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

Sunday, May 31, 2015


Lady Godiva of Coventry

Interesting movie but it has its history all jumbled up. This film makes the conflict between the Saxon and Normans the centerpiece of the movie. William the Conqueror conquered England at the Battle of Hastings in 1066. So it seems strange that the film featured a Saxon defeat of a Norman gradual takeover of England when the Normans were set to take over in 1066 by force of arms.
Yes, the history surrounding the legend of Lady Godiva (whose famous ride is given a different reason here) should not be taken seriously, but after all it is a myth and a 1950s studio historical flick. It was a relatively painless quick moving affair with stock situations and characters.  A bare modicum of actual history is involved (the timing of events is a bit unclear but it appears the Saxons beat the Normans about when in real life the former was about to invade England in 1066) and nothing too interesting happens.  It's good to have a cheat sheet though since a decent amount of exposition and characters are involved and you might lose track a bit. 

Maureen O'Hara (still alive) played the heroine as a fiery redhead who seemed pretty colorful (lipstick and all) for a 11th Century Saxon noble.  She played the sister of a sheriff (then forgotten about), her brother commanded to seize her husband to be when the noble refused to take part in a marriage arraigned by the king.  Godiva is one independent woman and is involved in a good amount of intrigue here up to the final ride that in effect provide a test of Saxon loyalty. The original idea was she did it as a relief of oppressive taxes inflicted by her husband. Godiva earlier by her own stubbornness convinces her husband to settle with a rival and showed support of the local peasants. The pettiness of rivals here potentially leading to harm to the people and their protest is the most interesting part of the plot.  The original myth tied the ride to something like this, but Godiva's feisty and sympathetic character was enough to save the day here. 

This being the 1950s, don't expect to see anything regarding the ride itself -- her hair covers her body and the bodysuit she wore for the ride. I'd imagine if Lady Godiva actually road nude, it would not be very comfortable.  One can imagine trying to ride even a house being walked by a nun while nude.  The hair leads me to wonder if Lady Godiva was actually Rapunzel.  Anyway, the whole point is that her purity will be protected because no one would watch -- "Peeping" Tom comes from this, in this film having something of a nasty fate (though we don't see it). 

Anyway, wouldn't exactly call it "interesting," but decent time waster. Clint Eastwood has a cameo as "First Saxon."  Missed him.  Saw another bit part in a "revenge of the creature" sequel on a recent episode of Svengoolie on Me TV.  (Late entries here were kinda boring but still like Mr. S.) There he was easier to catch as a lab technician.  Saw this one on VHS.

Saturday, May 30, 2015

The Back-Up?

I'd like at least a protest option in the primary. This guy seems pretty good. Respect Sen. Sanders, but his -- I'm sorry -- hectoring tone turns me off.

A bit of due diligence please ...

One thing that aggravates me is when a quick look will greatly inform the situation. The Mets offense is bad now but last night they faced someone who in every start but two gave up two runs or less. The Mets scored two runs (tacked one on late). The teams weren't great but at least on par with the Mets offense. So, when Harvey gave up a three run homer and allowed one more run? Sorry. No talk about horrid offense etc. They were average last nite.

Rev. David Boies

For this couple, no valid marriage means no divorce. And no divorce means Anya must file a separate lawsuit to make a claim on the apartment, perhaps under the statute that allows for the recovery of property transferred in anticipation of marriage. But this case is a lesson to modern couples who view marriage as an entirely personal and customizable arrangement. As the judge noted in this opinion, although there are several cases in New York holding that marriages solemnized by ULC ministers are invalid, 11 of the 34 weddings in last Sunday’s New York Times were performed by ministers of that type (not all in New York, however). Marriage is, at core, a legal act. And like any other legal act, the rules are best followed.
Joan Grossman provides family law columns at Verdict and this article dealt with a lower court ruling ("NY Supreme Court" is a misnomer) that is also discussed here.  The case did not really turn on the use of a ULC minister presiding over the service but the failure to follow proper local procedures when going to out of state to marry.  The opinion showed some concern on resting things on the idea that a ULC minister was not really enough, realizing the problems with line-drawing on proper "religion" and recognizing why a couple would find it personally valuable to have that option.  For instance, the ease to become such a minister allows a family member or close friend to preside without the usual complexity in becoming a minister.*

The final link also underlines just how accepted at this point is the idea that you can get married in NY by means of a ceremony presided over by a ULC minister.  This is seen and the purpose for this discussion (which I have had in the past) by a recent marriage I came across in the NYT of Elizabeth Wurtzel whose Bitch book (she also wrote Prozac Nation, but is now living a more low key life as a lawyer) I read some time back.  David Boies -- yes that one -- is a ULC minister (plus apparently her one of her bosses) and presided. The usage of such ministers is quite common here as shown by NYT wedding announcements and various fictional portrayals, leading to this account by one such person.

NYC allows ULC ministers to register as marriage officiants though one of the cases discussed by Ms. Grossman here when she a few years back discussed the issue in depth decided back in the 1980s that they need not.  The general assumption -- even by lawyers -- is that a marry solemnized (per requirements of state law -- a license isn't enough though it can be done by a civil official such as at City Hall) by a ULC minister is enough. The state is broken down into four appellate departments. One (covering three boroughs of NYC) held in the 1980s that they aren't enough.  Another more recently rejected that. And, two didn't decide to my knowledge.

Justice Scalia flagged during the same sex marriage cases the issue of the government authorizing members of the clergy to preside and wondered how we could allow them to selectively deny same sex marriages. Justice Kagan reminded him that selectivity here is not new.  But, the issue of the special power of clergy here did in general concern some people and Prof. Grossman back in 2011 flagged the problems with "relying on religious status as a proxy for one’s capability to implement the state’s marriage requirement," especially if we are going to worry about certain ministers not being religious or exclusive enough to count.
It is easy to understand why couples might choose a friend or relative, rather than a judge or religious figure whom they have only just met, to play an important part in a hugely personal and momentous occasion.
The problem with exclusion is important and as discussed by myself and the articles cited there is a general understanding in today's world that it is appropriate to have a broad option for the person to solemnize a wedding. The ULC Church provides a popular way for the average person to do that though it's rather debatable how much going to their website to be ordained on demand adds to the whole affair. But, who's to say? A modest statement that you accept their do good by your own lights tenets should could less than some other personal proclamation of faith? Anyway, marriage is personal, and the right to choose who presides is an important aspect of the overall right to marry overall.  NY's failure to make this clear is wrong.

Ultimately, the judge in the case we started with had the right bottom line -- it is important to have some basic requirements because the alternative "makes the process too easy and robs it of the seriousness that is warranted in view of the responsibilities and obligations that marriage entails."  So, some formal license procedure and maybe even the day waiting period is appropriate. That case was about paying attention to local rules and realizing being married changes things (e.g., for tax purposes).  And, it's fine to require some sort of solemnizing ceremony.  Not quite the same, but it is somewhat akin to notarizing (note: in NY, notaries don't have the power to marry people) -- you are basically taking an oath in front of a third party, who is required to know the person or ask for formal identification.  A wedding is another ceremony, like swearing/affirming in court, in front of witnesses and presided over by some person.

There are various means, secular and otherwise, to do this. The same applies to requirements to teach your children. Religious freedom provides special importance here in allowing a member of the clergy to serve as an option.  The overall freedom to choose one's own conscientious path and express their marriage as they see fit would go beyond that and provide a right to the presiding official of their choice. Quakers and others might prefer self-marriage though there the state can still require witnesses. We can simply do this at City Hall, but the governmental interest here is to provide a means, with a certain symbolic power (such as swearing or affirming witnesses), to underline the importance of act of marriage in a certain public sort of way.  Doing so in the way that honors the couple's beliefs would further this end the most.**

I guess we can simply require a license, but personally think the current system is a good one and something would be lost without it. The flexibility of modern ceremony just provides a way to use time honored things in a different style. And, how about the whole complication of certain probate judges or whatever who do not want to marry same sex couples?  Isn't there a way to simplify the process of licenses?  Just make it a matter of submitting paperwork for which there should be someone available to process. Again, unclear how this didn't come up when someone thought divorce was wrong or a couple was not "really" getting married, since the person just knew their hearts weren't truly in it or something.  I think it just is much easier to see how a couple is going against one's beliefs here.  Anyway, the license is just paperwork. The private ceremony is where the marriage is truly carried out, however they wish to do that.

This would separate the religious from the secular and for those who wish to simplify, they can simply marry at City Hall at certain designed times in front of witnesses, presided over by whatever public servant is so chosen to do that sort of thing.  I guess in some location you still might have some bigoted official causing problems but should be a way to avoid that sort of thing -- there are enough non-bigots around, including some local freethinker society or whatever to do the honors. As they should be able to.


*  OTOH, a few courts have been troubled by the simplicity of becoming a ULC minister, some degree of complication in choosing them deemed a core reason why members of the clergy are given the authority to preside. This provides them with a certain cachet not present if any Joe Smoe can be a minister.

My belief is that it is done for religious reasons or we would trust some other large institution to so choose. Various public officials, including federal judges in various cases, are allowed to preside. But, when it comes to private officials, religious ones are given special powers basically for First Amendment reasons.  For the same reasons, picking and choosing among them on grounds the religion is not exclusive enough or the like is problematic.

** The ULC Church is a popular choice here as noted in the text and at this point might be seen as almost semi-official as an option. It is just an example and a couple should have the right to have a secular option too.  The ULC Church does seem more serious on some level than more satirical things like Church of the Flying Spaghetti Monster, but we shouldn't be in the business of line-drawing there.  After all, such a "minister" would in itself possibly be an expression of one's beliefs in the long run anyway.

Friday, May 29, 2015

Books and TV Quickies

Looked at the religious history book the Jefferson Rules author wrote and didn't look promising. Young & Hungry had a decent plot advancing episode/cliffhanger (more roommate please) while Younger continues to be very good. Sutton Foster doesn't look the age she is pretending to be, but the show has a nice flavor, and the publishing setting is something different. Impastor looks good even before I knew Sara Rue is in it. Veep good last weekend, Mike great, but they aren't really getting much from the promising lobbying side.

Thursday, May 28, 2015

Death Penalty Abolished By Nebraska

Thanks to an easier (60%) override policy, Nebraska abolished the death penalty [note victims' families on both sides] with some conservative support. The situation was worsened by continuing porblems with lethal injections, leading to more chance for the firing squad [cited as more "honest" by a doctor] or nitrogen gas in some places.

Wednesday, May 27, 2015

Kitchens of the Great Midwest

I sometimes see "advanced copies" of books on a free rack at the library and this book of vignettes centering around someone who grows up to be a top chef was overall very enjoyable reading. Read almost half in one sitting. Interesting mixture of characters and well written female ones for a male writer. He has both writing and food cred.

The Imitation Game

This was pretty good but basically not "Academy Award" worthy or anything. Various alterations from history, mostly adding to a somewhat predictable stew including a beauty for the key woman role (she does well, even if not quite true to life). The key player in this Alan Turing centered film, e.g., was apparently not this smidgen away from autistic. Two supporting characters were in another film with a homosexual plot point. DVD commentary.

Update: Good commentary and a second showing suggests the film was very good (including technically) but I do think there is a certain predictable flavor overall.

Tuesday, May 26, 2015

Julia Stiles

So you're a New Yorker. And a Mets fan. 
"I love baseball. As a teenager, I was a contrarian, and picked the underdog instead of just rooting for the Yankees. It's a hard team to root for, but there's something that always keeps me hopeful. I actually love listening to baseball. I really get into the announcers. It's almost like Valium. It totally relaxes me. I like listening to the radio more than going to the games, although I love the old stadiums, like Fenway and Wrigley Field. They're beautiful and simple -- they sell hot dogs, pretzels, beer -- that's it."

Monday, May 25, 2015

Memorial Day

Best way to honor those who served and died is promotion of peace.

Saturday, May 23, 2015

The Jefferson Rule

I'm reading the new book of the author interviewed here and below cite various people who blog there [this is an adaption of a comment there]. This entry was edited; perhaps, this can be a "Rev. Joe" entry since it involves "constitutional faith" which is in effect a form of religion.

The book starts with the creation of "the" founding vision (Jefferson won the first battle) and how antebellum times were a period of great change but a full ability to deal with it was harmed because of a connection to the past. A problem being that an honest accounting would show there was no "one" vision -- there was a conflict from the start. But, still one or the other side was sure there was clearly one vision, so much that the other side were in effect traitors to the cause.  So, John Quincy Adams tried to think big but was rejected as not loyal to the Jeffersonian vision. Jackson was an innovator of party politics and other things but also could not truly admit to being so given this "constitutional faith" to use a term of Prof. Levinson.

There was an "interregnum" while the Civil War and its aftermath seemed a time too different from the Founding Era for that time to be seen as applicable. Lincoln provided something of a bridge: he spoke (shades of Balkin?) of certain founding principles that only in time would be put in place. So, slavery was a necessary evil, but in time equality would thrive.  But, his rhetoric still tarred the opponents as traitors to the Founding Vision (sic), made only clearer once many truly became actual traitors. The return of "The Jefferson Rule" began in the 1920s with Harding using it as a way to further his "return to normalcy" with the Lincoln Memorial as important. It also was used to combat FDR but he in return used it (Gerald M. has written about this including his use of the BOR) to promote the New Deal. I have not read the rest but he later covers Reagan, the Tea Party etc.

The book is decent but as someone who read a decent amount touching upon this ground a lot of it doesn't really add much. And, since he has to cover so much ground, it adds to a feeling of "yeah okay, knew that." So, vignettes here and there are the most interesting. For instance, John Quincy Adams showing his message to Congress to his Cabinet. I, of course, agree with his overall thesis here myself and as a whole it's a useful volume, more so for those somewhat less knowledgeable of the events. Some of them (those more knowledgeable) might feel a desire to skim.

Update: Perhaps since I have read somewhat less on recent history, the sections on FDR and Reagan (1960s and 1970s particularly) were interesting.  So, e.g., FDR spoke of "economic royalists," shades of Jefferson tarring his opponents as not just wrong but in effect traitorous. I see this online a lot with being totally wrong not enough; the other side in effect has to be evil.  LBJ and Nixon were lightly touched.  

The book ends on a fairly expected mostly negative account of the Tea Party's non-reality based path and extremism.  It concludes by sensibly suggesting that we should not try to have the Founders guide us -- they were divided and we live in a different era.  As they did a long time ago.

Be the judge (or justice) ...

Someone asks how you would act given the reality of being a justice of the USSC.  Sometimes enjoying role playing games, I responded:

I would realize I am part of a large system, one of nine, having no power of the purse or army to carry out my commands, and will be influenced by many factors, including professionalism, the sense of duty arising from my place and yes personal opinions, experiences and values. ALL judges will in some fashion have such things. All federal judges have life tenure.

As to important cases. Loads of them are not. Even constitutional cases repeatedly are small. Some narrow issue of the 4A. The legitimacy of some state tax law promoting an end that could be done in some other fashion etc. A district judge has important duties too. S/he can preside over a trial and determine (with broad discretion) how much time to lock a person in a hellhole or any number of lesser things.* Many "interesting questions" are only decided by appellate judges, particularly since the USSC avoids them. GITMO has largely been overseen by the DC Court of Appeals.  [I'd add that just as lower court judges often do not have the final say, justices often really do not either or convince themselves that they don't.]

And, when the USSC decides, a large number of cases are decided by supermajority votes. Yes, there are close cases, some that are very important. And, personal factors influence this along with the weight of the office itself. But, this is the nature of the system. Life tenure, e.g., is supposed to make them more independent. I'm unsure though what change would occur if instead they had let's say a 15 year term. It might help -- Scalia seems to have gotten worse lately and Douglas got lazy. And, it would bring in new blood, especially now that modern realities result in judges able to spend much more time on the bench. But, only so much.

So, how would I act? Bottom line, I would try to honestly carry out my affirmation (I wouldn't swear an oath) to do my job. And, partially knowing I'm 1 of 9 and part of an ongoing institution, that would mean I couldn't just do what I thought best is some perfect world. Yes, my personal views would influence me. And, sometimes I would act pragmatically or by compromise, as people do, including in juries and multi-member judicial panels.

Finally, in response to a discussion in the comments regarding judges convincing themselves they will merely "decide the law" and not in some significant fashion be influenced by personal experiences and biases, well, that is just a fiction we  in some fashion promote.  The judicial nomination process, e.g., is something of a dance. But, even there, some truth leaks out. And, anyway, we can be honest among ourselves, and some judges are as well.  Justice Sotomayor, putting aside doing her part in the dance, is open now about how her experiences influences her judging. And, this still doesn't mean that is all that will matter.  This is seen by the supermajority votes in a many a case in the Supreme Court, even if the justice might given his or her druthers vote another way. 

I do welcome the discussion, as also noted, because it helps promote an honest accounting of judging and this can help when deciding how to deal with the situation.  Still, there can be some overcorrection there, like noting the problems with the Mets without needing to just stay they stink or make tiresome cheap shots or comments that are basically stupid. The overreaction, like some dubious speech, is itself educational though.

ETA: I like egarber's reply overall though the opening gambit of Federalist 78 etc.  is something of an exaggeration of much of a justice's job. The cases overall are often a matter of not restraining the legislature or executive as such but providing some order in the law as a whole.


* A trial judge will be overseen by various layers of appellate review, including in sentencing matters, but still has broad freedom of action and this review takes time. A "be the judge" in local state proceeding here shows this pretty well. 

Thursday, May 21, 2015

Now ... Months of Waiting

Have a nice retirement, Dav-id. Let's not forget about these two!

Wednesday, May 20, 2015

Death Penalty Issues

A discussion of "necessary" in respect to the lethal injection case with a discussion (not surprising given the source) regarding eating animals. New Republic had a good article on problems with the technique. End of the death penalty in Nebraska?

Update: Added a link of background; that guy also was involved in Marsh v. Nebraska.

Follow the Stars Home

The needs of disabled children was addressed around the time this t.v. movie about a woman choosing to keep her own (with various other complications, including a girl from a troubled home) was replayed. I liked the overall movie (fairly realistic though still "Hallmark" aspects) and saw that the disabled daughter was played by two girls in a good performance. She chose to have the child, fully informed of the risks with more help than many would have.

Tuesday, May 19, 2015

Supreme Court Watch

Yesterday was a busy day at the Supreme Court with six opinions handed down though they were not really the hot button cases of which many have been keeping track. SCOTUSBlog provides a discussion of the opinions, including a potentially important case involving use of force when dealing with the mentally ill for which the broadest question avoided thus a limited result.  Scalia (with Kagan joining) was annoyed that the Court was in his view tricked to take a case to decide "x" and later found the locality didn't want the Supreme Court to decide the question. Meanwhile, the new attorney general stopped by for the usual ceremonial visit there.

The opinion that was most interest to me involved the "dormant commerce clause" issue the Scalia (though he would again provide limited stare decisis effect) and Thomas think is bogus.  Ginsburg/Kagan split from the other liberals to accept that longstanding principle (states can be found to discriminate and/or burden interstate commerce even without congressional action so holding; some argue there are other ways to address this concern), but differentiate this case from other precedents.

It is interesting to see natural partners split, on both sides here. The case has implications for education  while there clearly are various ways the overall principles (including basic concerns of equality among the states in the economic sphere, here out of state income being treated differently) deemed basic constitutional norms.  The majority (by Alito) had a bit of 'tude, not surprising given its author, including when responding to the two justices who thought the dormant commerce clause principle was bogus. The idea goes back to John Marshall and has been reaffirmed on the merits back to the late 19th Century.  The development of doctrine, not restating first principles or looking at past events in a vacuum (such as state practice back in the day) is addressed.  A sort of "living constitution" approach?
First, because of the difficulty of interstate travel, the number of individuals who earned income out of State in 1787 was surely very small. (We are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach.)
That is my favorite example.  It's telling.  The same overall principle should be consistently applied, including when dealing with same sex marriage. Overall concerns, application of precedent, not looking at past history without keeping in mind the vast changes that occurred since then and so forth is a matter of sound judicial practice. Note even Scalia supports stare decisis, even when as a first principle he opposes something.  At the end of the day, the past is suggestive but not the end of the question:
In any event, it is hardly surprising that these early state ventures into the taxation of income included some protectionist regimes that favored the local economy over interstate commerce. What is much more significant is that over the next century, as our Commerce Clause jurisprudence developed, the States have almost entirely abandoned that approach, perhaps in recognition of their doubtful constitutionality. Today, the near-universal state practice is to provide credits against personal income taxes for such taxes paid to other States.
As to Ginsburg's dissent, I won't try to fine tune the question here, since I'm not overly knowledgeable about such tax policy questions. It might be a factor though that her husband was a tax attorney.  The majority's approach does seem "cleaner" as a matter of judicial application by providing a broader rule to apply to all cases.  OTOH, it might be a matter of judicial restraint to give wider freedom to states to formulate its tax polices. This assumes, of course, that the constitutional concerns stated by the majority allows that sort of thing there. Again, interesting case.

Monday, May 18, 2015

"To Have and to Hold: Reproduction, marriage, and the Constitution"

Jill Lepore has an interesting discussion of Griswold and the concern of using privacy instead of equal protection arguments, something that Ruth Bader Ginsburg has discussed. Lepore, as is her wont, finds some interesting historical perspectives and connections. One of the mostly forgotten litigants in the contraceptive cases (numerous cases arose, most stillborn) had a child who later took advantage of the right of same sex marriage in NY.  Mildred Loving supported same sex marriage too.
The Constitution never mentions sex, marriage, or reproduction. This is because the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal. Rule over women lay entirely outside a Lockean social contract in a relationship not of liberty and equality but of confinement and subjugation. As Mary Astell wondered, in 1706, “If all Men are born free, how is it that all Women are born Slaves?”

Essentially, the Constitution is inadequate. It speaks directly only to the sort of people who were enfranchised in 1787; the rest of us are left to make arguments by amendment and, failing that, by indirection.

The article goes too far for my tastes and I will quote a few sections to touch upon my concerns.  It is quite possible that the fact that men governed at the time was a factor here, but such questions were at the time largely matters of state law. The federal Constitution was largely concerned with the national government.  State laws dealt with these questions.  And, to the degree the Constitution speaks of things, "men" and "women" -- except by use of standard general pronouns -- do not come to play. "Persons" or "the people" have rights.  Women, e.g., can associate together to petition the government for redress of grievances.  And did.
People who want to make arguments against laws that discriminate against women tend to reach for awkward and imperfect analogies: sex discrimination is like racial discrimination; women are to men as blacks are to whites.
Various things in the Constitution factor into reproduction, marriage and related subjects. Religious freedom, for instance, is an important matter here given its power over marriage and morals over history. Criminal protections applied to "persons" and due process of law too factor in here as well.  Interstate relations affected marriage and divorce.  And, so forth.  The Thirteenth Amendment, which the article could have handled better given it has a special domestic component given the evils of slavery, is particularly important. Likewise, the analogy here is imperfect, but "sex" and "race" has various connections. Ruth Bader Ginsburg argued as such.
In the opinion issued by the Court in June, Douglas, citing Harlan’s dissent in Poe, insisted that although a “right to privacy” is not mentioned either in the Constitution or in the Bill of Rights, it is nevertheless there, not in words but in the shadow cast by words. He wrote, mystically, that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women.
The article quotes someone saying “a right of privacy older than the Bill of Rights” was the language of fiction.  It is argued that it is really a Victorian right, one that benefited men.  But, women spoke in this language in that era too. Their ability to control their lives, including to escape cruel marriages, was a major concern. This "privacy" is therefore not just something for men.  Like rights generally, it was in various cases used to favor certain groups.  But, equal protection alone is not ideal either. Equal protection of what?  Privacy provides an important frame here.
“A right to privacy looks like an injury got up as a gift,” the feminist legal theorist Catharine MacKinnon argued in 1983, since “privacy doctrine reaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split.” In 1984, Ruth Bader Ginsburg, then on the U.S. Court of Appeals in the District of Columbia, regretted that the Supreme Court had “treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women.” Ginsburg found the Court’s opinion in Roe wanting for a number of reasons; among them was its failure to pay any attention to discrimination against women, or to a woman’s “ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”
Feminists still support a strong right to control their own lives based on what individual girls and women deem necessary for their own happiness. Abortion rights has particular important to women and Roe spoke to their needs in particular.  Women were the ones burdened. As gender equality developed as a legal construct, a more complete approach was present as shown in the Casey decision. Incomplete, however, is not the same as denigrating half of the argument.  And, "liberty" is a basic concern here, not just "equality," which again raises the question - "of what?"

The usage of privacy can favor certain groups -- e.g., some who are well off vote Republican, since their social rights are protected by their position, so they can vote by their pocketbook or such things like foreign policy.  It also can result in denial of benefits since you still have the right to choose though the rejoinder there is that to have such a right requires some basic floor of resources. And, in the current day, the Constitution very well might be incomplete.  It is a 18th Century document that is not that updated (e.g., to deal with agencies or real world foreign policy) in various ways.  And, one issue there very well might be some basic needs or domestic concerns that are only covered by broad provisions not directly touching upon them.

The history is useful, but incomplete, and somewhat unfair.

Sunday, May 17, 2015

My Old Lady

Two of the leads were also in the charming film Keeping Mum. The third lead in this film is Kevin Kline. It is a well acted film that is probably too long, but the French setting and actors leads one to be forgiving. Adult drama with touches of sardonic humor. Kline like Kristin Scott Thomas was in a French setting (Queen to Play; also good) before. French characters might have handled the adultery subplot differently than English/Americans.

Saturday, May 16, 2015

Death For Dzhokhar Tsarnaev

Coverage can be found here (the CNN link is helpful to give an overall view) and here (defense minded view).  The latter suggests there might be some problems and various comments provide the sentiment that the death penalty overall is uncivilized. The sentencing verdict looked a bit quick (some talk of early next week) and there appeared (at least at the first blog) some sentiment that LWOP was at least possibly (several thought probable).  But, helped by a death qualified jury (pure abolitionism can keep you off), the death won out here.

This sort of atypical case (akin to Timothy McVeigh in some ways & there Terry Nichols didn't get the death penalty, showing it is all so arbitrary even when talking about mass murder) doesn't say much about "abolitionists." Since the victims or family of the victims of the bombing have mixed views on what is deserved, the usual appeals to there is of limited value. Deterrence isn't advanced much for this sort of thing. Unclear if he is some danger in prison. As to retribution, LWOP to me seems more appropriate and in some ways harder for him.  Finally, age, pressure from his brother and perhaps something else provided some reason to choose LWOP.

The final judgment of the jury is not some sort of travesty. It's understandable. There are reasons even here to vote the other way, but unlike various other cases, this is a "worse of the worst" sort of case.  This doesn't mean the death penalty is suddenly okay but we should be honest about scope of wrong.  And, I think there is a strong enough federal interest that a federal prosecution was appropriate. A few latch on federalism arguments mixed with the Eighth Amendment to argue that a death penalty is not warranted in an abolitionist state. Don't find that overall convincing. The current administration supports the death penalty in such cases. 

Let's see how this plays out. McVeigh's case was pretty quick -- four years from sentencing to execution. 

Thursday, May 14, 2015

Satanic Temple: Missouri Anti-Choice Restrictions an ‘Affront’ to Religious Freedom

The Satanic Temple last week filed a lawsuit against Missouri Gov. Jay Nixon (D), alleging that the state’s abortion restrictions violate temple members’ freedom of religion.
This was treated by various people, including those sympathetic to their position, as somewhat trollish in nature.  It was seen as a way to put conservatives to the test respecting RFRAs.  This sort of thing was done by the organization in the past -- e.g., in respect to public displays.  Gather that the group is serious enough, not akin to let's say the Church of the Flying Spaghetti Monster or something. Putting aside the usual question of line-drawing even there, we are talking about a serious "religious" group that warrants protection akin to some ethical cultural humanistic one. Of which, it probably can be counted itself.

They also aren't "satanists" to the degree they support evil or something.  That is the sort of "satanist" that probably was involved in the prison rights lawsuit (Cutter v. Wilkinson).  Their FAQ notes:
Satan is symbolic of the Eternal Rebel in opposition to arbitrary authority, forever defending personal sovereignty even in the face of insurmountable odds. Satan is an icon for the unbowed will of the unsilenced inquirer… the heretic who questions sacred laws and rejects all tyrannical impositions. Ours is the literary Satan best exemplified by Milton and the Romantic Satanists, from Blake to Shelley, to Anatole France.
I think the term in common understanding generally has a negative connotation, but perhaps that conflict with normalcy only makes the name more useful.  The origins of the term involved “the adversary" of God, a metaphorical concept that eventually was personalized. This is seen by comparing two accounts of events in King David's life, one involving God alone, one (written later) involving "Satan."  Some try to show how the two really amount to the same thing.  I'm not going to bet the farm on such things, but it is likely it is a reflection of changing views, including philosophical ideas of good and evil prevalent by the time of its writing. That is, past the time of various Greek philosophers.

Anyway, the term early on had a sort of "devil's advocate" connotation (e.g., Job's loyalty to God tested), so you can see some of that.  It still to me is misleading to use a term generally understood to be negative.  Some might even think God, which also can be a metaphorical construct as used by this organization (they don't really believe in the actual Satan in Hell etc.), would be against "arbitrary authority" etc. The test of conscience here very well can be raised by a Christian or other believer of God.  They too repeatedly have been troublemakers that challenge authority.

The woman here -- a recent update on the organization's Facebook page notes they trying to make this a class action -- argues that she has religious beliefs holding her body is her own, health choices should be made based on sound science, abortion is morally acceptable and the state abortion laws violate the views in various respects.  For instance, requirements to provide information asserting "life of each human being begins at conception" and that "abortion will terminate the life of a separate, unique, living human being." This she finds bad science.  She need not prove this either; a "belief" is enough -- see the Hobby Lobby case on IUDs. She also argues that the seventy-two hour waiting period interferes with her conscientious choice.  Again, "belief" is a lower test here. 

RFRAs are not absolute. The state will have to show why there is a compelling reason to enforce this law against her even regarding her religious beliefs. They could easily offer the same literature themselves, but requiring her to take it is another thing.  It is also different to require the providers to have the material available, at least based on this claim.  The problem here is the language has a certain plastic character.  Objectively, the language appears false, particularly the part about a "separate" being that is connected to a woman's body.  Can see a court accepting that the text can be spun to be an actual reflection of reality.  A respectful understanding of views here would accept the language is subjective enough that there can be reasonable dispute, one with religious overtones. 

The waiting period is argued to be necessary to allow truly informed and free choice.  The waiting period if often only twenty-four hours and some states allow it to be done over the phone. So, the breadth is arguably a problem here. It is probably harder to claim no waiting period is compelling under Planned Parenthood v. Casey (Stevens/Blackmun has the better argument as to the merits) except perhaps if reliance on religious belief here is stronger than the "undue burden" test regarding abortion.  Various abortion regulations can fall under the conscientious choice to control one's body test.  Again, it is a matter of abortion rights v. religious liberty though these days the latter appear more respected at times.

The Supreme Court has noted the fact that abortion is a deep matter of conscience for which there is much division among religious groups. The right to liberty involved is such an important individual choice in part just for that very reason.  But, they still allowed waiting periods and biased consent provisions.  So, though the lawsuit usefully shows how certain abortion restrictions can burden religious beliefs, the success on the merits of such a challenge is much more questionable.

Wednesday, May 13, 2015

Public Morality

I referenced this article from a member of the clergy who counseled public officials to remember they represent individuals, not God. This resulted in a long thread, in large part because of the contribution of a Catholic making pro-life arguments and annoying various regulars. As I noted last time, there is a range of beliefs here, as Roe v. Wade noted:
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live' birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.
To add something else from my various comments there.  There is a debate at one point (some vitriol mixed in) regarding the morality behind our secular law. I'm unsure where this takes us. "Morality" as "principles concerning the distinction between right and wrong or good and bad behavior," yes, there is some overall morality. A basic point there being not harming persons who are not harming you.  This can be thought of as "public morality" as compared to the private morality ("our own moral code") sometimes referenced in Supreme Court opinions.  So, it is not that "morality" has no role in public policy though sometimes one might get that idea.  "Morality" is not simply "religious belief." 

As noted by some (this goes to the merits), the embryo is harming -- it is using a person's body. This cannot be done against their will under our laws. Or, rather, stopping it from being addressed is wrong. (The state here, not the embryo, has will after all.) It is basically "immoral" under our political philosophy. Some have religious or otherwise beliefs that holds there is an obligation to care for the embryo anyhow. Many, especially in various cases (and this includes many people who think of themselves as Catholics), think otherwise. Of course, many consent to the pregnancy, many honored earlier this week. 

The choice is left to the individual under our secular law.  The confusion over the term "morality" can lead to more confusion than light here. But, it isn't too complicated.  Also, people are going to be motivated in some part by personal morality.  This still has to be channeled in such a way that the rules of secular law are not violated.  Public morality requires this.

Tuesday, May 12, 2015

Petition of the day

Looking at the latest petition flagged at SCOTUSblog, it is not just a qualified immunity matter, but one that arises in a case involving animal welfare. Meanwhile, an interview of the couple over at Dorf on Law, who are concerned about such things.

Rules Apply To You Too, Sorry

Some use the Patriots thing (comments) as mostly a way to make jokes, but seems to me it's an important matter (comment) of following the rules. Sorta count. It isn't like the most important thing in the world and the league might not have handled it the best (simply haven't kept up with the weeds or whatever), but these are Super Bowl champs. And, this isn't some first time thing for them. Wouldn't be surprised if the penalty was reduced.

Monday, May 11, 2015


Decent episode last night (John Oliver dealt with unpaid maternity leave) though iffy on some things. The botched lethal injection thing seemed forced. Amy snapping (which was epic) seemed unlike her, but glad that annoying character that caused her to snap (Selina basically knew Amy was right too) is gone. "House" is the veep choice and appears to be a past lover.

Sunday, May 10, 2015

Amy Does 12 Angry Men

Amy Schumer's rif on this classic film (they are judging if she is hot enough to be on basic cable) has rightly received kudos, but don't really think it holds up for a whole episode. It's a one joke premise that eventually is more a matter of holding the illusion than actually (think this might be the point) being that funny. Or, actually, making a point (and yeah, Schumer is hot enough that it doesn't quite work). The shorter FNL rape culture bit worker better.

Saturday, May 09, 2015

National Day of Prayer

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.
This law was passed in 1952 as discussed here, which covers various aspects including recent controversy over it being sectarian in practice. It is a permanent establishment of days of prayer and thanksgiving that have a long history in this country.  Some answer this with a "day of reason" though (hard as it might be thought by some) there can be some overlap.  Note that a couple years after the establishment of this day, the U.S. Congress also added "under God" to the Pledge. 

President Obama has tried to be inclusive including a statement concerning how "we protect the fundamental right of all peoples to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and discrimination." It's useful, if you have this sort of thing, to use it in that sort of inclusive matter.  But, there is still a basic problematic aspect of singling out religious practice here. The possible problems of this sort of thing was recognized back to the days of Jefferson, including in the eyes of believers of God.

And, it is not even a day honoring free exercise of religion or even God.  This is a problem in itself -- everyone doesn't believe in God and having secular leaders provide statements of this sort is problematic. I guess "may" can be simply a statement of possibility ("may" do a lot of things), but some might rightly infer a bit more.  A certain type is singled out -- "turn to God in prayer and mediation" etc.  It is somewhat comparable to Wallace v. Jaffree where more than a moment of silence was involved, but singling out prayer for favoritism. And, private action comes within its terms but "churches" (a Christian connotation) is cited first.

I'd suggest a more inclusive day honoring free exercise of religion.

Love Story

I found a copy of this famous novel and it is really a quick reading novella of around hundred pages. The generic title fits. Basically love here is an emotional connection that is mostly there, not really explained except for its effects. Nice but not very deep. The film (which I liked) is largely loyal to the book including the rather shocking tidbit where the husband finds out before Jenny that she is dying. There is a sequel, but not sure who wants one.

Friday, May 08, 2015

"Anti-Choice Elected Officials Should Not Pretend to Represent God"

Interesting piece by a clergy member, but what the scriptures "say" is open to interpretation. Note another Southern Baptist with special connection to Roe. I add more in the comments, including in response to a biblical verse, which is worth thinking about, but doesn't really answer everything either. It's still just one verse. Ultimately, like Roe v. Wade noted after discussing the diverse views, the choice should be largely individual.

Thursday, May 07, 2015


Clint Eastwood's The Gauntlet is a 1970s film that takes violence to the level of parody. That film is gentle as compared to this one. A BJ special, the charm of this is Salma Hayek, who does "mama bear" with a vengeance, a word that fits the lengths taken here. DVD has two commentaries, but either with Hayek. 'Tis a shame.

Crying Over Spilt Milk: SSM Orals Edition

I was looking at Courting Justice: Gay Men And Lesbians v. The Supreme Court (2002, right before Lawrence) again and again wished the SSM orals were a bit better. Baker v. Nelson? The couple at the time got married (sic) in a religious ceremony (not the only ones in that era). One of them got fired from a state job for being an active homosexual. And, the right to stay marry didn't get a full discussion either. See here on why it particularly is important.

Wednesday, May 06, 2015


I don't think Sutton Foster realistically looks in her mid-20s, but fiction is about suspending disbelief at times. The show overall is pretty good and nice to see Debi Mazar and even "Lizzie McGuire" again. At times, plots seem to be sealed up a bit lazily (tough fiscal love to lame ex vs. given $1800 when needed from her tough boss). But, worthwhile TV Land fare.

Use of Clergy For Marriages

A common thought is that we should take the state out of the "marriage business," but marriage is going to have various state implications such as related to benefits. So, it makes sense for the state to have you "register" even if the final ceremony (itself, like swearing/affirming, of use to the state to symbolize its importance with witnesses) can (if desired for free exercise reasons) be in front of clergy. That's fine. Just provide various options as done for education of children etc. See my comment here for more.

Tuesday, May 05, 2015

Rape Exceptions

Sometimes hear people scornful when anti-choicers argue even rape exceptions to abortion laws should be eliminated in part since people might lie. But, why wouldn't they if desperate? The state is the one to blame there really. And, how would you know? That is the sort of question that makes me go "hmm" and thanks to the Internet found a good reply.

My Grandfather Would Have Shot Me

This is overall a good book about the mixed raced granddaughter of the face of evil in Schindler's List finding out about her grandfather with a journalist providing parallel background and commentary from a greater remove. The author already has various issues with a mother who gave her up for adoption, travels and so forth. The parallel approach works and the book is a page turner though the Israel chapter goes on a bit long.

Saturday, May 02, 2015

Lethal Injection Orals

As noted before, a few justices were irritated over the lethal injection challenge, seeing it basically a result of the bad faith of the abolitionists. Alito opened things up with asking why the state was not using sodium thiopental with the defense attorney not quite sure where he was going. He then was blunt:
I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly.

Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are
free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to
 using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.
Scalia also blamed "abolitionists" for making safer drugs unavailable and felt that should be "relevant" to the justices deciding if these particular drugs were an issue. It is not as if the defendants themselves kept the drugs from the states -- they are not exactly to blame for European suppliers being pressured by anti-death penalty groups.  Kennedy annoyingly wanted to know the answer to the question.  Why should it?  And, if so, how much, if there is some significant chance that the drug used causes something akin to burning alive?  Is there a exception to the pain limit in that case? Breyer didn't think so -- it wasn't "better that than no executions" though such a complete abolition result was not what the defendants here want to come out and say is a fine result.  Need to be a bit more cagey than that. 

At best, as suggested here, it goes to the good faith of the states if shortages, not lack of coarseness alone.  States rather not use this particular drug apparently.  But, as Justice Sotomayor noted, there are alternatives -- like the firing squad or nitrogen gas. She determined that they weren't used (as a few do as back-ups at least) "because it offends them to look at them." The firing squad seems less civilized, maybe also it is a matter of the direct nature of killing.  And, it is quite possible that something might be deemed "cruel and unusual" or otherwise uncivilized not merely because of pain. An extremely excessive punishment or one very undignified (e.g., stocks) might count too.
The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded.
Since other states do get the drugs, it is unclear to me that eventually an adequate source will be found.  Why cannot states even have state run companies to produce the drug?  A question was posed on the painful nature of the alternatives.  Nitrogen gas is untested as a means of execution though its lethal qualities have been studied some.  Some -- including those wary of the death penalty (and/or worried about the negative effects to the medical profession) -- have argued all things considered that the firing squad might be better.  There was a question on the pain involved -- executions need not be pain-free.  It is a question of degree.  Finally, if the drug here (and there was a passionate debate over facts, including Sotomayor serving as a sort of prosecutor, one who bluntly basically called the states unreliable liars) did not meet the threshold, should shortages give the state some sort of free pass to use something that might be akin to burning a person alive if it does not work appropriately?

In Baze v. Rees, Roberts in the plurality opinion argued that we can mostly trust the legislative process to decide for themselves here. "The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection."  It is unclear if the firing squad was not as good as the electric chair or gassing (the old type, not nitrogen). But, trusting non-court means here would include private action that lead to the shortages, right?  And, the opinion does provide some limits.

And, per Scalia's comments about how the Supreme Court upheld various means, the question simply was not really fully addressed that much. A case a few years back that might have addressed the electric chair was mooted by the state doing away with it.  Other than a case in the 1940s that 5-4 accepted trying again after the first attempt to electrocute failed, when did it ever fully directly address the issue of method other than 150 years ago when the firing squad was accepted as not cruel and unusual?  I don't even think the Supreme Court itself as compared to lower courts directly held that physical punishments like the lash was unconstitutional in this day and age.  It did treat school corporal punishment as not an 8A issue. Baze itself was therefore a seminal case ala Heller.

The case that clearly deeply affected the liberals -- Kagan's concern was apparent even without her being as prosecutorial about it as Sotomayor --  but a 5-4 loss is likely.  It boils down to overturning a district court finding, which very well might be warranted, but leaves an opening to have a "neutral" reason to rule against the defendants.  An opinion by Kennedy or Roberts is possible with the concurrence adding more spleen.  A strong dissent (or dissents) are also likely.  And, the issue probably will not go away, including with attempts to limit access to information about the production of the drugs and use of different rules than normal there. 


* Kagan flagged that if the drug at issue didn't work, it could be akin to being burned at the stake.  Alito set up a hypo where somehow that can be done painlessly.  Kagan didn't find it that relevant -- the issue here was not like some burning at the stake where the person was totally medicated so could not feel anything (the psychological effects would suggest this would require total medication).  But, Alito's surprise that any burning at the stake can be constitutional suggests the problem there is not merely pain. Rightly so on some level, pain alone not being the test here. 

Text and History

Balkinization (a pun based on a chief originator, Prof. Balkin) is not much for comments these days, so threads that do allow them tend to be more so inclined to go on tangents or bring up other issues (including those covered by posts that don't have comments, sometimes because the person were tired of some trollish back/forth in the past).  See, e.g., this one on a fear of a "runaway convention" if we ever (per Art. V) have an open state convention to propose amendments to the federal Constitution.  "Shag" at one point referenced the 1A:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Burt Neuborne's recent book relied on the text of the Bill of Rights specifically to argue for a certain sort of progressive vision. Text and history (along with other things) need not only be used for conservative ends here. Prof. Amar, e.g., has written a lot using such techniques to raise some intriguing (if not always convincing) arguments, at times using the same "it's pretty obvious" tone of some conservative originalists.  For instance, he suggested the Thirteenth Amendment can be used against child abuse, since it is a form of "slavery" and/or "involuntary servitude."  Others, including Balkinization contributor Andrew Koppleman has used that amendment to protect abortion rights.

Text and history does not guarantee anything here -- it provides an opening and device to use when making choices.  Honesty warrants that the meaning of the text, be it constitutions or fictional works, have various possible meanings. The text of political documents often is carefully chosen in part because it provides a means to obtain agreement from different groups that understand what it means in somewhat different ways.  Still, text and history matters, particularly as a sort of "Overton Window" to reduce choices.  It changes the conversation some.

There is a "freedom of speech." Congress can not pass a law "respecting" an establishment of religion. It can't "prohibit" the free exercise of religion. etc.  Compare two provisions from Oregon's Constitution:
"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

"No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly."
The second is what is sometimes known as a "Blaine Amendment," the leader of a post-Civil War movement (at the time influenced by rise of Catholicism) against public financing of religious schools.  It also reflects the druthers of James Madison, a primary voice behind the federal First Amendment. But, that one wasn't as specifically phrased. It left it much easier to allow legislative chaplains (paid out of government funds) and various types of spending on sectarian schools (particularly if tied to students themselves), even if the language arguably would not allow that.

The provision still is different from the others since a certain category is blocked ("respecting") while Congress could in some fashion regulate speech but not in a way that abridged its freedom.  "Freedom" might suggest certain terms though, like "liberty" might not merely mean "license."  "Speech" itself might not merely mean "verbalization."  Is libel protected "speech" or unprotected license? Finally, "prohibiting" free exercise is not the same thing as merely burdening it in some fashion which by the nature of government, is going to occur somehow. 

The same with the free expression provision. "Freedom of speech" suggests something a bit less than banning any regulation of speech itself (while "the abuse of this right" also opens up a loophole in the state analogue).  So, Zephyr Teachout's book noted that in the late 19th Century, the Supreme Court recognized various forms of paid lobbying as against the public interest and thus such lobby contracts need not be honored.  As with Justice Scalia not using mistreated Catholic school children as a reason to be careful about state authorized prayer in schools, the use of history here often is selective.  Law office history. 

But, history should guide us some here, a complete history. We live today though. Our needs and understandings should ultimately guide us when we continually try to apply the text of all sorts of things the best we can.*


* An early Christian handbook, likely influenced by Jewish thinking that went back further, at one point noted:
For if you are able to bear the entire yoke of the Lord, you will be perfect; but if you are not able, then at least do what you can.
The  word "Lord" might be used metaphorically, if you wish, but think this is fairly good advice generally speaking.


CJ Roberts seemed to be getting used to the new name when announcing Mata v. Lynch (previous Holder). The conservatives mostly seemed to think it shouldn't be there, but the liberals were rather passionate in the lethal injection case. Sotomayor bluntly basically called the state liars, Kagan not as blunt, but clearly upset about the possibility of something akin to "burning alive." The last case was a technical case that they clearly wanted to get rid of.

Friday, May 01, 2015

A look back ...

At the time, “sexual orientation or sexual preference just wasn’t recognized as a protected category” like race or religion, Mr. LaFond said. “I was giving Justice Blackmun a cert. memo based on what I understood to be settled law.” 

“It was the petition of two guys to get married, and that was it,” Mr. LaFond said this week in an interview. He wrote a two-page memo summarizing the case, Baker v. Nelson, concluding that it should be dismissed “for want of a substantial federal question.” The court adopted his advice with a one-sentence order.
An interesting article provides a look back to the first time the Supreme Court had to decide the same sex marriage issue, this time when they had less ability to deny review (thus the disposition there and it's limited meaning even without developing doctrine and other issues). We are dealing with a different day and age, when being a homosexual could prevent you from being allowed into the country and before the time when homosexuality was removed from the Diagnostic Statistical Manual.

Nonetheless, even on that level, the state ruling below left something to be desired.  The use of a dictionary definition* to provide a meaning of marriage had some merit (the dictionary provides a rough sense of current understanding), less so a reference to Genesis.  Also, the quote is telling:
The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.
We can find part of that -- the "union of man and woman" however isn't quite even shown. After all, polygamy was seen in that book.  Likewise, marriage even then was not merely about "procreation and rearing of children" unless it wasn't applicable to the barren or elderly.  Nonetheless, even there, the Supreme Court by that time had stated that rights and equality developed over time. The argument as to rights deem fundamental  is more tied to tradition there, but note even here it is selectively cited. Finally, putting aside I think the proper approach here is to look at the aspects of the right to marry and see if logically they apply, time changed the meaning of marriage along with same sex couples generally. 
"Marriage and procreation are fundamental to the very existence and survival of the race."
The Skinner case is cited here, but that case was about sterilization so that aspect of marriage was particularly important. But, marriage wasn't just about this -- you did not have to under common law to be able to have children to get married.  It is also a tad ironic a few years after Griswold to focus on procreation.  That case itself can be cited for a definition on the what marriage brings that applies here.  The state supreme court applied it narrowly, more so than various other courts at the time, as a marital intimacy case.  It would later be clearer that the Supreme Court understood it as a liberty case generally,  involving various choices over intimate matters. Lawrence v. Texas years later basically spoke of intimate association; the First Amendment claim was rejected here without discussion.  Baker thus clearly under applies Griswold, at least per later case law.

This article explains the Eighth Amendment claim also rejected (Powell briefly raises one in his separate opinion in Bowers v. Hardwick).  The basic idea appears to be that the state was requiring same sex couples to have unwanted sex re-assignment surgery to marry.  I'm unsure how this is a criminal matter though that might be a due process violation since it "shocks the conscience."  Also, the freedom of religion claim raised in early cases has a bit of bite -- a judge in Perez v. Sharp, the state ruling striking down an interracial marriage ban flagged it.  Marriage after all even today is seen as having an important religious component and this ways years before Oregon v. Smith that accepted neutral limits there.

Finally, the state ruling held that "no irrational or invidious discrimination" was present here, and there was "a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."  This was before the expansion of the test required to justify sex classifications.  Rational basis is no longer the test. The issue of animus was not flagged, traditional non-recognition a harder case there anyway than modern day state constitutional amendments (state DOMAs).  Sexual orientation discrimination is not cited at all here. Thus, even Judge Sutton had to cover that separately. 

And, of course a lot has changed, including much more protection of same sex couples which increases the problems of explaining why you are drawing the line at marriage. To quote the ruling: the "Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same."  Things are not the same. And, the ruling even at the time was somewhat weak.  Finally, at the very least the later rejection of James Baker's discrimination claim against a state university for his marriage advocacy was quite questionable.


* The marriage is different sex marriage because it is so this isn't discrimination any more than a woman claiming a right to be  a "father" repeatedly was the basic grounds of denial of these claims. Citations of dictionaries will not be as easy these days for that reason any more than old usage of "religion" to mean "belief in God and an afterlife."  Put aside that a full understanding of "marriage" over history would include same sex couples in some fashion.  Invidious discrimination resulting in only one form obtaining legal sanction is of help to the wrongdoers only so much.

Superman Versus the Ku Klux Klan: The True Story of How the Iconic Superhero Battled the Men of Hate

The above is some audio from a 1940s radio Superman serial where he goes up against a KKK type hate group. The subject book is for teens but is good for readers overall. To provide context, the book examines the origins of Superman (a pair of Jewish teens who loved comics) and how it was fit into the times, including during WWII. Also, we learn about the development and re-insurgence of the KKK plus a particular person from the South himself who fought them and had some influence on the serial. Good historical snapshot.

Rationality While Watching Sports? Is that Even Possible?

Snow in May writer provides thoughts on a Russian singer that showed up in the stories. Meanwhile, the current Mets struggles (more things change ...) has lead to various chatter at Mets Blog. Continue my "let's have a sense of perspective" mantra and find it a good policy on all things. So, don't latch on to one player, or if you do, look at him as a whole. etc. And, hey, I realize its sports. I'm not always rational. It's part of the charm. So vent some.