem to continue, forty years in.


* Doe v. Bolton concerned a law that provided more than an exception for the life of the woman, adding a health exception, one involving certain fetal defects and "forcible or statutory rape" (incest implied).  The breadth of these exceptions were somewhat limited, some noting that particularly given the times, even spousal rape very well might not have been covered. 

** The ruling concerned a D.C. law that allowed abortions when necessary for reasons of health, but as the advocate in Roe noted, Texas only allowed it for life -- this made it harder for the physician to know where to draw the line, so contra to White's summary comment on the matter, vagueness was a serious problem.  The lower court here was not alone in finding such vagueness problems, even with health exceptions.

Wednesday, January 21, 2015

Happy Anniversary! (Citizens United Edition)

As police were taking that person out of the chamber after wrestling the demonstrator to the ground, another protester started shouting "one person one vote" amid the clamor of chairs being knocked over. Another demonstrator began shouting about "the 99 percent," a reference to the majority of Americans as opposed to the richest 1 percent of the population.
There was a protest during the opinion announcements at the Supreme Court, it being the fifth anniversary of the Citizens United ruling (tomorrow is the 42rd anniversary of Roe v. Wade, but there is no open court scheduled).  I'm glad they said more than "money isn't speech," since I find that lame -- it's obviously not speech, but like a range of rights, money is needed for free speech. The problem is the appropriate regulation.  
As I argued in a recent review of Zephyr Teachout’s Corruption in America, the problem with Citizens United was not that it recognized that corporations have speech rights, or that restrictions on money spent for political campaigns should be viewed skeptically as regulations of speech, but that the Court rejected any rationale for regulation other than avoiding quid pro quo corruption in the narrowest sense. The reports released last week underscore how much our democracy is paying for the Court’s flawed analysis.
David Cole hits to the core of the problem that can be lost among those who speak of money not being speech or corporations being treated like human persons (which few doubt is appropriate in some cases, such as for advocacy organizations, media institutions or incorporated churches). Corporations also aren't treated "the same" as human people --  corporations, e.g., don't have the same right against incrimination or the breadth of privacy rights generally as human persons.  The problem is how equally and ultimately the concerns here go beyond corporations to regulation of campaign finance generally.  Rhetoric can confuse.

Cole in the article notes that "problems with the Court’s campaign finance jurisprudence predated that decision," but we should not assume that the problems are "due" to that decision or earlier decisions.  They very well are aggravated by them, but the ultimate problem is going to be present either way, and is inherent in the political process.  Such is Prof. Teachout's point and her argument is that campaign finance laws are loyal to original understanding concerns about corruption and the dangers to good republican government. Moving beyond history, her arguments can provide an overall argument in support for regulation here.

[For sake of clarity, I will add a bit more here. The argument is that the corruption issue provides a compelling state interest that authorizes limits on 1A rights, if such "freedoms" are to be understood to cover that sort of thing in the first place (cf. obscenity as arguably not an aspect of free speech).  Likewise, it is not really true that until the amendment was passed, people didn't have a right to free speech.  So, the underlining contours of republican government that the 1A here furthers and helps elucidate the reach of  would require some limits here.  Finally, at the very least bribery laws provide a limit here; Teachout and others argue a broader quid pro quo threat is out there that can be regulated.  So, those like Scalia who admit money can "corrupt" but it is allowable in a range of ways can be answered, using original understanding as a means of support.]

I did then and do now find the specific ruling at least possibly correct. To be clear, do think it probably was needlessly activist (the term is not bad, it's the application that matters), it very well possible to decide the case on narrow grounds.  If you are going to make a significant change in the law here, an in the middle of things re-argument seems to be somewhat bad pool. And, there very well probably are certain things about a "corporation" that can justify special rules.  Still, the concept itself is not to me some sort of talisman to reduce 1A rights generally.  And, don't think the average critic disagrees really -- they are concerned about a narrow number of rich corporations and again usually have bigger game, like money generally.

This goes back to the dangers of deciding this question too broadly. Some don't like the "minimalism" of the Roberts Court and I flagged the usage of a fairly extreme prison rights case to decide religious rights of prisoners. But, free expression and the like repeatedly turn on specific facts and narrow issues.  So, we had a case the other week about regulation of signs. There are a range of possible regulations here, possible even after Citizens United, if there is a will.  Agree with CU critic Rick Hasen as well as to the foolhardy, except to push the middle along, amendment approach. A case involving non-citizen residents that the USSC upheld without comment underlines the possible nuances here.  President Obama flagged "foreign corporations" in that infamous SOTU comment and did so again today

And, it continues to be a good idea to talk about corruption and progressive ideas of free speech (e.g., not crowding out voices by wealth) and election reforms (you want your money in politics? at least don't add other sorts of invasive regulations like stupid id laws). There are a range of possible solutions here such as voluntary rules for parties, free air time,  matching funds schemes, limits on foreign money and so forth.  After all, even if at least some of Citizens United is right, it doesn't mean all campaign laws are wrong.  Justice Kagan showed that here, even if you thought as solicitor general she was on the wrong side five years back. Disclosure laws, including as applied to corporations (and their shareholders), is another way to go. And, that is one area that Kennedy et. al. actually supported.

MLK believed that confrontation was essential to force society to face up to its flaws.  Acts of civil disobedience, notable for their lack of nuance they might be, have value.  The issue continues, including yesterday when the Supreme Court heard oral arguments concerning judicial elections.


It was fun to follow along via the WH text and video feed (with pictures/graphs/etc. on the side to match various themes) and tweet/follow various comments on Twitter. TPM labeled the speech "jaunty, bumptious, with a certainly crackling of aggressiveness," and saw that sometimes. Seemed a bit long. Reference to "transgender" and related civil rights a first.

Tuesday, January 20, 2015


Designated survivor is Sec. Foxx (so either way, should have a black president).

SOTU As Pointless (or worse)

shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient
The Constitution provides the ultimate basis on some sort of "state of the union" address, but it does not require the President to personally go in front of the Congress etc.  The President need not do it once a year or in person or any such thing. Jefferson stopped the practice of doing so in person and so it was for around a century.  Today's ceremony is fitting for the pomp and circumstance of modern media practice down to having it televised, commented on and a ready response (perhaps more than one) from the other political party.  That's fine and all really.
Chris Lavoie ‏@RadioGuyChris

The #SOTU has become a huge waste of time and resources. We already know what will be said. Tonight will just be political masturbation.
This is the producer from the Stephanie Miller Show, a liberal leaning radio show that is regular morning listening for me these days. It expresses a sentiment various people have.  Think is a tad bit overblown.  It really is not a "huge waste" -- it's not really a big deal.  Presidents already welcome from time to time a chance to make speeches, including basic bullet points on their mission and goals.  This provides a chance for the general public to focus on the matter once a year, including the other side having a chance to respond.  The common person is not as likely as me and some others to regularly check in on blogs or talk shows to worry about this sort of stuff.

The whole thing is clearly largely ceremonial and theater. So? That is true about many things, but there is still some value to it all.  Also, "we" here at times means "us in the media," and not the average person who might not be as familiar with the basics of the message and platform points.  In today's world, giving such speeches in public on television is also different from just releasing a transcript.  There is plenty of "political masturbation" anyway -- what specifically negative additional material is applied here?  I recently posted something about Justice Thomas not speaking at oral argument. Some demean the value of that too; I disagree it is of no use.

And, it is useful sometimes to have the how government (we can debate about the Supreme Court*) in one room together.  If you don't care about it, and honestly I really don't enough to actually watch the thing, just don't watch it. D.C. is full with ceremony and political masturbation. This actually has some connection to constitutional requirements.  It provides a certain bare minimum baseline where Congress and the President has to meet together once a year. We aren't talking Oscars level pomp and circumstance here.  I would just accept it for its modest possible value and not make a big deal about it one way or the other.

Besides, it's an easy way to fill a few hours of television. 


* The Supreme Court formally meeting the President has been a long tradition as has justices going to the State of the Union. Justice Breyer, e.g., takes these sort of things seriously. CJ Roberts has felt a need to go too. Some justices, including Justice Stevens, stayed way.

Some have recently made comments about how they feel uncomfortable because -- shocker -- the SOTU is somewhat political. Was it ever not somewhat political? These days with television and so on, it more so - the idea it is somehow surprising or something seems stupid. I think the justices can handle an hour or so per year blandly listening and not making funny faces when the POTUS makes comments they don't like. If not, don't come.  It is really not a big deal to me personally. 

Supreme Court Watch: Alito Edition

Opinions. One a dissent in a per curiam habeas ruling where he flags that AEDPA is in part a means to address concerns (he name checks Breyer/Stevens) those concerned about delays in capital cases. Okay. Sorta true -- mix of factors there. Also, unanimously upheld the rights of a Muslim prisoner to wear a short beard. Ginsburg/Sotomayor briefly reminds how this is different from a for profit employer burdening a third party (employee). Yeah.

Update: The beard case is pretty low hanging fruit, partially I bet as a "we aren't trolls here" follow-up to Hobby Lobby. Sets basic rules, but might be too easy to settle many disputes.

As Obama Talks, A Reminder

The popularity of ACA. (Still think the slang term stupid.)

Monday, January 19, 2015


Selma, which I have not seen yet, provides one moment in his life, showing how he was part of a movement. His letter from the Birmingham Jail is an example of his personal leadership role. He was in jail as part of a wider protest and years later his sentence was upheld (article on this matter) by the Supreme Court. It was left to the dissent to mention his name.

Update: As noted in the article, confrontation was key to MLK's strategy. Thurgood Marshall used the courts. MLK's central concern was to force society to confront the injustice of their actions. A method that until today is controversial. See Garner et. al.

Saturday, January 17, 2015

Championship Games

I am rooting for GB and the Colts tomorrow, more so the latter. Given the odds, this is unfortunate though these picks suggest GB has a hard road and the Colts have at least something of a shot. Any port in a storm. Many locals are treating it as sort of a bye week. Damn I wish for an upset. Pats in the SB either way is one I won't watch. Meanwhile, the NYJ has hired a new GM and head coach, the latter another defense specialist. Will wait and see.

Update: The NYJ are somewhat amused by how Green Bay blew that game big time.

Mostly Sure About the SSM Ruling

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.
Rick Hasen thinks the phrasing of the question potentially troubling for same sex marriage advocates (the first  question can be answered "no," right? that is if the state has no marriage). But, I think Michael Dorf is basically correct, particularly since this "no marriage" thought experiment isn't the situation.*  Also, agree with Nina Totenberg (on Rachel Maddow) and others that note that the justices cannot really believe they can in effect put the toothpaste back in the tube after allowing all those court rulings striking down bans stand.  All those same sex marriages are out there. My "go to" guy on SSM and the courts explains some more how the USSC has basically played a "key role" in creating the inevitable here. 

I'm pretty sure -- more than than regarding the result in the latest stupid ACA lawsuit -- that same sex marriage will be deemed a constitutional right (however you wish to phrase that). I would be somewhat shocked actually if they don't hold that. Not exactly sure how they will go about it. Note as well that "same sex" marriage, not "gay" marriage seems to be the favored wording here, including in Holder's announcement of support. Finally, it seems more reasonable than not that somehow Roberts will join the majority though he might somewhat concur in judgment.

[Update: One person, who also has written on the "adding insult on injury" nature of mini-DOMAs that I think deserves a bit more attention, suggests the USSC might only decide the recognition issue.  He has already written in support of a broader decision, but this does touch upon the "right to stay married" argument he has made. Problems -- this doesn't cover all of the plaintiffs, it broadens marriage rights in a different way and reduces state discretion (the alleged charm here) in some fashion in a wider range of marriage cases and would put into question the broader rulings of all of the appellate courts that have decided already. And, is there something special about same sex marriages that in theory would allow only non-recognition from other states? So same sex couples would have some sort of second class status? Eh.]

The oral argument provides a chance to go over once again the standard stuff.  So, we have the Catholic response on how the "essential meaning of marriage as between the two sexes" -- so, the procreation part isn't essential? No, Catholic doctrine overlaps with the experience of the law here -- they are concerned about the consummation of marriage though you might have fewer people in this country who agree with their stance on birth control that accepts the literal idea that someone with some physical condition that makes an erection impossible cannot get married.  Clearly, not using artificial birth control -- which to them degrades the "uniting" here severely -- is not essential.  Or, not having easy divorce.  Sex is though. I think they are better off worrying about the other stuff; it surely is likely to affect a lot more marriages.

Some of the other standard tropes are cited in a footnote.  Another would be that we should trust the political processes here.  This might be more easier to take if not raised by those who strike down, somewhat dubiously, multiple major campaign finance laws. Free speech, you say? I give you the right to marry and equal protection.  The presence of animus is also apparent unlike a slew of marriage regulations (some problematic even without such baggage as was NY's ban even though it was not backed up by a state constitutional amendment, if perhaps somewhat less blatantly so) that were handled differently. And, the time has come -- same sex couples have in effect lived as married couples for quite some time. We have had decades to treat them equally.  It's time to do this too.

As Gay USA's Andy Humm noted on his Facebook page, even a win here will not mean nirvana, the time to truly exhale. There will be, there is, blowback.  A lot of hate and sometimes even horrible violence. Religious freedom exemptions that single out certain groups. The need to fight for civil rights laws akin to those in place for race and sex. The fight for transgender rights. But, a Loving v. Virginia for a new generation is of fundamental importance.  He also fears along with others that a win here will help cover a lousy ruling in the ACA lawsuit.

Sigh. This is after all the Roberts Court.


* At Dorf on Law, it is suggested that one or more retrograde states might try this "getting out of marriage business" approach and it is a standard reply of some when this matter is debated. Unlike private schooling, however, a state marriage license does not have a ready private analogue for all those benefits and obligations involved.  And, you will still have to determine if such and such a couple will get them, even if licenses aren't provided. Not only would that be more complicated, you will still have the basic question of treating same sex couples equally during state action.  Real life is not libertarian thought experiments anyway. 

Someone also wonders how marriage is a "fundamental right," which is more a matter of either not knowing what the term means or debating legal terminology (akin to "substantive due process).  The matter has long been a given, marriage a basic civil right deemed fundamental by most people. The debate is over marriage's reach; see Turner v. Safley, e.g., for why marriage is so special and thus applicable to SSM.

We will also have slippery slopes or libertarian types who deem it irrational to protect this and not marrying five people or your sibling. For a "developing social understanding" approach that notes how same sex relations is not on par with incest (etc.) see here.  Others can also take the common sense sentiments that sex or sexual orientation classifications are different in various ways than number or family status as true. Nepotism laws need not be chucked to uphold civil rights for GLBTQ either. 

Update: A recent new wrinkle, which this essay argues the Supreme Court should at least address, is the claim that there is some "domestic relations" exception -- even regarding things touching upon the 14A -- that removes federal court jurisdiction.  The essay (from someone representing a conservative organization)  for some reason skips over the Newdow case, which expressly dealt with the question -- it expressed a prudential avoidance rule in certain cases, but recognized there would be a few cases where it was "necessary to answer a substantial federal question that transcends or exists apart from the family law issue" such as race [or sexual orientation] discrimination. No sale. 

The Good Lie

The title is in effect a spoiler that comes late. The film overall is good, if a bit rough (e.g., you are left wanting to learn more about how things went), but the charm is that it focuses on the "lost boys of Sudan" from their original flight to settlement in the Midwest. Reese Witherspoon gets top billing, but unlike various other movies, this is not about the whites.

Thanks Obama

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

When Randy Balko, a long critic of this practice, calls this a "big deal," you notice.

Friday, January 16, 2015

"flexibility on regulating outdoor signs"

Curious about the sign case orals -- the church's lawyer seemed to feel it necessary to make a general argument that brought in trivial signs (to birthday parties etc.). Why wouldn't the special nature of a religion related speech (more on par with the political speech related exemption) help here? Might not matter -- the city seemed to come off as more "silly." Meanwhile, a 2005 flashback (with my .02) on SSM. Has things developed enough since 2003?

SCOTUS To Hear SSM Cases

The big news this afternoon is that SCOTUS will hear the 6CA (the one appeals court that upheld bans) SSM cases. Justice Thomas probably won't ask questions; he should. That article does a good job showing the value of oral argument and tosses a few personal facts about Thomas many might not know. There are also a few other grants.

Presidential Proclamation -- Religious Freedom Day, 2015

On January 16, 1786, the Virginia Statute for Religious Freedom was adopted. It was one of the first laws in our Nation to codify the right of every person to profess their opinions in matters of faith, and it declares that "no man shall be compelled to frequent or support any" religion. Drafted by Thomas Jefferson and guided through the Virginia legislature by James Madison, this historic legislation served as a model for the religious liberty protections enshrined in our Constitution.

I'll take this over a National Prayer Day.

"Why the Supreme Court Should Reject the Arizona Legislature’s Challenge to the Arizona Independent Redistricting Commission"

Not so sure. The power of the "legislature" to prescribe districts very well might include the legislature delegating to a commission or being subject to veto by a governor or referendum. Those are the examples cited. Here the people themselves initiated things. And, "legislature" is not the same as "legislative power." Cf. "executive authority" (17A). Tricky case that might turn on the congressional statute especially since Congress has its own power here.

Hey! I Know Him!

I was watching Serenity (extras/commentary -- good stuff; two commentary tracks) and noticed ... yes! ... that is the goofball therapist from Suite Life on Deck playing the doctor leading River's torture. The director noted he purposely picked up Michael Hamilton since comedy is hard, so they should be able to do drama. And, some familiar in comic roles (take Robin Williams) do well in drama. What happened next: Puerto Rico v. Branstad edition.

Thursday, January 15, 2015

Oklahoma Executes Again After Botched Execution

There have been various concerns, including after a botched execution, about lethal injection protocols that led multiple justices to dissent from denial of stays. Via Sotomayor, we finally had a written dissent. As I note here, the fact news reports said it went without a hitch doesn't mean the dissent was wrong about the risk. I also continue to think openness about the drugs used etc. is a due process requirement. Tinker tinker.

The Dogs Were Rescued (and So Was I)

A follow-up to the author's book about how she and her dog both overcame cancer, this provides an update on Seamus the beagle and continues to mix dog and human news with the author getting two more dogs and becoming vegan. Amusing tone, covers some familiar ground, but fans of her first book should appreciate it. Perhaps a bit padded,

Wednesday, January 14, 2015

Obama/Biden/Kerry Not Being At Unity March

I did not find this a big deal.  

If you want to say someone more superior than the ambassador and assistant secretary of state* (Kerry was in India for a previously scheduled event; Holder was in Paris for a security event but didn't go to the unity march) should have been there, fine. Wouldn't think you dead wrong or something.  But, the harping on this (Laura Rozen, not a troll, was beating the drum over and over again on Twitter and on television too ... CNN's Fareed Zakaria found it "pathetic" to not be there for the reasons provided) was stupid.  The critics almost wet their pants when the White House press secretary said it was "fair" to think that. 

The arguments as to security and being a distraction made sense to me. Think it was a good idea for it to be an European and Middle Eastern (for clear reasons of unity) event in response to violence in France.  It is not all about us in the U.S.  It is also pretty obvious, I think, the U.S. is supportive** (if some place we were not friendly with or who didn't have powerful friends, a visit could be more important) and lest it be forgotten, free speech is sort of a thing in this country. It is a continual symbol of our support of satire.  Russia's President might have to show up at a march to show solidarity given the usual practice there.  

Finally, there was a few comments suggesting France might itself not have been too gung ho for the President to come.  I might be wrong, but think the President et. al. reasonably took various things into consideration here. They do at times misjudge things, so who knows really, but I can see some combination of the above being the idea here. One article noted that Obama was not really informed -- oh please. He was aware of what was going on and wasn't merely out of the loop or something.  As to sending Biden, other times, that would be deemed a token thing.  Goofy Biden! Now, he's some big guy. The whole criticism seems overblown form over substance stuff.

It is a symbol in that respect of how not to worry about things.


* The meme was some more senior official should have been there -- as if these people were chopped liver. Perhaps, we should have been like Canada with Canadian Minister of Public Safety Steven Blaney to represent Canada at the rally.  When I first saw a reference to that, thought it was some sort of joke at Canada's offense.  As is, might be a very Canada thing!

** Some sarcastically reminded people of those who opposed the French, including "freedom fries" etc., and the French has been a long subject of jokes and scorn for some people. Granting this, as a whole, we are generally friendly with Western Europe as a whole here.  And, like those we might not like personally, when something like this happens, the normal practice is to pull back and respect what is really important. Some even noted that we do not get the same reaction after killings in Africa or something. 

Tuesday, January 13, 2015

Light in the Piazza

TCM is the standard channel, but there are others for old movies, including two more obscure ones that for me are up in the 490s that I didn't know about until my mom told me about them. This film was on TCM, a sweet story about a mother (Olivia de Havilland, who is still alive btw) worried about letting her daughter (mental age 10 via a child age injury) marry a lovesick Italian (hey! that is George Hamilton). Is the title a pun?

Monday, January 12, 2015

South Dakota Same-Sex Marriage Ban Unconstitutional, Federal Judge Rules

She rested on the right to marry. The "go it slow" concern was in part refuted by noting that the state didn't use a limited means here -- a constitutional barrier vs. merely giving the legislation discretion. This point is highlighted here and to me deserves more emphasis than it sometimes received. It underlines the gratuitous outside of normal practice nature of the bans. SD lost on different grounds, but it helps suggest the animus aspect.

And Also: One person flagged "same sex citizens" (probable typo) being used but the repeated usage of "citizens" an issue -- 14A protects persons too.

Golden Globes & Two Hallmark Films

Two of my favorite Hallmark movies were on recently -- Loving Leah (DVD copy has "Making of" featurette, behind-the-scenes interview) and Candles on Bay Street.  I commented on these before, so a bit of a reprise.

I wrote this about Loving Leah: This Hallmark film was on over the weekend and it's a favorite of mine. One lesson in this charming love story is that faith and religion can still have power even if the literal doctrine is not followed. The spirit over the letter. Each realizes this, including the Orthodox mother, adapting it to the reality of their 21st Century lives.

Candles on Bay Street by K. C. McKinnon concerns a small town vet who finds out his first love (who now makes candles, which she explains has special symbolic significance -- truly now, since in effect her own candle is dying out) is dying of cancer. The first part (a life up to the narrator's 30s and how she affected it in miniature) is the best. Somewhere near the halfway mark, it becomes a somewhat drawn out road to the inevitable, the poetic musings getting a bit thick. It isn't a long book, but it comes off as too long.

I first found out about it because it was made into a Hallmark movie. The need for padding underlines the thinness of the novel's plot at times. As with Legally Blonde and a few other books, this is one of the times when the film version actually comes off as somewhat better. It was well acted  with the main roles fitting the characters, including Alicia Silverstone in the lead. [Now that I have seen the whole thing, I can add to my previous remarks that they altered a significant thing from the book, but as a whole, do think the film is a better complete package.*

As to the Golden Globes, saw some of the opening and a bit later on. Used to loyally watch the Oscars, but sort of got bored of the whole thing. As to the two hosts, Amy Poehler and Tina Fey are great role models -- Poehler, for instance did a kewl thing entitled Smart Girls at the Party to help educate budding feminists.  I sort of don't like their comedy as a whole (not a Parks and Recreation fan; Tina Fey movies tend to be "she can do better than this, can't she?" sort of things), but admire you know the concept. 


* Spoiler Alert: The film is basically about a thirty-something single mom who is dying and takes her son back to her home town to basically have her old friend adopt him. This provides the final step, in effect, to do one last thing for the first girl he loved and take a final move toward being an adult.

The book adds that she wants his help to die -- active euthansia. This tidbit is removed from the movie, which perhaps helped (lol) the "family friendly" (read conservative) Dove blessing. I admire the book's handling of this controversial subject, but don't think the film really suffers from them leaving it out. Also, again, I think the film is a better complete act of story telling while the book bottoms out midway.

Sunday, January 11, 2015

GB Comes Back / Helped By Overturned Call

Don't know. Seems it could have been upheld. But, you know, karma. Meanwhile, Rex Ryan gets a long term deal with the Bills. Thought he'd go to a team with an established QB, but guess Bills like effusive types. GL, I guess, to the one "NY" team that actually plays there. Update: Manning looked old. Can Colts actually win another? Please please!

Ravens Choke

Very aggravating ending vs. the robot Patriots (yeah yeah, elite team, blah blah). Seattle, of course won, though Carolina kept it close until the 4th. Amusing end of the half with three field goal attempts (after Carolina made a 4th Down, almost had a turnover as time was running out & went for a 14-10 deficit), two penalties and various block attempts involving a guy leaping over the defenders. A successful block overturned on penalty.

Friday, January 09, 2015

Unplugged: Reclaiming Our Right to Die in America

Not totally sure about the phrasing (Justice Breyer labeled it "right to die with dignity" - we all "die" after all), but the Cruzan lawyer (see side panel) eloquently covers the issue with an extended opening on the Schiavo case. He underlines there are no easy answers (though he strongly accepts a basic right to makes choices here) and the debate truly has only begun.

Thursday, January 08, 2015

The Lost Way: How Two Forgotten Gospels Are Rewriting the Story of Christian Origins

See Also: A more conservative viewpoint is expressed here, but there are comments that provide a somewhat tired interprettation from a more doubting standpoint too. For instance, the end of Mark -- "why did God allow it to be lost" etc.  The all or nothing approach is not compelled -- the fact the Bible was written and translated by imperfect humans results in imperfections, but it is a bigger leap to say it is not sacred at all.  "Gotchas" pointing out time based sexism or whatnot is more child's game than anything else past dealing with certain literalists. If you wish to say that fine; requires a bit more work though. And, "sacred" need not just be "the literal word of some entity in heaven" or something either. 

During an abortion discussion, Catholic doctrine came up, and I corrected a statement about their belief over vasectomies. Someone replied "who gives a damn." I found this both depressing (even the original person granted I was correct; caring about others to me is a good thing) and misguided (her desire was basically to have religious people keep their views secret and not push them on her -- noted how knowing them can be useful here).  But, the comment is not unique -- it is a standard mindset.

Find it overall interesting and helpful to understand religious faith and history with a personal leaning toward Christianity, particularly a sort of rational view, given the majority in this country and my general upbringing (grew up Catholic). Some disfavor "religion," which to many means a limited sort of faith, particularly of a certain irrational sort that is easily ridiculed by "the reality based community." (The murders in Paris would be a ready example.)  But, there are emotion laden sorts among those who use such terms (or "the village" and not as applied to a bad movie.)  

A more fulfilling and complete view of religion to me is possible here.  This need not be limited to books of this sort, which ultimately ends with the author laying his cards on the table -- he doesn't believe in the "end of days" sentiments of the four canonical gospels or really that Jesus is uniquely the "Son of God" (like gays and lesbians speaking of fellow "brothers and sisters," various times in the New Testament and elsewhere we read of "children of God" ... in effect "sons and daughters of God").  He isn't studying the "Q" source (the basically agreed upon idea that Matthew and Luke used Mark, some separate source ["quelle"] along with independent material sometimes called "M" and "L")  and Thomas (helpful in this context since it has a lot of overlap with "Q," providing an independent source of early Christian beliefs)  just for historical curiosity.

More conservative approaches can be useful here -- after all, as the book itself notes, even there it is generally accepted by many "Paul" did not write many of the "Pauline" epistles.  In other words, even if you take the Bible as the word of God, just how it was created and what it says and reflects can be a complicated enterprise.  I admit to be sympathetic to the p.o.v. of this book, so am not reading many books from a more conservative viewpoint though they also provide some useful insights. Overall, people in general can gain a lot of insight, including in promotion of their religious beliefs in "Jesus Christ" or other religious figures by deep reading here.

This is an ongoing theme of mine but it bears repeating, at least from my vantage point when reading comments like the one cited earlier.  Anyway, I have a general interest in history, so trying to gain insight into early Christians is my thing too. On that level, besides having a nice colorful cover, this book covers some standard ground (for those familiar with the genre) but in a good down to earth fashion with a specific focus. It adds some intriguing insights such as wondering why would they "bless the poor" (the word implying the destitute) -- do they have certain special insights?  And, a core early tradition appears to be for early disciples to be wandering evangelists, trading food for service to the poor. 

The book is careful to hedge and note that we don't know various things here, including the date of early gospels except to some vague range. But, it does at times cross that line where reasonable hypothesis moves into "this is how it was," especially since we aren't talking about an erudite journal article here (each chapter has a collection of sources; no notes). It isn't really clear why -- because such and such an area appears to be into the author of the Gospel of Thomas -- that is where it was written. Looking at the few verses that speak of Apollos, there was just not enough to reach the conclusions about his beliefs expressed here. Maybe, the longer works cited would be more convincing there.  Somewhat doubtful.  

Still, Apollos, the mention of something called "the Way" in Acts (related to the "two ways" of Didache, an early Christian writing that deserves more attention?)  and a slew other tidbits does provide a lot of fascinating (to me at least) questions.  The effort here to focus on a more wisdom and present day tradition (the idea that the "kingdom of God" was here, not in the future, not even reliant on Jesus' death/resurrection which these two "gospels" don't appear to even reference) overall is well worth a read. This is so even if I'm unsure about certain things like use of "empire of God" (as a sort of alternative to the Roman Empire) in part since I thought "kingdom" was at least in part a nostalgic look back to King David. 

Like various things, what seems old hat continues to intrigue.

Wednesday, January 07, 2015

Charlie Hebdo Attack

See here and here. Note: people saying what they say is bad doesn't mean we shouldn't defend a right to say it free from violence. See, e.g., Voltaire.

Tuesday, January 06, 2015

End of Christmas Season

New Republican Congress alone suggests that. I foresee a depressing time though the presidential election season might be a sort of break. But, we got thru the early 2000s, even without a Democratic President. This too shall pass. Battle continues.

Sanity Alert: Rep. Kyrsten Sinema

A sort of bisexual non-theist Rep. Giffords? "Squee" indeed.

Time for V.P. Biden To Swear In Some People ...

Monday, January 05, 2015

"Attracted To Men, Pastor Feels Called To Marriage With A Woman"

I think people marry in various cases not because of sexual attraction but for some other reason and might (if not so notably given the same sex angle) on a sexual level be attracted to others. In the past, sexual attraction often wasn't a major concern for marriage at all. Find his views on sexuality misguided but someone can have some other more troubling sexual attraction or unattainable all things considered. Few marriages are perfect anyway. The immediate reason is misguided but can't say it is clear this marriage won't work.

2015 began -- "2015" t.v. movies on last night

Sunday, January 04, 2015

Wild Card Weekend

Ravens seem to start playoffs well. Bengals lose. Detroit good but not good enough to be elite. Arizona just too injured though Carolina is not that great. Weekend went pretty as expected down to Dallas bringing on the offense when necessary. Blah generally though Ravens might be best to beat Pats. Would root for Carolina, but really? Not big GB fan.

Aired During Game ...

"More great news about declining homicide rates as we close book on 2014"

As reported in this Washington Post piece, headlined "In major cities, murder rates drop precipitously," the end of 2014 has apparently brought a continuation of wonderful news about modern homicide trends. Here are the basics:

Among the "all is horrible" brigade, it isn't all horrible. As to causes, the diverse explanation approach to me -- admitting I'm no expert though have read enough to get a taste -- seems sensible. I have doubts about the sure professor in comments here and how the police tactics are used is really key. Also, if we care about "broken windows," there are various approaches, including community beautification and empowerment. Isn't all stick/police.

Saturday, January 03, 2015

11 Wins or Not, Arizona Played Like A Fifth Seed (if that)

Carolina tried at times to help Arizona (offense? is that really needed?) keep in it with many gifts, but Arizona gave a few of their own. Carolina 8-8-1 now though it wasn't that pretty.

Mario Cuomo: Gov. Idealist

I remember most his anti-death penalty and separation of church/state abortion stances. Cuomo Jr. is liked a lot less by some, but see here. R.I.P. When does sainthood kick in?

Friday, January 02, 2015

Ohio Judicial Review Controversy

Many debate around the edges, but few oppose judicial review of legislation that fully overturns it. This book overall (overwhelmed by details over flavor of times at some points) does a good job showing a time when this wasn't quite so. Good constitutional history.

Into The Woods as AIDS parable?

Hmm. Article does show how dark it is, but then fairy tales originally were in general.

Thursday, January 01, 2015

2014 Year-End Report on the Federal Judiciary

Referenced in report. Let 2015 make him a prophet as to the slow journey of justice.

Happy New Year