Mets Update

FWIW, they have been hitting well in Spring Training, and the starters (Wheeler out for year) look pretty good. The relief corps are more questionable, making two useful pick-ups good news. Still wary though hopeful -- April will be key, especially given divisional play dominates.

"Health-Law Contraceptive Case Skews Ideological Lines on High Court"

"I think it's ironic; I agree with Justice Brennan," said Mark Rienzi of the Becket Fund for Religious Liberty, the advocacy group that recruited Hobby Lobby to challenge the Affordable Care Act's contraceptive regulations.

It is true that Oregon v. Smith, written by Justice Scalia, provides for a more restrictive view of free exercise of religion  than Justice Brennan supported. Let us note Scalia argued that exemptions to general laws would be "courting anarchy" and that it is "horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice." You would think he would at least concur in recent RFRA rulings here to flag such concerns or to suggest some support for more limited applications of the statute's principles.

Maybe, I guess, he is washing his hands of it if the Congress wishes to inflict this upon the courts -- though his concerns appear to have separation of powers flavor -- as a matter of policy.  But, when reporting such apparent strange bedfellows, articles should also note that Justice Brennan has handled things differently than some conservative RFRA supporters.  A basic difference, which in one way or another got support of four justices at the time (Stevens joined the main opinion without comment but I question if he would disagree if pressed), was flagged:

I write separately to emphasize that my concurrence in the judgment rests on the fact that these cases involve a challenge to the application of 702's categorical exemption to the activities of a nonprofit organization. I believe that the particular character of nonprofit activity makes inappropriate a case-by-case determination whether its nature is religious or secular.

The application of the exemption to a for profit corporation raises different concerns, one reason why the Supreme Court was wrong in Hobby Lobby to flag the Obama Administration for selectively treating non-profits differently in the exemption context.  Overall, when a claim was made in a way that would burden third parties, balancing occurred:

An exemption by its nature merely permits certain behavior, but that has never stopped this Court from examining the effect of exemptions that would free religion from regulations placed on others. See, e. g., United States v. Lee, (citation) ("Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees").

The broad claim that "complicity" even by for profits like Hobby Lobby that results in burdens on third parties  should be covered causes various difficulties. Also, Justice Brennan applied his version of what was warranted for individual liberty in this context a somewhat different way as shown by his opposition to the Hyde Amendment or funding to sectarian abstinence only groups. Thus, the line drawing and weighing is significantly different as applied; the "agreement" lacking in key ways.

Finally, I wish the coverage of the Indiana RFRA law was not filled with excessive usage of generalities as to what exactly the law was particularly supposed to add in respect to religious liberty.  One problem is that key support came from groups like this:

SB 101 will help protect religious freedom in Indiana by providing protection for individuals with sincerely held religious beliefs, along with Christian businesses and churches.  SB 101 will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers).

The writer there can respect the motives of various backers  while still realizing as a whole the law is problematic.  He cites someone who argues that the "business" part of this argument, if pressed, will not hold up.  Who's to know, especially -- as already noted -- the language is more protective than other laws applied to require service?  It seems about as likely that such laws led to the more expansive language in the first place.  As to "churches," why were the old laws not good enough?  What do you mean "supporting" -- when dealing with public parks or the like?

A few benign sounding cases are cited like growing a beard in prison (already protected by federal law) or the right of a church to feed the homeless in a park. That latter example is particularly curious. What stopped them?  And, if a non-sectarian group wished to do so, should not they have the right to do so? What in particular about it being a religious group was a problem? Finally, was the breadth of the language here necessary to deal with such issues? The same applies with favorite examples like caterers serving pork or something though do not know what stops people from refusing to serve a particular item. The concern there to me would be whom you serve.  And, that would be an open-ended exception to civil rights laws if evenly applied.  

The Indiana RFRA law comes off largely as symbolic legislation, which is not inherently wrong -- when people argue some gun regulation will do little to reduce gun violence, that isn't by itself damning, especially since "little" still means something.  That goes to the merits. There are some valid, at least arguable, religious exemptions.  Sometimes, such as denying coverage to students in a private college, this will be bad policy but (especially if not taken too far) valid law.  But, this law goes much further than that.

Update: Indy Star is on board with need to balance off this law.

Indiana RFRA: What's The BFD?

The "why now" issue / look at what the backers say would be a powerful argument even if the Indiana RFRA law is just plain benign. But, this is far from clear and rests on litigation (meanwhile, some under the radar discrimination will go on, probably furthered by the law). Plus, especially post-Hobby Lobby, the federal RFRA is not free from controversy itself.

SCOTUS Watch

A few somewhat notable actions today. Case sent back because satellite monitoring (at least based on a device installed on the subject) of sex offenders have 4A significance. Capital cases granted. Redistricting case remanded. A per curiam habeas reversal also included, part of the Court's in recent years somewhat random error correction process. Also granted.

Update: The cert. denial in the Bronx Household of Faith case is notable given the amount of attention it has received. More discussion.

Pretty Woman At 25

Interesting discussion.

State Anti-SSM Brief Day

As I type, Buzzfeed is posting state briefs from the states, which should be posted on the SCOTUS website soon [done] on the same sex marriage page. The novelty of SSM is refuted here. The "marriage is small" argument is made (tied to procreation) as if the SCOTUS hasn't repeatedly made it bigger. Expect the anti-SSM amicus briefs to come as well. [yup]

Happy Birthday!

Young and Hungry

By chance, caught the return of this show, one of those shows on a hiatus for so long that you might forget about them (Veep is returning in April). The cliffhanger of sorts was partially addressed, but we end with a new one! Well, this one will be handled somehow within the week. Episode was plot-driven, so wasn't really that amusing as such. Okay.

Economic Libertarian Constitutionalism

Prof. Dorf's latest column concerns a book review regarding the "libertarian" Constitution, which often is a matter of a conservative friendly economic rights view.  The review shows how the person in question is faint-hearted in respect to abortion and gay rights though appears to have a default against them when popular majorities limit their freedom.  Ted Cruz at Liberty University self-proclaimed as a "conservative" candidate, but be on guard regarding the location. A blithe "less government" frame will come at some point with a different audience.  Tends to happen.

We have here in particular a debate among professors -- Prof. Sherry (not Sherry Colb, Dorf's professor wife, to be clear) wrote the book review regarding a third professor's (Richard Epstein) work and theories.  A large part of it is debate over facts -- she argues that Epstein is wrong there too, further suggesting ultimately we are dealing with a general moral view of the world that clouds assumed neutral rules (e.g., use of history).  Ultimately, we do need to determine proper baseline values when applying constitutional text and principles. 

Above all, judging is an act of controlled creativity.  Like writing at its best, it both draws on and evokes memories of what has gone before, but by innovation rather than mimicry. It simultaneously acknowledges our debt to the past and denies that the past should control the present. The task of the pragmatist decisionmaker is to reconcile a flawed tradition with an imperfect world so as to improve both and do damage to neither. We can argue about whether a particular judge does so well or badly, but we should recognize that neither her job nor ours can ever be mechanical.

A person who blogs with Prof. Dorf honors a "pragmatic" judge here, and without commenting on that judge in particular, it does seem that it is the most useful approach in the real world.  It also helps explain what actually occurs -- a person like Justice Scalia, e.g., chooses an approach to judicial interpretation (some form of "originalism") for functional reasons, including as the "best" way to adjudicate.  The concern that you really aren't "judging" without the restraint of his approach might not be true on the merits, but it clearly is a major influence on his judging.

That last entry also flags the idea that the Supreme Court is not really a "court," since the justices use a sense of personal fairness without enough of the true restraints a "court" offers.  I find that tedious -- an example of degree being confused with kind.  We saw this over at Volokh Conspiracy regarding "no" limits to treaties (Bond) or the Commerce Clause (ACA).  As the excerpt notes, "judging" is something of an art that as applied by humans in reality has a degree of discretion.  It will involve some concern with public morality (such as equal protection or concern with individual rights) influenced by but not bond to the past with non-fungible judges deciding the particulars.

Messy, but it's how things work in reality.*  If we don't like how judges currently are doing their jobs, we need to deal with how things will work in practice.  Some Platonic view of a "court" is fantastical.  The quotation is from a discussion of the Ninth Amendment, which references unenumerated rights that in application repeatedly involved broad open-ended things, not merely fixed points. How to apply them would involve using various judicial techniques (e.g., comparing like to like) with the best approach and results developing over time.  Like natural law, which in some fashion continues to influence the application, human knowledge is being used here over time, the changing nature of things part of the point -- such is part of the genius of the constitutional text.

One commenter in the first thread speaks of "economic" and other rights. But, note the title of the essay -- it isn't about "economic" constitutional rights, but economic libertarian views. The Supreme Court did eventually draw a line between changing economic arraignments and rights such as the rights of parenthood.  But, there is some overlap here -- the sale of contraceptives, limits on the federal commerce power, etc.  There are economic rights (e.g., due process involving "property") and the same applies to those not expressly granted. The right to choose what sort of work one does for a living is "economic" in nature.**

The author of that book review co-wrote a book about how no one interpretative vision probably works -- in practice, it is more of a stew.  And, so is the case here -- the economic libertarian has some leg to stand on since s/he can appeal to certain concerns, but ultimately the Constitution is too supportive of governmental power (including over the economy) for that to work as a general principle.  Some other principle, let's say democracy, might work more.  But, I'm wary of any one view here.

Even that "view" might be best applied with a grain of salt.

---

* At times, the messiness leads to cries of judges not really having clear standards, including the likes of O'Connor or Breyer.  But, the other judges in practice do not provide grand alternatives.  Justice Souter provided a sort of moderate conservative view of substantive due process as a finale to his tenure:

The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

"Judgment" is not a matter of mathematically nicety and if one wants that we need not only a different legal system but robotic judges.  Though even then, I wonder.

**  More at the Dorf on Law comment thread.

Supreme Court Watch: Breyer Edition

Today, the Court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections. If the Court’s destination seems fantastical, just wait until you see the journey.

Richard Hasan doesn't seem to agree with this somewhat ironic opening salvo by 4/5 of the justices who joined Shelby.  Breyer wrote the majority opinion of this re-districting case that was a call for a "do over" that Prof. Hasen does argue does help the cause of racial minorities with claims of discrimination to some degree.  Two cases come to mind -- the recess appointment case, where Breyer wrote the opinion that rejected the Obama Administration's position but on narrower grounds than the dissent (Kennedy joined that too).  And, the Fisher case where Kennedy in effect punted and waited for another day to decide affirmative action though doing so by including a few tidbits that suggests the test in place has bite. Time will tell how this will work out. 

Breyer also wrote a 5-4 opinion that was a mixed result in a pregnancy discrimination case, this time Roberts joining the liberals with Alito concurring in judgment. Scalia and Kennedy wrote dissenting opinions, the latter a personal statement akin to his Hobby Lobby opinion that though he is not agreeing with application here, the concern for discrimination in this field is quite important.  This sort of thing might not impress some, but it leaves open the realistic hope that such people aren't lost causes.  Anyway, the claimant has a chance to win, but has a harder time of it now.  Ginsburg joined the opinion without comment.

The Supreme Court also had a couple of opinions yesterday, suffice to say, they were rather technical. The saving grace was one was written by Justice Kagan, so it had some charms to the reader.  Kagan even managed earlier in the term to make an interstate conflict opinion not too bad. Three justices dissented from the denial of cert. (again, the opinion was by Breyer) in a death penalty case.  And, a patent lawyer got off easy for perhaps giving too much discretion to a client writing a petition to the Court.  On special petitions, Paul Clement is 1-2 ("lost and found" petitioner earlier was not given a second chance). To complete the theme, Breyer and Kennedy also testified in front of Congress, including providing some opinions on criminal justice. 

Finally, doing a search, "lesbian" over at Oyez.com (oral arguments) pops up Smith v. California (1959), which ultimately was decided on "scienter" requirement grounds. It involved a lesbian pulp, homosexual friendly literature ultimately getting a mixed level of protection in the courts.  Listening to the oral arguments a bit, there was a reference to the Supreme Court deciding a case involving The Moon Is Blue, a "hey I am naughty, I said 'virgin' " sort of film from the 1950s that some M*A*S*H fans might recall.  The Supreme Court, with only a reference to an earlier ruling saying promotion of adultery or the like isn't a legitimate ground to ban a film, overturned a lower court ruling upholding a locality blocking the film.

Those little snapshots of SCOTUS history are worth noting.

Ted Cruz Can Be President

Sure. He just shouldn't be -- he is a troll. Some cry inconsistency; must be so happy Trump is now on the case. The details are a bit different -- it somewhat more relies on the obvious fact Obama was born in Hawaii. Yes, the real issue here is racism, consistent nativists less prevalent. But, do we really want to debate details? That's playing the trolls' game.

The Book of Life

Worthwhile attempt of an animated film using Mexican elements that overall looks good with a promising beginning. But, I got bored with it fairly quickly, and my standards for holding out is stricter these days. Enough here for a great short subject.

Toolbox Murders

I got this film mainly because of the praised death scene of the pictured character. It was impressive & the DVD had an interview with her. The first third was a gruesome but rather impressive late 1970s bit of film-making with a good soundtrack. Then, it largely focused on a pair of rather dim Hardy Boys mystery sort of deal. BORING. The other part was the killer talking to a girl he kidnapped who he basically starts to really think is his dead daughter. Some of this was pretty good, but a little went a long way. Decent commentary track.

Happy B'Day Megyn Price (b. 1971)

Alabama v. Equality

The amicus brief of the governor of Alabama against same sex marriage is of the "make marriage small" variety:

Marriage equality does not exist in the United States. It cannot be made to exist in law without destroying the rights of children to be connected to their biological parents. ... Even those States that have extended legal recognition to same-sex couples continue to distinguish between marriage and same-sex “marriage.” The reason is plain: Marriage is a natural reality that States must distinguish from all other forms of human sociability, including same-sex relationships, for the purpose of securing the rights and well-being of children.

Toss in some religious discrimination -- flagging how certain Catholic institutions oppose taking part in foster care and the like if same sex families are involved while ignoring how the current inequality (which the state bluntly supports) clashes with the marriage beliefs of other religious groups. Do they matter?  These groups think "nature" defines "marriage" in a broader way, not just tied to certain people having sex and conceiving children.  They think marriage includes them and other people.

A 1885 case is cited for this idea of marriage -- "the integrity of the family is grounded on the monogamous union of a man and woman for life, the source of healthy children and the continuation of civilization."  It is unclear if modern divorce laws, which to me express a right as much as the right to get married in the first place, is a serious interference with "natural" marriage as well.  And, even in 1885, the ability to have children wasn't the only way one obtained a marriage license, plus "healthy children" and the "continuation of civilization" can be furthered by same sex marriage too.

So, especially today, there is no need to single out the "union of man and woman out of which arises the biological family" as the only couple that is given a marriage license.  The need to alter certain regulations touching upon marriage, such as paternity assumptions, very well might be needed to be altered as much as old fashioned assumptions involving the woman. BFD. "Marriage is the only institution capable of solving the problem of establishing normative connections between fathers and their children." Not clear, but again, that is not the only reason marriage is there for. Allowing that and other reasons for marriage licenses is and always was possible.

It is true that "moral" reasons are the only reason that rationally can be shown to block same sex marriages. However:

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment.

The idea marriage is merely about procreative relationships is off:

The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.  First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

The reasoning applies to same sex marriages generally as to marriages with prisoners -- these reasons apply, each and every one of them probably, to same sex couples.  Those married who are infertile and/or do so to protect adopted children (and other such families) are covered and this was a "traditional" type of thing marriage was there for.  Such people, including same sex couples, falls within an old case that noted "without a doubt" there is a fundamental liberty "to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience."  Not "procreate" children alone.  The "father" of our country had no children and still got married.  Ditto the "father" of the Constitution.

If this is the tenor of briefs for the states ...

Legal Stuff

Of course, the first amicus brief against same sex marriage would be from the governor of Alabama. Word for the day (Better Call Saul edition): spoliation. Case -- garbage searches not being an invasion of privacy. Took a case too big to chew there guys. And, Mike decides to go to the dark side again to make money for his granddaughter? Grandpa!

"Governor signs law making Utah only state with firing squad"

If the governor of Utah thinks the firing squad is a little bit "gruesome," not sure how it will fare elsewhere as a back-up to lethal injection, even if that method is pretty problematic. Utah is an outlier in this field along with nearby Oklahoma and Wyoming.

I Spit On Your Grave (aka Day of the Woman)

Note the alternative title is the name of a horror movie blog (by a young cancer survivor), which suggests the opposition to the film (on last night; not the subpar remake) by Roger Ebert et. al. is arguably misguided. The DVD had two commentaries. It has exploitation aspects, but it has a certain low rent horror and yes style that continues to impress.

Princess Jellyfish

Watched the first half of this Japanese animation series based on a manga about some social outcasts (one with a close connection with jellyfish per her mom taking her to see them as a girl) meeting up with a cross-dressing rich college student whose family has their own issues. Enjoyable with various intriguing themes. Story left open but continues in the manga.

TV Watch

The first episode of iZombie was decent; too many voice-overs. But, guess some liked that in Veronica Mars, which has some connection to this show. Wish she would be the new sideline reporter for Mets games. The other guy is dull and she's nicer on the eyes. Good Witch, a few episodes in, continues to be pleasant Hallmark viewing.

“I'm so happy that I didn't sneeze.”

MLK talks about a mostly forgotten assassination attempt by a deranged black woman, who just died, including a white student (from White Plains?!) at around the 35m mark.

Idea of Same Sex Marriage Suggested Thirty Years Ago

Some note the novelty of SSM, but there are various examples of the basic concept being expressed for some time. One example was the prescient lower court protection of same sex relationships overturned in Bowers v. Hardwick. A same sex relationship was seen as comparable to marriage. The idea was expressed back in the 1950s. And beyond.

Nitrogen Gas

A discussion on the latest "good" way to execute.

"Adam Smith's First Amendment"

I have seen reference to this article, which notes:

From the time of the New Deal, it has been black letter constitutional law that purely economic regulations should be subject to review under the deferential rational basis standard. This was the meaning of consigning Lochner v. New York to the anticanon. In recent years, however, this constitutional principle has come under severe strain because plaintiffs have begun using First Amendment protections to challenge basic economic regulations. They have sought to transform the First Amendment into a powerful engine of constitutional deregulation.

Furthermore, the Supreme Court "defined the [commercial speech] doctrine to protect the rights of listeners to receive information rather than to safeguard the autonomy of speakers." Thus, truthful advertising and compelled speech (e.g., labeling requirements) are allowed there while lying in various contexts (even about obtaining a medal) or forced speech is deemed protected by the First Amendment. "Freedom of speech" is protected, not a total right to speak, all words treated the same. 

Note that "to receive information" provides an important caveat here -- even in the "purely economic" field, a law that burdens the receipt of information can and should be deemed illegitimate in various contexts. Thus, e.g., I noted that there was a case involving the receipt of contraception advertising; an early case that recognized commercial advertising was protected by the First Amendment dealt with abortion ads. So, mere "rational basis" is not enough. The article also cites as problematic a case involving a locality's law that would "prohibit gun sales at its fairgrounds."  But, that raises Second Amendment concerns, just as the abortion ad ban (or a lawyer speech ban) touched upon other rights. Speech regulation, including involving money, can involve various things.

The article flags as problematic a recent lower court opinion regarding licensing tour guides, noting that the matter being regulated is  not something "we" would deem as regulating "an attempt to influence the content of public opinion."  It notes that if the tour group had an ideological nature ("Tea Party Tours"), it would be different.  I find this a somewhat dubious line -- tour groups probably are divided in various ways, many with some sort of "ideological" focus in some sense.  For instance, let's say the tours focus on certain historical events.  Will they all determine the locations totally neutrally? What does that even mean?  What if the group singles out places that highlights advances in women's history and it seems to overall noticeably lean in a progressive direction.  Enough? 

I think if we allow tour guides for profit to be licensed in some fashion that neutral fashion, the Tea Party Tours can be covered too. The law in question set forth rules by age (over 18), a proficiency in English (seems problematic), not being guilty of certain felonies and a general knowledge test.  But, the last provision does seem problematic. Why exactly is it required to pass some general knowledge test (with all the selective knowledge that tends to further) to be a tour guide?  You do not have to do so to write a tour guidebook.  It's helpful, sure, but why not just provide those who pass the test a government seal of approval that could help consumers?  Passing a test is a limited benefit and given speech is involved, is it really worth the candle? 

This underlines the wider point of the article that a "one size fits all" free speech rule is not appropriate.  But, this applies to "commercial" speech in both directions.  The same applies to professional speech generally. Surely, e.g., doctors do not have the same freedom to speak to patients as let's say a politician in a campaign.  Note though that even there disclaimer and disclosure laws (with some push-back) have been upheld.  Still, be it too blithely put (no shock), Justice Douglas had a point:

The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed with reference to public debate and discourse. But, as Chafee said, "the First Amendment and other parts of the law erect a fence inside which men can talk. The lawmakers, legislators, and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law."

Likewise, the right to privacy is of special importance in the doctor/patient relationship, even if it is not absolute. So, broad statements by some regarding the state's power to regulate professional speech in doctors' offices should not allow, e.g., various interferences with doctors talking to their patients about abortion.  Some "conduct" is involved in medicine as well, but yesterday's discussion regarding contraceptives shows this as well.  Medicine is regulated but it also is speech friendly in some ways. Plus, neutral regulations are one thing; ideological barriers often another.  Thus, just because it is a professional area, a law that denies a doctor the ability to ask anything about guns given their health effects would be illegitimate. There is no "right to privacy" against that; a compelled reply is another matter. 

The truth often comes by listening to both sides here, including when determining what speech regulations are warranted for "safeguarding democratic governance." 

Contraception Cases

I used Oyez.com to listen to the oral arguments for four contraceptives rights cases -- Poe v. Ullman (avoided on standing grounds, but Justice Harlan's dissent in effect accepted in later cases), Griswold v. Connecticut (use by married couples), Eisenstadt v. Baird  (distribution to unmarried individuals) and Carey v. Populations Services (sale to minors [including limits on pharmacists] and certain types of advertising).  There is also a case limiting unsolicited advertisements of contraceptives in the mails, Bolger v. Youngs Drug Products, which I also listened to recently. That was a 1A case of a somewhat different caliber.

Lawrence v. Texas summarizes the "intimate sexual conduct" and related issues that are protected by the "liberty" aspect of the Due Process Clause:

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. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Ultimately, certain basic issues -- particularly those related to family life -- are personal liberties that cannot be restrained merely because of disputed matters of personal morality.  This as has been noted in the past -- and suggested in the first two oral arguments -- shows how religious questions have a major place in this area. The difference between "morals" in this context and personal religious beliefs is unclear.  Regardless, either secular or religious conscience is protected here. Likewise, overall -- as noted repeatedly in the past -- there is an overall conclusion that there is a zone of privacy protected by the Constitution using various approaches in so doing.

The first oral argument was largely a matter of the advocate for the couples involved trying to argue that the ban on use (whose primary effect was to stop opening up of clinics distributing contraceptives) was unreasonable. There was a few words on how the only real alternative -- abstinence -- in effect invading marriage by depriving members to practice a key aspect of it, but the privacy argument was mostly left to the second argument. The second argument also provided a bit of a free speech argument, since the aid and abetting law also in part banned "counseling" people to use contraceptives.  Both, even more time than given these days, were not exactly a clear summary of all of what the cases were about.

The brief Griswold opinion also has been open to criticism for not adequately explaining what turned out to be a major landmark in privacy law.  The material was there and especially with an assist of the concurring opinions (Justice White particularly is helpful) the opinion is okay. Still, a more expansive summary of the record and reasoning could be demanded. This is so especially since the later cases in effect just treated the matter at hand mainly as a fairly easy process of applying precedent. This is so even though some might have thought the point in Griswold was the protection of marriage while Baird took it as a given that the same right at hand applies to individuals. Or, maybe it was the use, not sale as in Carey. Children and so forth add to the complications.*

Again, this is not to say the rulings are wrongly decided. We are dealing with personal rights and in effect the right to get married and have children includes the right not to do so. And, there is a general right to personal health and any state police power over "health" should be reasonable (we still see some of this in abortion cases -- mainstream expert thought factors in the weighing of regulations). Still, the rights of marriage does not necessarily compel the right to sexual freedom generally. For instance, the issue of equal protection here includes a recognition that nothing is wrong with homosexuality as a public matter.  This required changing psychiatric knowledge and social developments. The more cases involving personal rights, including to possess obscene materials, the more "bedrooms" overall are involved, not just "marital" ones. 

The cases were about contraceptive usage, not the right to have sex generally. So, e.g., Baird didn't hold the state's fornication law (with a small penalty) was unconstitutional, just that the anti-contraceptive law with a much greater penalty involved was not the proper way to advance it.  A few justices also in part spoke separately in Carey to make clear they accepted that NY could ban minors from having sex.  Banning contraceptives was just an illegitimate way of protecting their interests. And, yes, married couples presumptively could have sex, the state in Bowers v. Hardwick even accepting the constitutional right there applied to sodomy.  That case did draw the line for constitutional liberty.

Nonetheless, once a right to privacy was applied to individuals, there was an understanding by many that it included a broad right to sex among consenting adults generally. And, this is how things turned out eventually in Lawrence v. Texas. The exception there is that though sale of contraceptives is broadly protected, all types of sale related to sex has not been broadly protected.  A court of appeals even upheld a sex toy ban though most appellate courts did find that protected. Obscenity outside of the home remains open to criminalization, even if merely downloaded to the home computer. The staying power of this last matter -- which one district judge rightly saw as illogical after Lawrence -- is open to some doubt.  This broad application of sexual liberty took time.

Note that like abortion, the right to use contraceptives could be formulated as an equal protection right to uphold the equal place of women in society.  There is an added wrinkle here that contraceptives (namely condoms) could help prevent disease and protect the health of men directly.  The "contraception" v. "disease" line was pretty irrational if the latter definition was given its appropriate reach. This was something used to try to show how the old bans were unconstitutional, but this clashed with justices distrusting such Lochner-like substantive due process.  So, there was a need to hook it up to a narrower issue -- a right to privacy over family life.  The details of the law in practice in Connecticut is useful in this respect.  If "contraception" is the concern, usage can be to be for health.  But, preventing pregnancy in all cases has  health benefits.  Where's the line there?  And, if abstinence is the only real alternative, can the state put a person to a Hobson's Choice to not take part in a basic aspect of marriage?  Is marriage not a fundamental right?  Contra the dissent, this is not merely roaming around by the courts to determine what is a "just law."  And, state practice to in effect allow contraceptive use widely limits their interest in banning it in limited ways with unequal effect. 

It is true that once you broaden it past marriage, we are being more expansive. A related way of thinking about this is as a sort of intimate association, which was suggested to be protected in various cases.  These are different than "expressive" advocacy type associations though I would argue both advance somewhat similar interests in various ways.**  Marriage was the most important one and Justice Douglas reportedly originally wanted to decide Griswold largely on that ground (his dissent in Poe v. Ullman covered more ground, but he often spent more time with his separate opinions).  Lawrence v. Texas cites the rights of homosexuals to form relationships, including sexual in nature, in this fashion. Contraception also can be seen like sex toys etc. as a fundamental aspect of this. Again, a right to association is a somewhat limited approach, not mere "liberty." 

Still, as I have noted in the past, do also accept there is a broad personal liberty in these cases.  The various interests cited do help show how it fits among the more specific enumerated rights. A liberty to form personal romantic and sexual relationships is basic to freedom, which is what I take the 13th and 14th Amendments particularly address.  This would be particularly so once we are dealing with the state authorized marital union, which has to be applied on an equal basis. To end with the last update.

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* The Baird case was a mixed free speech -- the person handed out a contraceptive device after a speech -- and privacy case that was ultimately decided on equal protection grounds. The oral argument was not very good, partially perhaps because the long term advocate was replaced late by a recently defeated U.S. senator to add prestige. The advocate in Carey is mostly notable for the libertarian breadth in his argument. 

One thing that I felt strange was Brennan and Black's apparent annoyance at Prof. Emerson in Griswold not to recognize there is some sort of equal protection argument. It wasn't exactly clear what the point was -- as he noted, there is reasonably a difference between treating the married and unmarried here.  Basically they limited it the the former since it seemed to expect too much to have the Supreme Court in 1964 declare that even the unmarried have the right to use contraceptives.  Was one or the other saying that the unmarried would have cause to complain? 

Also, unless there was some underlining reason for it to be a problem, why wouldn't the state have the power to only allow contraceptives for one purpose?  Was there some sort of equal protection rationale regarding classification contraceptives there?  That would satisfy Black, who was a strong opponent of substantive due process?

**  Marriage as a sacrament is but one example of how associations of this type advance First Amendment issues.  Also, one issue here -- both regarding bans and protections -- is the expressive character of the associations.  Relationships here send certain messages as do bans, which as Stevens notes in his separate Carey concurrence often largely have a symbolic function, if one that unconstitutionally hurt third parties. 

Puerto Rico Stops Defending Same Sex Marriage Ban

The federal district court ruling was an outlier and like the 5CA judge out of LA that seems doomed to fail on appeal in effect is checked by further governmental action.

"Comedians Comment on What They Don't Understand: College Sports Edition" (John Oliver etc.)

The professor cited earlier responds directly himself.

Ashley Judd Strikes Back Against Online Harassment

There has been various accounts by women concerning online harassment, including Anita Sarkeesian. So, Ashley Judd's troubles are not surprising though the criminal charges might be tricky. My experience is a Mets fan who I interacted with Twitter who made an ill-advised (to me obvious) joke regarding a police shooting. People took it as if she was serious and hounded her to cancel her account -- being connected to a tweet by her led to over a hundred notifications to my account fill with vitriol against her. Anonymity has its problems.

Overlapping Rights

The author talks about his book Madison's Music and answers questions form Justice Sotomayor.  I found the book somewhat lacking though found some useful insights as would those who listen to the discussion, including his brief summary in the beginning of his thesis.  It is useful to try to find positive aspects of something -- see how the two sides agreed with this supportive article on teen parents though dividing all the same.  

And, his insight as to the flow of the First Amendment (individual conscience to expression to ultimately governmental action) alone is worthwhile.  The differences do arise though and that leads to debates. Still, repeatedly, I find the "differences" can be spun in various ways. The gotchas here often require certain glosses. The author, e.g., noted he opposed substantive due process because it was too open-ended, but supports a substantive usage of the Ninth Amendment. The application of substantive due process in practice (Justice Harlan's concurrence in Griswold is apt here) is not open-ended either.  Also, there tends to be overlap:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," "basic civil rights of man," and "[r]ights far more precious . . . than property rights." "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."  The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment,  and the Ninth Amendment.

This is from a discussion of fathers' rights in Stanley v. Illinois, which was decided before Roe v. Wade and are among the cases that in some fashion protect "substantive due process."  There is sometimes a concern for nicety, a concern that there would be a redundancy if different provisions overlap.  But, the First Amendment itself provides overlap. Free exercise rights, e.g., often can be expressed as free expression or a right of assembly/association.  McDaniel v. Paty, involving a minister being blocked from government service was unanimous in result, but the justices split at least three ways on the reason why it was wrong.  Basic principle and zones of agreement should not be missed over debate over details here.

The case also touches upon an understanding that certain personal rights -- particularly after the New Deal era -- are given more protection than economic matters. This requires some general judgment on the Constitution as a whole and the lessons of history.  As the author notes, the bare words themselves will not be enough here, but also underlining understandings that are in part seen by looking at the thing as a whole.  And, no absolute rules work here either, just as the word "Congress" or "no" should not be applied too strictly (e.g, Presidents are controlled too) regarding the First Amendment.  Sometimes, property rights are particularly important.

And, these family right cases leads me to Levy v. Louisiana, which gave some rights to illegitimate children, who traditionally were in effect seen as "bastards" that as "illegitimate" suggests was outside of the protection of the laws.  The opinion notes: "We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being." A law review article regarding the rights of illegitimates under federal law is cited, one that I never could find.  My interest was that this provides an intriguing definition to the word "person" that has clear application to abortion.  Justice Clark's law article on abortion was later cited by the author of that opinion: "The phenomenon of life takes time to develop, and, until it is actually present, it cannot be destroyed."

But, the question of the "being" of the unborn, which is deeply disputed in this country especially as a matter of legal and moral meaning, is largely avoided in abortion cases. This is somewhat understandable though it does help explain why the line drawing there is formulated.  As Justice Stevens explains there: "there is a fundamental and well-recognized difference between a fetus and a human being."  Some argue that a fetus (and an embryo) is in the relative sense a human "being" too though even there rarely are truly absolutist about it as seen in let's say cases of rape. 

The debate will divide, but even there, there is some agreement.

Religion News

"Presbyterian Church changes definition of marriage to include same-sex couples." Joins various other Protestant groups (not all listed there). RBG helps provide a feminist Passover message. Now Judge John Noonan's tome on Catholicism's stance on contraceptives might be doable, if it wasn't over 500 pages long! First 100 pretty interesting though.

Nature of "right to marry"

And Also: I have seen little reference to same sex marriage battles in the territories, so this article flagged by Secular Coalition was appreciated.  The article looks to be an AP offering, so the direct link shouldn't concern.

There continues to be amicus briefs added to the Supreme Court website, even without governmental briefs there yet.  Prof. Dorf signed on to two and he discusses his p.o.v. here.  This led someone to raise the "what about incest and polygamy" question, which unlike the professor himself (wise man!), I and others got enmeshed in. My bad really -- as was noted, ultimately, this is a same sex marriage case.  "What about" is a red herring. But, as seen below, there might be a useful bigger lesson to be learned.

The person -- a conservative fixture in comments (he also tries to show the reasonableness of the King plaintiffs' position) -- also tries the procreation argument to directly address the same sex marriage issue. In fact, he alleges it is harder to defend same sex marriage than polygamy and incest.  The signs of desperation are there -- the other side isn't even "credible," I'm making "moral" not legal arguments, arguments are "laughable," etc.  Basically, scorn is mixed with analysis.  I can relate. And, simplification was present too -- such as saying my position is "loving" couples is the test, when obviously love is not required to get married. 

One thing that does come out is that when we try to determine the contour of rights in this country -- here a "right to marry" (the debate dealt with that, not the equal protection prong of the argument; but as Prof. Dorf notes, the two work together in practice -- see, e.g., Loving v. Virginia) -- we need to understand the nature of the right.  So, we have a "freedom of speech," but all verbiage isn't treated the same. Some aren't even protected (e.g., libel, perjury, threats).  Sometimes, not protecting does not make sense given the nature of the right and the system it fits into -- so obscenity to me is not a reasonable exception.  

Still, the nature of the right matters, and it might be different than how it is practiced elsewhere.  The "right to marry" fits the trend here.  Consider the summary of marriage in Griswold v. Connecticut:

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Note the "bilateral loyalty" component. This is not a necessary component to "marriage" obviously -- polygamy is an ancient institution.  But, the right to marry in our system presupposes monogamy. Marriage would be different in various ways -- not in all ways -- if it was not a partnership but a group effort. A significant difference would be the equality of it.  Traditional marriage provided different roles for the sexes, which we now understand as sex discrimination.  But, even there, the 1:1 relationship has a certain equality to it.  Each was responsible for one person. The "patriarchal" character of polygamy was flagged in Reynolds v. U.S.

Same sex marriage does not change the components summarized above. The "responsible procreation" interest argument falls apart, partially since it is only one aspect of marriage, partially since it doesn't even justify the barrier to same sex couples even granting its premise. Polygamy does change the nature of marriage. Now, there are other concerns, such as it often in practice promoting patriarchy and how it is much less practical (partnerships and multi-member organizations are different). Such concerns can meet rational scrutiny. They probably can do more. Also, same sex bans are much more weighed with animus. Still, the heart of it remains that "the right to marry" is monogamy in this country.

Justice Powell in the 1970s worried that treating the right to marry as protected with heightened scrutiny would be problematic:

State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.

And, yes, if we look at how the right to marry was discussed in various opinions, "various preconditions" would be in question, especially "homosexuality." The idea that no-fault divorces should be seen as constitutionally required also seems reasonable though this does reflect a change in "traditional marriage." The term has meaning though it should not be used merely to deal with one aspect of that institution.  Marriage before was seen as a more permanent institution, requiring stronger grounds to leave. This partially was seen as a protection for the wife though often it was burdensome to her.  Blood tests seem somewhat easier.

We dealt with bigamy (let's say this means two licenses; one license and some sort of other relationship on the side is a more complex issue*).  So, we are left with the other favorite of "what aboutists" (to use a Stephanie Miller term)  -- incest.  The term is vague -- the Bible has many shades of incest, some which few have a problem accepting.  First cousins is a tricky case -- states split over that one though the states in the lawsuit in front of the Supreme Court overall still treat first cousin marriages better than same sex marriages for purpose of recognition. I think first cousin bans might meet a lower level of review, but will grant strict scrutiny is tricky.

Incest taboos have ancient roots. They are not genetically based because people did not know genetics in ancient times -- though I guess like animal husbandry generally, they might have known something about its results. Genetic concerns do provide perhaps a rational basis for barriers here though a few states allow first cousins to marry once they are no longer procreating.  But, the "coming together" is the real issue here. Marriage is a coming together of people from outside the family. Family already is a special association. Incest would overlap and interfere with it.  This is why, e.g., incest bans often over adopted and foster family members. And, the rights and responsibilities tied to marriage and family are different.

A couple people on that thread question the consent rationale for incest bans, which is a bit presumptuous.  Criminalizing incest to me is probably a bad idea.  I also am not horrified -- it is also not just "icky" to me -- of even the idea of allowing such marriages.  If we play "let's pretend," I think the better move is a broad domestic partnership system that could include siblings and parent/child relationships for various purposes. And, there have been a few cases of uncles marrying nieces and aunts marrying nephews.  But, no, brothers not having the right to obtain licenses does not mean it is arbitrary to require two unrelated men to obtain them.

And, yes, even though tradition and acceptance alone should not factor in, that too is a reason why incest (and polygamy) is different from same sex couples, who are already allowed to do a range of things married couples do.  This includes having sex, raising children and so forth.  It is simply easier to extend things to this one areas. All the same, marriage rights in this country are based on certain criteria.  Race, sex, sexual orientation, financial status, etc. are not among them.  Monogamy etc. is.

I will add a few words here regarding the nature of the right at issue. The challenge in the thread cited that no adequate "legal" argument was provided is ironic given the failure to actually face up with precedents. So, Turner v. Safley was cited by me to show the breadth of marriage, which goes beyond the procreation issue. And, various legal briefs and cases show this too -- the right to procreate, raise children and marry are related but often different rights. They are separately listed in various cases. Plus, when raising children is clearly tied to marriage, the phrasing does not deny the right, e.g., of a couple raising an adopted child. Griswold et. al. also negates procreation as a necessary aspect of marriage, there being a choice not to procreate.  The quote above doesn't even reference children.

Justice Brennan once noted "the formality of marriage primarily signifies a relationship between husband and wife, not between parent and child." Don't think the majority disagreed with him on the point. Incest bans are in place in part because incestual marriages blend what would otherwise be separate.  If the connection is weaker -- first cousins, let's say --- it is less clear that the barrier is appropriate.  This is not to say we cannot imagine an overlap, especially in adopted families. A few movies, e.g., having a guardian falling in love for a ward, which is a bit sketchy when you think about it.  This also again shows how useful it is to mix the equal protection and the substantive rights threads -- sex or sexual discrimination is just easier to find problematic.  Still, it's instructive to consider this matter.

But, darn if I'm sort of tired of people bringing it up.

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* I do believe that there should be deemed a constitutional right to have three-somes or allow "open marriages."  Also, if people want to live in polygamous relationships, that is fine.  If Jack, Janet and Chrissy actually were having sex, I don't think their cohabitation should have been deemed criminal.  This all might show that polygamy in some form can be imagined, but that still doesn't make it as firmly protected as monogamy. And, adultery laws being ill advised or wrong still do not make them as bad as other barriers, including same sex marriages.

Finally, if one spouse is legally designated and two others are in effect privately present, that is okay. This last bit is more complicated, yes, but it still provides only one legal spouse for legal purposes. And, trying to determine if a person of the opposite sex that lives in a married couple's household is "too intimate" or something seems like a horrible line drawing problem and invasion of privacy.

This includes if the people involved have some sort of religious or other ceremony or something to declare some special union between them, but do not put themselves out as legally married. This touches upon the "Sister Wives" case and the Utah law still in litigation that criminalizes "purporting" to be married even this private fashion to more than one person.  The government form of marriage is likewise equal, but if a man and a woman want to privately have a less equal arraignment, that's their choice. 

"Missouri Executes Inmate Who Had Part Of His Brain Removed"

A useful breakdown of what happened to those sentenced to die in recent years. Only a fraction were executed. As seen in comments, it is debatable what this means. The subject article discusses the execution of a cop killer in his 70s. Four justices opposed the execution without saying why. This is simply wrong. We are told that judges show their work. If 4/9 of the US Supreme Court says an execution should not go on, I want to know why.

Happy St. JP Day

St. Patrick's Day (3/17) is for Irish, St. Joseph's Day (3/19) is for Italians. 3/18 is for mutts.

R.I.P Smith and Frohnmayer (Oregon v. Smith)

As noted here, two people on the opposite sides of the Oregon v. Smith case died recently.  There were at least two major books (link provides good summary of this case*) on the case and the background provides a lot of drama, both for the Native American who wished to use peyote and Dave Frohnmayer, the attorney general of Oregon who argued the case when it returned to the Supreme Court.  Frohnmayer was a moderate Republican, one who did not ask for the broad ruling provided here.  He also had a tragic situation involving the health of his daughters, including in the last case a misdiagnosis that gave the parents a false hope. 

The path of Oregon v. Smith is fascinating reading but the ultimate judgment to me is tragic. The state supreme court provided a limited ruling: the denial of unemployment benefits has to requiring a compelling state interest tied to the unemployment law itself. Oregon law does not make mere violation of the law a reason for denial of benefits. The mostly forgotten first argument in this case touched upon this particularly Smith's attorney, who seems to have an employment law background.  It would seem that a drug counselor would have a particular responsibility not to use drugs here and that to me shows how a narrow ruling was possible. But, she noted that only a "willful" violation was enough under state law. A violation motivated by religion was not "willful" in that fashion.  A much narrower debate can be had here.

I really wish that was pressed instead of the broad approach used by the Court.  As Justice Blackmun noted in passing in his dissent (Smith II), the Supreme Court ultimately reached out to decide an issue not originally involved. Listening to both oral arguments, you get the sense that a criminal law was at stake. That is, someone was criminally arrested for using peyote. Oregon did years back hold that the criminal peyote law was constitutional under the state constitution, but overall showed no actual desire to enforce it.  So, especially if the special nature of drug counselors using drugs resulted in a narrow loss here, a practical religious freedom balance is quite possible here. The same allowed some freedom of religious activity to be protected nation-wide without the parade of horribles some suggest occurring.  The balance is not totally clean, but few things are.

The case to me seems a rank attempt to deal with sensitive issues (the Native American Church aspect only more so) that are best avoided if necessary. Reading about the case, you get the idea that Frohnmayer himself was in for larger game himself, including concerns about a dangerous sect that relied on religious grounds and another claimant that argued marijuana use was protected as well. And, Oregon itself has a stricter separation of church and state regime, resulting in more problems in his view respecting religious exemptions.  The result however in the real world, however, is somewhat similar -- the state actually never enforced the peyote ban, while marijuana use was targeted. If political branches can balance equities here, why not the courts? 

Justice Scalia in Oregon v. Smith set forth a basic rule that a general criminal law that is not targeted against a particular religion or involves some other right ("hybrid rights" dealt with cases like Wisconsin v. Yoder that did provide a religious exemption to general criminal laws) is allowed. And, criminal law could not target mere belief, which (like in the famous flag salute case) probably can be made into a free expression problem anyhow.  A later opinion underlined an important caveat -- only "outward physical acts" was involved here, so this doesn't give the government power to invade internal church decisions such as employment issues. 

It doesn't take too much creativity to fit the peyote usage here. And, F13 in the first opinion provides an extended citation of the meaning of free exercise under past case law.  The use of caveats does not erase that there was a clear understanding that religiously motivated conduct was protected, even if violations of criminal law was involved. RFRA underlines the broad acceptance of the resulting balance, imperfect as it might be. Unfortunately, as seen in the Hobby Lobby case, firmly putting such a rule in legislation itself leads to problems. Scalia in passing noted in oral argument that he would not have supported RFRA, but apparently the concerns he wrote about the limitations of the judicial process to equitably settle religious questions here only went so far. 

The concerns about providing a religious exemption to general laws is reasonable to some extent, but from the origins of this country, there have been exemptions.  Also, the First Amendment shows that there is -- forgive me -- an "establishment" of the recognition that religion itself is of particular importance here.  The term can be given a broad meaning and related conscience related concerns can and should be honored.  In practice, the weighing of effects of "outward" behavior here does require legislative action. It still is the case that court decisions provide checks and signposts about what is appropriate. And, when possible, we should avoid burdening religious exercise and that was quite possible here.

The requirement to deal with state laws here somehow was largely avoided by the federal courts and could have been here, if it was just treated as an unemployment case or a special situation (as was the case with the military or prisons generally). State laws generally still will cause some problems, especially if we look at how they truly are being applied. As to the feds, RFRA makes the federal courts' job harder.  And, Oregon? They passed an exemption for peyote eventually anyhow.  Seems like it didn't violate state constitutional rules.  Years of burden on certain religious minorities could have been avoided.

Finally, two things.  First, putting this all aside, I can see some possibility of a form of the Oregon v. Smith rule. Educating and raising children ala religious schooling choices is of particular importance. The "hybrid" approach can address various religious activities along with the other rules. I think the Native American Church issue -- given the special constitutional role in that area (e.g., the Indian Rights Act that provides various constitutional rights to tribal members but still allows tribal religious establishments) -- made this case itself avoidable.  

Second and related a clear look at governmental practice can point to selective treatment even of allegedly general applicable rules.  This shows how the lines in place cannot be applied mechanically.  If so, the religious burdens of the Hyde Amendment would be recognized and such a law that honors the conscientious beliefs of some over others would be struck down. And, what of the specter of marijuana use? The lawyer for the Native American peyote user argued history would suggest alcohol was a lot more dangerous to them than peyote; a doctor recently said the same thing regarding marijuana in respect to the health of young people. 

The narrow use of peyote that is exempted here is different from marijuana use and the attorney general was wrong to argue that the lines drawn in past cases were mere ad hoc result orientated.  But, net, we allow various practices and exemptions that bluntly speaking is more troubling than religious usage of marijuana. Marijuana usage is in part a matter of changing one's consciousness and the religious connection here is not really just plain silly. This aside from specific faiths that use it. General legalization here is a good idea, but I think we can defend bigamy laws and the like a lot more easily at the end of the day.

Anyway, rest in peace Al Smith and Dave Frohnmayer, you both live long and in various ways prospered. The fate of things are now for us to handle.

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* Frohnmayer was involved in multiple cases that reached the Supreme Court, and both individuals had lives beyond this case.  Nonetheless, as noted there, it was quite important for both.

John Oliver and "March Madness"

I'm with this liberal leaning professor opposing for-profit college sports, including the players. I do find a lot of truth to John Oliver's piece last night. Still, would do limited things -- provide insurance for student athletes, truly provide an education (= major compensation), compensate for after graduation profits (like use of one's image in a video game) etc. And, as in the essay, both sides will be affected. Such as no multimillion dollar coach contracts.

Good Witch

Decent so far providing pleasant Hallmark viewing. We aren't talking grand depth, but has pleasant characters and continuing story lines that encourages people to watch the next episode. B&B provides opening for guest stars. Hour bites also helps since two hour movies got to be a bit stretched out for material. Rooting for the caterer.

Jungle Woman

And Also: I liked James Martin's, the Jesuit priest at times seen on The Colbert Report, book on humor and A Jesuit Off-Broadway (he was an adviser to a play on Judas Iscariot) looked promising. But, half-way in, it felt like it rambled too much. His approach is good though.

Saturday night Svengoolie fun is the middle part of a trilogy (two with Acquanetta, the actress, not the hair product) -- a follow-up to Captive Wild Woman. It might have been a surprising one originally since apparently the ape (who was turned into a woman by a mad scientist with the help of some human glandular material and the brain of a nurse) died at the end of the first film.  Since it will be somewhat relevant, let me add too that the first film (already only an hour long) seemed largely made up of stock footage of animal acts with a new actor that looked like the original real life animal trainer. As our host (Svengoolie talks about the movies and does various bits*) noted, the animals were not treated well either.  So, there was an overall unpleasant character to the first film in that respect. 

Turns out, there was still some life to the ape yet, and a conveniently present doctor takes custody of her. Don't think about this too much.  No, the doctor was not a vet though he seems to have a decent amount of money, able to buy the doomed doctor's sanatorium from the first movie. In the original movie, our doomed star reverted to animal form out of jealousy, infatuated with the animal trainer (who unfortunately had a finance). Apparently, this negative effect could wear off, since after a while, the ape changed back to woman form. And, unlike in the last film -- where she basically stood around and stared (mesmerizing lions/ tigers, making the trainer's job much easier), she could talk!

Unfortunately, this time the finance (why must all her men be taken!) of the doctor's daughter, another man drives her to violence yet again.  We find this out right away, since the film starts off with the doctor killing her and the whole film is framed by a coroner's inquest. This allows the introduction (again in a film only an hour long, if a normal length for a "B" film in the 1940s) of a good amount of stock footage from the first film of which includes what appears to be animal stock footage.  Given the whole reversion to animal form by jealousy bit is repetitive now and the new characters appear a level more stupid than their originals (even putting aside the Lenny look-a-like guy that allows for my favorite line -- "go away"), this weakens things.  Still, it is fun to see Paula talk and do a bit more than stare.**

The animal acts half of the first film aside, Captive Wild Woman was a superior film overall, including in the plot department. This film is fun though especially for those familiar with the character.  This allows us to hand-wave various additional logical flaws, including the fact that even if she wasn't you know an ape woman, the doctor would not be guilty if he acted in self defense. There was enough evidence here that she was trouble. The final reveal of her in ape form in the coroner's office sealed the deal at any rate.  The film, more so than the first, had a pretty weak finale before that reveal -- Paula deserves more of a send-off than offered here.

The third film should be on soon, so we will see how another film (The Jungle Captive) continued the story with the apparent death of the character.  Also, we will see how it works without our star actress (honestly, I can see why they didn't want her to talk -- she's better here for atmosphere). 

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* He has been at this for some time and is known for his lame jokes, all in good fun. His charm is suggested by this recent comment:

I just want to thank all of you who sent birthday greetings to me this past week-  that’s so nice of you! I may not be getting any better, but, at least, I’m still getting older!

Each episode ends with a knock at the door of his HQ (the show opens with him in a colorful coffin) and some vaudeville level comedy routine. For instance, someone (always out of view) explained a relative was involved in a raffle of a mule. Got $200, but right before the mule would have to be supplied, he died. Horrible!  Still made $198 -- the winner was okay with it. He got his $2 raffle fee back. 

** Various amusing bits in the film, including the doctor blithely noting how many experiments were done to change animals into people and such. You would think when he was told of that sort of thing it might impress him just a bit. Such insights however didn't help his good judgment overall. Such as him telling his daughter's finance that Paula might need to be kept under careful watch ... while talking, he leaves Paula behind with his daughter.

"Maybe the ACLU has given up on free speech"

This suggestion regarding the OK matter is unfair -- as noted in the comments, their actions, even their words after one press release (that, without more, might be of concern), show real concern. Faint praise of "some awareness" after a statement that the university should lose, without more, in court is asinine. As in communist hunting days, surely one can find faults, but if you want angels, look in Anaheim. Lack of perspective really is a pet peeve.

My Bloody Valentine (Home -- no 3D)

This remake was very successful in the theaters but is at best a mixed bag. It does have a story (largely not teenagers either); just too many killings early on for my taste. Hurts a decent beginning. An extended scene (with chase) of a nude woman is a highlight (shame she had to die). There is a surprise but the ending is lame. Makes the "final girl" look stupid. The reveal underlines it wasn't necessary for a sequel. Overall, a decent t.v. download.

Mets News: Leigh Castergine Suit Settled

The parties have decided to resolve this matter, which has brought more attention to the workplace environment for women in sports and will result in the organization being more attentive to the important issues raised by women in sports. Additionally, we are both committed to the further development and encouragement of female executives in our industry. Both sides? have agreed to have no further comments.

This discussion reads the tea leaves and suggests that the rather bland sounding statement put out after the settlement of a sexual discrimination lawsuit against the Mets organization implies a plaintiff friendly spin. The rather quick settlement also adds to the suggestion the former vice president of marketing and ticket sales (a hard enough job for the organization) had a real case.  Her lawsuit was an example provided in a recent article on sexual harassment at the work place as well.

The settlement doesn't provide a very satisfying for the outsider observer ending to the whole thing. We are left merely hoping that Leigh Castergine received appropriate relief for charges such as being harassed for having a baby out of wedlock and not being aggressive enough afterwards. Given what we know about team ownership, the charges that Jeff Wilpon was an asshole is surely totally convincing.  It is all guess work really but from my reading, those in the know (like that writer) had reason to be suspicious.

The hope of some really was a drawn out affair that put some pressure on the ownership, maybe even to sell the team.  All we got now apparently is more of the same, with one more excuse not to spend money needed for players.  And, more evidence of sexism. As shown on Mets Blog, the team is having problems. Their only likely established leftie is having injury problems. One of the starters just had some sort of issue of unclear dimension. They never did get a shortstop though maybe Flores has a future there.  The off season was mainly getting one older outfielder and a toss-in type guy for off the bench.  Not enough.

The return of Harvey and some rising pitching stars promises a winning season, but years of losing is making us fans rather impatient. More good news.  Not really.

King: Pilgrimage to the Mountaintop

This is a good short biography that shows a nuanced look at the man, including his flaws and failures. A bit dull at times, but overall worthwhile.

More SSM Amici Briefs

Update: A few more were added, including a short one on the development of marriage itself over American history.  This includes changes in race and gender, plus the role of the courts.  An important discussion to refute talk of "traditional" marriage that stereotypes same sex marriage as a unique change. 

On the amicus briefs page for the SSM cases, there are a lot more briefs, mostly for plaintiffs. The amici for the states' side has not arrived yet. I counted two so far for neither party, including the Eagle Forum trying to argue for a domestic relations exception that simply hasn't been the case. 

Another should appeal to a special "I got a great solution!" category in these debates -- just label things "civil unions." Wonder why loads of states didn't do that, but barred civil unions for same sex couples too?  The brief argues "marriage" (why not civil union?) should be self-definitional and it is an Establishment Clause violation to favor one side by assigning it to those that some religions might oppose (after all, the word "marriage" is cited in the Bible!).  This is sort of too cute by half argument doesn't recognize the basics -- the people who oppose SSM do not want to give various benefits that they see are "marriage-like," whatever you call them. And, they already have a view of "marriage" that does not always overlap with the state's view, but single out one form of it here for disfavor. 

I still don't see a brief that provides a detailed discussion of how same sex marriages developed over time and was not just something that just popped up in 2003. An overall off-kilter brief points to the potential here by pointing out that same sex couples did try to get married, if by subterfuge, hundreds of years ago. A Quakers brief points out that in the 1980s they started to have same sex marriage ceremonies. But, neither is an in depth look at the subject, as compared to briefs that cover the history of discrimination.  One of the petitioners' briefs also briefly cites recognition of unions in some localities back to the 1980s.

This has been something of a hobbyhorse of mine -- it's important to show how same sex marriage is part of a continuing history, not to artificially start when modern day states or countries recognized same sex unions in the 1990s.  A final reference to history can be found in a brief supporting the sex/gender discrimination argument (I find it convincing, but it got little traction)  in which a reasonable argument is made that protecting same sex marriage is "originalist." It is part of avoiding caste and/or class discrimination, the case turning on a changing understanding on the facts, including the "natural" aspects of the sexes. 

Such briefs are more advocacy than something that convinces judges though they can and have shown to be useful to some degree. And, various topics, including conflict of law issues involving marriages are helpfully spelled out.  Finally, the "people's brief" is there and it turns out my name is included (if not there).  And, 207,550 other people. Feel so special.