Supreme Court Watch

Rachel Maddow had a good segment last night on the Republican presidential candidates' billionaires, particularly Mitt Romney's (well one of them) who did things like out gay journalists in efforts to stop criticism and full disclosure of his activities promoting certain viewpoints.  I'm sure, though his blog seems selective on the issues (where are all the posts on commandeering physicians and patients to give ultrasounds etc.?), that Eugene Volokh types would find this sort of thing ill advised.

All the same, it does provide evidence of the power of deep pockets and helps point to the motivation for campaign finance laws.  RM notes how things are going after Citizens United, but we aren't talking corporations here, but powerful individuals.  Since there is so much focus, including from her, about the whole "corporations are people my friend" (didn't McCain have such an affectation?), this would have been a good chance to remind (like Justice Ginsburg did in supporting taking the Montana Supreme Court case for review) that it goes beyond that.

The problem is the "fact" that this sort of spending is not "corrupting," no matter who does it. Well, at least outside of judicial elections, non-citizens, government employees in some cases and perhaps some other exception Kennedy and at least four justices will find. Maddow should think about having Rick Hasen on to talk about this issue, since I think people are not fully aware of the fact, especially since so much focus has been put on the corporations angle.  She and others can also remind people that eight justices upheld disclaimer and disclosure limits, showing the value of DISCLOSE Act type legislation. 

Meanwhile, the Supreme Court today accepted for review a University of  Texas affirmative action case, Kagan recused.  The university had a "top 10%" policy of accepting the top tenth of high school graduates, which  promoted "underrepresented minorities" without specifically using race as a factor, though that clearly was the intention.  After all, why else accept the top tenth of very different academically successful schools? This sort of approach just might satisfy Justice Kennedy, who left open the possibility of some concern for racial balancing, but not in a way that directly affected a student. The plan had some success and then the university added another race conscious policy, here argued to be unnecessary.  Will AK again fail to find a policy he can uphold? Will Alito help water down another O'Connor keynote opinion?*

To round things out, the USSC came back from their hiatus (putting aside the previous orders, including the one alluded to above on Montana) to split time in the health care orals, hand down some orders and some mostly uncontroversial opinions. One of mild interest involves a Kagan/Sotomayor split, Sotomayor joining the other liberals in partial dissent involving applying defining "in custody" pursuant to Miranda to the prison context.  Another such split the other way involved another of a handful of "per curiams" in recent years that appear to be fairly trivial in nature, a sort of fact correction approach that the USSC is not usually involved in, this one from Alito's old haunting grounds. 

And, the Prop 8 defenders reportedly are going -- somewhat surprisingly -- to seek en banc review, delaying USSC involvement. Their chances are unclear, the likes of Judge Kozinski showing some interest in same sex rights.  One complication is that given size of the circuit, the norm is not to have every judge take part.  To be continued yet again.

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* The NYT article explains things helpfully:

Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.

The LAT article is a bit more vague. 

Questions I Would Have Asked

Rachel Maddow had Dahlia Lithwick on to talk about the Republican war against women, the Virginia bill in particular, referencing the Texas ultrasound law and failed challenge on free speech grounds (forced script).  She noted that the physicians were the focus of that challenge, reflecting my sentiment that these things should be challenged on various grounds, not just abortion rights directly.

But, what about the non-abortion liberty ground of the transvaginal invasion?  Anti-abortion 5th Cir. judge?  Things might be different in another circuit.  As I said at some point, Casey not only opened the way for more regulations by loosing the standard of review, but more chance of split votes in the lower courts.  O'Connor friendly balancing tests do that sort of thing.  She was off the Court when they decided the second "partial birth" abortion case, the first one a state law struck down 5-4 in part because of the lack of a "health" exception.  Kennedy dissented.  Alito, who dissented as an appellate judge regarding the one provision in Casey (spousal notification) that was struck down, switched things 5-4 the other way.

As with Judge Jones' anti-abortion vote in the Fifth Circuit (I linked her desire years back to actually bring back the actual Roe case), this underlines how the membership of the courts matter. This is a major reason why the Republicans are doing so much, even when the ultimate vote is ridiculously not close, to delay nominations.  More neutral matters such as many more federal judges taking senior status doesn't help with the vacancies.  As DL noted, Kennedy's opinion did not trust women, opening the way up to these ultrasound laws. The opinion notes:

Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.

The interesting thing is that this "decision so fraught with emotional consequence" does not seem to warrant full disclosure in respect to the problems of having a child and raising one without full knowledge of all the risks and responsibilities.  We also do not require people before getting married to get marital counseling or listen to the numbers regarding divorce rates.   When various other key moments, including involving health and life, is involved, we do not force, against the will of the participants, them to have "clear and precise" knowledge of the intimate details of what will occur.  This is not just a matter of availability and full disclosure, but selective disclosure and freedom of choice.

The irony here is that (as the dissent notes but DL did not) full disclosure was not the path chosen there.  The case was not one debating the need to supply a biased informed consent script.  It was about a particular procedure, which during the oral arguments of one of the cases it was noted choices regarding it had a moral significance to the woman, different women having different beliefs.  No, the path chosen was to remove the choice, according to health experts the most safe for certain patients, away from them.  This mentality only furthers the idea that you cannot trust women, so force them to have ultrasounds, even those that require putting probes into their vaginas.  The latter is one better than the script challenged unsuccessfully in Texas, but the mentality leaves us open to it. 

Rachel raised the question of how this was "small government," but come on.  Let's be serious.  These are conservatives.  We know this; let's not pretend to be surprised.  Conservatives, yes even to some extend the anti-abortion, gay rights etc. Ron Paul (big libertarian thinks Lawrence v. Texas is wrongly decided) are all for government intrusion into personal moral choices when it is for our own good.  There are some Republicans, though more and more the best place to find them is in the state legislatures, who understand the folly of this path.  That though some balance might be warranted (one I might disagree with but respect), bottom line, some things are private. As Justice Stevens noted in his concurring opinion in Casey, dissenting on even the more limited opening there (waiting period/mandatory biased counseling) the state "must respect the individual's freedom to make such judgments."

Economic trauma should not be an opening for this sort of thing.

Franklin Pierce

Once, someone annoyed at how originalism was not properly respected and all cited Franklin Pierce to show how FDR suddenly perverted the constitutional order.  Yes, we all know how respected Mr. Hawthorne's pal is as a constitutional guidepost. Happy PD!

Pan Am

Season (series?) finale had a certain forced feel at times but by now we care about the characters and (well at least me) want to see more.  Time for Army Wives (actor on this show) to come back yet?

More on Contraceptives Issue

Support of the likes of Bill Moyers and even various Catholic groups underlines the contraceptive compromise is not "anti-religious" or "anti-Catholic."  Interesting comments by MHP this morning on the "schematics" of not having religious women voices, but even her law professor didn't talk about RFRA and what about Sister Carol Keehan?

Rev. Joe

As I noted before, a replay of a Karen Armstrong interview was on yesterday and she noted she was a type of free range monotheist (and was starting to love the Buddha too ... that was a decade ago, so who knows now? she might just be a free range -ist now).  She was open to finding meaning where it could be found, rejecting the ability of one person (like the pope) or group finding the ultimate truth.  Religion for her also was basically a release of the ego to something higher.  Armstrong also welcomed a symbolic understanding of religious experience, dealing with psychological needs, a too literal approach something of an immature one.  Her short book on Genesis covered some of that ground well. 

I like that sort of thing.  I do not like when people who generally agree with me on public issues disdain "religion" per se.  As Armstrong notes, "atheists" were traditionally seen as those who did not properly believe in God.  They did not generally disbelieve in God, just the form the common people recognized as the true one.  Do the critics of "religion" find fault with Karen Armstrong types? What about Unitarian-Univeralists:

• The inherent worth and dignity of every person;
• Justice, equity and compassion in human relations;
• Acceptance of one another and encouragement to spiritual growth in our congregations;
• A free and responsible search for truth and meaning;
• The right of conscience and the use of the democratic process within our congregations and in society at large;
• The goal of world community with peace, liberty, and justice for all;
• Respect for the interdependent web of all existence of which we are a part.

Now, I reckon Rick Santorum (h/t Chris Hayes) might not recognize this sort of "mainstream" Protestant trend (shared by many lay Catholics) as the true cross, shall we say.  When "secular" is tossed around, it seems to me to often apply to the sorts who do not go to church regularly or have strong sectarian religious beliefs akin to the type found in the Nicene Creed but these people are not "atheists" nor do they in the least all have no "religion" as such.  Many have deep beliefs that objectively sound religious in another context and some even belong to certain communities with rituals and the like that some believe "religion" must have.

Some rather give this sort of thing, at least outside the likes of UU or some Society of Ethical Culture context, other names like "conscience" or "spiritual" subject matters.  A rose by another name is still sweet.  If one wants, we can see this sort of thing as a respected alternative to religion, a choice on such questions, or an aspect of religion that should be protected in its own right without being religion freestanding.  I personally don't know if we can pigeonhole things so neatly and wonder how much it ultimately matters. The personal believer can have a "religion" even without a physical church attached to it.  And, I am not talking basketball or some limited political or economic theory here. 

Individual conscience, finding meaning and truth as you can.  

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* I referenced a NY Court of Appeals ruling on a state contraceptive requirement that was applied to the Catholic Charities.  I'm not a big fan of Oregon v. Smith, but think this state alternative is a good idea for general applicable laws. A broad view of "religion" is proper, and if we do so, some balancing of interests will be necessary.  I'm being somewhat repetitious but the issue is important and repeatedly I have seen coverage of the issue that does not cover all the bases, though happily many do get the basic idea of a middle ground when no malice is intended. 

Obama on Marijuana

In a ruling significant for the upcoming PPACA case because of its ruling on how local personal activity can be regulated under the Commerce Clause, the USSC upheld the constitutionally under the provision of the federal policy against medicinal marijuana, even applied to mere possession in states where it is allowed under state law. It also notes "most domestic drug regulations prior to 1970 generally came in the guise of revenue laws," the clear "regulatory" nature not making them not "revenue laws." Telling for the tax prong of the PPACA arguments.


It is a case where preferred policy conflicted with constitutional law, Stevens and O'Connor (particularly the former, who expressly noted this in a later interview) not following what they though was good policy when applying the law. Stevens' had years before expressly written separately to leave open a medical necessity defense for individual use, referencing someone else's position [apparently contra the claim of the person cited in the footnote]:

Cf. Feeney, Bush Backs States’ Rights on Marijuana: He Opposes Medical Use But Favors Local Control, Dallas Morning News, Oct. 20, 1999, p. 6A, 1999 WL 28018944 (then-Governor Bush supporting state self-determination on medical marijuana use).

As to the Raich ruling, I'm really of the O'Connor sort who is willing to be a bit wishy-washy there, having a "this isn't enough" standard of interstate commerce.  I am with the majority on various things as to the basic principles involved and as applied to the interstate health market, the insurance law is clearly constitutional.  I can also, though I'm not really happy with the idea, accept the opinion as compelled by precedent. But, and the same thing pops up really in U.S. v. Lopez (federal law involving mere possession near schools unconstitutional), my real concern here are liberty interests. And, there, it fails. 

Someone in this thread* somewhat selfishly notes a personal connection. I'm not going to gainsay the underlining concern there. And, when the connection to interstate is weak and local law allows it, the federal government should not, arguably constitutionally not merely on policy grounds, interfere.  I'm with Justice Douglas on "the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf."  So, combine questionable interstate commerce link, local option/federalism and liberty interests, the case against the policy is strong.  One way or the other.

Anyway, the impetus here (see link) is an article on Obama's marijuana policy.  The Rolling Stone article started thusly, opening up for the usual suspects the usual screeds against Obama, his imperfections making him a phony, everything positive he did tossed aside as some footnote:

Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he vowed, promising an end to the Bush administration's high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.

And, this doesn't matter much to some people, "in its first two years, the Obama administration took a refreshingly sane approach to medical marijuana." The change in approach per the article seems to be connected to appointing an ex-Bushie as the head of the DEA.  As Mark Green in the comments noted, it might also be that insiders were not a fan of the new approach, which had to face increasing medicinal marijuana us as liberalization of state laws made this a major industry.

The new DEA head might have lead to an unbalanced "counterattack" that took things too far in the other direction. Also, it is telling that the change came after the House was won by the Republicans. This is not the only issue (see yesterday's Up with Chris Hayes on expelling aliens)  where Obama plays tough on crime. This is a valid criticism, though again, it is not merely about Obama (what about Congress allowing local option? like ending the AUMF 2001 that authorizes drone strikes, where is Congress? Ron Paul? one commenter even wants Obama -- how little we remember -- to fire some prosecutors for following the law here). Skewered and politicized drug policy goes across the board. And, the Administration has done some sane things overall here. 

Yes, Obama has not done enough and the change on marijuana policy is horrible.  It's like the Gitmo thing -- the non-audacity of hope. He made an effort, he had some push-back and scampered back.  Exaggeration of how horrible he is across the board (e.g., he isn't for same sex marriage yet; what good is he to gays?)  is counterproductive.  People might not care, but I do.  Sorry.  Anyway, yes, the first of the noble eightfold path to nirvana is "viewing reality as it is, not just as it appears to be."  He can laugh off questions about marijuana, but not when "a retired police officer with the group Law Enforcement Against Prohibition" makes them.

We are debating contraceptives (remember when someone got in trouble for raising masturbation during the Clinton years?). Chris Hayes noted yesterday that there isn't one "Obama Administration" but a bunch of shall we say sub-fiefdoms or something.  This is how it would generally be unless you have a really top down sort of guy ala LBJ and I bet even he couldn't control every department over the long term.  This leads to a mixed result, especially when (like in the economic area), you basically determine the conservative path is the de facto norm. 

Things had gone off the rails here.  I'm with you guy and the alternatives (yeah, even Ron Paul ... hands off the uterus, bub) are no better, much worse (Gary Johnson might be sane on this, but on economic matters? not so much) but you have screwed up here.  Started off well and unlike Gitmo, you don't need funds to not go after these guys. There are enough questionable providers to show that you are doing something.  Leave the others alone.

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* "whit" in that thread annoyed me with a particularly moronic -- I know, you should be polite, and I started to get sarcastic there which is self-defeating, but damn, give me a f-ing break -- argument on Obama, who only the "deluded" would support and is clearly worse than Bush on most things.  From a progressive view.  People, including people I respect, toss some of from of this out, if not so baldly, and it is like religious belief.  It is more emotional than rational, a matter of faith. 

Booknotes/Karen Armstrong

At the new and improved Booknotes website you can catch Karen Armstrong's appearance that was re-broadcast earlier. I like her idea of "religion" as the elevation past the "ego" and her universalist approach at truth. I read some of her stuff. Worthwhile.

Weekend Mornings on MSNBC

And Also: Victorious was amusing today, bringing back an old favorite and having subplots that allowed the supporting cast to shine. Cat also was not quite as over the top here. The deus ex machina ending at the dog sitting was a bit much though.

There is a lot out there for those who wish to find out about current affairs, online and on the air, but it is something of a mixed bag. 

As I noted at BTC News, I find Up With Chris Hayes (8-10 A.M. weekends) worth noting specifically, a panel discussion show for progressives with some effort to include a conservative voice (and at times guests) as well.  The format lets the show cover topics in a more extended fashion than is sometimes provided outside of PBS and documentaries.  The topics are big enough that everything is not covered but it is impressive. And, I think the fact the host seems relatable to me personally (him playing basketball in high school notwithstanding) helps too. It seems fitting that by chance it came out he grew up near here. 

Melissa Harris-Perry (previously Lacewell) followed starting today, she too often seen on Rachel Maddow's show (Maddow a Rhodes scholar; MHP is the only tenured professor serving as a cable news host, according to a recent NYT article that also talks about Hayes).  It seems like she follows the same basic approach, perhaps providing a bit more personal commentary along the way, Hayes in effect having a permanent panel there.  She is a professor after all, and has that vibe.  To toss it out there, she's biracial, though generally doesn't bring it up -- she's in effect black, underlining (like Obama) race is somewhat variable. 

MHP started today by herself and then interviewed some Republican Party representative and only later had people there ala Hayes.  Didn't start well for me -- the guy spouted some talking points, including the tiresome b.s. about the filibuster proof majority (Dems had one, for a bit of time here and there, when Specter switched and three different senators were not too sick to attend, one dying eventually, and even then, only with conservative Democrats who didn't sign on for various things) and later having a rather poor summary of privacy rights over history. 

A bit on that, since she used it to discuss the contraceptives policy.  Various issues are raised by Obama critics, though they aren't quite consistent about things.  For instance, in the long (over 500 comments) thread over at Volokh Conspiracy (not for the first time) there is criticism of use of preventive health care as the hook as if only liberal "experts" care about that.  When this sort of total different wavelength is involved, you tend to get replies so fill with assumptions that it takes a paragraph to answer a sentence. Another issue is the "problem" is pregnancy is deemed a "disease."  As my discussion earlier noted, the actual idea is that it raises various health concerns that makes unwanted pregnancy not ideal.  This seems obvious to most of us, which is why even the Church supports certain "natural" means of birth control. 

A person suggested that the individual at the covered religious employer is not really burdened here because they can simply get another job or pay for the birth control themselves. Or, anything under the sun a particular employer finds religiously or morally suspect perhaps. Not really. The great number of other work activities, well, what time period are these people living in?  The same thing is true for public accommodations generally.  You need not only shop at places the owners share your faith.

Second, employer based insurance is of fundamental importance, since it is how many obtain health care.*  And, oh guess what, this is the logic to that provision in the PPACA too, shared risk pools further that end.  If individuals had to randomly deal with various things some employer finds morally suspect, it would be a lot more complicated.  Finally, this is where "privacy" pops up too -- a church, sorta private.  A hospital or school, especially one getting lots of federal funds? Somewhat less so.  Complicated lines at times, but the balance here is logical and it is after all ultimately the employee's money.  It is not a free service for the public.

I noted last time that abortion funding (which I realize is treated differently, but not to my liking) is seen as something the government can deny since it is not a direct barrier to the choice involved.  But, the importance of insurance to contraceptives (and other) coverage underlines (as the dissents in cases like Maher v. Roe understood)  why practically it is a problem.  Health insurance is a general fund, which individuals have the ability to use as they see fit in various respects.  Some might oppose some uses, just as some might oppose uses of taxes generally or how one uses a government salary.  But, with such diverse beliefs, the decision overall should be left to the individual user.

This reflects an individual right of privacy that had origins -- even for women MHP -- long before Roe v. Wade, but apparently still needs to be understood, even today as applied to contraceptives.

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* Some note that is the problem, we need to have health insurance independent of employment.  Sure.  We have some of that now for minors, seniors, the poor and some others.  But, the entrenched system in place was largely built around employment.  Change is hard.  Sorry.  Again, we are debating contraceptives.  We have a ways to go. Viewing reality as it really is, right up there on the eightfold path. 

Sexual Assault / Health Care ... Tomato/oe

Life has a looking glass quality at times. The Republicans are concerned about "voting fraud" but can't handle (as Rachel Maddow notes) to count votes properly in more than one state. They don't like abortion or threats to religious liberty or wasting money, but a means to save money, further the religious liberty of employees and cut down abortions is a problem. Over at Volokh Conspiracy, we even have talk about how prevention isn't really part of health care, really, it is sort of a "liberal" ideological trick. BTW, talk about judicial activism -- January 1, 2014 is the due date here and court challenges are up already.

So the problem is not just that the woman and her physician (the core relationship protected in Roe) no longer matter at all in deciding whether an abortion is proper. It is that the physician is being commandeered by the state to perform a medically unnecessary procedure upon a woman, despite clear ethical directives to the contrary.

Dahlia Lithwick (via here) is but one person who shows us more situational ethics (and you thought it was some sort of leftist thing). The non-mandated insurance requirement ("mandate" = some people paying more income taxes) is according to some a nefarious "commandeering" of the people, per Paul Clement a means to avoid "upfront" accountability. Yeah, because no one knows what is going on there. Meanwhile, Virginia wants to join the "forced ultrasound" club* and who but the choir knows? A procedure as DL's links note will sometimes require an actual vagina penetration, an amendment to require consent there rejected.

Unwanted "penetration of a woman’s vagina without her consent is sexual assault" (to cite a RH Reality Check story linked). Such a threat to "bodily integrity" was a key aspect cited by Planned Parenthood v. Casey as a reason for the right to choose an abortion. If removal of a bullet or pumping the stomach to expel contraband swallowed is problematic, this should be too. As with other cases, including biased informed consent requirements or religiously slanted funding moves, this problematic above and beyond merely being an undue burden on abortion. The argument is that the medically unnecessary procedure is important for full informed consent, but it is clearly not compelling on that front since it is not common practice or anything.

[Update: informed consent material inserted here.]

I abbreviated that last paragraph for editing purposes but it really should be added that this type of regulation is a direct effect of Casey, particularly when it burdens early abortion choices and is largely about prenatal life. Casey removed the trimester scheme which blocked legislation that was only about the last interest, except in the third trimester and when it didn't directly block abortion choices (funding was seen as not doing this, since poverty is not the government's fault).  Now, you can do that sort of thing, unless there is a substantial burden on abortion.  The ultrasound law adds expense and hardship and should be considered "undue," but it seems to me to be debatable enough that the non-abortion "liberty" concerns must be added to put it over the top.

Casey also shoehorned women's health here though Blackmun and Stevens were wary about some of the material provided given its slanted quality.  Also, as Stevens noted, the fact an interest in potential life might be present does not mean it can trump the woman's interests here. Do we require newly pregnant women to hear about the costs and hardships of pregnancy and children, particularly for certain people, since it might lead them to be upset about carrying it to term later on? Perhaps, pictures of children in foster homes, after their parents couldn't care for them?  Some do (as in marriage and so forth) after all regret their decision and when it comes to teenagers (and probably others), it is particularly important for them to know what is coming.  Spoiler alert: we do not compel that sort of thing; we trust the women. 

Informed consent is not a bad thing, but the below sentiment from Casey should be evenhandedly applied with the full interests of the patient (client) taken into consideration, including other constitutional interests:

It cannot be questioned that psychological well being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.

In the so-called "partial abortion" case, there was a fear that if the procedure was allowed, doctors would (for the sake of the sensitive women) avoid fully informing them of the procedure, so perhaps, it was best just not to have it at all.  This approach is a tad better, though we are not merely talking about "information" (see footnote for a link to the importance of "ethical" use of informed consent)  here, but forced medical procedures on patients.  It is one thing to require abortion providers to offer ultrasounds for those who want them (some find patients appreciate the option, so do so voluntarily) but forcing the issue is different, particularly when probes need to be put in vaginas. The effects on abortion decisions are at best cloudy, so there is (even if we accept them at face value) no compelling need to force the women here. The implication that the main value is to shame women and force them to serve as conduits of a certain ideological / moral viewpoint is rather strong. 


Next month some alleged big threat to individual medical choices (inactively done) will be heard by the Supreme Court. Meanwhile, the right of women with her doctor to make a health choice following her conscience will be continuously invaded by the same side that uses this as a big issue.  Women are not trusted here to make their own choices, adding a choice to have an ultrasound not the point here.  The refusal to accept the amendment requiring consent when a transvaginal (never a good idea to have "vagina" as club against you) was involved underlines the point.  As with the contraceptives situation, trusting the individual is not the rule here.  We yet again await the true libertarians. 

Also, as seen today in NJ, same sex marriage should be left to the legislature, except when it should not, moving past "civil unions" to same sex marriages must for some reason be done by public referendum. After all, if given the chance, wouldn't blacks have done that in the 1960s contra using the legislature to pass civil rights acts?  Unfortunately, I'm not just being snarky -- the governor who vetoed it made that comparison.

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*  According to the Guttmacher Institute, twenty states have ultrasound laws as of 2/12/12, a "mid-90s" (post-Casey) trend.  Seven states require it though only Texas (two other states in legal limbo) require showing and explaining the image. If performed, nine states say the provider must allow the woman to see the image while five others require such an opportunity even if the physician would not normally perform it.

Since it often is not normal procedure (adding cost and time), particularly for early abortions, this would add costs. A report on informed consent linked by the above notes that it "can add $50–$200 to the cost." Images also might be misleading, which might be a problem at biased crisis pregnancy centers, not there to give full information and not necessarily staffed by those fully trained in prenatal development.  This is why full disclosure upfront, something they repeatedly resist doing, is so important.  Not just when it might promote one viewpoint. 

"Yale Kamisar on the Rise and Fall of Miranda"

See here and reference is made to another scholar's works, including "mourning Miranda." It is a good discussion but Miranda wasn't some be all, end all. It was a start of sorts and continues to be tweaked, in various ways negatively. Aspects still useful.

How I Learned to Drive

I saw this years back when Mary-Louise Parker starred (also saw her on stage in Proof) and it's back out there with Elizabeth Reaser, who I liked in Sweet Land and Puccini for Beginners. Good luck.

Slings and Arrows

A review of a new stage drama let me to this old Canadian series with some familiar faces, including the lead of Due South and Rachel McAdams about a Canadian theater company. Pretty good so far.

PPACA Taxation

It's a tax folks:

Folks here who are arguing about “honesty” and “dishonesty” in the interpretation of federal statutes, or about the “letter of the law” as opposed to the substance and purpose of the law, or who believe that a “magic word” will make the difference between whether a law imposes a “tax” or a non-tax “penalty,” are obfuscating. They want ACA to be struck down, and don’t much care how it is done.

The actual provisions of the ACA tell a different story. The provisions relating to the minimum health insurance requirement (commonly, but not accurately, called the mandate) are all geared to income taxes. They provide that, beginning in 2014, non-exempted federal income tax payers who fail to maintain a minimum level of health insurance coverage for themselves or their dependents will owe a penalty for each month in the tax year during which minimum coverage is not maintained. 26 U.S.C.A..5000a. The amount of the penalty will be calculated as a percentage of household income for federal income tax purposes. 26 U.S.C.A.. 5000a(c). The penalty will be reported on the taxpayer’s federal income tax return and assessed and collected by the Internal Revenue Service. 26 U.S.C.A.. 5000a(b)(2) and (g). Individuals who are not required to file federal income tax returns for a given year will be exempt from the penalty. 26 U.S.C.A.. 5000a(e). Looking at these provisions, and analyzing what they actually require, it is clear that the so-called “penalty” operates as a tax; is imposed as a tax; is measured by taxable income; is collected as a tax. And it is an income tax.

Truth doesn't always win out, but it kinda matters all the same.  

It's about religious liberty AND women

The refusal to allow a women student on a panel discussion on "religious liberty" (not absolute) about the contraceptives ruling (what is this Pan Am?) got some pushback about it being about women. Yeah, women whose religious liberty includes choosing birth control.

30 Years On Death Row, Unlimited In The Grave

A person convicted of a heinous murder was executed after thirty years, this post discussing why Florida seems to drag things out.  Justice Breyer has long been on board as being against such a thing.  There is a logic to carrying things out but it seems rather pointless.

Linsanity

Not a basketball fan, but this Lin stuff is fun though even Steve Somers on WFAN, not known for his hard eyed realism, seems to be taking it as a "enjoy it while you can" thing.  Spring Training almost here.  Yes, still care about the NYM. Long term, hope it will be ok.

Lovings on a day for Loving

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

HBO, a black history/VD two-fer, had a nice documentary on tonight.  Mildred Loving later supported SSM.

Pan Am

Good episode on Sunday though no reference to the JFK assassination. [IMDB  Message Board flags that the episode was aired out of order.] Next week will be the season [series?] finale.

Religion and Public Officials etc.

And Also: A helpful analysis of SOPA.  [More]

There is concern when people of a certain religious faith wish to guide public policy in a direction that matches their beliefs, both on substantive policy grounds and a desire to separate church and state.  It is a bit ironic, but not really, that we ban religious tests for public office (Art. VI and the First Amendment) while religion is such an important part of many who run for office.  The barrier is not to a person promoting a certain religious viewpoint; it is in effect a guarantee that this will be in place for all comers.  This doesn't mean it is always a great policy or that unofficially, the public decides certain faiths are more "proper" than others. 

As noted in McDaniel v. Paty, there once was an effort to promote separation of church and state by preventing ministers (widely defined*) from running for office. This is no longer the policy, the outlier there declared unconstitutional as a violation of the First Amendment (one justice arguing it is a violation of voting rights).  The right to equal access to public office also applies to the general believer, religious freedom based on individual belief, not merely associated with an established faith.  It is left to the voter to decide who is best there.

The ruling was of the pre-Oregon v. Smith era, where equal application of general laws could still be a violation of the First Amendment, the old rule still statutorily protected under RFRA and allowed if state law requires it.  The plurality here noted "free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions."  This seems obvious to me. "Free exercise" cannot merely be "belief," but surely must entail other basic religious acts like going to services and so forth, though the core stuff often overlaps with speech and association (the "ministerial exemption" tends to involve religious associations having additional freedom of movement) in such a way that an independent right need not be focused upon. 

Still, there seems to be something beyond belief and other First Amendment activities, noting that originally said activities might have been more limited than they are today (e.g., a focus on political assemblies; the Free Exercise Clause would add religious assemblies, leaving open various others that might be banned). Sacraments, for instance, involves meetings, words and acts.  Thus, my concern regarding the ULC Church / marriage officiant controversies that religious freedom is hindered. Special favoritism or burdens on religion, especially certain religions, is particularly problematic.  It also has arisen in the same sex marriage area, if we want to see a real religious freedom burden in place arising from that issue.

So, the proper approach is to accept that a Rick Santorum is allowed to run for office, but to be concerned with the merits of his plan for public policy. Also, "free exercise" involves various things, not just belief. The NY Court of Appeals in fact touched upon this when dealing with the contraceptives coverage issue a few years back (see here and my allusion here), the Supreme Court denying cert. NY took a half-way approach, providing limited heightened scrutiny to protect religious acts even respecting general applicable laws, such as one that might prevent use of ceremonial wine. Nonetheless, since the Church need not distribute contraceptives, non-believers are broadly affected and interests in sexual equality and health care arise etc. on balance made the requirement acceptable.

Anyway, Paty was a rather short oral argument, the state spending about seventeen minutes, might have spent less if a few questions added to his time.

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* The state ruling defined "priests" this way:

"1: one who performs sacrificial, ritualistic, mediatorial, interpretative, or ministerial functions esp. as an authorized or ordained religious functionary or official minister of a particular religion."; [and] "2. A minister in a non-Christian religion. 3. One whose role is considered comparable to that of a priest."

A question in the oral arguments referenced a possible religion where each member is considered a "minister," another suggesting the Mormons so recognize.  Quakers are specifically singled out in some marriage laws, e.g., since their "self-uniting" marriage ceremony has no officiant given the equal roles in that faith, the discussion there noting a federal court in at least one case suggested there was a federal right involved to equally application of marriage laws in such cases.

Super PACs

It is a constant refrain that Super PACs are a big factor in this election and that they are the direct result of Citizens United. For instance:

Super PACs are the byproduct of the 2010 Supreme Court decision commonly known as "Citizens United," which granted corporations, unions and individuals the right to donate unlimited funds to outside groups to campaign for or against candidates.

I'm continuously confused here particularly because this discussion often arises when some billionaire (Rachel Maddow suggests each candidate seems to have their "own" or perhaps vice versa) is behind things.  The ruling did not concern individuals providing unlimited funds.  No.  The concern were that it gave too much power to "corporations," yes?  So, why exactly would Citizen United be to blame when Super PACs are not funded by corporations (or perhaps unions)?  Is it that they would not be as problematic without corporate funds?

As with the whole "corporations are people" business, this is seriously confused.  At least, I am.  I checked Wikipedia.  It notes that another case is also involved here, involving SpeechNOW.org, which applied a principle of Citizens United involving the assumed lack of corruption (at least for so-called independent groups, the "so-called" fodder for Colbert et. al.) being a legitimate interest to limit donations.  It is that broader principle, not just the protection of corporations as such, which connects things to Citizens United.  As summarized at the link to that case:

However, the [lower] Court, following the Citizens United holding that independent expenditures do not create actual or apparent quid pro quo corruption, found that applying limits to contributions for independent expenditures would violate the First Amendment rights of SpeechNOW.org and its donors. The Court held that SpeechNOW.org was entitled to accept unlimited contributions from individuals for IE’s, but also stated “...we only decide these questions as applied to contributions to SpeechNOW, an independent expenditure-only group. Our holding does not affect ... limits on direct contributions to candidates.”

The FEC then made rulings pursuant to these principles. This underlines that focusing on "corporations" here is misguided, since broader game is involved. The legal conclusion (the result of not much analysis and not overly convincing as compared to Scalia's more honest "that's how the system works" stance) the corruption is not really a compelling state interest in this context is the real problem with Citizens United.

The fact "corporations" are involved as compared to individuals or other types of business arraignments is not the biggest problem. There are various ways to regulate corporations, but if the basic idea of the corruption or appearance thereof is not allowed, we will have the path taken here.  Personally, I think we can work around the ruling, including with better disclosure rules, public financing and other methods while various problems such as people speaking in apparently nefarious ways in an unbalanced fashion is inherent to the First Amendment. 

Regardless, it is helpful to understand more why the ruling was so important, even though they are not just corporately funded.

More On Prop 8 Case

I have provided my .02 (more like $2) on this case in various Volokh Conspiracy threads, including repeatedly answering "ME," who is not a lawyer, but unlike me, when pressed, doesn't actually say so.  Much heavy lifting in the promotion of bigotry. Who needs the Fray?

Cat Is Getting to Be Too Much of an Airhead

Tone it down Victorious.  Pretty good episode where Beck actually got upset and Tori was right about not rushing to replace the cell phone. 

Whitney Houston

I am a fan of her music but are we really surprised at her death?  Have not heard much about her lately myself other than hints of drug problems.  Good discussion on Chris Hayes about her and public life.  Seems like he went to school (and jumped rope) near me.

Freedom of Conscience

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.

-- Planned Parenthood v. Casey

Some Catholics might feel a need to defend the Catholic Church, even when they personally do not follow its dictates (contra a representative on Chris Hayes this morning, they don't just treat things like birth control like lying -- they think lying is generally bad and don't continuously use it, even in the confessional [birth control pills]). Still, ultimately, personal decision making here is usually most important to them.   The stance of an established church, even their own oftentimes, notwithstanding.

The Universal Life Church "ordains" ministers on demand as long as they are human beings (as far as they know) and the individuals are to use their conscience to determine what is "good."  There are a few limitations here, such as respecting the rights of others, but ultimately the theme is individual conscience. This has been accepted, even in the Deep South, as enough for a "religion" to exist.  A modern day definition to be sure, since "religion" was understood a bit more broadly back in the day where Jefferson and Paine might be deemed "atheists" even though both believed in God and at times even a final judgment of some sort.  A more respected example here would be Unitarian-Universalism, which also welcome a diverse group, including atheists and agnostics, setting forth certain basic rules of equality and equal respect. 

I do not like the term "atheist" because it has a certain close-minded implication that is in part anti-religion. This does not mean the term necessarily implies that, but it tends to oftentimes.  I do not think disbelief in "God" warrants that, particularly since "religion" should be defined broadly (see, e.g., U.S. v. Seeger).  A thing of central importance for me is freedom of conscience, which is inhibited by selective authorization of one or the other side of things that divide conscientious people.  Note, e.g., the founding principles of a secularist student group, strongly supported by an atheist blogger:

The mission of the Secular Student Alliance is to organize, unite, educate, and serve students and student communities that promote the ideals of scientific and critical inquiry, democracy, secularism, and human-based ethics. We envision a future in which nontheistic students are respected voices in public discourse and vital partners in the secular movement's charge against irrationality and dogma.

This movement welcomes a diverse group:

We embrace the common goals and shared aspects of all naturalistic, secular worldviews. Secular Student Alliance affiliates include, but are not limited to, atheists, agnostics, humanists, freethinkers, skeptics, naturalists, brights, Pastafarians, and many others.

Labels can hold people back. Some "freethinkers" or "skeptics" or whatever might belong to some "religious" community of some sort but welcome a secular government and the other ends here.  The bottom line is a respect for freedom of conscience (broadly defined) and opposing those who would inhibit that by setting rules from above that interferes with that.  Such breadth requires some line drawing and compromises.

The contraceptives controversy underlines this -- the individual need not use contraceptives, the religious institutions do not have to distribute them.  These are important values to respect.  But, as part of a wider regulation of health care and employment, they cannot block individual conscience in various respects, particularly when the institution is not purely religious and serves a diverse group, including those not members of the religion. The result threatens individual liberty. Money being fungible, absolutism becomes even less possible, arbitrary line drawing to be avoided, even though the proper line might be somewhat hazy and open to debate/compromise.*

If we were less concerned with individual liberty, including conscientious choices of broad discretion, a different path might be possible. But, we are so concerned.  Particularly given their minority view, the Catholic Church here and some other group in some other context should understand that.

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* The special treatment of abortion is but one example here.

Update: A lot of the coverage on the contraceptives controversy here is about symbolism and as this discussion noted "recognition" if not respect.  Prop 8 is a form of that -- a means to give the other side something, though unlike here, another group is seriously getting harmed in the process.  Respect of religion, especially in our modern regulatory state, is a big factor to consider.  But, the rule already respected religion. 

Red Dust

A good film portraying a Truth and Reconciliation hearing in South Africa, Hilary Swank (looking great, good role overall) playing a South Africa born lawyer representing someone challenging it. I wonder how this would play if this was used for our torture regime.

Santorum's French Revolution Nightmare?

Contraceptives "Compromise"

Some don't like the um "revision" taken here, seeing it as an "accounting trick." But, money is fungible. If individual tax breaks were in place, wouldn't that be impure too? I'm sure Medicare funds are sometimes used in ways some religions don't like.

Joe's Constitution (Not That One)

Joe's Constitution is a creative website that provides information on the amendments of the Constitution. It should not be confused with a certain two part book by the same name and either way, has no connection to me or this blog. Check it out all the same.

NCIS 200th

Recently charmed by this show, even with its too cool for school vibes. Like L&O, it lasts so long by doing what it does professionally. Comfort food. Latest gave a few "what could have beens" for fans.

Contraceptives Coverage -- Nothing New

The not new rule has older antecedents involving other religions. Consider this case from 1982 rejecting an Amish tax exemption claim, the law there too a compromise, involving a "comprehensive insurance system" that "binds others" in a commercial area.

Mother and Child

The rather unpleasant (if with reason) characters of this film were too much for me, how it turns out ... well.  Good to see a strong atheist character ("she was created from nothing and will return to nothing, the time in between becoming a journey of will, luck, and desire").

Republican Form of Government & Prop 8

Among some of the dreck commentary on the Prop 8 case has been some good stuff, and Marci Hamilton -- our friendly conservative separation of church and state representative -- uses her forum to focus on the process.  No, not the judicial process:

If ever one might question the wisdom of these western-style direct-democracy systems, it was surely then.  First, the state’s law had been amended through a secret vote of the people, who never had to explain to anyone why they voted the way they had.  (Voters, of course, aren’t up for re-election, and have no obligation to disclose their votes or the reasons that lay behind them.)  Then, when the time came to defend the initiative’s constitutionality under state or federal law, it was not the state or its offices, which are accountable to all the people, but rather the special interest groups, who were in the position to make arguments that could affect not just this case, but also all litigation involving state law.

She argues that there is a strong case to be made, particularly if the Supreme Court has long not take it off the table,  that this is a violation of the Guarantee Clause. This is the little known clause, which was one thing used during the Reconstruction to hold the defeated states in abeyance until they were "republican" enough, that guarantees to "every state in the union" a "republican form of government." Unlike in respect to domestic violence, this is not only upon request. And, the "United States" is involved, which some argue includes the courts independently via judicial review, not just the Congress and the President (and I assume, the courts pursuant to laws and such arising from these actors).  

"Republican" doesn't mean direct democracy, but it is quite debatable just where in the middle we should be. I am quite wary of the process in California, partially on republican grounds, and am open to examining using the clause in federal judicial review. Various questions are in fact at least in part Guarantee Clause in nature, such as the "one person, one vote" issue. For the time being, however, the best check on the federal level at the very least should be careful scrutiny when: 

"prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." 

Some miss the point, but this is the spirit of the Prop 8 opinion, even if it follows Justice Kennedy's Romer lead in  not expressly using heightened scrutiny. Like Justice O'Connor in Lawrence v. Texas, a somewhat stronger flavor of "rationality" is required in such cases. This is even more so when the legislation is not the product of representative democracy with the clashing views and compromises of that system.  Under that rubric, the California legislature would have passed a same sex marriage law, just as Washington State (yay!) just did.  If allow some form of ballot process, and I'm for a more limited process myself that works with the legislature (e.g., the legislature submits certain things to a vote or is required to address a question), the possibility of majority infringement of minority rights can increase.  Judicial review is a proper check. 

Meanwhile, I appreciate this defense of substantive due process. a concept as cited in this speech by one of its proponents, that has had a long history, even in name. 

Prop 8 Unconstitutional

This column notes a bill in Washington State to allow same sex marriage "validates marriages that are performed by someone without the authority to solemnize weddings, as long at least one of the parties had a good faith belief that the officiant did, in fact, have such authority."  The law also replaces religious "denomination" with "organization," and religious organization is defined as "not limited to, churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, and other entities whose principal purpose is the study, practice, or advancement of religion."  Religious liberty to the better. 

The march to SSM equality slowly advances.  Meanwhile, so does the Prop 8 case.  Prop 8 was declared unconstitutional via a 2-1 opinion by Judge Reinhardt.  Those in the know will provide a knowing nod, so I kind of wish the other judge wrote the opinion.  The issue of standing is begun about 1/4 of the way and on that, all three agree, following the lead of the California Supreme Court on the matter.  Some hoped they would punt here, but to me, it is something of a sham to have a system as a way to provide the people a means to amend outside the normal process and allow the officials to nullify the result by inaction.  The state court determined state law gave third parties, not just the governor here, the power to defend Prop 8, and that's the ideal path.

The opinion took a Romer v. Evans approach, so it argued, avoiding deciding the fundamental right to marry or to marry equally without sex discrimination as well as not dealing with the question of suspect classification.  This made it specific to California -- only California gave same sex couples the right to marry and then targeted a minority group by depriving them of an existing right without a legitimate reason.  The fact Prop 8 was narrow, more about the (significant) symbolic value of "marriage" and not incidents like tax benefits, only made the indignity more blatant.  [Cf. to this law that harmed a lot more than same sex "marriages."]  For those who wish to move to another state or might some day want federal "marriage" benefits in a post-DOMA world, it might not even be purely symbolic.  Other examples can be imagined. 

The debate was whether Prop 8 "rationally" or "reasonably" advanced some legitimate state interest.  Heightened scrutiny would have made the other case easier, but also would require a more "activist" opinion.  The limited nature of Prop 8 underlines the little value (unlike more restrictive states) to advance parentage by traditional couples.  Same sex couples have the same right to foster, adopt and raise children. Relatedly, removing same sex marriage rights does nothing to really promote -- again taken it as a given as credible -- "responsible procreation." Next, if the state wanted to "precede with caution," a permanent ban was not the way to do it.*  Anyway, the evidence suggests this isn't a credible explanation of its purpose here.  There also is no religious liberty or protect children from being taught about SSM interest promoted here either.  Bare tradition isn't enough, it being good and bad.  Mere disapproval of gays and lesbians is not enough, said disapproval evidenced by the details particular to the Prop 8 experience. Again, this is not a universal decision. 

The dissent agrees with the issue of standing and Judge Walker's ability, even as a gay man in a relationship, to decide the case.  It agrees it is not about the constitutional right to same sex marriage as such, so Baker v. Nelson doesn't control.  It makes a specific decision on scrutiny: rational basis applies. Why?  The Supreme Court never held; yes, it is an open question.  Also, why isn't this a matter of sex discrimination as well as Judge Walker argued?   Yes, Romer v. Evans involved a broader denial of rights, but the stigma as the majority notes is in a way worse given it is the very point to treat same sex couples as less valuable.  Animus is animus, even if the degree is lesser.  Finally, it says the responsible parenthood rationale is reasonably furthered.  It spends much time defending the interest though; it remains rather unclear how -- in the California context -- how removing "marriage" from same sex couples advances it. 

SSM should be treated using heightened scrutiny, but regardless, using Romer v. Evans analysis, the majority opinion works.  My opinion is that the specific problem is that Prop 8 seems so gratuitous, a fact suggested by an "issue brief" cited here. A pre-existing same sex marriage ban, especially in many states that at best provides some rights to same sex couples, is not the same thing.  If this be "rational basis with teeth," particularly given the clear animus present here, so be it. Justice O'Connor in fact suggested as much in her Lawrence concurrence:

When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

CLS v. Martinez cited her to show that status/conduct is connected and a majority probably would follow this principle too. Thus, I think this analysis sort of misses the point, taking an artificial "law professor" stance on what state and federal courts up to the USSC has done in practice. To blame lower courts when the USSC hasn't been totally aboveboard is bad pool too, especially (by someone who I usually find reasonable, even with his conservative policy views on certain subjects)  if you do so sloppily. The court's logic might if taken to its logical conclusion be taken much further, but it is narrowly applied here.  This is how the law develops, including in the courts.  As with the GPS ruling and Orin Kerr's criticism over at Volokh Conspiracy, it might be a bit messy, but life is messy.**  And, if Kennedy is coy (or is "lying" as suggested by a comment in the last link), some lower court ruling, surely not Reinhardt from the Ninth freaking Circuit doesn't have the clout call him out. 

Judicial restraint without judicial blindness.  To be continued, for sure.

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* Compare this to Hawaii in the 1990s where the legislature was given the flexibility to allow same sex marriages.  As I note here, this is but one possible difference, underlining each state must be treated on its own.

** I find the analysis by the first three conspirators on this subject rather questionable, especially Prof. Kerr's "gist" that the majority opinion said that Prop 8 didn't actually do anything.  Various law professor types (see the previous link in that paragraph, including a follow-up post)  are simply confused on basic details.  Another "seems" to think that the opinion thinks a state cannot change its constitution to clarify what its supreme court ruled.  No, the issue is that it cannot do this in a way that wrongly burdens a particular group of people.  Why is this so hard?  

Update: Thank you Marty Lederman, but again, why no comments?

This Guy Should Not Be A Role Model

Girls on The Run

One of the talking heads tweeted about taking her daughter to this organization.  Sounds great.

A Win Involves Lots of Things

The safety, e.g., gave them a safety valve and a great catch not only continued the drive but led to a failed challenge that cost the Pats precious time -- with the time, they would have two time outs and a real shot for a winning drive. As is, they came a bit too close.

"A More Perfect Military"

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The most recent book on the side panel -- by a vet / law professor -- suggests that treating the military more like everyone else, particularly in respect to constitutional restraints, will "make our military stronger."

She argues that a key problem was a post-Vietnam policy, led by Justice Rehnquist to provide judicial discretion at the "apogee" in military matters.  The irony being in that very case (involving draft of women) that Congress went against military desire (as it did in the FAIR case*), so the discretion often is more political or an ill advised trust of the military hierarchy as shown in the DADT context.  Other times, the military wasn't even the main problem, torture being against traditional military rules and not asking to head combatant status tribunals making decisions as political as they are military in various respects. 

The "otherness" of the military, the problem already growing with the end of the draft, which also leads to a noticeably more conservative (politically speaking) military, is promoted as their due.  Consider the 2000 elections, when oversea "military" votes (in fact, the rules applied to oversea votes generally) were thought to be miscounted.  The author argues in fact, if anything, some unknown numbers of members of the military gamed the system to affect the election by voting late.  But, this one group was given special dispensation, bending the rules because their votes apparently were more important. George III was deemed a tyrant for deigning "to render the Military independent of and superior to the Civil Power."  We are to think it par for the course.

The book is well argued by someone passionate about the subject, but did not really talk enough about the pre-Vietnam period to give a complete sense of how things truly changed.  What of the Japanese Internment Cases where the military received a bit too much discretion?  She even undersold the possible dissent possible in a few cases, including a case that Justice Stewart -- not exactly known to be a passionate dissenter -- singled out to read a strong dissent from the bench. This might be a matter of space, the book coming out to two hundred pages plus notes, but it is a bit problematic.  But, she makes her case of the problems with the current situation either way and it is well worth reading. 

Her three recommendations: (1) excessive judicial deference can undermine the military by denying it an important check (2) military advice should be taken carefully with a grain of salt but  not ignored when correct but politically incorrect and (3) a diverse military must be our goal, a national civil service plan ideal, but if not, some other sort of flexibility (such as short term tours by various types of individuals) must be used for it truly to thrive.

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* She thinks, the at times snide 8-0 loss (overturning the lower court, no not the Ninth Circuit) notwithstanding, the law schools had a good case, but its strong position was still ill-advised.  Nor would the JAG corps or the military effort as a whole fall apart if the law schools that joined the protest would be allowed to go their own way.  Each could bend a little. 

I agree -- it is better to welcome the recruiters in, voicing opposition to their policy, but trying to change things all the same. A misguided military group amicus brief notwithstanding, the military as a whole realized the "all or nothing" policy was counterproductive, the law schools sentiments not stopping the schools as a whole providing services to the military.  

Another 4Q Comeback

Brady scored 14 points in the middle, but Eli (more easily) came back after his team chipped away.  Brady had about forty more seconds at the end, making it more interesting, but similar result -- 21-17. 

Halftime -- Tiresome

The NYG had the upper hand for much of the 1H, but not enough to actually score much.  Pats finally have a good TD drive.  Giants losing 10-9.  I find this business tiresome.  Giants losing 7-3 last time. 

Women's Health x 2

Taking things at face value is often not the best policy. A leading breast cancer association's decision to defund Planned Parenthood for the allegedly neutral reason of it being under investigation is a case in point. First, we learn the connections to Palin among other red flags.  Then:

An internal Komen memo written by President Elizabeth Thompson and obtained by Jeffrey Goldberg of The Atlantic states that if "an applicant or its affiliates" is under investigation "for financial or administrative improprieties by local, state or federal authorities," then "the applicant will be ineligible to receive a grant." Penn State, the Pennsylvania university that the Hershey center is affiliated with, is currently under investigation by the federal government over the sexual assault scandal involving former assistant coach Jerry Sandusky, who has been indicted on multiple counts of sexual abuse of children. In 2008, the Komen foundation awarded a five-year, $7.5 million grant to the Hershey center to study treatments that could reduce the risk of breast cancer.

This is far from surprising since the fact something or someone is under "investigation" can mean any number of things and even if you just assume guilty until proven innocent, it is hard to apply such a rule to everyone.  Suddenly, you will determine "this is different."  On the other hand, if you are just looking for reasons to target, a ready made "neutral" excuse can be found.  Those looking for an out can find one.

Under President Barack Obama’s health care overhaul law, most employers and insurance plans will have to cover birth control free of charge as preventive care for women. Churches and houses of worship do not have to follow that requirement, but administration officials recently announced that many religious-affiliated institutions such as hospitals, colleges and charities must comply after a year’s phase-in period.

Chris Hayes,* who I'm liking in particular among the many progressive talking heads (btw, Keith seems to be out a lot), talked about this and other issues this morning.  One issue raised was the matter I raised last week concerning new rules regarding birth control, just one of many aspects of that oh so lame (according to some) PPACA law that might help lots of people. Washington Post had a good article on the new policy, providing some important details, including something I don't think Hayes was careful enough to underline -- the exemptions even for the Catholic Church, who was out on the ramparts (statements at mass) railing at the injustice of it all.  The exception:

That rule, however, exempted houses of worship and their employees, as well as other institutions whose primary purpose is to promote religious belief. Churches, synagogues, mosques and other places would not be required to cover contraceptives, it specified. Neither would religious organizations whose purpose is to promote belief, and that primarily employ and serve people of the same creed.

The horror of it all.  I don't know what exactly "promote religious belief" means, but that sounds like even Catholic schools would be covered though that was the big issue in the NYT article I talked about concerning state requirements.  I think abortion is a matter of health care too, but under Hyde and so forth, it is excepted from the rules given strong societal opposition in some quarters.  And, not just at those institutions morally opposed.  The problem with lines was raised on the show and the designed conservative basically admitted he couldn't deny problematic cases can be raised.  A cop-out.  Are Catholics special?  Well, yes, numbers-wise and all.  As Scalia noted:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government

The ruling also underlines neutral requirements that might negative affect certain religious institutions (another recent case made an exception for institutional membership decision-making) are allowed.  Just how far are we to go here?  Any number of health requirements might be opposed by any number of religious faiths on some grounds.  These institutions might run institutions that involve many members of other faiths. The article also notes that the regulations don't even go into effect until mid-2013, the employees benefits kicking in at the beginning of 2014. And, "secular enterprises from profit-making companies" will provide "access" to workers at the beginning of 2013. Sounds like the religious organizations are being given some real respectful treatment here. 

One panel member on Hayes show noted this is a reason for health insurance to be separate from employers, which many say is good policy overall.  But,  what about the student on campus whose best health option is the campus health care center?  And, we are a long way from separating health care from employment.  So, we have some sister being real upset that the rules are "telling the church what it has to buy," but such are the breaks -- that is what regulating health care does.  Duly noted you want to deprive even people outside of churches and the like of basic health care here. With government involvement comes strings.

At issue is a provision of the health care law that requires insurance plans to cover preventive care for women free of charge to the employee. Last year, an advisory panel from the respected Institute of Medicine recommended including birth control on the list, partly because it promotes maternal and child health by allowing women to space their pregnancies.

Birth control is but part of a set of proposals the panel -- last year -- set forth that are part of a reasonable approach to health care. And, it is unclear if it is the only possible red flag. There is a mention of HPV testing, though only for those over thirty.  What if that is tweaked to include some option for teenagers? The HPV vaccine was a major controversy for some religious conservatives.  What about "counseling on sexually transmitted infections" -- should that only be allowed for those over eighteen?  Can't encourage sexual activity!  Will screening for domestic violence in some cases violate the man's role over the family? 

On the issue of morning after pills, I wavered on the proper rules, particularly in those areas with diverse providers. So, I respect the arguments for religious freedom here, but even in that area, there were problems.  Lest we forget the infamous Lieberman stance on women who were raped easily having the ability to travel after being denial Plan B at the Catholic hospital to which they are first taken.  But, some balance is being used here, including additional time to arrange the best policy for the Fordham University health center type situation. If health care is going to be employer based, there has to be a balance.

The Catholic Church is too entwined with the weeds to claim purity here.  Again, to me, this is a moronic thing to draw the line in the sand for, especially with the special graces provided.

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* Hayes added some further links to today's show here. This includes a link to the White House blog that warrants an extended citation.  As with ending "Don't Ask Don't Tell," this matter ALONE is a significant reason to be glad Obama is President rather than Mitt Romney, who opposes both. 

• Churches are exempt from the new rules: Churches and other houses of worship will be exempt from the requirement to offer insurance that covers contraception.
• No individual health care provider will be forced to prescribe contraception: The President and this Administration have previously and continue to express strong support for existing conscience protections.  For example, no Catholic doctor is forced to write a prescription for contraception. 
•  No individual will be forced to buy or use contraception: This rule only applies to what insurance companies cover.  Under this policy, women who want contraception will have access to it through their insurance without paying a co-pay or deductible.   But no one will be forced to buy or use contraception.
• Drugs that cause abortion are not covered by this policy:  Drugs like RU486 are not covered by this policy, and nothing about this policy changes the President’s firm commitment to maintaining strict limitations on Federal funding for abortions. No Federal tax dollars are used for elective abortions.
• Over half of Americans already live in the 28 States that require insurance companies cover contraception: Several of these States like North Carolina, New York, and California have identical religious employer exemptions.  Some States like Colorado, Georgia and Wisconsin have no exemption at all.
• Contraception is used by most women: According to a study by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used contraception.
• Contraception coverage reduces costs: While the monthly cost of contraception for women ranges from $30 to $50, insurers and experts agree that savings more than offset the cost.  The National Business Group on Health estimated that it would cost employers 15 to 17 percent more not to provide contraceptive coverage than to provide such coverage, after accounting for both the direct medical costs of potentially unintended and unhealthy pregnancy and indirect costs such as employee absence and reduced productivity.

Thank you, Cecilia Muñoz, Director of the Domestic Policy Council.

Anne of the Thousand Days

Church and state with sexual politics mixed in had more bite in the 16th Century. This was a pretty good film with Geneviève Bujold the prime attraction though her sudden love for Henry is rather abrupt. The first half is the best. Film history is always somewhat mixed.

Komen Sorta Backtracks On Planned Parenthood

Guarded optimism for a breast cancer group somewhat stepping back from its decision to stop future funding because of "investigation" by anti-choice forces in Congress. This heckler veto was strongly rejected, protests having some quick results. Ever vigilant.

Rerun

Not a fan of the Super Bowl rerun, especially when losing to the Pats would be particularly annoying. And, too many people are saying the NYG are a lock, though the betting line disagrees. Bad karma there.

Vaclav Havel on "Democratic values"

Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom.

-- Justice Douglas

Justice Goldberg also cited Douglas in another opinion regarding "from experience with the requirements of a free society" being a test to determine if a Ninth Amendment liberty is in question. Justice Harlan also provided a well cited dissent (like Brandeis' Olmstead dissent, now effectively the established view) that included something similar to determine what is "implicit in the concept of ordered liberty." All promoted privacy interests and took the motto that a page of history is helpful in determining what constitutional liberty entails.

Slavery is a way to determine what "liberty" entails as does looking to countries we have determined provide a contrast to our system. Thus, the words of Vaclav Havel are helpful:

Democratic values constitute the foundation of the state.
The freedom of thought, conscience, and religious conviction is guaranteed.
The inviolability of the person and of her privacy is guaranteed.
A person’s dwelling is inviolable. It may not be entered without the permission of the person living there.
Only a law may designate which acts constitute a crime.
Censorship is not permitted.
Everyone who suffers from material need has the right to such assistance as is necessary to ensure her a basic living standard.
Everyone has the right to the protection of her health.
Everyone has the right to education.
Everyone has the right to demand that her human dignity be respected.

"Democratic" is not a partisan label in this context though it arguably could be how things are these days.

Right to Work Coverage

Rachel Maddow last night spent about ten minutes rambling about how she liked a certain radio show and (eventually) how it aired some anti-immigrant legislation satire that included references to voluntarily leaving the country that (eventually) was attached to something Mitt Romney is saying. It was definitely something warranting editing, not just a bit of self-indulgence that is more filler than substance. I find this occurring too often (if not this badly) in segments that already have a limited amount of time to cover the subject matter.

Again and again, I am left annoyed that stuff isn't being covered. For instance, repeatedly, a reader/viewer (fine, this reader/viewer) did not get a real sense of what exactly SOPA does that bothers people. Instead, we get a lot of commentary and political theater (talk about how people opposed SOPA, seeing it as a threat, but I still didn't quite understand why exactly) and general comments. So, Rachel Maddow notes the irony of anti-union legislation being passed in the state that will provide the field for the Super Bowl (remember, sports are unionized) and reports in general about efforts to pass such legislation and opposition to it, but what exactly does the legislation entail? Details!

The issue here is "right-to-work" legislation, a nice bit of framing. A bit of history, including a 1947 federal law that deals with political contributions (sorta relevant these days) which "allowed states to prohibit unions from collecting fees from non-members or making membership mandatory," would be very helpful here. It is particularly important in Indiana since it is a type of swing state, one that "straddles the union and non-union regions of the country, a buffer between the country's unionized northern block and anti-union South and West." Instead of spending ten minutes rambling about Mitt Romney, perhaps a segment could be included to discuss such details, including how unions are harmed when free riders are helped by union efforts that they need not pay for. Shades of the health insurance debate?

And, one claim made is that these laws are economically valuable to the state. True or not? Is the debatable value there superseded by the importance of not weakening unions or perhaps some other factor? It would be helpful if Rachel Maddow and others do more to address these issues, though the link underlines that some are doing the heavy lifting. It is appreciated that RW brings to the forefront various issues that deserve to be out there but necessary context is sometimes lacking. This and the rather predictable nature of the coverage (good sources sometimes surprise you, everything rarely black/white) is a major problem in news commentary today. MSNBC/Current/Democracy Now! all have this problem from my experience. Chris Hayes, helped by having at least one dissenting voice on board, seems to do a somewhat better job at times. Other sources might too.

But, if at times coming at things from different directions (liberal, conservative, allegedly neutral etc.), sources all over are too incomplete.

Clyde

Another family member (not me) gets a cat. They are taking over.

Death Comes To Pemberley

P.D. James provides something of a bland account, with only Darcy having much presence, of a mystery in the world of Pride & Prejudice. The two allusions to later novels are amusing but wrong as a matter of dating. Disappointing if okay addition to pseudo-Austen universe.

"Thank you so much"

A favorite line of the faux Southern gal on The Closer, Gingrich's daughter ended her appearance on MSNBC last night with a real Southern version. Not sure if she meant it as a "fu" as Brenda Leigh sometimes does. She's from the first wife. Let's draw this thing out!

Pro Bowl

I missed the game, shame, but I finally checked the score -- 100 points, AFC winning by 18. Here I thought the AFC was something of an underdog. Won 4Q. Newbie Newton threw three interceptions.